Changing Tides (Pty) Limited N.O. v Engelbrecht and Another (4078/2016) [2017] ZAFSHC 60 (20 April 2017)

Changing Tides (Pty) Limited N.O. v Engelbrecht and Another (4078/2016) [2017] ZAFSHC 60 (20 April 2017)

The court found that the applicant should have, with reasonable diligence, become aware of the substantive merits of the respondent's defence shortly after the opposing affidavit was filed. The applicant's persistence with the summary judgment application was unjustified, especially after consenting to leave to defend. The respondent's delay in filing the opposing affidavit was not excused by mutual agreement and was attributable to his own conduct. The costs of certain postponements were allocated according to which party was responsible for the delay or unpreparedness. The general costs of the summary judgment application were awarded against the applicant, as the application was...

Citation
[2017] ZAFSHC 60
Parties
Applicant: Changing Tides (Pty) Limited N.O.; Respondent: Niekie Engelbrecht; Respondent: Sonette Engelbrecht
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
20 April 2017
Case Number
4078/2016
Procedural Posture
Summary Judgment Application / Costs Determination Following Leave to Defend Granted
Outcome
Costs apportioned between applicant and respondent according to responsibility for postponements and conduct in the summary judgment application.
Judges
MH Rampai
Legal Topics
Summary Judgment, Costs Award, Leave to Defend, Rule 32, Postponement Costs
Civil Procedure Summary Judgment Costs Award Leave to Defend Rule 32 Postponement Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Changing Tides (Pty) Limited N.O.

Applicant

Niekie Engelbrecht

Respondent

Sonette Engelbrecht

Respondent

Procedural Posture

Summary Judgment Application / Costs Determination Following Leave to Defend Granted

Legal Issues

  1. 1 Should the applicant or respondent bear the costs of various postponements and the summary judgment application.
  2. 2 Did the applicant act reasonably in persisting with the summary judgment application after the respondent filed an opposing affidavit.
  3. 3 Was the respondent's delay in filing the opposing affidavit justified.

Ratio Decidendi

The court found that the applicant should have, with reasonable diligence, become aware of the substantive merits of the respondent's defence shortly after the opposing affidavit was filed. The applicant's persistence with the summary judgment application was unjustified, especially after consenting to leave to defend. The respondent's delay in filing the opposing affidavit was not excused by mutual agreement and was attributable to his own conduct. The costs of certain postponements were allocated according to which party was responsible for the delay or unpreparedness. The general costs of the summary judgment application were awarded against the applicant, as the application was...

Court Disposition

Costs apportioned between applicant and respondent according to responsibility for postponements and conduct in the summary judgment application.

Orders

  • The reserved costs of the postponements on 20 October 2016 and 27 October 2016 shall be borne and paid by the respondent.
  • The costs of the postponements reserved on 3 November 2016 and 15 December 2016 shall be borne and paid by the applicant.