Kainvest 3146 CC and Another v Petatype CC and Others (62487/16) [2021] ZAGPPHC 164 (26 February 2021)

Kainvest 3146 CC and Another v Petatype CC and Others (62487/16) [2021] ZAGPPHC 164 (26 February 2021)

The court found that the respondents' explanation for the late filing of the answering affidavit was wholly inadequate and did not cover the entire period of delay. The respondents failed to prosecute their appeal timeously, did not provide security for costs, and did not properly constitute the appeal tribunal or request a hearing date as required by Rule 49. The delay was excessive, and the explanation was insufficient, making it unnecessary to consider prospects of success. The court refused condonation, struck out the answering affidavit, and granted the application to make the arbitration award an order of court. The distinction between abandonment and lapsing was deemed semantic, as...

Citation
[2021] ZAGPPHC 164
Parties
Applicant: KANIVEST 3146 CC; Applicant: KOOP DE VRIES STYGER; Respondent: PETATYPE CC; Respondent: SHIREEN VAN DER SCHYFF; Respondent: THE BODY CORPORATE OF THE HAMILTON FORUM SHARE TITLE SCHEME
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 February 2021
Case Number
62487/16
Procedural Posture
Urgent Application / Application to Make Arbitration Award an Order of Court; Opposition and Condonation for Late Answering Affidavit
Outcome
Application granted; arbitration award made an order of court; answering affidavit struck out; costs awarded to applicants.
Judges
Neukircher
Legal Topics
Arbitration Award Enforcement, Condonation, Late Filing of Affidavit, Appeal Lapsing, Uniform Rules of Court
Civil Procedure Alternative Dispute Resolution Arbitration Award Enforcement Condonation Late Filing of Affidavit Appeal Lapsing Uniform Rules of Court

Case Brief

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Parties

KANIVEST 3146 CC

Applicant

KOOP DE VRIES STYGER

Applicant

PETATYPE CC

Respondent

SHIREEN VAN DER SCHYFF

Respondent

THE BODY CORPORATE OF THE HAMILTON FORUM SHARE TITLE SCHEME

Respondent

Procedural Posture

Urgent Application / Application to Make Arbitration Award an Order of Court; Opposition and Condonation for Late Answering Affidavit

Legal Issues

  1. 1 Whether the arbitration award handed down on 8 August 2019 should be made an order of court.
  2. 2 Whether respondents' answering affidavit should be struck out due to late filing and inadequate explanation.
  3. 3 Whether condonation for late filing of the answering affidavit should be granted.

Ratio Decidendi

The court found that the respondents' explanation for the late filing of the answering affidavit was wholly inadequate and did not cover the entire period of delay. The respondents failed to prosecute their appeal timeously, did not provide security for costs, and did not properly constitute the appeal tribunal or request a hearing date as required by Rule 49. The delay was excessive, and the explanation was insufficient, making it unnecessary to consider prospects of success. The court refused condonation, struck out the answering affidavit, and granted the application to make the arbitration award an order of court. The distinction between abandonment and lapsing was deemed semantic, as...

Court Disposition

Application granted; arbitration award made an order of court; answering affidavit struck out; costs awarded to applicants.

Orders

  • The arbitration award handed down on 8 August 2019 is made an order of court.
  • The respondents are ordered to pay the applicants' costs.