Primedia (Pty) Ltd and Others v Passenger Rail Agency of SA and Others (6168/2012) [2012] ZAGPJHC 93 (11 May 2012)

Parties

Procedural Posture

Urgent Application / Application to Strike Out Portions of Replying Affidavit in Motion Proceedings

Legal Issues

1. 1 Whether new facts and contentions introduced in the replying affidavit are admissible.
2. 2 Whether the applicants are entitled to retain the impugned paragraphs in their replying affidavit.
3. 3 Whether the respondents would be prejudiced by the late introduction of new matter.

Ratio Decidendi

The court held that the applicants introduced new facts and contentions in their replying affidavit that should have been included in the founding papers or by way of a supplementary affidavit. The absence of any explanation for the late introduction of these matters, coupled with the prejudice to the respondents who were denied an opportunity to respond, rendered the impugned paragraphs inadmissible. The court found that the new matter did not merely enlarge upon what was revealed in the answering affidavit, but rather constituted a different or new cause of action. The urgency of the application had abated, and nothing prevented the applicants from amplifying their founding affidavit in...

Court Disposition

Application to strike out granted; specified paragraphs struck out from the replying affidavit; costs awarded against the applicants.

Orders

• Paragraphs 11 (excluding the first three sentences thereof); 18.9 to 18.9.7; 18.11 to 18.13; 19.1 to 19.14; 20.2 and 20.3 are struck out from the applicants’ replying affidavit.
• The applicants are ordered to pay the costs of this application, including the costs consequent upon the employment of two counsel by the first respondent, as well as the costs consequent upon the employment of two counsel by the second and third respondents.