Philander and Another v First Rand Bank and Others (753/2010) [2012] ZAECPEHC 63 (11 September 2012)

Philander and Another v First Rand Bank and Others (753/2010) [2012] ZAECPEHC 63 (11 September 2012)

The application was dismissed because it failed to comply with the Rules of Practice of the High Court. The notice of motion was not in the prescribed form, service was not effected by the Deputy Sheriff, and the founding affidavit was unintelligible and did not set out a cause of action or the relief sought. The applicants, acting without legal representation, did not provide any meaningful submissions on the merits or costs. Given that this was the third defective application brought by the applicants against the respondents, the court found it appropriate to order the applicants to pay the legal costs incurred by the first and fourth respondents.

Citation
[2012] ZAECPEHC 63
Parties
Applicant: Kenneth Philander; Applicant: Olivia Kathrina Philander; Respondent: First Rand Bank; Respondent: Mr Tiry Mohaad; Respondent: Bond People; Respondent: Wilma van der Bank; Respondent: The Registrar of Deeds
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
11 September 2012
Case Number
753/2010
Procedural Posture
Urgent Application / Application for Relief to Set Aside Judgment and Writ of Execution; Opposed Motion
Outcome
Application dismissed with costs awarded against the applicants.
Judges
N Dambuza
Legal Topics
Non Compliance With Court Rules, Service of Process, Costs Order, Form of Notice of Motion
Civil Procedure Non Compliance With Court Rules Service of Process Costs Order Form of Notice of Motion

Case Brief

Summary, issues, holding and outcome

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Parties

Kenneth Philander

Applicant

Olivia Kathrina Philander

Applicant

First Rand Bank

Respondent

Mr Tiry Mohaad

Respondent

Bond People

Respondent

Wilma van der Bank

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Application for Relief to Set Aside Judgment and Writ of Execution; Opposed Motion

Legal Issues

  1. 1 Whether the application complies with the Rules of Practice of the High Court.
  2. 2 Whether the applicants have set out a proper cause of action and relief sought.
  3. 3 Whether the application should be dismissed as a non-starter.

Ratio Decidendi

The application was dismissed because it failed to comply with the Rules of Practice of the High Court. The notice of motion was not in the prescribed form, service was not effected by the Deputy Sheriff, and the founding affidavit was unintelligible and did not set out a cause of action or the relief sought. The applicants, acting without legal representation, did not provide any meaningful submissions on the merits or costs. Given that this was the third defective application brought by the applicants against the respondents, the court found it appropriate to order the applicants to pay the legal costs incurred by the first and fourth respondents.

Court Disposition

Application dismissed with costs awarded against the applicants.

Orders

  • The application is dismissed.
  • The applicants are ordered, jointly and severally, the one paying, the other to be absolved, to pay such legal costs as the first and fourth respondents may have incurred.