Ezimbokodweni Mining (Pty) Ltd v Bhp Billiton Energy Coal South Africa Limited (47820/2012) [2016] ZAGPJHC 254 (16 September 2016)

Ezimbokodweni Mining (Pty) Ltd v Bhp Billiton Energy Coal South Africa Limited (47820/2012) [2016] ZAGPJHC 254 (16 September 2016)

The court found that the plaintiff did not substantially comply with the interlocutory orders, as the responses provided did not meet the formal requirements of the rules. The rule 35(3) response was not on affidavit, and the further particulars were not properly signed. The defendant was not obliged to apply to set aside the irregular steps before seeking dismissal for non-compliance. As the required responses were eventually provided before the hearing, the defendant did not persist with the dismissal application but was entitled to costs. Regarding security for costs, the court held that the plaintiff had not been afforded an opportunity to respond to the defendant's assertions, and...

Citation
[2016] ZAGPJHC 254
Parties
Plaintiff: Ezimbokodweni Mining (Pty) Ltd; Defendant: Bhp Billiton Energy Coal South Africa Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 September 2016
Case Number
47820/2012
Procedural Posture
Civil Application / Application for Costs and Security for Costs After Interlocutory Orders
Outcome
The plaintiff is ordered to pay the costs of the application. The application for security for costs is refused.
Judges
Van der Linde
Legal Topics
Security for Costs, Costs Award, Rule 35 Discovery, Rule 21 Particulars
Civil Procedure Security for Costs Costs Award Rule 35 Discovery Rule 21 Particulars

Case Brief

Summary, issues, holding and outcome

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Parties

Ezimbokodweni Mining (Pty) Ltd

Plaintiff

Bhp Billiton Energy Coal South Africa Limited

Defendant

Procedural Posture

Civil Application / Application for Costs and Security for Costs After Interlocutory Orders

Legal Issues

  1. 1 Whether the plaintiff substantially complied with interlocutory court orders regarding further particulars and discovery responses.
  2. 2 Whether the defendant is entitled to costs of the application.
  3. 3 Whether the defendant's application for security for costs in terms of rule 47 should be granted.

Ratio Decidendi

The court found that the plaintiff did not substantially comply with the interlocutory orders, as the responses provided did not meet the formal requirements of the rules. The rule 35(3) response was not on affidavit, and the further particulars were not properly signed. The defendant was not obliged to apply to set aside the irregular steps before seeking dismissal for non-compliance. As the required responses were eventually provided before the hearing, the defendant did not persist with the dismissal application but was entitled to costs. Regarding security for costs, the court held that the plaintiff had not been afforded an opportunity to respond to the defendant's assertions, and...

Court Disposition

The plaintiff is ordered to pay the costs of the application. The application for security for costs is refused.

Orders

  • The plaintiff is directed to pay the costs of the application.