Du Toit N.O. and Another v Clarensville Shareblock Limited (15955 / 2019) [2022] ZAWCHC 113 (6 June 2022)

Du Toit N.O. and Another v Clarensville Shareblock Limited (15955 / 2019) [2022] ZAWCHC 113 (6 June 2022)

The court found that the applicants were not entitled to file the supplementary expert report without leave of the court, as the oral evidence order did not grant such a right. The filing of the report was irregular and prejudicial to the respondent, especially as the new report was substantively different from the initial proposal and was only disclosed after the joint meeting of experts. The applicants' conduct amounted to a judicial admission that leave was required, and they were precluded from departing from this position. The irregularity and prejudice justified setting aside the supplementary report and awarding a punitive costs order against the applicants for part of the...

Citation
[2022] ZAWCHC 113
Parties
Applicant: Francois Arnold Du Toit N.O.; Applicant: Henri Du Toit N.O.; Respondent: Clarensville Shareblock Limited
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 June 2022
Case Number
15955 / 2019
Procedural Posture
Civil Application / Second Interlocutory Application Regarding Irregular Filing of Supplementary Expert Report
Outcome
Application granted in favour of the respondent; applicants' supplementary expert report set aside as an irregular step; costs awarded against applicants, partly on a punitive scale.
Judges
E.D. Wille
Legal Topics
Irregular Step, Expert Evidence, Shareblock Company, Costs Order, Structural Alterations
Civil Procedure Land and Property Irregular Step Expert Evidence Shareblock Company Costs Order Structural Alterations

Case Brief

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Parties

Francois Arnold Du Toit N.O.

Applicant

Henri Du Toit N.O.

Applicant

Clarensville Shareblock Limited

Respondent

Procedural Posture

Civil Application / Second Interlocutory Application Regarding Irregular Filing of Supplementary Expert Report

Legal Issues

  1. 1 Whether the applicants were entitled to file a supplementary expert report without leave of the court.
  2. 2 Whether the supplementary report constituted an irregular step under the rules.
  3. 3 Whether the respondent was prejudiced by the late filing of the supplementary report.

Ratio Decidendi

The court found that the applicants were not entitled to file the supplementary expert report without leave of the court, as the oral evidence order did not grant such a right. The filing of the report was irregular and prejudicial to the respondent, especially as the new report was substantively different from the initial proposal and was only disclosed after the joint meeting of experts. The applicants' conduct amounted to a judicial admission that leave was required, and they were precluded from departing from this position. The irregularity and prejudice justified setting aside the supplementary report and awarding a punitive costs order against the applicants for part of the...

Court Disposition

Application granted in favour of the respondent; applicants' supplementary expert report set aside as an irregular step; costs awarded against applicants, partly on a punitive scale.

Orders

  • The applicants' supplementary notice in terms of rule 36(9)(b) dated 7 March 2022, together with the further report of Mr Woudberg dated 3 March 2022, is set aside as an irregular step.
  • The applicants (jointly and severally, the one paying the other to be absolved) shall be liable for the respondent's costs of and incidental to this application, on the scale as between party and party, as taxed or agreed, from the inception of this application up to and including 18 May 2022.