Assupol Life v Martin's Zeerust North West (Pty) Ltd (1042/2017) [2023] ZANWHC 200 (3 November 2023)

Assupol Life v Martin's Zeerust North West (Pty) Ltd (1042/2017) [2023] ZANWHC 200 (3 November 2023)

The court found that the defendant failed to demonstrate that the order of 11 August 2022 was erroneously granted. The defendant was represented at the hearing, and no facts existed that would have induced the judge not to grant the order. The matter was properly postponed to the opposed roll, and the defendant's failure to comply with previous orders precipitated the postponement. The application for rescission was therefore dismissed. The application to strike out paragraphs of the plaintiff's answering affidavit was also dismissed, as the content did not warrant striking out and complied with the rules of pleading. The conduct of the defendant's attorney was found to be grossly...

Citation
[2023] ZANWHC 200
Parties
Plaintiff: Assupol Life; Defendant: Martin's Zeerust North West (Pty) Ltd
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
3 November 2023
Case Number
1042/2017
Procedural Posture
Civil Application / Application for Rescission and Striking Out
Outcome
The application for rescission and the application to strike out paragraphs of the answering affidavit are dismissed with costs on an attorney and client scale. The conduct of the defendant's attorney is referred to the Legal Practice Council for investigation.
Judges
Mfenyana
Legal Topics
Rescission of Judgment, Rule 42 Application, Striking Out Scandalous Matter, Costs on Attorney and Client Scale
Civil Procedure Rescission of Judgment Rule 42 Application Striking Out Scandalous Matter Costs on Attorney and Client Scale

Case Brief

Summary, issues, holding and outcome

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Parties

Assupol Life

Plaintiff

Martin's Zeerust North West (Pty) Ltd

Defendant

Procedural Posture

Civil Application / Application for Rescission and Striking Out

Legal Issues

  1. 1 Whether the order of 11 August 2022 was erroneously granted and should be rescinded under Rule 42(1)(a).
  2. 2 Whether paragraphs 4 to 8, 10, 11.2 and 11.3 of the plaintiff's answering affidavit should be struck out as scandalous, insulting or defamatory.
  3. 3 Whether the conduct of the defendant's attorney warrants referral to the Legal Practice Council.

Ratio Decidendi

The court found that the defendant failed to demonstrate that the order of 11 August 2022 was erroneously granted. The defendant was represented at the hearing, and no facts existed that would have induced the judge not to grant the order. The matter was properly postponed to the opposed roll, and the defendant's failure to comply with previous orders precipitated the postponement. The application for rescission was therefore dismissed. The application to strike out paragraphs of the plaintiff's answering affidavit was also dismissed, as the content did not warrant striking out and complied with the rules of pleading. The conduct of the defendant's attorney was found to be grossly...

Court Disposition

The application for rescission and the application to strike out paragraphs of the answering affidavit are dismissed with costs on an attorney and client scale. The conduct of the defendant's attorney is referred to the Legal Practice Council for investigation.

Orders

  • The application for rescission is dismissed.
  • The application to strike out paragraphs 4 to 8, 10, 11.2 and 11.3 of the plaintiff's answering affidavit is dismissed.