Changing Tides 17 (Pty) Ltd N.O v Ralutanda (20449/2021) [2023] ZAGPPHC 1878 (10 November 2023)

Changing Tides 17 (Pty) Ltd N.O v Ralutanda (20449/2021) [2023] ZAGPPHC 1878 (10 November 2023)

The court found that it could not decide the matter on the papers filed because the respondent's statement was not commissioned and could not be regarded as an affidavit. Recognising the respondent's status as a layperson and her inability to afford legal representation, the court deemed it in the interests of justice to postpone the matter to allow the respondent to file a proper answering affidavit. The court retained the matter and provided the respondent with an opportunity to obtain pro bono legal assistance. Costs occasioned by the postponement were ordered to be costs in the cause.

Citation
[2023] ZAGPPHC 1878
Parties
Applicant: Changing Tides 17 (Pty) Ltd N.O.; Respondent: P D. Ralutanda
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 November 2023
Case Number
20449/2021
Procedural Posture
Default Judgment / Postponement Pending Answering Affidavit
Outcome
The application for default judgment and the Rule 46A application is postponed sine die, with costs in the cause.
Judges
E van der Schyff
Legal Topics
Rule 46a Application, Default Judgment, Primary Residence Execution, Settlement Agreement, Irregular Proceedings
Civil Procedure Land and Property Rule 46a Application Default Judgment Primary Residence Execution Settlement Agreement Irregular Proceedings

Case Brief

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Parties

Changing Tides 17 (Pty) Ltd N.O.

Applicant

P D. Ralutanda

Respondent

Procedural Posture

Default Judgment / Postponement Pending Answering Affidavit

Legal Issues

  1. 1 Whether the court should grant default judgment and authorise execution against the respondent's primary residence under Rule 46A.
  2. 2 Whether the respondent's uncommissioned statement can be accepted as an affidavit.
  3. 3 Whether the interests of justice require postponement to allow the respondent to properly place her version before the court.

Ratio Decidendi

The court found that it could not decide the matter on the papers filed because the respondent's statement was not commissioned and could not be regarded as an affidavit. Recognising the respondent's status as a layperson and her inability to afford legal representation, the court deemed it in the interests of justice to postpone the matter to allow the respondent to file a proper answering affidavit. The court retained the matter and provided the respondent with an opportunity to obtain pro bono legal assistance. Costs occasioned by the postponement were ordered to be costs in the cause.

Court Disposition

The application for default judgment and the Rule 46A application is postponed sine die, with costs in the cause.

Orders

  • The application for default judgment and the Rule 46A application is postponed sine die, costs are costs in the cause.
  • The matter is retained by Van der Schyff J.