Mackey N.O and Others v Gerhard Olivier Boerery (Pty) Ltd and Another (3535/2018) [2018] ZAECGHC 137 (28 December 2018)

Mackey N.O and Others v Gerhard Olivier Boerery (Pty) Ltd and Another (3535/2018) [2018] ZAECGHC 137 (28 December 2018)

The applicants failed to disclose the existence of a signed addendum to the lease agreement, which was a material fact relevant to the relief sought. The omission undermined the good faith required in ex parte proceedings and deprived the court of a full understanding of the dispute. The urgency claimed by the applicants was not substantiated, as communication between the parties and their attorneys indicated ongoing negotiations and no imminent risk of removal of assets. The respondent provided credible evidence of the addendum's execution and transmission. In these circumstances, the ex parte order was improperly obtained and warranted rescission. The applicants were ordered to pay the...

Citation
[2018] ZAECGHC 137
Parties
Applicant: Rodger John Mackey N.O.; Applicant: Gustav Bernhard August Gerdener N.O.; Applicant: Daniel Cornelius Prinsloo N.O.; Respondent: Gerhard Olivier Boerery (Pty) Ltd; Applicant: Grootpan Plase (Pty) Ltd
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
28 December 2018
Case Number
3535/2018
Procedural Posture
Urgent Application / Order Rescission and Costs Determination
Outcome
Order granted ex parte on 23 November 2018 rescinded; applicants to pay costs of main application, including reserved costs; no order as to costs of application to intervene.
Judges
M Roberson
Legal Topics
Ex Parte Applications, Rescission of Order, Lease Agreement, Tacit Hypothec, Urgent Interdict
Civil Procedure Land and Property Ex Parte Applications Rescission of Order Lease Agreement Tacit Hypothec Urgent Interdict

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Parties

Rodger John Mackey N.O.

Applicant

Gustav Bernhard August Gerdener N.O.

Applicant

Daniel Cornelius Prinsloo N.O.

Applicant

Gerhard Olivier Boerery (Pty) Ltd

Respondent

Grootpan Plase (Pty) Ltd

Applicant

Procedural Posture

Urgent Application / Order Rescission and Costs Determination

Legal Issues

  1. 1 Whether the applicants failed to disclose material facts in the ex parte application.
  2. 2 Whether the existence of the lease addendum altered the applicants' entitlement to relief.
  3. 3 Whether urgency and grounds for proceeding ex parte were justified.

Ratio Decidendi

The applicants failed to disclose the existence of a signed addendum to the lease agreement, which was a material fact relevant to the relief sought. The omission undermined the good faith required in ex parte proceedings and deprived the court of a full understanding of the dispute. The urgency claimed by the applicants was not substantiated, as communication between the parties and their attorneys indicated ongoing negotiations and no imminent risk of removal of assets. The respondent provided credible evidence of the addendum's execution and transmission. In these circumstances, the ex parte order was improperly obtained and warranted rescission. The applicants were ordered to pay the...

Court Disposition

Order granted ex parte on 23 November 2018 rescinded; applicants to pay costs of main application, including reserved costs; no order as to costs of application to intervene.

Orders

  • The order granted ex parte on 23 November 2018 is rescinded.
  • The applicants are to pay the costs of the main application, including the reserved costs of 11 December 2018.