Banco De Mocambique v Morulat Property Investments 4 (Pty) Ltd (2015/36648; A5024/2021) [2022] ZAGPJHC 492 (22 July 2022)

Banco De Mocambique v Morulat Property Investments 4 (Pty) Ltd (2015/36648; A5024/2021) [2022] ZAGPJHC 492 (22 July 2022)

The court found that, on the unusual facts of this case, the first discovery affidavit was not irregular because the appellant's attorney possessed greater knowledge of the relevant facts than any employee of the appellant. The legal concession made by previous counsel regarding the need for a client-signed affidavit was a mistake of law and does not bind the appellant. The delay in filing the second affidavit was adequately explained by the circumstances, including the Covid lockdown and cross-border challenges. The second affidavit was identical in substance to the first and did not prejudice the respondent. The court held that condonation for the late filing should be granted and that...

Citation
[2022] ZAGPJHC 492
Parties
Appellant: Banco De Mocambique; Respondent: Morulat Property Investments 4 (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 July 2022
Case Number
2015/36648; A5024/2021
Procedural Posture
Civil Appeal / Appeal From Order Dismissing Defence to Damages Action; Application for Condonation
Outcome
Appeal upheld; order dismissing appellant's defence set aside; late filing of discovery affidavit condoned.
Judges
Dippenaar, Yacoob, Manoim
Legal Topics
Discovery Affidavit, Condonation, Duty of Care, Error of Law, Late Filing
Civil Procedure Delict Discovery Affidavit Condonation Duty of Care Error of Law Late Filing

Case Brief

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Parties

Banco De Mocambique

Appellant

Morulat Property Investments 4 (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Order Dismissing Defence to Damages Action; Application for Condonation

Legal Issues

  1. 1 Whether it was competent for the attorney to depose to the discovery affidavit instead of the client.
  2. 2 Whether the appellant is bound by a legal concession made by its counsel regarding the discovery affidavit.
  3. 3 Whether the late filing of the appellant's discovery affidavit should be condoned.

Ratio Decidendi

The court found that, on the unusual facts of this case, the first discovery affidavit was not irregular because the appellant's attorney possessed greater knowledge of the relevant facts than any employee of the appellant. The legal concession made by previous counsel regarding the need for a client-signed affidavit was a mistake of law and does not bind the appellant. The delay in filing the second affidavit was adequately explained by the circumstances, including the Covid lockdown and cross-border challenges. The second affidavit was identical in substance to the first and did not prejudice the respondent. The court held that condonation for the late filing should be granted and that...

Court Disposition

Appeal upheld; order dismissing appellant's defence set aside; late filing of discovery affidavit condoned.

Orders

  • The appeal is upheld with costs, including the costs of the application for leave to appeal and the costs of two counsel, where employed.
  • The order of the court a quo dismissing the appellant’s defence to the action is set aside.