Andre v Andre (3275/2013) [2014] ZAECPEHC 2 (4 February 2014)

Andre v Andre (3275/2013) [2014] ZAECPEHC 2 (4 February 2014)

The Court held that the applicant failed to comply with the requirements for urgent relief under Rule 6(12)(b) by not making explicit averments of urgency in his founding affidavit. The mere fact that the application was for a spoliation order did not exempt him from this procedural requirement. Furthermore, the Court found that there was a genuine dispute of fact regarding possession and consent to removal of the items, which could not be resolved on the papers. The lack of urgency was decisive, and the application was struck from the roll with costs.

Citation
[2014] ZAECPEHC 2
Parties
Applicant: Paul Jacques André; Respondent: Lynette André
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
4 February 2014
Case Number
3275/2013
Procedural Posture
Urgent Application / Application for Spoliation Order Heard on Urgent Basis; Opposed on Urgency and Merits
Outcome
Application struck from the roll for lack of urgency; costs awarded against applicant.
Judges
P.W. Tshiki
Legal Topics
Spoliation, Mandament Van Spolie, Urgency in Motion Proceedings, Dispute of Fact, Rule 6 12 B
Civil Procedure Spoliation Mandament Van Spolie Urgency in Motion Proceedings Dispute of Fact Rule 6 12 B

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Paul Jacques André

Applicant

Lynette André

Respondent

Procedural Posture

Urgent Application / Application for Spoliation Order Heard on Urgent Basis; Opposed on Urgency and Merits

Legal Issues

  1. 1 Whether the application should be treated as urgent.
  2. 2 Whether the applicant has complied with the requirements for urgent relief under Rule 6(12)(b).
  3. 3 Whether there is a genuine dispute of fact that cannot be resolved on the papers.

Ratio Decidendi

The Court held that the applicant failed to comply with the requirements for urgent relief under Rule 6(12)(b) by not making explicit averments of urgency in his founding affidavit. The mere fact that the application was for a spoliation order did not exempt him from this procedural requirement. Furthermore, the Court found that there was a genuine dispute of fact regarding possession and consent to removal of the items, which could not be resolved on the papers. The lack of urgency was decisive, and the application was struck from the roll with costs.

Court Disposition

Application struck from the roll for lack of urgency; costs awarded against applicant.

Orders

  • The matter is hereby struck off the roll.
  • The applicant is ordered to pay the costs of the application.