Life and Analytical Sciences (Pty) Ltd v Perkin Elmer Italia Spa

• Jurisdiction: South Africa
• Judge: Maenetje AJ
• Judgment Date: 28 November 2014
• Docket Number: 13/26920
• Court: Gauteng Local Division, Johannesburg
• Hearing Date: 21 November 2014
• Citation: 2015 JDR 0282 (GJ)

Maenetje AJ:

Introduction

1.

This is an interlocutory application in which the applicants, being the respondents in the main application, seek the following orders:

"1.

The First and Second Applicants are granted leave to file a fourth set of affidavits within 10 (ten) days of this order;

2.

The main application is postponed sine die, costs thereof are reserved;

3.

Costs of this application to be paid by the Respondent (Applicant in the main application), on the scale as between attorney and client;

4.

Further and/or alternative relief."

2

I heard the interlocutory application on 21 November 2014, and gave the following order:

"1.

The First and Second Applicants are granted leave to file a fourth set of affidavits within 5 (five) days of this order;

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Maenetje AJ

2.

The main application is postponed sine die, and costs thereof are reserved;

3.

Costs of this application to be paid by the First and Second Applicants (the Respondents in the main application), on a party and party scale."

3

I did not give reasons for granting the above order, and indicated that my reasons would follow. These are my reasons.

Brief factual background

4

The respondent, which is the applicant in the main application, brought an application in which it seeks mainly an order against the first applicant, which is the first respondent in the main application, for:

a.

payment of an amount of US$424 822,12;

b.

interest on the amount of US$424 822,12 at the rate of 15,5% per annum calculated from 25 February 2013 to date of payment.

5.

It is clear from the affidavits filed in the interlocutory application that the amount of US$424 822,12 has been reduced by payments that the first applicant has made to the respondent over time, since the institution of the main application. There appears to be some dispute as to the exact amount outstanding, and in respect of which the respondent will still pursue judgment against the first applicant in the main application. This dispute seems to centre, inter alia, around certain credit that should be passed to the first respondent. The first applicant contends that the correct credit that should be passed in its favour is 22 000 Euros but that the respondent misstates the credit to be passed as US$18 000,00.

6.

The applicants state in their founding affidavit that the respondent has raised new matter in its replying affidavit in the main application, to which they wish to respond. The respondent filed its replying affidavit in the main application on 6 August 2014. The applicants' attorneys sent a letter to the respondent's attorneys dated 15 September 2014 in which they stated, inter alia, that it was patently clear that the replying affidavit raised new matter, which came into existence subsequent to the applicants filing their answering affidavit in the main application. The respondent's

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Maenetje AJ

attorneys replied to the letter from the applicants' attorneys by letter dated 22 September 2014. The respondent's attorneys stated, inter alia, the following in their reply:

"3.

Our client's Replying Affidavit was delivered on 5 August 2014. Accordingly, your client has had over a month to deliver any further affidavits it believes is necessary but has inexplicably failed to do so. It is further noted that no explanation as to your client's delay is proffered in your communication under reply either.

4.

Our client's consent to the filing of a further affidavit by your client is not a necessary precursor to your client filing a further affidavit if it deems it necessary to do so. The parties are not entitled simply by their own arrangements to file as many affidavits as they wish and the filing of further affidavits is a matter for discretion of the court."

7.

The applicants did not bring an application for leave to file a further affidavit after receipt of the letter of 22 September 2013 from the respondent's attorneys. They delayed. Instead, the applicants' attorney sent a further letter to the respondent's attorneys dated 11 November 2014. This letter was sent after the respondent's counsel had...