SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 129431/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
29 October 2025
In the matter between:
MARIA BUSISIWE MYANGO First Applicant
(In both her personal and capacity as the executrix
of the estate of the Makulani Julias Myango)
THANDO MYANGO Second Applicant
ZANELE MYANGO Third Applicant
OCCUPIERS OF ERF 3[…] MOROKA TOWNSHIP Fourth Applicant
and
INTIBANE PROPERTIES (PTY) LTD First Respondent
DR SIMON KOOPEDI Second Respondent
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY Third Respondent
SHERIFF SOWETO WEST Fourth Respondent
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WATT-PRINGLE AJ:
1. This is an application for rescission of an eviction order granted by defaul t by
Coppin J on 29 May 2023 under case number 22/25441 and for an order
granting the applicants leave to file an answering affidavit in the eviction
proceedings within 20 court days from the order.
2. Before I deal with the merits of this matter, I place on record that the manner in
which documents filed of record were uploaded onto CaseLines is shamboli c.
This, coupled with the absence of a sufficiently detailed index to all papers filed
of record in multiple applications makes it nigh impossible to find one’s way
through the documents, or even to know whether all documents filed of record
are accounted for on CaseLines.
2
3. This application is brought pursuant to rule 42, alternatively the common law.
4. Insofar as this application relies on the common law basis of “ sufficient cause”,
the requirements of that remedy are an adequate explanation for the
applicant’s default and that the applicants have a bona fide defence to the
eviction application, which has prospects of success.
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5. The applicants are the occupiers of a residential property, E rf 3[…], Moroka
Township (“the property”) . The first applicant is cited both in her personal
1 It would appear that the case number on the order of Coppin J is different to the case number in the
papers (22/2544) which gave rise to that order. I sought in vain for a copy of the court order in the
uploaded papers.
2 By way of example, under ”Pleadings”, the only documents uploaded are two copies of the same
second respondent’s answering affidavit, second respondent’s heads of argument (which obviously
do not constitute pleadings) and a notice of motion dated 11 December 2023 which contains the
prayers in Part B which I am required to deal with. This arbitrary use of CaseLines is exemplified by
the ‘pleadings” section, under various arbitrary headings.
3 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 764J – 765C
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capacity and as executor of the estate late Makulani Julias Myango (“the
deceased”).
6. The first respondent is an entity which is the current owner of the property and
the party in whose favour the eviction order was granted by Coppin J. The
second respondent is the previous owner from whom, so it is alleged, the
property was “ purchased” pursuant to a verbal agreement concluded by the
first applicant’s late parents, one of whom is the deceased, prior to its transfer
to the first respondent . The applicants’ alleged defence to the eviction
application which resulted in the order for their eviction hinges on this alleged
agreement.
7. Since the property constitutes immovable property subject to the Alienation of
Land Act 68 of 1981, the purported sale of the property would on the
applicants’ version be of no legal force or effect by virtue of section 2 of the Act.
It is also common cause that the property was never transferred pursuant to
any such agreement, and that the first respondent is now the registered owner
of the property.
8. It therefore appears on the face of it that the applicants have not established
any legal right before me to remain in occupation of the property . Whether they
manage to do so in the affidavit they seek leave to deliver is another matter, on
which I for obvious reasons express no view.
9. I now turn to the applicants’ reliance on rule 42 and that the order for eviction
was erroneously sought and erroneously granted.
10. The relevant chronology is as follows. The applicants had appointed an
attorney, Mr Gudlhuza of SP Gud lhuza Attorneys Inc . to represent them in the
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eviction proceedings. The applicants also signed an answering affidavit in that
application on 20 June 2022, which unbeknown to them, was never filed on
their behalf. Mr Gudlhuza was suspended from practice as a legal practitioner
on 6 December 2022, notice of set-down of the eviction application was served
on Mr Gudlhuza as attorney o f record on 8 April 2023 and the eviction order
was granted on 29 May 2023 in the absence of any appearance for the
applicants. There was an attempt to execute the order on 24 July 2023. Mr
Gudlhuza was struck from the roll of legal practitioners on 3 August 2023.
