Kramer Weihmann and Joubert Inc v South African Commercial Catering and Allied Workers Union (SACCAWU) (3818/2011) [2012] ZAFSHC 152 (16 August 2012)

Kramer Weihmann and Joubert Inc v South African Commercial Catering and Allied Workers Union (SACCAWU) (3818/2011) [2012] ZAFSHC 152 (16 August 2012)

The court found that the respondent's Rule 23(1) notice was filed within the five-day period provided by the notice of bar and thus constituted a relevant pleading under the rules. The filing of the Rule 23(1) notice meant that the respondent was not in default, and the bar fell away. The applicant's argument that...

Source-derived case information.

Citation
[2012] ZAFSHC 152
Parties
Applicant: Kramer Weihmann and Joubert Inc; Respondent: South African Commercial Catering and Allied Workers Union (SACCAWU)
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
16 August 2012
Case Number
3818/2011
Procedural Posture
Civil Application / Application for Default Judgment
Outcome
Application for default judgment dismissed. Costs awarded against the applicant.
Judges
D S Molefe
Legal Topics
Default Judgment, Notice of Bar, Exception Procedure, Rule 23 1, Pleading Timelines
Civil Procedure Default Judgment Notice of Bar Exception Procedure Rule 23 1 Pleading Timelines

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Summary, issues, holding and outcome

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Parties

Kramer Weihmann and Joubert Inc

Applicant

South African Commercial Catering and Allied Workers Union (SACCAWU)

Respondent

Procedural Posture

Civil Application / Application for Default Judgment

Legal Issues

  1. 1 Whether the respondent's Rule 23(1) notice was delivered timeously in response to the notice of bar.
  2. 2 Whether the applicant is entitled to default judgment under the circumstances.
  3. 3 Whether a costs order de bonis propriis should be made against the applicant's legal representatives.

Ratio Decidendi

The court found that the respondent's Rule 23(1) notice was filed within the five-day period provided by the notice of bar and thus constituted a relevant pleading under the rules. The filing of the Rule 23(1) notice meant that the respondent was not in default, and the bar fell away. The applicant's argument that the exception was out of time was rejected. The court further held that a costs order de bonis propriis against the applicant's legal representatives was not warranted, as legal practitioners should not be personally punished with costs orders merely because their view of the legal position was not upheld by the court.

Court Disposition

Application for default judgment dismissed. Costs awarded against the applicant.

Orders

  • The application for default judgment is dismissed.
  • The applicant is ordered to pay the costs of the application.