Steenkamp NO and Another v Kleyn and Another (5241/2010) [2011] ZAWCHC 124 (2 February 2011)

Steenkamp NO and Another v Kleyn and Another (5241/2010) [2011] ZAWCHC 124 (2 February 2011)

The court found that the respondents' delay in delivering the Rule 23(1) notice was adequately explained and did not result in prejudice to the applicants. The exception delivered by the respondents constituted a valid procedural step in response to the notice of bar, and condonation for its late delivery was appropriate. The applicants' insistence on restricting the respondents to a plea on the merits was unfounded, as the court cannot prescribe the nature of the pleading to be filed. The application by the applicants in terms of Rule 30 to set aside the respondents' notice was dismissed, as the respondents had taken a valid procedural step. Both parties contributed to the procedural...

Citation
[2011] ZAWCHC 124
Parties
Applicant: J.J. Steenkamp, N.O.; Applicant: M.R. Joseph, N.O.; Respondent: E.P. Kleyn; Respondent: Oudtshoorn Rekeningkundige en Finansiele Dienste Beperk
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
2 February 2011
Case Number
5241/2010
Procedural Posture
Civil Application / Opposed Motion for Condonation and Procedural Relief
Outcome
Respondents' application for condonation for late delivery of the Rule 23(1) notice is granted; applicants' application for default judgment and to set aside the respondents' notice is dismissed; each party to pay its own costs.
Judges
Sven Oliver
Legal Topics
Condonation, Notice of Bar, Exception, Summary Judgment, Pleadings, Costs Order
Civil Procedure Condonation Notice of Bar Exception Summary Judgment Pleadings Costs Order

Case Brief

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Parties

J.J. Steenkamp, N.O.

Applicant

M.R. Joseph, N.O.

Applicant

E.P. Kleyn

Respondent

Oudtshoorn Rekeningkundige en Finansiele Dienste Beperk

Respondent

Procedural Posture

Civil Application / Opposed Motion for Condonation and Procedural Relief

Legal Issues

  1. 1 Whether condonation should be granted for the late delivery of the respondents' notice in terms of Rule 23(1).
  2. 2 Whether the applicants are entitled to default judgment due to the respondents' procedural default.
  3. 3 Whether the respondents' exception constitutes a valid procedural step in response to the notice of bar.

Ratio Decidendi

The court found that the respondents' delay in delivering the Rule 23(1) notice was adequately explained and did not result in prejudice to the applicants. The exception delivered by the respondents constituted a valid procedural step in response to the notice of bar, and condonation for its late delivery was appropriate. The applicants' insistence on restricting the respondents to a plea on the merits was unfounded, as the court cannot prescribe the nature of the pleading to be filed. The application by the applicants in terms of Rule 30 to set aside the respondents' notice was dismissed, as the respondents had taken a valid procedural step. Both parties contributed to the procedural...

Court Disposition

Respondents' application for condonation for late delivery of the Rule 23(1) notice is granted; applicants' application for default judgment and to set aside the respondents' notice is dismissed; each party to pay its own costs.

Orders

  • The bar against the respondents is uplifted in terms of Rule 27(1).
  • Respondents are ordered to deliver their further pleading in terms of Rule 22(1) within ten days.