Bondev (Midrand) (Pty) Ltd v Van Blerk and Others (909/2014) [2019] ZAGPPHC 466 (30 August 2019)

Bondev (Midrand) (Pty) Ltd v Van Blerk and Others (909/2014) [2019] ZAGPPHC 466 (30 August 2019)

The court found that the applicant's enrolment of the 'New' Notice of Motion together with the main application was irregular, as no leave had been granted for the supplementary affidavit and the ancillary relief sought amounted to an amendment of the original notice of motion. The applicant failed to comply with Rule 28, depriving the respondent of the opportunity to object and causing prejudice through wasted costs and procedural confusion. However, in the interests of justice, the court allowed the filing of the supplementary affidavit to ensure all relevant facts were before the court. The court ordered that the further prayers in the 'New' Notice of Motion be dealt with in accordance...

Citation
[2019] ZAGPPHC 466
Parties
Applicant: Bondev (Midrand) (Pty) Ltd; Respondent: Christina Maria Sybella van Blerk; Respondent: Registrar of Deeds, Pretoria; Respondent: The Standard Bank of South Africa Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 August 2019
Case Number
909/2014
Procedural Posture
Civil Application / Application for Leave to File Supplementary Affidavit and Irregular Proceedings Application
Outcome
The application for leave to file a supplementary affidavit is granted. The applicant is ordered to pay wasted costs and costs of the application. Further prayers in the 'New' Notice of Motion must comply with Rule 28 procedures.
Judges
van Greunen
Legal Topics
Amendment of Notice of Motion, Rule 28 Uniform Rules, Irregular Proceedings, Supplementary Affidavit, Wasted Costs, Counter Application
Civil Procedure Amendment of Notice of Motion Rule 28 Uniform Rules Irregular Proceedings Supplementary Affidavit Wasted Costs Counter Application

Case Brief

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Parties

Bondev (Midrand) (Pty) Ltd

Applicant

Christina Maria Sybella van Blerk

Respondent

Registrar of Deeds, Pretoria

Respondent

The Standard Bank of South Africa Limited

Respondent

Procedural Posture

Civil Application / Application for Leave to File Supplementary Affidavit and Irregular Proceedings Application

Legal Issues

  1. 1 Whether the applicant's enrolment of the 'New' Notice of Motion together with the main application was irregular.
  2. 2 Whether the applicant was entitled to file a further supplementary affidavit without following Rule 28 procedures.
  3. 3 Whether the ancillary relief sought in the 'New' Notice of Motion constitutes an amendment requiring compliance with Rule 28.

Ratio Decidendi

The court found that the applicant's enrolment of the 'New' Notice of Motion together with the main application was irregular, as no leave had been granted for the supplementary affidavit and the ancillary relief sought amounted to an amendment of the original notice of motion. The applicant failed to comply with Rule 28, depriving the respondent of the opportunity to object and causing prejudice through wasted costs and procedural confusion. However, in the interests of justice, the court allowed the filing of the supplementary affidavit to ensure all relevant facts were before the court. The court ordered that the further prayers in the 'New' Notice of Motion be dealt with in accordance...

Court Disposition

The application for leave to file a supplementary affidavit is granted. The applicant is ordered to pay wasted costs and costs of the application. Further prayers in the 'New' Notice of Motion must comply with Rule 28 procedures.

Orders

  • The applicant shall bear the wasted costs of the First Respondent occasioned by the enrolment of the main application.
  • The applicant is granted leave to file the further supplementary affidavit.