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REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT

JOHANNESBURG

CASE NO: 11451/13

DATE: 17 OCTOBER 2015

In the matter between:

KELSEY BIENOSE..................................................................................................................Applicant

And

52 HOPKINS STREET CC….....................................................................................First Respondent

THE CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY.......Second Respondent

JUDGEMENT

CARSTENSEN AJ:

1. The Applicant, Kelsey Bienose, seeks a rescission of judgement granted in the absence of the Applicant on the on the 29th of July 2013 in terms of which the Applicant was ordered to vacate residential premises.

2. The Applicant states that he did not receive the notice of set down in order to explain his absence of wilful default and also states that the owner of the premises is not 52 Hopkins Street CC, but rather Fifty Two Hopkins Street CC.

3. The judgement was indeed entered into the name of 52 Hopkins Street CC.

4. In the notice of intention to oppose the eviction application, the Applicant appointed an address of 21 Loriwa Court, 50 Esselent Street, corner Court Street, Hillbrow, Johannesburg.

5. The notice of set down was indeed served by candidate attorney Surtee at that address. Consequently, there was proper service.

6. In addition, the Applicant does not explain why, after serving the notice of intention to defend, he did not file an answering affidavit in the eviction application from the 19th of April 2013 until the 9th of July 2013 when, on his version, he attended court.

7. In regards to the defence, the Applicant admits having entered into an oral agreement of lease with Fifty Two Hopkins Street CC, who is in fact the legal registered owner of the property with registration number 1991/0136618/23. This was the registration number used in the main application for eviction and consequently, I am satisfied that in the eviction application this would not have amounted to a defence.

8. Consequently, the Applicant has shown no prospects of success in respect of his defence.

9. In the premises, I make the following order:

9.1. the application for rescission is dismissed with costs.

P L CARSTENSEN

ACTING JUDGE OF THE HIGH COURT

HEARD: 13 OCTOBER 2014

DELIVERED: 17 OCTOBER 2014

COUNSEL FOR APPLICANT: IN PERSON

INSTRUCTED BY:

COUNSEL FOR RESPONDENT: ADV. G REBELO

INSTRUCTED BY: FULLARD MAYER MORRISON ATTORNEYS

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