Van Aswegen N.O. and Others v Akker N.O. and Another (412/2016) [2016] ZANCHC 85 (16 September 2016)

Van Aswegen N.O. and Others v Akker N.O. and Another (412/2016) [2016] ZANCHC 85 (16 September 2016)

The court refused condonation for the late filing of the respondents' answering affidavit, finding the explanation of administrative error and oversight unsatisfactory and not constituting good cause. The respondents' conduct in denying access to the applicants, resulting in animal deaths and operational prejudice, was deemed vexatious and reprehensible. The applicants were compelled to approach the court for urgent relief, and the respondents only complied at the last moment. The court exercised its discretion to award costs on the attorney and own client scale, holding the respondents jointly and severally liable, as their conduct warranted a punitive costs order.

Citation
[2016] ZANCHC 85
Parties
Applicant: Nicolausesaias Van Aswegen N.O.; Applicant: Maria Helena Sarline Van Aswegen N.O.; Applicant: Daniel Johannes Truter N.O.; Respondent: Gerhardt Akker N.O.; Respondent: Emile Laubscher N.O.
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
16 September 2016
Case Number
412/2016
Procedural Posture
Urgent Application / Application for Condonation and Costs Determination
Outcome
Condonation for the late filing of the answering affidavit is refused. Respondents are ordered to pay applicants' costs on the attorney and own client scale, jointly and severally.
Judges
Mamosebo
Legal Topics
Condonation, Urgent Interdict, Right of Way, Costs Award, Attorney and Own Client Scale
Civil Procedure Land and Property Condonation Urgent Interdict Right of Way Costs Award Attorney and Own Client Scale

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Parties

Nicolausesaias Van Aswegen N.O.

Applicant

Maria Helena Sarline Van Aswegen N.O.

Applicant

Daniel Johannes Truter N.O.

Applicant

Gerhardt Akker N.O.

Respondent

Emile Laubscher N.O.

Respondent

Procedural Posture

Urgent Application / Application for Condonation and Costs Determination

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the answering affidavit.
  2. 2 Whether the applicants are entitled to costs on the attorney and own client scale.
  3. 3 Whether the respondents' conduct justified a punitive costs order.

Ratio Decidendi

The court refused condonation for the late filing of the respondents' answering affidavit, finding the explanation of administrative error and oversight unsatisfactory and not constituting good cause. The respondents' conduct in denying access to the applicants, resulting in animal deaths and operational prejudice, was deemed vexatious and reprehensible. The applicants were compelled to approach the court for urgent relief, and the respondents only complied at the last moment. The court exercised its discretion to award costs on the attorney and own client scale, holding the respondents jointly and severally liable, as their conduct warranted a punitive costs order.

Court Disposition

Condonation for the late filing of the answering affidavit is refused. Respondents are ordered to pay applicants' costs on the attorney and own client scale, jointly and severally.

Orders

  • The application for condonation for the late filing of the answering affidavit is refused.
  • The respondents are ordered to pay the applicants' costs on the scale as between attorney and own client jointly and severally, the one paying the other to be absolved.