Van Zyl N.O and Another v Smit (41425/2020) [2021] ZAGPPHC 499 (5 August 2021)

Van Zyl N.O and Another v Smit (41425/2020) [2021] ZAGPPHC 499 (5 August 2021)

The court found that the applicant provided a reasonable explanation for the delay in filing the notice of exception, including evidence of proactive steps to consult with counsel. The delay was not wilful or reckless, and condonation was therefore granted. However, the court held that the applicant was not seriously prejudiced by the alleged vagueness in the respondents' particulars of claim, as alternative remedies for obtaining further particulars were available. The exception was dismissed, and costs for the condonation application were awarded to the respondents, limited to the cost of one counsel.

Citation
[2021] ZAGPPHC 499
Parties
Plaintiff: Thomas Christopher Van Zyl N.O.; Plaintiff: Gonasagree Govender N.O.; Defendant: Morrison Etienne Smit
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 August 2021
Case Number
41425/2020
Procedural Posture
Civil Application / Application for Condonation and Exception
Outcome
Condonation granted; exception dismissed; costs awarded to respondents for one counsel.
Judges
T B Antulay
Legal Topics
Condonation, Exception Procedure, Vague and Embarrassing Pleading, Uniform Rules of Court Rule 23
Civil Procedure Condonation Exception Procedure Vague and Embarrassing Pleading Uniform Rules of Court Rule 23

Case Brief

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Parties

Thomas Christopher Van Zyl N.O.

Plaintiff

Gonasagree Govender N.O.

Plaintiff

Morrison Etienne Smit

Defendant

Procedural Posture

Civil Application / Application for Condonation and Exception

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the notice of exception.
  2. 2 Whether the respondents' particulars of claim are vague and embarrassing and thus excipiable.
  3. 3 Whether the applicant suffered prejudice due to the alleged vagueness or lack of particularity in the particulars of claim.

Ratio Decidendi

The court found that the applicant provided a reasonable explanation for the delay in filing the notice of exception, including evidence of proactive steps to consult with counsel. The delay was not wilful or reckless, and condonation was therefore granted. However, the court held that the applicant was not seriously prejudiced by the alleged vagueness in the respondents' particulars of claim, as alternative remedies for obtaining further particulars were available. The exception was dismissed, and costs for the condonation application were awarded to the respondents, limited to the cost of one counsel.

Court Disposition

Condonation granted; exception dismissed; costs awarded to respondents for one counsel.

Orders

  • The applicant's application is dismissed.
  • The applicant is to pay the costs including the cost of one counsel.