De Wet N.O. and Another v Nel (57946/2011) [2014] ZAGPPHC 715 (17 September 2014)

De Wet N.O. and Another v Nel (57946/2011) [2014] ZAGPPHC 715 (17 September 2014)

The court found that the respondent had failed to comply with the court order for over a year, demonstrating a disregard for the court's authority. However, as the respondent ultimately complied by providing a properly commissioned affidavit before the hearing, the court exercised its discretion not to strike out the respondent's defence. The respondent's delay and initial non-compliance justified an adverse costs order against her.

Citation
[2014] ZAGPPHC 715
Parties
Applicant: Christiaan Frederik De Wet N.O.; Applicant: Johanna Wilhelmina Yssel N.O.; Respondent: Rita Nel
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 September 2014
Case Number
57946/2011
Procedural Posture
Civil Application / Application to Strike Defence and for Costs
Outcome
The application to strike out the respondent's defence was refused, but the respondent was ordered to pay the costs of the application.
Judges
C Pretorius
Legal Topics
Discovery Non Compliance, Rule 35 Application, Costs Order
Civil Procedure Discovery Non Compliance Rule 35 Application Costs Order

Case Brief

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Parties

Christiaan Frederik De Wet N.O.

Applicant

Johanna Wilhelmina Yssel N.O.

Applicant

Rita Nel

Respondent

Procedural Posture

Civil Application / Application to Strike Defence and for Costs

Legal Issues

  1. 1 Whether the respondent's defence should be struck out for failure to comply with a court order under Rule 35 (3).
  2. 2 Whether the respondent should be ordered to pay the costs of the application.

Ratio Decidendi

The court found that the respondent had failed to comply with the court order for over a year, demonstrating a disregard for the court's authority. However, as the respondent ultimately complied by providing a properly commissioned affidavit before the hearing, the court exercised its discretion not to strike out the respondent's defence. The respondent's delay and initial non-compliance justified an adverse costs order against her.

Court Disposition

The application to strike out the respondent's defence was refused, but the respondent was ordered to pay the costs of the application.

Orders

  • Prayer 1 of the notice of motion is not granted.
  • The respondent is ordered to pay the costs of the applicant in this application.