11. It is appearent that neither the applicants, nor the first respondent which was
the applicant in the eviction application, were aware of Mr Gudlhuza’s
suspension. This was the position when the first respondent’s legal
representatives sought judgment by default bef ore Coppin J. It goes without
saying that the learned judge too was unaware of Mr Gudlhuza’s suspension.
12. It is on this basis that the applicants rely on rule 42 for their claim for rescission
of judgment.
13. In Rossitter v Nedbank Ltd 2015 JDR 2629 (SCA) the Supreme Court of
Appeal conveniently summarised the relevant principles applicable to an
application such as this:
“The law governing an application for rescission under Uniform rule 42(1)(a) is
trite. The applicant must show that the default judgment or order had been
erroneously sought or erroneously granted. If the default judgment was
erroneously sought or granted, a court should, without more, grant the order for
rescission. [3] It is not necessary for a party to show good cause under the
subrule. [4] Generally a judgment is erroneously granted if there existed at the
time of its issue a fact which the court was unaware of, which would have
precluded the granting of the judgment and which would have induced the
court, if aware of it, not to grant the judgment. [5] There can be no doubt that if
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the registrar had been made aware of the procedural defect in the rule 31(5)(a)
notice, default judgment would not have been granted. In Lodhi 2 Properties
Investments CC v Bondev Development (Pty) Ltd 2007 (6) SA 87 (SCA) ,
Streicher JA held that if notice of proceedings to a party was required but was
lacking and judgment was given against that party such judgment would have
been erroneously granted.”
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14. First respondent ’s attorney who appeared before me did not contest the
proposition that had Coppin J been informed that the notice of sit down had
been served on the applicants erstwhile attorney after he was no longer
permitted to practice, the learned judge would not have proceeded to decide
the matter in the absence of the applicants. Nor that, had first respondent’s
legal representative appearing before Coppin J been aware of these facts,
there would have been a duty to disclose these facts to the court.
15. It follows that the order was both erroneously sought by the first respondent
and erroneously granted by Coppin J in ignorance of the fact that there had
been no proper notice to the respondents in that matter.
16. The application for rescision must accordingly succeed.
17. I now turn to the issue of costs.
18. It is apparent that one of the reasons for the matter being heard in the absence
of the applicants was that, once they had signed an answering affidavit, they
failed to take any interest in the matter, despite the months of apparent
inaction. They furthermore based the application for rescission on the obviously
4 The footnotes in this passage are:
[3] Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E) at 471G.
[4] National Pride Trading 452 (Pty) Ltd v Media 24 Ltd 2010 (6) SA (ECP) at 597I-598B.
[5] Erasmus: Superior Court Practice 2 ed (Revision Service 1, 2015) Vol 2 at D1- 567. See
also Naidoo v Matlala NO 2012 (1) SA 143 (GNP) at 153C.
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baseless ground that they had a defence to the eviction application when
clearly, on the affidavits before me, they do not.
19. Conversely, the first respondent, on becoming aware of the fact that Mr
Gudlhuza had been suspended from practice when the set -down was served
on his office, ought to have apprec iated that recsission would follow on the
grounds set out above.
20. As for the second respondent, he delivered an answering affidavit in which he,
with some justification, complaimned that his joinder was a misjoinder, but not
content with taking that point, and despite there being no relief sought against
him save in the event of his opposition, he launched into the merits both in his
answering affidavit and in argument before me.
21. I the circumstances, all thre e parties contributed to needless costs being
incurred both by themselves and by the other parties. I am therefors not
inclined to hold any of the parties liable for the costs of any other party.
22. In the circumstances I make the following order:
1. The order granted by Coppin J on on 29 May 2023 under case number
22/2544 is hereby rescinded.
2. The applicants are given leave to deliver answering affidavits within 20 court
days of this order.
3. There is no order as to costs.
_______________________
REGISTRAR
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________________________________________
CE WATT-PRINGLE
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Electronically submitted therefore unsigned
Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 29 October 2025.
Date of hearing: 28 May 2025
Date of judgment: 29 October 2025
Appearances
Counsel for the Applicant: M Mavhungu
Attorneys for the Applicant : Sithi & Thabela Attorrneys
Attorney for the First Respondent: S Twala of S. Twala Attorneys
Attorney for the Second Resppondent: Brian Khanyile of Khanyile MB Attorneys