Van Der Merwe v Lues and Others (58207/2012) [2013] ZAGPPHC 554 (29 November 2013)

Van Der Merwe v Lues and Others (58207/2012) [2013] ZAGPPHC 554 (29 November 2013)

The court found that the respondents failed to act with the required diligence in securing expert evidence, despite being aware of the applicant's allegations regarding noise nuisance since October 2012. The respondents did not provide a satisfactory explanation for the delay in obtaining the sound engineer's report or for not seeking alternative expert assistance. The court exercised its discretion to allow the filing of the supplementary affidavit in the interests of justice but held that the respondents were the primary cause of the postponement. Consequently, the respondents were ordered to pay the costs occasioned by the postponement, including the costs of senior counsel.

Citation
[2013] ZAGPPHC 554
Parties
Applicant: Christoffel Johannes Van Der Merwe; Respondent: Cornelius Stephenus Lues; Respondent: Chanel Lues; Respondent: City of Tshwane
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 November 2013
Case Number
58207/2012
Procedural Posture
Urgent Application / Application for Interim Interdict and Costs Order Following Postponement
Outcome
Leave to file the supplementary affidavit was granted; the applicant was permitted to replicate; the matter was postponed sine die; the first and second respondents were ordered to pay the costs of the postponement, including costs of senior counsel.
Judges
N M Mavundla
Legal Topics
Interim Interdict, Nuisance, Supplementary Affidavit, Costs Order, Postponement, Noise Pollution
Civil Procedure Land and Property Interim Interdict Nuisance Supplementary Affidavit Costs Order Postponement Noise Pollution

Case Brief

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Parties

Christoffel Johannes Van Der Merwe

Applicant

Cornelius Stephenus Lues

Respondent

Chanel Lues

Respondent

City of Tshwane

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict and Costs Order Following Postponement

Legal Issues

  1. 1 Whether the respondents should be granted leave to file a supplementary affidavit after pleadings closed.
  2. 2 Whether the respondents acted with sufficient diligence in procuring expert evidence.
  3. 3 Whether the respondents should bear the costs occasioned by the postponement.

Ratio Decidendi

The court found that the respondents failed to act with the required diligence in securing expert evidence, despite being aware of the applicant's allegations regarding noise nuisance since October 2012. The respondents did not provide a satisfactory explanation for the delay in obtaining the sound engineer's report or for not seeking alternative expert assistance. The court exercised its discretion to allow the filing of the supplementary affidavit in the interests of justice but held that the respondents were the primary cause of the postponement. Consequently, the respondents were ordered to pay the costs occasioned by the postponement, including the costs of senior counsel.

Court Disposition

Leave to file the supplementary affidavit was granted; the applicant was permitted to replicate; the matter was postponed sine die; the first and second respondents were ordered to pay the costs of the postponement, including costs of senior counsel.

Orders

  • Leave is granted to the first and second respondents to file a supplementary affidavit.
  • The applicant is permitted to file a replication within the agreed time frames.