Pop v Minister of Justice and Constitutional Development (987/11) [2022] ZAGPPHC 135 (1 March 2022)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2022
>>
[2022] ZAGPPHC 135
|

|

Pop v Minister of Justice and Constitutional Development (987/11) [2022] ZAGPPHC 135 (1 March 2022)

REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
Date:
1 March 2022
CASE NO: 987/11
In
the matter between:
ION
POP
APPLICANT
and
THE MINISTER OF
JUSTICE AND
CONSITUTIONAL
DEVELOPMENT
RESPONDENT
JUDGMENT
Van der Schyff J
[1]
The applicant, who appeared in person, approached
the court with an application in terms of Rule 35(7) of the Uniform
Rules of Court.
He alleges that the respondent failed to comply with
an order handed down by Tolmay J on 17 November 2020 to make
discovery within
14 days of the date of the order. He seeks that the
respondent’s defence in the main action be struck.
[2]
The respondent opposed the application. The
respondent alleges that it has already filed a discovery affidavit
prior to the court
order being granted on 17 November 2020. The
discovery affidavit was served on the plaintiff personally at court
on 10 October 2013.
Subsequent to the discovery affidavit being
served, the applicant filed a notice in terms of Rule 35(3)
requesting that specific
documents be made available to him. The
respondent filed an affidavit stating that the ‘defendant has
diligently searched through
all available records for such documents
but has not been able to find them to date hereof.’
[3]
The applicant submitted that he was entitled to
approach the court for a second time to compel discovery since the
discovery occurred
six years ago and the respondent might in the
meantime have found the documentation he seeks. From the papers filed
it is apparent
that the applicant seeks the content of the court file
from the Magistrate’s Court Germiston in terms of which default
judgment
was granted against him during September 1997, pursuant to
which his home was sold in execution. He apparently alleges in the
particulars
of claim, which are not uploaded to the CaseLine’s file
but referred to the respondent’s heads of argument, that the Clerk
of
the Magistrate’s Court Germiston, falsely and without due reason
caused a default judgment to be entered in favour of Nedcor Bank
Ltd.
[4]
The respondent’s defence, as set out in its
heads of argument is that –
a.
Summons was issued by Nedcor Bank Ltd against the
applicant for his failure to pay instalments in terms of the mortgage
bond in respect
of immovable property;
b.
Pursuant to service of the summons on 24 July
1997, the applicant failed to enter an appearance to defend the
matter as a consequence
of which judgment was granted by default
against him on 2 October 1997;
c.
A warrant of execution was issued on 2 October
1997 in terms of which the immovable property was sold on 11 May
1998;
d.
The applicant brought an application for the
rescission of the default judgment which was opposed and dismissed on
28 February 2001.
[5]
The applicant took issue with the power of the
appointed state attorney to act. An affidavit was filed on behalf of
the respondent
wherein it was confirmed that Gabisile Nkosi is a
senior assistant attorney attending to this matter employed by the
Office of the
State Attorney. A letter received from the Legal
Practise Council (LPC) and uploaded to CaseLine confirms that Miss
Barbara Gabisile
Nkosi is recorded as a practising attorney within
the jurisdiction of the Gauteng Provincial Office of the LPC.
[6]
The applicant did not make out a case for the
respondent’s defence to be struck. If the respondent at trial wants
to rely on documentation
not discovered, leave will have to be
obtained from the trial court.
[7]
As for costs, the applicant is a lay person. The
respondent failed to explain the correct position to Tolmay J when
the order to compel
the respondent to discover was heard, and the
order granted. The applicant approached the court for the relief
sought based on the
order granted by Tolmay J. In these circumstances
I am of the view that it is fair that the costs of this application
are costs in
the trial.
ORDER
In the result the
following order is granted:
1.
The application is dismissed.
2.
Costs of the application are costs in the trial.
E van der Schyff
Judge of the High
Court
Delivered:  This judgement
is handed down electronically by uploading it to the electronic file
of this matter on CaseLines.
As a courtesy gesture, it will be sent
to the parties/their legal representatives by email. The date for
hand-down is deemed to be
1 March 2022.
Counsel
for the applicant:
In Person
For
the first and third defendants:

Adv. G. Bester SC
Instructed
by:
State
Attorney
Date
of the hearing:
28 February
2022
Date
of judgment:
1 March
2022