Sokhela and another v Mhlungu and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Ncube J |
| Judgment Date | 19 July 2023 |
| Citation | 2023 JDR 2651 (LCC) |
| Hearing Date | 16 May 2023 |
| Docket Number | LCC41/2019 |
Ncube J:
Introduction
This is opposed application for rescission of a judgment by default granted by this court on 29 November 2021 against applicants (“the Sokhela family”). Coupled with the rescission application is an application for the condonation of the late filing of the rescission application. There is a second and separate application brought by the two respondents (“the Mhlungu family”) herein where they seek a variation of the same order of 29 November 2021. That application is also opposed by the Sokhela family. I have decided to deal with both applications in one judgment for purposes of convenience.
Background Facts
The Sokhela family is resident on the farm registered and described in the Deeds Office as the Remaining Extent of Portion 9 of the Farm Virginia No 1823 (“the Virginia Farm”), held under Title Deed No T54726/2004. Adjacent to the Virginia farm, is another farm which is registered and described in the Deeds Office as Portion 9 of Lot 91 Farm No 1819 Boston-Kwethu (“the Kwethu Farm”), held under Title Deed No T24747/2001. Both these farms are owned by the Mhlungu family. When the Mhlungu family took ownership of the Virginia farm in 2004, from the previous owner Terrazone Properties CC, the Sokhela family was already on the farm. Terrazone had also inherited the Sokhela family from the erstwhile owner Mr Padmore.
On 09 April 2019 the Mhlungu family issued an eviction application against the Sokhela family out of this court. All the necessary documents indicated the farm from
2023 JDR 2651 p3
Ncube J
which the Sokhela family had to be evicted from as being the Boston-Kwethu farm, which is a wrong farm. For reasons that will be clear later in this judgment, the Sokhela family did not defend the eviction application. Consequently, and on 29 November 2021, the order for the eviction of the Sokhela family from the Boston- Kwethu farm, was granted in the absence of the Sokhela family. The present rescission application concerns that eviction order.
Condonation
Section 35 (11)(a) of the Restitution of Land Rights Act [1] (“the Act”) makes provision for the rescission of any order or judgment granted by the court in the absence of the person against whom that order or judgement was granted. The period within which the application should be brought and what must be established are stipulated in Rule 64 (2) of the Rules of the Land Claims Court. The application should be brought within ten (10) days from the date upon which the applicant became aware of the order and on good cause shown. In effect, in their application for condonation, the Sokhela family seeks condonation for non-compliance with the ten (10) days stipulated in the Rules.
In an application for condonation, the court must look at the degree of lateness, the explanation given for the lateness, the importance of the case, prospects of success in the main application, the respondent’s interest in the finality of the judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice. [2] The rescission application was brought four and half months
2023 JDR 2651 p4
Ncube J
late. However, the court has a discretion to condone the late filing of the said application if good or sufficient cause is shown. In Melane v Santam Insurance Co Ltd [3] Homes JA expressed himself in the following terms:-
“In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piece meal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked .............”
The explanation for the default given by the Sokhela family is that when they received the papers, they...
To continue reading
Request your trial