Semela v Semela and Another (1975/2010) [2018] ZAFSHC 10 (1 March 2018)

Semela v Semela and Another (1975/2010) [2018] ZAFSHC 10 (1 March 2018)

The court found that the applicant provided exceptional and material facts explaining why relevant evidence was not included in the founding affidavit. The respondent failed to dispute these facts substantively and did not demonstrate any prejudice that would result from allowing the supplementary affidavit. The court exercised its discretion in favour of the applicant, holding that fairness and justice required the matter to be adjudicated on the full facts, and that the respondent's approach, including the attorney deposing to the affidavit instead of the respondent herself, was inadequate. Accordingly, leave was granted to the applicant to file a supplementary affidavit and the...

Citation
[2018] ZAFSHC 10
Parties
Applicant: Thesi John Semela; Respondent: Ntombamahlubi Constance Semela; Respondent: ABSA Pension Fund
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
1 March 2018
Case Number
1975/2010
Procedural Posture
Civil Application / Application for Leave to File Supplementary Affidavit
Outcome
Leave granted to applicant to file a supplementary affidavit; first respondent to pay costs of the application.
Judges
Bokwa, AJ
Legal Topics
Supplementary Affidavit, Rule 6 5 E, Discretion of Court, Striking Out Affidavit, Prejudice, Exceptional Circumstances
Civil Procedure Supplementary Affidavit Rule 6 5 E Discretion of Court Striking Out Affidavit Prejudice Exceptional Circumstances

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Thesi John Semela

Applicant

Ntombamahlubi Constance Semela

Respondent

ABSA Pension Fund

Respondent

Procedural Posture

Civil Application / Application for Leave to File Supplementary Affidavit

Legal Issues

  1. 1 Whether the applicant has made out a sufficient case for the court to exercise its discretion to permit the filing of a supplementary affidavit.
  2. 2 Whether the respondent would suffer prejudice if the supplementary affidavit is allowed.

Ratio Decidendi

The court found that the applicant provided exceptional and material facts explaining why relevant evidence was not included in the founding affidavit. The respondent failed to dispute these facts substantively and did not demonstrate any prejudice that would result from allowing the supplementary affidavit. The court exercised its discretion in favour of the applicant, holding that fairness and justice required the matter to be adjudicated on the full facts, and that the respondent's approach, including the attorney deposing to the affidavit instead of the respondent herself, was inadequate. Accordingly, leave was granted to the applicant to file a supplementary affidavit and the...

Court Disposition

Leave granted to applicant to file a supplementary affidavit; first respondent to pay costs of the application.

Orders

  • Leave is granted to the applicant to file a supplementary affidavit.
  • The first respondent is ordered to pay the costs of the application.