Webber N.O and Others v Hein (CA 221/2020) [2021] ZAECGHC 76 (10 August 2021)

Webber N.O and Others v Hein (CA 221/2020) [2021] ZAECGHC 76 (10 August 2021)

The appeal succeeded because the respondent failed to properly amend the notice of motion to include PART B, as required by Rule 28. The second court erred in treating the 'extended notice of motion' as subsuming the original without a formal amendment, resulting in procedural unfairness. Furthermore, the respondent breached the duty to disclose all material facts, including the deed of settlement following the divorce, which was relevant to the relief sought. The failure to disclose these facts and the procedural irregularities justified the discharge of the rule nisi and the award of costs on a punitive attorney and client scale.

Citation
[2021] ZAECGHC 76
Parties
Appellant: Russell Wayne Webber N.O.; Appellant: Felicity Elaine Webber N.O.; Appellant: Magdaleene Pelser N.O.; Appellant: The Webber Family Trust; Respondent: Megan Hein
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
10 August 2021
Case Number
CA 221/2020
Procedural Posture
Civil Appeal / Appeal Against Confirmation of Rule Nisi and Interim Interdict
Outcome
Appeal upheld; rule nisi discharged; costs awarded against respondent on punitive attorney and client scale.
Judges
S M Mbenenge, R W N Brooks, N W Gqamana
Legal Topics
Ex Parte Applications, Interim Interdict, Amendment of Notice of Motion, Trust Management Disputes, Non Disclosure of Material Facts
Civil Procedure Land and Property Ex Parte Applications Interim Interdict Amendment of Notice of Motion Trust Management Disputes Non Disclosure of Material Facts

Case Brief

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Parties

Russell Wayne Webber N.O.

Appellant

Felicity Elaine Webber N.O.

Appellant

Magdaleene Pelser N.O.

Appellant

The Webber Family Trust

Appellant

Megan Hein

Respondent

Procedural Posture

Civil Appeal / Appeal Against Confirmation of Rule Nisi and Interim Interdict

Legal Issues

  1. 1 Whether the second court erred in confirming the rule nisi when the original notice of motion lacked PART B.
  2. 2 Whether the respondent breached the duty to disclose all material facts in the ex parte application.
  3. 3 Whether the delivery of an 'extended notice of motion' without proper amendment was procedurally permissible.

Ratio Decidendi

The appeal succeeded because the respondent failed to properly amend the notice of motion to include PART B, as required by Rule 28. The second court erred in treating the 'extended notice of motion' as subsuming the original without a formal amendment, resulting in procedural unfairness. Furthermore, the respondent breached the duty to disclose all material facts, including the deed of settlement following the divorce, which was relevant to the relief sought. The failure to disclose these facts and the procedural irregularities justified the discharge of the rule nisi and the award of costs on a punitive attorney and client scale.

Court Disposition

Appeal upheld; rule nisi discharged; costs awarded against respondent on punitive attorney and client scale.

Orders

  • The appeal succeeds with costs.
  • The order of the court a quo is set aside and substituted with: (a) The rule nisi granted by this court on 13 December 2019 is hereby discharged. (b) The applicant shall pay costs of the application on the punitive attorney and client scale.