Da Cruz v Manzella and Others (21/42640) [2023] ZAGPJHC 238 (16 March 2023)

Da Cruz v Manzella and Others (21/42640) [2023] ZAGPJHC 238 (16 March 2023)

The court found that the respondents were precluded from relying on Rule 30 to set aside the applicant's interlocutory application because they had taken further steps in the proceedings, including filing a notice to oppose and an answering affidavit, before delivering the Rule 30 notice. Regarding the Rule 6(11) notice, the court held that the respondents' objection was overly technical and unjustified, as the content of the notice made it clear that the applicant intended to amend the notice of motion in accordance with Rule 28. The court further held that the objection to the joinder of the first respondent in her capacity as executor was a substantive issue to be determined in the...

Citation
[2023] ZAGPJHC 238
Parties
Applicant: Da Cruz, Manuel Jorge Maia; Respondent: Manzella, Patricia Marlene; Respondent: Solbel Properties CC; Respondent: Manzella, Patricia Marlene N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 March 2023
Case Number
21/42640
Procedural Posture
Interlocutory Application / Rule 30 Application to Set Aside Alleged Irregular Steps
Outcome
The respondents' Rule 30 application is dismissed with costs; the scale of costs is reserved for determination in the main application.
Judges
Turner
Legal Topics
Uniform Rule 30, Irregular Proceedings, Joinder, Costs Order
Civil Procedure Uniform Rule 30 Irregular Proceedings Joinder Costs Order

Case Brief

Summary, issues, holding and outcome

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Parties

Da Cruz, Manuel Jorge Maia

Applicant

Manzella, Patricia Marlene

Respondent

Solbel Properties CC

Respondent

Manzella, Patricia Marlene N.O.

Respondent

Procedural Posture

Interlocutory Application / Rule 30 Application to Set Aside Alleged Irregular Steps

Legal Issues

  1. 1 Whether the respondents' application in terms of Rule 30 to set aside the applicant's interlocutory application and Rule 6(11) notice constitutes a valid irregular step.
  2. 2 Whether the respondents are precluded from relying on Rule 30 due to having taken further steps in the proceedings.
  3. 3 Whether the applicant's use of Rule 6(11) instead of Rule 28 is a fatal irregularity.

Ratio Decidendi

The court found that the respondents were precluded from relying on Rule 30 to set aside the applicant's interlocutory application because they had taken further steps in the proceedings, including filing a notice to oppose and an answering affidavit, before delivering the Rule 30 notice. Regarding the Rule 6(11) notice, the court held that the respondents' objection was overly technical and unjustified, as the content of the notice made it clear that the applicant intended to amend the notice of motion in accordance with Rule 28. The court further held that the objection to the joinder of the first respondent in her capacity as executor was a substantive issue to be determined in the...

Court Disposition

The respondents' Rule 30 application is dismissed with costs; the scale of costs is reserved for determination in the main application.

Orders

  • The first and second respondents’ application in terms of Rule 30 is dismissed, with costs.
  • The scale on which the costs are to be paid by the first and second respondents to the applicant is reserved.