Mare v Myburgh & Jordaan Attorneys and Another (4140/09) [2010] ZAFSHC 112 (28 May 2010)

Mare v Myburgh & Jordaan Attorneys and Another (4140/09) [2010] ZAFSHC 112 (28 May 2010)

The court found that while the applicant and his attorney displayed disorganisation and slackness, particularly prior to receipt of the notice of bar, the explanation for the delay after receipt of the notice was reasonable, albeit marginally so. The applicant could not have known about the delay in communication...

Source-derived case information.

Citation
[2010] ZAFSHC 112
Parties
Applicant: Marius Mare; Respondent: Myburgh & Jordaan Attorneys; Respondent: Alwyn Abraham Myburgh
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 May 2010
Case Number
4140/09
Procedural Posture
Condonation Application / Application for Condonation and Upliftment of Bar Prior to Plea in Main Action
Outcome
Condonation granted; bar uplifted; applicant permitted to file plea within five days; applicant to pay 25% of costs on an opposed basis, including costs of 29 April 2010.
Judges
J.P. Daffue
Legal Topics
Condonation, Removal of Bar, Late Plea Filing, Costs Award, Bona Fide Defence
Civil Procedure Condonation Removal of Bar Late Plea Filing Costs Award Bona Fide Defence

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Parties

Marius Mare

Applicant

Myburgh & Jordaan Attorneys

Respondent

Alwyn Abraham Myburgh

Respondent

Procedural Posture

Condonation Application / Application for Condonation and Upliftment of Bar Prior to Plea in Main Action

Legal Issues

  1. 1 Whether the applicant has provided a reasonable explanation for the delay in filing his plea.
  2. 2 Whether the applicant has demonstrated a bona fide defence to the respondents' claim.
  3. 3 Whether the bar constituted by the respondents' notice should be uplifted.

Ratio Decidendi

The court found that while the applicant and his attorney displayed disorganisation and slackness, particularly prior to receipt of the notice of bar, the explanation for the delay after receipt of the notice was reasonable, albeit marginally so. The applicant could not have known about the delay in communication between his attorneys. Once aware, his attorney acted expediently to prepare and file the plea. The applicant raised a bona fide defence that could potentially defeat the respondents' claim, as the damages may not be attributable to him. The court held that there was no reckless disregard of the rules and that any prejudice to the respondents could be compensated by an...

Court Disposition

Condonation granted; bar uplifted; applicant permitted to file plea within five days; applicant to pay 25% of costs on an opposed basis, including costs of 29 April 2010.

Orders

  • Condonation is granted to applicant for non-compliance with court rules relating to service and process.
  • The bar constituted by respondents’ notice of bar served on 11 March 2010 is uplifted.