Legal and Law CC and Another v B&B Neefs Konstruksie BK and Others (68600/12) [2013] ZAGPPHC 161 (7 June 2013)

Legal and Law CC and Another v B&B Neefs Konstruksie BK and Others (68600/12) [2013] ZAGPPHC 161 (7 June 2013)

The court found that the defendants raised bona fide technical defences, including the duplication of claims and reliance on both contract and delict in the particulars of claim, which rendered the particulars excipiable. The verification affidavit was found to comply with Rule 32, and the alleged defects were dismissed as unsubstantial. However, the existence of excipiable particulars justified granting leave to defend. The plaintiffs were ordered to pay costs, including the costs of two counsel, but penalty costs were not awarded as the plaintiffs were not mala fide and the matter was sufficiently complex.

Citation
[2013] ZAGPPHC 161
Parties
Plaintiff: Legal and Law CC; Plaintiff: George Gideon Petrus van Zyl; Defendant: B&B Neefs Konstruksie BK; Defendant: Barend Jacobus Bester; Defendant: Barend van der Walt
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 June 2013
Case Number
68600/12
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Opposed; Leave to Defend Sought
Outcome
Summary judgment application dismissed; defendants granted leave to defend; costs awarded to defendants for two counsel.
Judges
BAM
Legal Topics
Summary Judgment, Exception Procedure, Verification Affidavit, Costs Award
Civil Procedure Summary Judgment Exception Procedure Verification Affidavit Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Legal and Law CC

Plaintiff

George Gideon Petrus van Zyl

Plaintiff

B&B Neefs Konstruksie BK

Defendant

Barend Jacobus Bester

Defendant

Barend van der Walt

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Opposed; Leave to Defend Sought

Legal Issues

  1. 1 Whether the plaintiffs' particulars of claim are excipiable and justify granting leave to defend.
  2. 2 Whether the verification affidavit complies with Rule 32 requirements.
  3. 3 Whether technical defences raised by the defendants constitute bona fide defences under Rule 32.

Ratio Decidendi

The court found that the defendants raised bona fide technical defences, including the duplication of claims and reliance on both contract and delict in the particulars of claim, which rendered the particulars excipiable. The verification affidavit was found to comply with Rule 32, and the alleged defects were dismissed as unsubstantial. However, the existence of excipiable particulars justified granting leave to defend. The plaintiffs were ordered to pay costs, including the costs of two counsel, but penalty costs were not awarded as the plaintiffs were not mala fide and the matter was sufficiently complex.

Court Disposition

Summary judgment application dismissed; defendants granted leave to defend; costs awarded to defendants for two counsel.

Orders

  • The summary judgment application is dismissed.
  • The defendants are granted leave to defend.