C.P.M v N.E.M (18195/2022) [2023] ZAGPJHC 1244 (30 October 2023)

C.P.M v N.E.M (18195/2022) [2023] ZAGPJHC 1244 (30 October 2023)

The court found that the delay in filing the opposing affidavit was not inordinate and that the defendant made reasonable efforts to comply with the Rules; thus, condonation was granted. The application to strike out was granted as the defendant failed to show sufficient prejudice from the challenged paragraphs. Leave to amend paragraph 3 of the counterclaim was granted, as the amendment clarified the duration of the plaintiff's alleged extra-marital affairs and did not prejudice the plaintiff, who would have the opportunity to respond. However, leave to amend paragraphs 4, 5, and 12A was refused, as the information was within the defendant’s knowledge from the outset and its late...

Citation
[2023] ZAGPJHC 1244
Parties
Defendant: C.P.M; Plaintiff: N.E.M
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 October 2023
Case Number
18195/2022
Procedural Posture
Civil Application / Application to Amend Counterclaim; Application for Condonation; Application to Strike Out
Outcome
Condonation for late filing of opposing affidavit granted; application to strike out granted; leave to amend paragraph 3 granted; leave to amend paragraphs 4, 5, and 12A refused; each party to pay own costs.
Judges
Thupaatlase
Legal Topics
Amendment of Pleadings, Condonation, Strike Out Application, Forfeiture of Marital Benefits, Oral Agreements, Acknowledgment of Debt
Civil Procedure Family and Children Amendment of Pleadings Condonation Strike Out Application Forfeiture of Marital Benefits Oral Agreements Acknowledgment of Debt

Case Brief

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Parties

C.P.M

Defendant

N.E.M

Plaintiff

Procedural Posture

Civil Application / Application to Amend Counterclaim; Application for Condonation; Application to Strike Out

Legal Issues

  1. 1 Whether condonation for the late filing of the opposing affidavit should be granted.
  2. 2 Whether the application to strike out portions of the opposing affidavit should succeed.
  3. 3 Whether leave to amend paragraph 3 of the counterclaim should be granted.

Ratio Decidendi

The court found that the delay in filing the opposing affidavit was not inordinate and that the defendant made reasonable efforts to comply with the Rules; thus, condonation was granted. The application to strike out was granted as the defendant failed to show sufficient prejudice from the challenged paragraphs. Leave to amend paragraph 3 of the counterclaim was granted, as the amendment clarified the duration of the plaintiff's alleged extra-marital affairs and did not prejudice the plaintiff, who would have the opportunity to respond. However, leave to amend paragraphs 4, 5, and 12A was refused, as the information was within the defendant’s knowledge from the outset and its late...

Court Disposition

Condonation for late filing of opposing affidavit granted; application to strike out granted; leave to amend paragraph 3 granted; leave to amend paragraphs 4, 5, and 12A refused; each party to pay own costs.

Orders

  • Condonation for late filing of opposing affidavit is granted.
  • Application to strike out is granted.