Court sets aside land dispute default judgment
Mpho Mokwape | Tuesday June 2, 2026 11:06
Judge Reuben Lekorwe delivered the judgment on May 22, 2026, in a matter between Thebe Makati and Kelebogile Motlhale.
The case arose from a sale agreement entered into on March 1, 2022, in which Motlhale purchased a plot located in Goo-lonaka Ward in Gabane from Makati for P250,000.
According to court papers, Motlhale approached the High Court on July 4, 2024, seeking an order compelling Makati to sign documents necessary to transfer the plot into her name.
She also requested that if Makati failed to sign the documents, a Deputy Sheriff be authorised to sign on his behalf. In her original application, Motlhale told the court that she had paid the full purchase price for the property, but Makati had failed to transfer ownership as required under the agreement.
Court records show that Makati filed a notice of opposition on July 31, 2024, followed by an answering affidavit on August 16, 2024.
The matter was initially scheduled for a hearing on April 7, 2025. However, it was later rescheduled for a status update on June 23, 2025, after concerns emerged that Makati had not been notified of the earlier hearing date.
When the matter was called on June 23, 2025, Makati was absent from court, and Motlhale then moved for final relief, which the court granted in her favour.
The default judgment was based on an affidavit of service filed by Shanganani Mbulawa, an employee of Molobe and Associates.
In the affidavit, Mbulawa stated: “On the 19th June 2025 at 1445 hours, I served an application notice of setdown to the defendant Thebe Eric Makati by handing copies personally to him at his home place at Gabane.”
He further stated that the documents were served at Makati’s residence and that “the defendants acknowledged.” Following the granting of the order, Makati filed an urgent application on July 15, 2025, seeking a stay of execution and rescission of the judgment.
The stay application was heard by Justice Maphakwane, and the stay was granted pending the determination of the rescission application. The rescission application then came before Justice Lekorwe. In his application, Makati denied ever receiving notice of the June 23, 2025, hearing. He stated that he only became aware of the judgment on July 10, 2025, when he was approached by a Deputy Sheriff, who informed him that an order had been issued against him.
According to Makati, he was shocked by the development and visited the court registry the following day to verify the information. Makati argued that the affidavit of service filed in court was fraudulent and denied that he had been personally served with the notice of setdown. He told the court that during the period in question, he had been attending funeral-related meetings after the death of a relative.
Makati further argued that because he had not been notified of the hearing, the judgment had been “erroneously sought and erroneously granted” within the meaning of Order 48 Rule 1(a) of the Rules of the High Court. He also argued that he had a defence to the original claim, saying the sale agreement had already been terminated on October 5, 2023.
In addition, Makati told the court that Motlhale had failed to file a replying affidavit to challenge his answering affidavit, including his claim that the purchase price had not been fully paid. He also challenged a confirmatory affidavit filed by Seoketso Letsholo on February 3, 2025, arguing that it was submitted out of time without the court's leave.
Motlhale opposed the rescission application and, in her answering affidavit, maintained that she had fulfilled her obligations under the sale agreement and paid the purchase price in full. She accused Makati of delaying the transfer process and frustrating efforts to transfer the property into her name. On the issue of service, Motlhale relied on Mbulawa’s affidavit and argued that Makati had deliberately refused to sign for receipt of the notice.
She told the court that his refusal was “a calculated move intended to lay the groundwork for a rescission application”. However, Justice Lekorwe found inconsistencies between Motlhale’s version and the affidavit of service. In the judgment, the court noted that while Mbulawa stated that Makati had acknowledged service, Motlhale alleged that Makati refused to sign for receipt of the notice.
The judge observed that Mbulawa did not file any further affidavit explaining what he meant by “the defendant acknowledged.” Justice Lekorwe said this contradiction left unresolved questions about whether proper service had actually taken place.
“The mystery, therefore, remains unresolved,” the Judge said. The court further held that, because the applicant disputed service, it was necessary for the person alleging service to explain the circumstances under which it was effected. Justice Lekorwe ruled that Makati’s version that he had not been served should therefore be accepted.
“This, therefore, means the applicant’s version that he was never served should be accepted, as I hereby do,” the judge stated. The court held that the prima facie proof created by the affidavit of service had been successfully challenged. Justice Lekorwe added that where there was no proper service, any judgment granted in those circumstances would be considered to have been “erroneously sought and erroneously granted.”
The court ruled in favour of Makati and rescinded the order granted on June 23, 2025. “The order of this honourable court dated 23rd June 2025 be and is hereby rescinded and/or set aside,” the judgment stated.
The court also ordered Motlhale to pay the costs of the rescission application. Justice Lekorwe directed that the matter return to court on August 24, 2026, for a status hearing.