Pienaar v Matjhabeng Local Municipality and Another (A228/2013) [2014] ZAFSHC 174 (18 September 2014)

Pienaar v Matjhabeng Local Municipality and Another (A228/2013) [2014] ZAFSHC 174 (18 September 2014)

The Full Bench found that the court a quo misdirected itself by striking out portions of the appellant's replying affidavit without a factual basis for prejudice. The paragraphs struck out merely amplified existing allegations and did not introduce new matter or cause prejudice. The appeal against the striking out was upheld. Regarding contempt, the appellant failed to prove beyond reasonable doubt that the second respondent had knowledge of the court order, as service was not properly effected and there was insufficient evidence of actual knowledge. The first respondent had knowledge of the order but did not act in contempt, as there was no evidence of trespass or duty to prevent the...

Citation
[2014] ZAFSHC 174
Parties
Appellant: Gerhardus Johannes Pienaar; Respondent: Matjhabeng Local Municipality; Respondent: Michael Ramohodi
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 September 2014
Case Number
A228/2013
Procedural Posture
Civil Appeal / Appeal Against Orders Striking Out Portions of Replying Affidavit and Discharging Rule Nisi in Contempt Application
Outcome
Appeal against striking out upheld; appeal against discharge of rule nisi dismissed except for costs order, which is set aside and amended.
Judges
Rampai, Pohl, Wright
Legal Topics
Contempt of Court, Striking Out Affidavit, Service of Process, Spoliation, Costs Order
Civil Procedure Contempt of Court Striking Out Affidavit Service of Process Spoliation Costs Order

Case Brief

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Parties

Gerhardus Johannes Pienaar

Appellant

Matjhabeng Local Municipality

Respondent

Michael Ramohodi

Respondent

Procedural Posture

Civil Appeal / Appeal Against Orders Striking Out Portions of Replying Affidavit and Discharging Rule Nisi in Contempt Application

Legal Issues

  1. 1 Whether the court a quo correctly struck out portions of the appellant's replying affidavit in the contempt application.
  2. 2 Whether the respondents had knowledge of the court order and were in contempt of court.
  3. 3 Whether the court a quo correctly discharged the rule nisi in the contempt application.

Ratio Decidendi

The Full Bench found that the court a quo misdirected itself by striking out portions of the appellant's replying affidavit without a factual basis for prejudice. The paragraphs struck out merely amplified existing allegations and did not introduce new matter or cause prejudice. The appeal against the striking out was upheld. Regarding contempt, the appellant failed to prove beyond reasonable doubt that the second respondent had knowledge of the court order, as service was not properly effected and there was insufficient evidence of actual knowledge. The first respondent had knowledge of the order but did not act in contempt, as there was no evidence of trespass or duty to prevent the...

Court Disposition

Appeal against striking out upheld; appeal against discharge of rule nisi dismissed except for costs order, which is set aside and amended.

Orders

  • The appeal against the striking out of specified paragraphs of the appellant's replying affidavit in the contempt application is upheld; the application for striking out is dismissed with costs.
  • The appeal against the discharge of the rule nisi is dismissed, except that the costs order is set aside and replaced with: 'The rule nisi granted on 22 November 2012 is discharged with costs.'