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2024
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[2024] ZAGPJHC 854
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Bergmann v Bergmann and Another (2022/042484) [2024] ZAGPJHC 854 (29 August 2024)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
2022/042484
1.
REPORTABLE: Yes☐/ No ☐
2.
OF INTEREST TO OTHER JUDGES: Yes☐
/ No ☐
3.
REVISED: Yes ☐ / No ☐
Date: 29 August
2024 WJ du Plessis
In
the matter between:
MARITA
ASTRID BERGMANN
Applicant
and
HAROLD
ANDRÉ BERGMANN
First
Respondent
BERMAT
PROPERTY INVESTMENTS CC
Second
Respondent
Coram:
Du Plessis AJ
Heard
on:
13 August 2024
Decided
on:
29 August 2024
This
judgment has been delivered by uploading it to the CaseLines digital
database of the Gauteng Division of the High Court of
South Africa,
Johannesburg, and by e-mail to the attorneys of record of the
parties. The deemed date and time of the delivery is
10H00 on 29
August 2024.
ORDER
The
following order is made:
1.
The matter is struck from the roll for failure of the applicant to
abide by the Rules of court and failure to comply with
the practice
manual.
2.
The applicant is to pay the costs of the application on scale A.
JUDGMENT
DU PLESSIS AJ
Introduction
[1]
This
is an application to direct that the first respondent be removed as a
member of the second respondent as contemplated in ss
36 and or 49 of
the Close Corporations Act,
[1]
and for some ancillary relief related to it. There is also a
counter-application to sell the immovable property owned by the
second
respondent and ancillary relief. The counter-application is
unopposed.
[2]
After the application was launched and the answering affidavit
and counter application were delivered, the applicant did not file
a
replying affidavit, practice note, or heads of argument. The first
respondent obtained a court order on 4 October 2023 to compel
the
applicant to deliver a practice note, heads of argument, chronology
and lists of authorities as per the practice manual, which
she failed
to do. She also did not take steps to enrol the matter, prompting the
first respondent to do so. She also did not take
steps to withdraw
the matter. The latter failure has an implication for the cost order
sought and granted.
[3]
The practice note of the first respondent indicated that he
persists with the counter application and sought the main application
to be dismissed, raising various points “
in limine
”.
On the day of the hearing, Mr Boden indicated they no longer seek
relief in terms of the count application and that they
merely seek
for the application to be dismissed, with costs, on scale C, since
the first respondent had to incur various costs.
[4]
In terms of 9.8.2.13 of the Practice Manual of this Division
is clear that:
Unless
condonation is granted on good cause shown by way of written
application, failure on the part of the applicant to deliver
heads of
argument and/or a practice note will result in the matter being
struck from the roll with an appropriate order as to costs;
and
failure on the part of the respondent to deliver such documents will
result in the Court making such order as it deems fit,
including an
appropriate order as to costs. The failure to timeously serve and
file heads of argument shall not constitute a ground
for postponement
of an application.
[5]
The applicant thus failed to comply with the practice directives of
the court. The matter will thus be struck from the roll,
with the
appropriate cost order. I am not convinced that the importance, value
or complexity of the matter warrants a scale more
than the default
“A” scale.
Order
[28]
The following order is made:
1. The matter is
struck from the roll for failure of the applicant to abide by the
Rules of court and failure to comply with
the practice manual.
2. The applicant is
to pay the costs of the application on scale A.
WJ
du Plessis
Acting
Judge of the High Court
For
the Applicants:
CE
Boden instructed by JJS Manton Attorneys
For
the Respondents:
Grundlingh
& Associates Attorneys
[1]
69 of 1964.