Roselli v Derek’s Boerewors and Pie Mecca CC and Others (84979/2014) [2016] ZAGPPHC 1160 (7 December 2016)

 

A little less controversial post. In the matter of Roselli v Derek's Boerewors and Pie Mecca CC and Others, the High Court of South Africa (Gauteng Division), was called upon to decide on a procedural matter that concerned a somewhat trite legal principle: The infamous mischief of practitioners to launch motion proceedings (despite having knowledge of material disputes of facts) with the hope that the matter will be referred to trial thereby gaining advantage over matters that were instituted by way of proceedings from the onset. 

 

Briefly, the facts are as follows: The applicant alleged that he was part of the first respondent close corporation because he had paid the second respondent a some in excess of 1.2 million rands. The second respondent then admitted that the applicant paid her approximately 1.2 million rands but the transfer of the 50 percent of the close corporation was not transferred to the applicant. Which then meant that the claim for about 1.2 million rands was against the second applicant and not the first respondent close corporation. 

Ngalwana AJ, reaffirmed the Stellenvale Rule, which warns against applications-cum-trials because the applicant wanted to refer the matter for viva voce evidence having known of said material dispute of fact and going on to institute motion proceedings and not action proceedings. It is worth mentioning that there are circumstances where motions cum trial, Ngalwana AJ details those circumstances in para 13.1-13.5.

The application was eventually dismissed with costs.    

It is worth mentioning that there were some remedies that were sort that were not applicable to the litigants situations. Namely: Asking the court for punitive costs for inclusion of inadmissable evidence is not appropriate, a striking out application is. 

Also, punitive costs for a misjoinder is not an appropriate remedy.