Mofokeng v Nekosi N.O and Another (3751/2022) [2023] ZAFSHC 492 (7 November 2023)

Mofokeng v Nekosi N.O and Another (3751/2022) [2023] ZAFSHC 492 (7 November 2023)

The court found that the applicant's calculation of the time period for the second respondent to file an answering affidavit was incorrect, as there was no evidence that the registrar had made the record available to the applicant as required by Rule 53. The steps taken by the applicant were premature, and the application to strike out the answering affidavit and heads of argument was without substance. The respondent was not obliged to file an answering affidavit until the record was made available, and the applicant failed to establish any irregularity warranting the relief sought. The application was dismissed with costs.

Citation
[2023] ZAFSHC 492
Parties
Applicant: Mosebetsi Richerd Mofokeng; Respondent: Regional Court Magistrate C Nekosi N.O.; Respondent: Director of Public Prosecutions
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 November 2023
Case Number
3751/2022
Procedural Posture
Review Application / Judgment on Interlocutory Application to Strike Out Answering Affidavit and Heads of Argument
Outcome
Application dismissed with costs.
Judges
Mhlambi, Lekhoaba
Legal Topics
Rule 53 Review, Irregular Proceedings, Condonation, Filing of Affidavits
Civil Procedure Rule 53 Review Irregular Proceedings Condonation Filing of Affidavits

Case Brief

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Parties

Mosebetsi Richerd Mofokeng

Applicant

Regional Court Magistrate C Nekosi N.O.

Respondent

Director of Public Prosecutions

Respondent

Procedural Posture

Review Application / Judgment on Interlocutory Application to Strike Out Answering Affidavit and Heads of Argument

Legal Issues

  1. 1 Whether the answering affidavit and heads of argument filed by the second respondent should be struck off as irregular steps.
  2. 2 Whether the second respondent was required to file an answering affidavit within the time calculated by the applicant under Rule 53.
  3. 3 Whether the applicant's calculation of time for filing affidavits under Rule 53 was correct.

Ratio Decidendi

The court found that the applicant's calculation of the time period for the second respondent to file an answering affidavit was incorrect, as there was no evidence that the registrar had made the record available to the applicant as required by Rule 53. The steps taken by the applicant were premature, and the application to strike out the answering affidavit and heads of argument was without substance. The respondent was not obliged to file an answering affidavit until the record was made available, and the applicant failed to establish any irregularity warranting the relief sought. The application was dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.