About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2022
>>
[2022] ZAGPJHC 653
|
|
Evrigard (PTY) Ltd and Another v Select PPE (PTY) Ltd and Others (2021/21896) [2022] ZAGPJHC 653 (7 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 2021/21896
Date
of hearing: 8 August 2022
Date
delivered: 7 September 2022
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the application between:
EVRIGARD
(PTY) LTD
First Applicant
RONDO
(PTY) LTD
Second Applicant
and
SELECT
PPE (PTY) LTD
First Respondent
NLG
GLOVES (PTY) LTD
Second Respondent
PETRI-JS
PIETERSE
Third Respondent
SIBANYE
RUSTENBURG PLATINUM
MINES
(PTY) LTD.
Fourth Respondent
JUDGMENT
SWANEPOEL
AJ:
[1]
In the main application in this matter applicants have sought
interdicts against first to third respondent ("respondents")
on the grounds of alleged unlawful competition. Upon respondents
delivering their answering affidavit, applicant delivered two
rule 35
(12) notices, calling upon respondents to discover certain documents
referred to in the answering affidavit.
[2]
Respondents took the view that the notices constituted an irregular
step, and delivered notices in terms of rule 30 of the Uniform
Rules.
The notices raise the following complaints:
[2.1] Respondents say
that a party to motion proceedings may not rely on rule 35 (12)
unless a court has granted it leave to do
so, when exceptional
circumstances have been shown to exist.
[2.2] Respondents also
contend that applicant should have attached all documents required to
make its case in the founding papers,
and it cannot now ask for the
documents hoping to use the documents in reply.
[2.3] The third ground
for objection is that discovery is only allowed once pleadings have
closed, or, in the case of motion proceedings,
when the replying
affidavit has been delivered.
[2.4] Respondents say
that applicants should have exhausted other remedies to find the
documents.
[2.5] Finally,
respondents say that the second notice is lis pendens in that it
repeats some of the demands for documents included
in the first
notice.
[3]
Respondents have now brought two applications, which they have
informally consolidated, to have the rule 35 (12) notices set
aside.
[4]
Rule 35 (12) reads as follows:
"Any party to any
proceeding may at any time before the hearing there of deliver a
notice as near as may be in accordance with
Form 15 in the First
Schedule to any other party in whose pleadings or affidavits
reference is made to any document or tape recording
to produce such
document or tape recording for his inspection and to permit him to
make a copy or transcription thereof. Any party
failing to comply
with such notice shall not, without the leave of the court, use such
document or tape recording in such proceeding
provided that any other
party may use such document or tape recording. "
[5]
Respondents rely on the provisions of rule 35 (13) which makes rule
35 applicable to applications "in so far as the court
may
direct", and, they argue, in the absence of a prior direction of
court, the rule 35 (12) notices were irregular.
[6]
The wording of rule 35 (12) is unambiguous. It applies to
any
AQ_çeedjng
, and it specifically refers to affidavits. It
is therefore applicable to motion proceedings and actions. It says
that a party may
at any time before the hearing
deliver a rule
35 (12) notice. The wording is clear enough: It is not necessary for
a party to obtain an order in advance, authorizing
the giving of
notice in terms of this rule.
[7]
In this interpretation I am supported by the case of Moulded
Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis
and
Another
l
.
Rule 35 (13) is of application to normal discovery in terms of rule
35 (1) (2) and (3), and is not applicable to rule 35 (12).
[1]
[8]
Consequently, I hold that the notices were not irregular by virtue of
respondents not having applied in advance for leave to
file them.
[9]
The second ground of complaint is that applicants may try and make
out a case in reply. Whether that may or may not happen is
not for me
to decide. If applicants do so, then they will have to justify their
papers
before
the Court hearing the matter.
[2]
This is not a ground for finding that the notices themselves are
irregular.
[10]
Respondents also contend that the second notice is lis pendens. Lis
alibi pendens is a defence raised where more than one action
has been
instituted between the same parties in respect of essentially the
same cause of action and for the same relief. It has
nothing to do
with filing two notices that overlap in certain respects.
[11]
The contention that applicant should have exhausted other remedies to
obtain the documents is equally without merit. Once a
party refers to
a document in its affidavit, the other party is entitled to see that
document, and to call for it in terms of rule
35 (12).
[3]
[12]
It follows, therefore, that the applications must fail.
[13]
I make the following order:
[13.11 Both applications
in terms of rule 30 are dismissed with costs.
SWANEPOEL
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION OF THE HIGH COURT,
JOHANNESBURG
COUNSEL
FOR APPLICANT:
Adv. Harrison
ATTORNEY
FOR
APPLICANT:
Paul Friedman and Associates
COUNSEL
FOR RESPONDENT:
Adv Marriot
ATTORNEYS
FOR
RESPONDENT:
McNaught and Co. Inc.
DATE
HEARD:
12 August 2022
DATE
OF JUDGMENT:
7 September 2022
[1]
1979 (2) 457 (WLD) at page 461 B- D
[2]
Democratic Alliance and Others v Mkhwebane and Another
2021 (3) SA
403
(SCA)
[3]
Protea Assurance Co Ltd v Waverley Agencies CC and Others
1994 (3)
SA 247
(CPD)