Niemoller v Niemoller [2023] ZAGPPHC 470; 43711/2021 (8 June 2023)

Niemoller v Niemoller [2023] ZAGPPHC 470; 43711/2021 (8 June 2023)

The Defendant failed to comply with the time periods set out in Rule 23 for filing an exception and did not apply for condonation as required by Rule 27. The Plaintiff was under no obligation to file a Rule 30 notice to object to the late filing, as the non-compliance was raised well before the hearing. The argument of acquiescence was rejected, as it is not a substantive defence in South African law. The exception was therefore dismissed with costs.

Citation
[2023] ZAGPPHC 470
Parties
Defendant: Thea Niemöller; Plaintiff: Rudolf Niemöller
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 June 2023
Case Number
43711/2021
Procedural Posture
Civil Procedure / Exception to Particulars of Claim Under Rule 23
Outcome
The Defendant's exception is dismissed with costs.
Judges
LG Kilmartin
Legal Topics
Exception Procedure, Rule 23 Non Compliance, Condonation, Rule 30 Irregular Step
Civil Procedure Exception Procedure Rule 23 Non Compliance Condonation Rule 30 Irregular Step

Case Brief

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Parties

Thea Niemöller

Defendant

Rudolf Niemöller

Plaintiff

Procedural Posture

Civil Procedure / Exception to Particulars of Claim Under Rule 23

Legal Issues

  1. 1 Whether the Defendant's exception to the Plaintiff's particulars of claim was filed in compliance with Rule 23 of the Uniform Rules of Court.
  2. 2 Whether the absence of a condonation application for late filing of the exception is fatal to the Defendant's case.
  3. 3 Whether the Plaintiff was obliged to file a Rule 30 notice to object to the late filing of the exception.

Ratio Decidendi

The Defendant failed to comply with the time periods set out in Rule 23 for filing an exception and did not apply for condonation as required by Rule 27. The Plaintiff was under no obligation to file a Rule 30 notice to object to the late filing, as the non-compliance was raised well before the hearing. The argument of acquiescence was rejected, as it is not a substantive defence in South African law. The exception was therefore dismissed with costs.

Court Disposition

The Defendant's exception is dismissed with costs.

Orders

  • The Defendant’s exception is dismissed.
  • The Defendant is ordered to pay the Plaintiff’s costs incurred in relation to the exception.