Van As N.O. and Others v Jacobs N.O. and Another (A194/2021) [2022] ZAGPPHC 928 (1 December 2022)

Van As N.O. and Others v Jacobs N.O. and Another (A194/2021) [2022] ZAGPPHC 928 (1 December 2022)

The court held that the omission of the commissioner of oaths' details on the founding affidavit was not fatal, as the regulations are directory and substantial compliance was achieved. The replying affidavit and confirmatory affidavit provided the necessary details and confirmed that the oath was properly administered. The court a quo materially misdirected itself by failing to exercise its discretion on all the facts and by not accepting the evidence in the replying affidavit as required by the Plascon-Evans rule. The defect was cured, and the point in limine should have been dismissed. The appeal was upheld, the order of the court a quo was set aside, and the matter was referred back...

Citation
[2022] ZAGPPHC 928
Parties
Appellant: Karel Johannes van As N.O.; Appellant: Star Stone Crushers N.O.; Appellant: Christine Catherine van As N.O.; Respondent: Gertruida Susanna Jacobs N.O.; Respondent: Dawid Mathee N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 December 2022
Case Number
A194/2021
Procedural Posture
Civil Appeal / Appeal From High Court Decision on Point in Limine
Outcome
Appeal upheld; order of the court a quo set aside; point in limine dismissed; matter referred back to High Court for adjudication on the merits.
Judges
Potterill, Neukircher, Tshombe
Legal Topics
Commissioner of Oaths Requirements, Founding Affidavit Deficiency, Substantial Compliance, Judicial Discretion, Condonation, Uniform Rules Rule 6
Civil Procedure Commissioner of Oaths Requirements Founding Affidavit Deficiency Substantial Compliance Judicial Discretion Condonation Uniform Rules Rule 6

Case Brief

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Parties

Karel Johannes van As N.O.

Appellant

Star Stone Crushers N.O.

Appellant

Christine Catherine van As N.O.

Appellant

Gertruida Susanna Jacobs N.O.

Respondent

Dawid Mathee N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Decision on Point in Limine

Legal Issues

  1. 1 Whether the omission of the commissioner of oaths' details on the founding affidavit constitutes fatal non-compliance with Regulation 4(2).
  2. 2 Whether substantial compliance with Regulation 4(2) permits the court to exercise discretion to condone the defect.
  3. 3 Whether the replying affidavit and confirmatory affidavit cure the deficiency in the founding affidavit.

Ratio Decidendi

The court held that the omission of the commissioner of oaths' details on the founding affidavit was not fatal, as the regulations are directory and substantial compliance was achieved. The replying affidavit and confirmatory affidavit provided the necessary details and confirmed that the oath was properly administered. The court a quo materially misdirected itself by failing to exercise its discretion on all the facts and by not accepting the evidence in the replying affidavit as required by the Plascon-Evans rule. The defect was cured, and the point in limine should have been dismissed. The appeal was upheld, the order of the court a quo was set aside, and the matter was referred back...

Court Disposition

Appeal upheld; order of the court a quo set aside; point in limine dismissed; matter referred back to High Court for adjudication on the merits.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and replaced with: 'The point in limine is dismissed with costs. The matter is referred back to the High Court for adjudication on the merits.'