Viljoen NO and Others v GWK Limited (2304/2017) [2017] ZAECGHC 135 (28 November 2017)

Viljoen NO and Others v GWK Limited (2304/2017) [2017] ZAECGHC 135 (28 November 2017)

The court found that the applicants failed to comply with the procedural requirements for opposing summary judgment, specifically by not filing an opposing affidavit or making a proper application for condonation. The alleged defect in the respondent's affidavit was dismissed as insufficient to defeat the summary judgment application. The applicants' attempt to raise substantive defences only at the leave to appeal stage was improper and did not cure their earlier procedural failures. The judge was not persuaded that there were reasonable prospects of success on appeal, and accordingly dismissed the application for leave to appeal with costs.

Citation
[2017] ZAECGHC 135
Parties
Applicant: Sylvia Annelia Viljoen N.O.; Applicant: Clarance Stander N.O.; Applicant: Jacobus Frederick Viljoen N.O.; Respondent: GWK Limited
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
28 November 2017
Case Number
2304/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Summary Judgment
Outcome
Application for leave to appeal dismissed with costs.
Judges
NG Beshe
Legal Topics
Summary Judgment, Leave to Appeal, Rule 32 Compliance, Condonation of Late Affidavit
Civil Procedure Summary Judgment Leave to Appeal Rule 32 Compliance Condonation of Late Affidavit

Case Brief

Summary, issues, holding and outcome

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Parties

Sylvia Annelia Viljoen N.O.

Applicant

Clarance Stander N.O.

Applicant

Jacobus Frederick Viljoen N.O.

Applicant

GWK Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Summary Judgment

Legal Issues

  1. 1 Whether the applicants have demonstrated reasonable prospects of success on appeal against the summary judgment.
  2. 2 Whether the respondent's affidavit in support of summary judgment was fatally defective under Rule 32(2).
  3. 3 Whether the applicants were entitled to file a late opposing affidavit and seek condonation.

Ratio Decidendi

The court found that the applicants failed to comply with the procedural requirements for opposing summary judgment, specifically by not filing an opposing affidavit or making a proper application for condonation. The alleged defect in the respondent's affidavit was dismissed as insufficient to defeat the summary judgment application. The applicants' attempt to raise substantive defences only at the leave to appeal stage was improper and did not cure their earlier procedural failures. The judge was not persuaded that there were reasonable prospects of success on appeal, and accordingly dismissed the application for leave to appeal with costs.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal the order and judgment granting summary judgment against the applicants is dismissed with costs.