Dlakavu and Another v Mthatha Nine (Pty) Ltd

The Second Applicant granted the Respondent a written option on 31 January 2018 to lease erf 583 Ncise, Mthatha, which would be followed by a notarial lease. After negotiations, several addenda were concluded on 3 July 2018 varying rental amounts, extending the option period, and allowing time for transfer of the property to a family trust. The Respondent exercised the option on 29 January 2019, concluded a sub-lease with Spar Group Limited, and entered into a construction contract. The Second Applicant later refused to sign the notarial lease and vacate the property. On 27 June 2019, the High Court granted declaratory and coercive relief enforcing the option and authorising the sheriff to sign the notarial lease. The Applicants thereafter applied for rescission of that judgment on the common-law ground of fraud and for removal of the matter to the High Court in Mthatha.

The application for rescission of the judgment of 27 June 2019 was dismissed; the application for removal of the matter to the Eastern Cape Local Division, Mthatha, was dismissed; the Second Applicant was ordered to pay the costs of both applications on a party-and-party scale, including reserved costs.

The case reaffirms the stringent requirements for rescission of judgments on the common-law ground of fraud, emphasising that bald or implausible allegations will be rejected on the papers. It underscores the necessity of locus standi and proper joinder, and confirms that interested third parties must be notified in rescission applications where their rights may be affected. The judgment also illustrates the continued application of the Plascon-Evans rule in motion proceedings.