Ndhlovu v Phoshoko [2023] ZAGPPHC 135; 11908/2020 (2 March 2023)

Ndhlovu v Phoshoko [2023] ZAGPPHC 135; 11908/2020 (2 March 2023)

The defendant persistently failed to comply with multiple discovery directives and case management orders, despite being given ample opportunity to do so. The plaintiff delivered proper notices under Rule 30A and Rule 35(5), and the defendant did not remedy his non-compliance or provide any relevant evidence to support his defence. The striking-out order was neither erroneously sought nor granted, and the rescission application lacked merit. On the merits, the evidence established that the defendant negligently constructed the boundary wall without proper foundations or building approval, on uncompacted backfill, and in disregard of building regulations. This conduct directly caused the...

Citation
[2023] ZAGPPHC 135
Parties
Plaintiff: Matlakala Salome Ndhlovu; Defendant: Matome Elias Phoshoko
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 March 2023
Case Number
11908/2020
Procedural Posture
Civil Trial / Merits Judgment After Defence Struck Out; Rescission Application Refused
Outcome
Defendant found liable for damages caused by the collapse of the boundary wall; rescission application refused; costs orders made as specified.
Judges
N Davis
Legal Topics
Negligence, Boundary Wall Dispute, Striking Out of Defence, Rescission of Judgment, Building Regulations, Quantum of Damages
Land and Property Civil Procedure Delict Negligence Boundary Wall Dispute Striking Out of Defence Rescission of Judgment Building Regulations +1 more

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Parties

Matlakala Salome Ndhlovu

Plaintiff

Matome Elias Phoshoko

Defendant

Procedural Posture

Civil Trial / Merits Judgment After Defence Struck Out; Rescission Application Refused

Legal Issues

  1. 1 Whether the defendant is liable for damages caused by the collapse of the boundary wall between the properties on 21 February 2017.
  2. 2 Whether the defendant's defence should be struck out for failure to comply with discovery directives.
  3. 3 Whether the rescission application against the striking-out order should be granted.

Ratio Decidendi

The defendant persistently failed to comply with multiple discovery directives and case management orders, despite being given ample opportunity to do so. The plaintiff delivered proper notices under Rule 30A and Rule 35(5), and the defendant did not remedy his non-compliance or provide any relevant evidence to support his defence. The striking-out order was neither erroneously sought nor granted, and the rescission application lacked merit. On the merits, the evidence established that the defendant negligently constructed the boundary wall without proper foundations or building approval, on uncompacted backfill, and in disregard of building regulations. This conduct directly caused the...

Court Disposition

Defendant found liable for damages caused by the collapse of the boundary wall; rescission application refused; costs orders made as specified.

Orders

  • The application for rescission is refused, with costs.
  • The defendant is found liable for the damages caused by the collapse of the boundary wall between the properties of the plaintiff and the defendant on 21 February 2017.