Simon Says Advertising (Pty) Ltd v KG Family Holdings (Pty) Ltd (2085/2019) [2024] ZAECQBHC 71 (29 November 2024)

Simon Says Advertising (Pty) Ltd v KG Family Holdings (Pty) Ltd (2085/2019) [2024] ZAECQBHC 71 (29 November 2024)

The Defendant failed to comply with a clear and enforceable court order requiring it to furnish trial particulars. No acceptable or satisfactory explanation was provided for this non-compliance, and the Defendant's conduct was found to be wilful and contumacious. The Court considered the remedies available under Rule 21(4) and the inherent discretion to strike out a Plea for persistent procedural default. The Plaintiff set out sufficient facts to justify relief, and the Defendant's repeated delays and disregard for procedural rules warranted a strong deterrent. The Court crafted an order requiring the Defendant to furnish the requested particulars by a specified date, failing which the...

Citation
[2024] ZAECQBHC 71
Parties
Applicant: Simon Says Advertising (Pty) Ltd; Respondent: KG Family Holdings (Pty) Ltd
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
29 November 2024
Case Number
2085/2019
Procedural Posture
Civil Application / Application to Strike Out Plea for Non Compliance With Order to Furnish Trial Particulars
Outcome
Application granted in part; Defendant ordered to furnish trial particulars by 3 December 2024, failing which it must show cause why its Plea should not be struck out and judgment granted against it. Costs awarded against Defendant on attorney and client scale.
Judges
Beyleveld
Legal Topics
Rule 21 Trial Particulars, Striking Out of Plea, Court Order Enforcement, Double Barrelled Approach, Costs Award, Amendment of Pleadings
Civil Procedure Commercial and Corporate Rule 21 Trial Particulars Striking Out of Plea Court Order Enforcement Double Barrelled Approach Costs Award Amendment of Pleadings

Case Brief

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Parties

Simon Says Advertising (Pty) Ltd

Applicant

KG Family Holdings (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Application to Strike Out Plea for Non Compliance With Order to Furnish Trial Particulars

Legal Issues

  1. 1 Whether the Defendant's Plea should be struck out for failure to comply with a court order to furnish trial particulars.
  2. 2 Whether the Defendant has provided any acceptable reason for non-compliance with the order.
  3. 3 Whether the Court has inherent power to strike out a Plea in these circumstances.

Ratio Decidendi

The Defendant failed to comply with a clear and enforceable court order requiring it to furnish trial particulars. No acceptable or satisfactory explanation was provided for this non-compliance, and the Defendant's conduct was found to be wilful and contumacious. The Court considered the remedies available under Rule 21(4) and the inherent discretion to strike out a Plea for persistent procedural default. The Plaintiff set out sufficient facts to justify relief, and the Defendant's repeated delays and disregard for procedural rules warranted a strong deterrent. The Court crafted an order requiring the Defendant to furnish the requested particulars by a specified date, failing which the...

Court Disposition

Application granted in part; Defendant ordered to furnish trial particulars by 3 December 2024, failing which it must show cause why its Plea should not be struck out and judgment granted against it. Costs awarded against Defendant on attorney and client scale.

Orders

  • The Defendant is directed to furnish a response to Plaintiff's Request for Trial Particulars dated 23 August 2023 on or before 3 December 2024.
  • In the event of the Defendant failing to comply, the Defendant is called upon to show cause on 5 December 2024 why its Plea should not be struck out with costs and judgment granted in favour of the Plaintiff.