Matsepe NO and Another v Boerdery (22758/2016) [2020] ZAWCHC 130 (13 October 2020)

Matsepe NO and Another v Boerdery (22758/2016) [2020] ZAWCHC 130 (13 October 2020)

The respondent failed to comply with both pre-trial directions and a court order (the Fortuin order) requiring responses to pre-trial questions, despite repeated opportunities and explicit directions from two judges. The respondent's explanations for non-compliance are implausible and do not constitute procedural irregularity justifying rescission under rule 42(1)(a). The respondent has recklessly disregarded its obligations and wilfully defied the authority of the court, causing prejudice to the applicants and undermining the dignity of the court. In these circumstances, the respondent's defence is struck out and a punitive costs order is warranted.

Citation
[2020] ZAWCHC 130
Parties
Applicant: Tsiu Vincent Matsepe N.O.; Applicant: Pierre de Villiers Berrange N.O.; Respondent: Katlou Boerdery
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
13 October 2020
Case Number
22758/2016
Procedural Posture
Civil Application / Application to Strike Out Defence Following Non Compliance With Pre Trial Directions and Prior Court Order
Outcome
The respondent's defence is struck out and the respondent is ordered to pay costs on an attorney and client scale.
Judges
Norton
Legal Topics
Striking Out Defence, Rule 30a Application, Pre Trial Procedure, Costs Punitive Scale
Civil Procedure Striking Out Defence Rule 30a Application Pre Trial Procedure Costs Punitive Scale

Case Brief

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Parties

Tsiu Vincent Matsepe N.O.

Applicant

Pierre de Villiers Berrange N.O.

Applicant

Katlou Boerdery

Respondent

Procedural Posture

Civil Application / Application to Strike Out Defence Following Non Compliance With Pre Trial Directions and Prior Court Order

Legal Issues

  1. 1 Whether the respondent's defence should be struck out for failure to comply with pre-trial directions and a prior court order.
  2. 2 Whether the respondent's application for rescission of the Fortuin order under rule 42(1)(a) is sustainable.
  3. 3 Whether a punitive costs order is justified against the respondent.

Ratio Decidendi

The respondent failed to comply with both pre-trial directions and a court order (the Fortuin order) requiring responses to pre-trial questions, despite repeated opportunities and explicit directions from two judges. The respondent's explanations for non-compliance are implausible and do not constitute procedural irregularity justifying rescission under rule 42(1)(a). The respondent has recklessly disregarded its obligations and wilfully defied the authority of the court, causing prejudice to the applicants and undermining the dignity of the court. In these circumstances, the respondent's defence is struck out and a punitive costs order is warranted.

Court Disposition

The respondent's defence is struck out and the respondent is ordered to pay costs on an attorney and client scale.

Orders

  • The respondent's defence in the action instituted under case number 22758/2016 is struck out.
  • The respondent shall pay the costs of the application on an attorney and client scale.