Johnson v Xesibe Construction CC and Others (1779/15) [2016] ZAECMHC 8 (31 March 2016)

Johnson v Xesibe Construction CC and Others (1779/15) [2016] ZAECMHC 8 (31 March 2016)

The court found that the plaintiff failed to serve the notice of intention to amend the particulars of claim within the required period, despite mutual telephonic arrangements regarding service. The plaintiff's objection to paying costs was raised for the first time from the bar and was not supported by the facts or the procedural history. The court held that the second defendant was entitled to costs because the plaintiff's conduct necessitated the exception application and subsequent proceedings. The plaintiff had the opportunity to raise objections regarding the appointment of a local correspondent earlier but chose to engage in telephonic arrangements instead. The court concluded that...

Citation
[2016] ZAECMHC 8
Parties
Plaintiff: Vuyani Johnson; Defendant: Xesibe Construction CC; Defendant: Camdekom Engineering CC; Defendant: Member of the Executive Council, Department of Road and Public Works, Eastern Cape, Bhisho; Defendant: Ingquza Hill Local Municipality; Defendant: The Manager of Ingquza Hill Local Municipality; Defendant: Department of Local Government and Traditional Affairs
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
31 March 2016
Case Number
1779/15
Procedural Posture
Civil Procedure / Opposed Motion; Application for Costs Following Notice of Intention to Amend Particulars of Claim
Outcome
Plaintiff ordered to pay the costs of the hearing and the notice in terms of Rule 23.
Judges
Z M Nhlangulela
Legal Topics
Costs Award, Exception Procedure, Service of Documents, Rule 23 Exception
Civil Procedure Costs Award Exception Procedure Service of Documents Rule 23 Exception

Case Brief

Summary, issues, holding and outcome

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Parties

Vuyani Johnson

Plaintiff

Xesibe Construction CC

Defendant

Camdekom Engineering CC

Defendant

Member of the Executive Council, Department of Road and Public Works, Eastern Cape, Bhisho

Defendant

Ingquza Hill Local Municipality

Defendant

The Manager of Ingquza Hill Local Municipality

Defendant

Department of Local Government and Traditional Affairs

Defendant

Procedural Posture

Civil Procedure / Opposed Motion; Application for Costs Following Notice of Intention to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the second defendant is entitled to an order for costs after the plaintiff filed a notice of intention to amend the particulars of claim in response to the exception application.
  2. 2 Whether the plaintiff's refusal to pay costs is justified based on alleged improper service of the notice to amend.

Ratio Decidendi

The court found that the plaintiff failed to serve the notice of intention to amend the particulars of claim within the required period, despite mutual telephonic arrangements regarding service. The plaintiff's objection to paying costs was raised for the first time from the bar and was not supported by the facts or the procedural history. The court held that the second defendant was entitled to costs because the plaintiff's conduct necessitated the exception application and subsequent proceedings. The plaintiff had the opportunity to raise objections regarding the appointment of a local correspondent earlier but chose to engage in telephonic arrangements instead. The court concluded that...

Court Disposition

Plaintiff ordered to pay the costs of the hearing and the notice in terms of Rule 23.

Orders

  • The plaintiff is to pay the costs of the hearing on 03 March 2016, including those for the notice in terms of Rule 23.