Callis N.O v York (3108/2021) [2021] ZAFSHC 179 (2 August 2021)

Callis N.O v York (3108/2021) [2021] ZAFSHC 179 (2 August 2021)

The court found that the applicant's procedural error in the notice regarding time frames was rectified prior to the hearing and communicated to the respondent. The respondent's insistence on proceeding with argument during the Unopposed Motion Court Roll constituted an ambush of both the applicant and the court, resulting in procedural unfairness. The applicant was caught off guard and not prepared for the respondent's prompt and unusual application. In the interests of justice and fairness, the matter was postponed to the Opposed Motion Court Roll to allow both parties adequate time to prepare and ventilate the issues. Costs for the hearing were ordered to be in the cause.

Citation
[2021] ZAFSHC 179
Parties
Applicant: James Andrew Callis N.O.; Respondent: Derek York
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
2 August 2021
Case Number
3108/2021
Procedural Posture
Civil Application / Postponement to Opposed Motion Court Roll
Outcome
Matter postponed to the Opposed Motion Court Roll; costs for the hearing to be in the cause.
Judges
Opperman
Legal Topics
Motion Court Procedure, Postponement, Costs in the Cause, Unopposed Vs Opposed Roll
Civil Procedure Motion Court Procedure Postponement Costs in the Cause Unopposed Vs Opposed Roll

Case Brief

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Parties

James Andrew Callis N.O.

Applicant

Derek York

Respondent

Procedural Posture

Civil Application / Postponement to Opposed Motion Court Roll

Legal Issues

  1. 1 Whether the matter was properly set down on the Unopposed Motion Court Roll.
  2. 2 Whether the applicant's procedural error prejudiced the respondent.
  3. 3 Whether the respondent's conduct ambushed the applicant and the court.

Ratio Decidendi

The court found that the applicant's procedural error in the notice regarding time frames was rectified prior to the hearing and communicated to the respondent. The respondent's insistence on proceeding with argument during the Unopposed Motion Court Roll constituted an ambush of both the applicant and the court, resulting in procedural unfairness. The applicant was caught off guard and not prepared for the respondent's prompt and unusual application. In the interests of justice and fairness, the matter was postponed to the Opposed Motion Court Roll to allow both parties adequate time to prepare and ventilate the issues. Costs for the hearing were ordered to be in the cause.

Court Disposition

Matter postponed to the Opposed Motion Court Roll; costs for the hearing to be in the cause.

Orders

  • The matter is postponed to the Opposed Motion Court Roll of 16 September 2021.
  • The first respondent is granted relief to supplement their Answering/Opposing Affidavit filed on 27 July 2021, if necessary.