Waterhouse Properties CC and Others v Hyperception Properties 572 CC and Others (2198/2004) [2004] ZAFSHC 97 (28 October 2004)

Waterhouse Properties CC and Others v Hyperception Properties 572 CC and Others (2198/2004) [2004] ZAFSHC 97 (28 October 2004)

The court found that several paragraphs in the answering affidavit of the first respondent constituted hearsay, irrelevant evidence, or expert opinion by unqualified persons and were therefore inadmissible and struck out. Similarly, certain paragraphs in the applicants' founding and replying affidavits were found to be secondary facts unsupported by primary evidence or expert opinion by unqualified persons and were struck out. However, where the respondent's own version or admissions provided the necessary primary facts, objections were overruled and those paragraphs were allowed to stand. The court apportioned costs based on the relative success of each party in their respective...

Citation
[2004] ZAFSHC 97
Parties
Applicant: Waterhouse Properties CC; Applicant: Moore, Jean-Marie Denis Maurice; Applicant: Moore, Juanita Catherine; Respondent: Hyperception Properties 572 CC; Respondent: Metsimaholo Local Municipality; Respondent: Rand Water
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 October 2004
Case Number
2198/2004
Procedural Posture
Civil Application / Application to Strike Out Portions of Affidavits in Motion Proceedings
Outcome
The applicants' application to strike out is granted with full costs. The first respondent's application to strike out is substantially refused, with the first respondent ordered to pay 16.2% of the applicants' costs relating to that application.
Judges
M.H. Rampai
Legal Topics
Motion Proceedings, Striking Out, Expert Evidence, Building Regulations, Costs Award
Civil Procedure Land and Property Motion Proceedings Striking Out Expert Evidence Building Regulations Costs Award

Case Brief

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Parties

Waterhouse Properties CC

Applicant

Moore, Jean-Marie Denis Maurice

Applicant

Moore, Juanita Catherine

Applicant

Hyperception Properties 572 CC

Respondent

Metsimaholo Local Municipality

Respondent

Rand Water

Respondent

Procedural Posture

Civil Application / Application to Strike Out Portions of Affidavits in Motion Proceedings

Legal Issues

  1. 1 Whether certain portions of the answering affidavit and founding/replying affidavits constitute inadmissible hearsay, irrelevant evidence, or expert opinion by unqualified persons.
  2. 2 Whether the objections to specific paragraphs in the affidavits should be sustained and those portions struck out.
  3. 3 How costs should be apportioned between the parties in respect of the applications to strike out.

Ratio Decidendi

The court found that several paragraphs in the answering affidavit of the first respondent constituted hearsay, irrelevant evidence, or expert opinion by unqualified persons and were therefore inadmissible and struck out. Similarly, certain paragraphs in the applicants' founding and replying affidavits were found to be secondary facts unsupported by primary evidence or expert opinion by unqualified persons and were struck out. However, where the respondent's own version or admissions provided the necessary primary facts, objections were overruled and those paragraphs were allowed to stand. The court apportioned costs based on the relative success of each party in their respective...

Court Disposition

The applicants' application to strike out is granted with full costs. The first respondent's application to strike out is substantially refused, with the first respondent ordered to pay 16.2% of the applicants' costs relating to that application.

Orders

  • The applicants' application to strike out is granted.
  • The first respondent is directed to pay the full costs of the applicants relating to such application.