Ramsamy v Nonxuba (5008/07) [2008] ZAFSHC 6 (14 February 2008)

Ramsamy v Nonxuba (5008/07) [2008] ZAFSHC 6 (14 February 2008)

The court found that by removing the summary judgment application from the roll and expressly informing the defendant that the main action would proceed, the plaintiff acknowledged the defendant's right to defend and thereby abandoned his right to apply for summary judgment. The defendant's subsequent conduct, including filing a plea, was consistent with this acknowledgment. The court further held that the plaintiff's taxed bill of costs was not a liquid document and did not need to be attached to the application. The interpretation of the written undertaking and whether the claim had arisen were matters requiring evidence and could not be resolved on summary judgment. The defendant...

Citation
[2008] ZAFSHC 6
Parties
Plaintiff: Justice Reichlin Ramsamy; Defendant: Zuko Mack Michael Nonxuba
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
14 February 2008
Case Number
5008/07
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Opposed and Heard
Outcome
Summary judgment refused; defendant granted leave to defend; plaintiff ordered to pay costs on attorney and client scale including costs of two counsel.
Judges
C.J. Musi
Legal Topics
Summary Judgment, Attorney and Client Costs, Undertaking Enforcement, Liquid Document, Costs Order
Civil Procedure Summary Judgment Attorney and Client Costs Undertaking Enforcement Liquid Document Costs Order

Case Brief

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Parties

Justice Reichlin Ramsamy

Plaintiff

Zuko Mack Michael Nonxuba

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Opposed and Heard

Legal Issues

  1. 1 Whether the plaintiff abandoned his right to apply for summary judgment by removing the application from the roll and acknowledging the defendant's right to defend.
  2. 2 Whether the plaintiff's taxed bill of costs constitutes a liquid document and should have been attached to the application.
  3. 3 Whether the plaintiff's claim had arisen in terms of the written undertaking and the circumstances of the case.

Ratio Decidendi

The court found that by removing the summary judgment application from the roll and expressly informing the defendant that the main action would proceed, the plaintiff acknowledged the defendant's right to defend and thereby abandoned his right to apply for summary judgment. The defendant's subsequent conduct, including filing a plea, was consistent with this acknowledgment. The court further held that the plaintiff's taxed bill of costs was not a liquid document and did not need to be attached to the application. The interpretation of the written undertaking and whether the claim had arisen were matters requiring evidence and could not be resolved on summary judgment. The defendant...

Court Disposition

Summary judgment refused; defendant granted leave to defend; plaintiff ordered to pay costs on attorney and client scale including costs of two counsel.

Orders

  • Summary judgment is refused and the defendant is granted leave to defend the action.
  • The plaintiff is ordered to pay the defendant's costs of the summary judgment proceedings on the attorney and client scale, such costs to include the costs occasioned by the employ of two counsel.