Mamahule Traditional Authority v Mabyane and Others (2449/2021) [2021] ZALMPPHC 19 (14 May 2021)

Mamahule Traditional Authority v Mabyane and Others (2449/2021) [2021] ZALMPPHC 19 (14 May 2021)

The court held that in urgent applications, respondents are obliged to comply with the time frames set by the applicant for filing opposing papers. Failure to do so, without an application for condonation, exposes the respondent to the risk of default judgment. The third respondent filed her answering affidavit and notice of intention to oppose outside the prescribed time frames and did not seek condonation. The court found no merit in the respondents' argument that Rule 6(12)(a) applies mutatis mutandis to excuse late filing. Consequently, the third respondent's answering affidavit was struck out. Regarding costs, the court found that the matter did not warrant the appointment of two...

Citation
[2021] ZALMPPHC 19
Parties
Applicant: Mamahule Traditional Authority; Respondent: Mantebele Mabyane; Respondent: Thabo Mabyane; Respondent: Mmaele Geogena Matsaung
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
14 May 2021
Case Number
2449/2021
Procedural Posture
Urgent Application / Application for Striking Out of Answering Affidavit and Notice to Oppose for Non Compliance With Time Frames in Urgent Proceedings.
Outcome
The third respondent's answering affidavit is struck out with costs; the applicant's application is struck off the roll with no order as to costs.
Judges
AML Phatudi
Legal Topics
Urgent Application Procedure, Striking Out Affidavit, Condonation for Late Filing, Rule 6 12, Default Judgment
Civil Procedure Urgent Application Procedure Striking Out Affidavit Condonation for Late Filing Rule 6 12 Default Judgment

Case Brief

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Parties

Mamahule Traditional Authority

Applicant

Mantebele Mabyane

Respondent

Thabo Mabyane

Respondent

Mmaele Geogena Matsaung

Respondent

Procedural Posture

Urgent Application / Application for Striking Out of Answering Affidavit and Notice to Oppose for Non Compliance With Time Frames in Urgent Proceedings.

Legal Issues

  1. 1 Whether the third respondent's answering affidavit and notice of intention to oppose should be struck out for non-compliance with time frames set in an urgent application.
  2. 2 Whether respondents are obliged to apply for condonation for late filing of opposing papers in urgent applications.
  3. 3 Whether costs should be awarded and if the appointment of two counsel was justified.

Ratio Decidendi

The court held that in urgent applications, respondents are obliged to comply with the time frames set by the applicant for filing opposing papers. Failure to do so, without an application for condonation, exposes the respondent to the risk of default judgment. The third respondent filed her answering affidavit and notice of intention to oppose outside the prescribed time frames and did not seek condonation. The court found no merit in the respondents' argument that Rule 6(12)(a) applies mutatis mutandis to excuse late filing. Consequently, the third respondent's answering affidavit was struck out. Regarding costs, the court found that the matter did not warrant the appointment of two...

Court Disposition

The third respondent's answering affidavit is struck out with costs; the applicant's application is struck off the roll with no order as to costs.

Orders

  • The third respondent’s answering affidavit filed on 23 April 2021 is struck out with costs on party and party scale.
  • The respondents’ point in limine relating to non-compliance with Rule 41A is upheld.