Mawire N.O and Another v Somo (53064/2019) [2023] ZAGPPHC 664 (7 August 2023)

Mawire N.O and Another v Somo (53064/2019) [2023] ZAGPPHC 664 (7 August 2023)

The Court found that the Directive issued by the Deputy Judge President was limited to consolidating interlocutory applications ancillary to the setting aside proceedings under case number 53064/2019. The respondent's amended notice of motion and supplementary founding affidavit introduced new causes of action and relief outside the scope of the Directive, without complying with the procedural requirements of the Uniform Rules of Court. No notice of intention to amend was given, and no leave was sought to file a supplementary affidavit, depriving the applicants of the opportunity to object and the Court of its discretion. The respondent's arguments regarding Rule 6 and the simultaneous...

Citation
[2023] ZAGPPHC 664
Parties
Applicant: Philemon Tatenda Mawire N.O.; Applicant: Adriaan Willem van Rooyen N.O.; Respondent: Sebushi Patrick Somo
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 August 2023
Case Number
53064/2019
Procedural Posture
Civil Application / Rule 30 Application to Set Aside Irregular Steps
Outcome
Application granted. The amended notice of motion and supplementary founding affidavit filed by the respondent are set aside as irregular proceedings. Costs awarded against the respondent on an attorney and client scale. Condonation for late filing granted.
Judges
de Vos
Legal Topics
Irregular Proceedings, Amendment of Pleadings, Condonation, Liquidation Proceedings, Costs Award
Civil Procedure Commercial and Corporate Irregular Proceedings Amendment of Pleadings Condonation Liquidation Proceedings Costs Award

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Parties

Philemon Tatenda Mawire N.O.

Applicant

Adriaan Willem van Rooyen N.O.

Applicant

Sebushi Patrick Somo

Respondent

Procedural Posture

Civil Application / Rule 30 Application to Set Aside Irregular Steps

Legal Issues

  1. 1 Whether the amended notice of motion and supplementary founding affidavit filed by the respondent constitute irregular steps under Rule 30.
  2. 2 Whether the Directive issued by the Court authorised the filing of the amended notice of motion and supplementary affidavit.
  3. 3 Whether the applicants are entitled to condonation for the late filing of the Rule 30 application.

Ratio Decidendi

The Court found that the Directive issued by the Deputy Judge President was limited to consolidating interlocutory applications ancillary to the setting aside proceedings under case number 53064/2019. The respondent's amended notice of motion and supplementary founding affidavit introduced new causes of action and relief outside the scope of the Directive, without complying with the procedural requirements of the Uniform Rules of Court. No notice of intention to amend was given, and no leave was sought to file a supplementary affidavit, depriving the applicants of the opportunity to object and the Court of its discretion. The respondent's arguments regarding Rule 6 and the simultaneous...

Court Disposition

Application granted. The amended notice of motion and supplementary founding affidavit filed by the respondent are set aside as irregular proceedings. Costs awarded against the respondent on an attorney and client scale. Condonation for late filing granted.

Orders

  • The amended notice of motion dated 14 February 2023 and the supplementary founding affidavit filed on the same date by the respondent are set aside as irregular steps/proceedings as prescribed in Rule 30(1) of the Rules of Court.
  • The amended notice of motion and supplementary founding affidavit are set aside in their entirety as constituting irregular proceedings which cannot be amended.