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[2010] ZAGPPHC 547
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E.G v J.C.G (35083/2008) [2010] ZAGPPHC 547 (12 February 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE N0:35083/2008
DATE: 12 FEBRUARY
2010
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
E
G[...]
...................................................................................................................................................
Applicant
and
J[...] C[...]
G[...]
..................................................................................................................................
Respondent
JUDGMENT
MAKGOKA.
J
:
[1] The central
question in this application is whether or not the respondent has
complied with a notice served by the applicant
in terms of rule 35
(3) on the respondent.
[2] The brief
factual background is the following: the respondent delivered her
discovery affidavit on 10 December 2008. On 28 May
2009, the
applicant served a notice in terms of rule 35 (3) asserting that
there are in addition to the documents discovered by
the respondent,
certain specified documents, set out in the notice, not discovered.
There was no response to this notice, and on
3 October 2009, the
applicant served an application to compel the respondent’s
compliance with the said notice. That application
was inadvertendly
set down for 10 January 2010, being a Sunday.
[3]
Meanwhile, on 18 December 2009, the respondent delivered an answer in
terms of rule 35 (3), in the form of an affidavit, dealing
seriatim,
and
comprehensively with the documents mentioned in the applicant’s
rule 35 (3) notice. In my view, that should have been
the end of the
matter, as far as compliance with rule 35 (3) notice was concerned,
bar costs.
[4] On 3 February
2010, the applicant delivered a “replying affidavit”,
wherein the applicant mainly deals with the
question whether the
respondent’s physiotherapist practice falls within the accrual
(the parties are married out of community
of property, their divorce
action pending before this court on 15 March 2010). As would become
clear later, I view this so-called
replying affidavit totally
irrelevant and ill-advised at this stage. As indicated in the
introduction to this judgement, the question
to be decided is whether
the respondent has complied with the rule 35 (3) notice served on
her.
[5] Rule 35 (3) of
the Uniform Rules of Court reads as follows:
“
If
a party believes that there are, in addition to documents or tape
recordings disclosed... other documents (including copies thereof)
or
tape recordings which may be relevant to any matter in question in
the possession of any party thereto, the former may give
notice to
the latter requiring him to
make
the same
available
for inspection in accordance with sub-rule (6) or to
state on oath within ten days
that such documents are not in his
possession,
in which event he shall state their whereabouts, if
known to him. ”
(my
emphasis)
[6] In my view, the
above provisions are unambiguous. All what the party receiving a rule
35(3) notice has to do, is first, to make
the documents listed in
rule 35 (3) notice available for inspection and /or secondly, in the
event he does not have the documents,
to depose to an affidavit
stating the whereabouts of such documents.
[7] In the present
case, it is my view that the respondent has more than complied with
the sub-rule. She has deposed to an affidavit,
dealing with each
document or a bundle of documents, listed in the rule 35 (3) notice,
and where the documents were available,
tendering the inspection
thereof, at the office of her attorneys. This is what rule 35 (3)
provides for.
[8]
Mr.
Bofilatos,
for
the applicant, argued that this is not in compliance with the rule 35
(3) notice, contending that the respondent had to deliver
a document
along the same format of a discovery affidavit, with the schedules
normally accompanying a discovering affidavit. I
do not agree. Rule
35 (3) does not require that, as is clear from its provisions set out
above.
[9]
Mr.
Bofilatos,
also
sought to argue the adequacy of the respondent’s answer to the
rule 35 (3) notice. On the other hand, Mrs
Cilliers,
for
the respondent, argued that this court is not competent, at this
stage and on these papers, to go beyond the answer. If the
applicant
is not satisfied with the adequacy of the answer, it is upon the
applicant to bring a separate application in terms of
rule 35 (7), to
compel “further and better discovery”. I agree with Mrs
Cilliers’
argument,
in view of the provisions of rule 35 (3), read with rule 35 (6), in
terms of which provision is made for production and
inspection of
documents discovered.
[10] I am therefore
satisfied that the respondent has complied with the applicant’s
notice in terms of rule 35 (3).
[11]
In my view, this application should never have been on the opposed
roll. The respondent had already, on 18 December 2009, complied
with
the applicant’s rule 35 (3) notice, albeit late. The applicant
was then entitled to costs on the unopposed scale. I
therefore fully
agree with Mrs
Cilliers
that
the applicant did not follow the correct procedure in attempting to
force “further and better discovery”.
Costs
[12]
Mrs.
Cilliers
in
her heads of argument, pressed for costs on attorney and client
scale, in the light of the applicant’s persistence with
this
application, despite fore-warning that this application was not
necessary in view of the respondent’s compliance. It
is my view
that this application was ill-considered, but not
mala
fide.
As
a result I do not think a punitive costs order is warranted.
[13]
Given the view I take that this application should not have been
persisted with after the respondent had delivered her answer
to the
applicant’s notice in term of rule 35 (3), I think a proper
order would be to remove the matter from the roll, as
there is
presently no
lis
between
the parties, except the issue of costs. With regard to costs, I think
it is fair that the respondent bear the costs occasioned
by the
application to compel compliance with the rule 35 (3) notice, on an
unopposed scale. The applicant, on the other hand, should
be ordered
to pay the costs occasioned after 18 December 2009, to date of
argument of this application.
[14] As a result I
make the following order:
1. The application
is removed from the roll.
2. The respondent is
ordered to pay the costs of the application up to and including 18
December 2009. on an unopposed scale:
3. The applicant is
ordered to pay the costs of the application from 18 December 2009 to
date of argument of the application, on
an opposed scale.
T.M. MAKGOKA
JUDGE OF THE HIGH
COURT
DATE HEARD: 10
FEBRUARY 2010
JUDGEMENT HEARD : 12
FEBRUARY 2010
FOR THE APPLICANT:
ADV G BOFILATOS
INSTRUCTED
BY :
R N B
ATTORNEYS,
PRETORIA
FOR THE RESPONDENT:
ADV S. CILLIERS
INSRTUCTED
BY:
JOHAN VAN DE
VYVER
ATTORNEYS, PRETORIA