Lang v Wilhelmus [2023] ZAGPPHC 72; 25502/2022 (7 February 2023)

Lang v Wilhelmus [2023] ZAGPPHC 72; 25502/2022 (7 February 2023)

The court held that the excipient had adopted the incorrect procedure by filing an exception in application proceedings. The proper approach is for a respondent to file answering papers and raise any preliminary points therein. The court aligned itself with the persuasive authority of WP Fresh Distributors Pty Ltd v Klaaste NO & Others, confirming that exceptions are not appropriate in application proceedings. The excipient is not without remedy, as the court granted leave to file answering papers within a specified period. Costs were awarded to the respondent, who represented himself, as the successful party in the exception proceedings.

Citation
[2023] ZAGPPHC 72
Parties
Applicant: Bret Tomas Lang; Respondent: Stopforth Floris Johannes Wilhelmus
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 February 2023
Case Number
25502/2022
Procedural Posture
Exception Application / Exception to Application; Preliminary Point
Outcome
Exception dismissed; costs awarded to respondent; excipient granted leave to file answering affidavit within 10 days.
Judges
G. Ally
Legal Topics
Exception in Application Proceedings, Cause of Action, Procedural Irregularity
Civil Procedure Exception in Application Proceedings Cause of Action Procedural Irregularity

Case Brief

Summary, issues, holding and outcome

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Parties

Bret Tomas Lang

Applicant

Stopforth Floris Johannes Wilhelmus

Respondent

Procedural Posture

Exception Application / Exception to Application; Preliminary Point

Legal Issues

  1. 1 Whether an exception may be brought in application proceedings.
  2. 2 Whether the notice of motion discloses a cause of action.
  3. 3 Whether the excipient followed the correct procedure in opposing the application.

Ratio Decidendi

The court held that the excipient had adopted the incorrect procedure by filing an exception in application proceedings. The proper approach is for a respondent to file answering papers and raise any preliminary points therein. The court aligned itself with the persuasive authority of WP Fresh Distributors Pty Ltd v Klaaste NO & Others, confirming that exceptions are not appropriate in application proceedings. The excipient is not without remedy, as the court granted leave to file answering papers within a specified period. Costs were awarded to the respondent, who represented himself, as the successful party in the exception proceedings.

Court Disposition

Exception dismissed; costs awarded to respondent; excipient granted leave to file answering affidavit within 10 days.

Orders

  • The exception is dismissed.
  • The excipient is to pay the costs of this exception where such costs have been incurred.