Don Andrew Watt v George Fanyana Malobola and Family and Others

The First Respondent (Malobola) brought an urgent application against the Applicant (Watt) and two other respondents on 29 June 2023 in case LCC83/2023. The Land Court issued a Rule Nisi returnable on 31 July 2023 with directives for service by 3 July 2023. According to the Deputy Sheriff's return of service, Watt was personally served on 30 June 2023 at 15h00, though Watt disputed this and claimed he only received the papers from his brother George Watt on 28 July 2023. On the return date (31 July 2023), Watt did not appear but sent his attorney Mr Thinane to apply for a postponement. The postponement was refused and the Rule Nisi was confirmed in Watt's absence. Watt alleged he was frequently away on business trips to South Africa, Zimbabwe and Nigeria and was not on the farm during the period of alleged atrocities. The rescission application was signed on 4 September 2023 but only delivered on 20 September 2023 by his erstwhile attorney, making it 26 days late (the rule required filing within 20 days).

• Whether condonation should be granted for the late filing of the rescission application (filed 26 days after becoming aware of the order instead of the required 20 days)
• Whether Rule 58(6) and (7) or Rule 64 of the Land Court Rules applies to the rescission application
• Whether the Applicant showed good cause for rescission in terms of Rule 58(7)
• Whether the Applicant provided a reasonable and satisfactory explanation for his default
• Whether the Applicant has a bona fide defence with prima facie prospects of success
• Whether the interest of justice favours granting the rescission

1. The application for condonation for late delivery of the rescission application is granted. 2. The confirmed Rule Nisi granted on 31 July 2023 is discharged. 3. The Applicant is granted leave to file his Answering Papers to the First Respondent's Founding Affidavit within 15 days in the urgent application LCC83/2023 from the date he becomes aware of this order. 4. No order as to costs.

An application for rescission of a default judgment in terms of Rule 58(6) and (7) of the Land Court Rules requires: (1) filing within 20 days of becoming aware of the judgment or order (subject to condonation); and (2) proof of good cause, which comprises: (a) a reasonable and satisfactory explanation for the default, and (b) a bona fide defence with prima facie prospects of success. Condonation for late filing should be assessed on the interest of justice standard, considering the extent and cause of delay, reasonableness of explanation, importance of issues, and prospects of success. Where delay is caused by an attorney's failure rather than the client's fault, and there are substantive issues requiring proper adjudication, condonation should be granted in the interest of justice. The interest of justice may require rescission where there are contradictions and uncertainties in the applicant's case that need proper ventilation through a full hearing on the merits.

The court noted that there was an anomaly in the case because although the Applicant was absent from court, his legal representative Mr Thinane was present. The court gave the Applicant 'the benefit of doubt' and treated the order as having been granted in his absence. The court also observed that there were 'loopholes in the version of the First Respondent,' particularly regarding contradictions about whether he described himself as an occupier or labour tenant in different court papers, and whether he was using the farm for commercial purposes. The court stated that 'it is also important for the case to be properly ventilated with the First Respondent clarifying his status whether he is a labour tenant or occupier and whether he was using the farm for commercial purposes.' The court reiterated that 'the practice in this court, is not to award costs unless there are exceptional circumstances justifying an award of costs.'

This judgment illustrates the Land Court's application of the Constitutional Court's approach that condonation and rescission applications should be decided on the interest of justice rather than strict technical compliance. It demonstrates the court's willingness to excuse procedural defaults where: (1) the delay was caused by an attorney rather than the client, (2) there are disputes about proper service, (3) there are substantive issues requiring proper ventilation, and (4) there are prima facie prospects of success on the merits. The case also clarifies the distinction between Rule 64 (rescission for ambiguity/error) and Rule 58(6)-(7) (rescission for default) in the Land Court Rules. It reinforces that the practice in the Land Court is not to award costs unless there are exceptional circumstances.