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[2022] ZAGPPHC 859
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Moatshe v Kganakga (56563/2021) [2022] ZAGPPHC 859 (7 November 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 56563/2021
Reportable:
No
Of
interest to other judges: No
7
November 2022
In
the matter between:
KESETSENG
MARIA
MOATSHE
Applicant
And
GIVEN
KGANAKGA
Respondent
Judgment
Strijdom
AJ
Introduction
[1]
This is an opposed Rule 35(7)
application in which the Applicant sought an order that the
Respondent be ordered to comply with Applicant's
Rule 35(3) notice.
[2]
The application is opposed by the
Respondent on the basis that it was not properly served upon the
Respondent and that the Respondent
did comply with the Rule 35(3)
notice.
Condonation
[3]
Condonation is granted for the late
filing of the Respondents' answering affidavit and the late filing of
the Applicants'
replying
affidavit.
[4]
On
the 7
th
of March 2022 the Applicant filed a further discovery notice in terms
of Rule 35(3) on the basis that the Respondent has failed,
omitted
and or neglected to discover certain documents, which documents are
in the Respondents possession. The notice was served
upon the
Respondents' attorneys by e-mail.
[1]
[5]
On
the 28
th
March
2022 the Applicant filed a notice of motion in terms of Rule 35(7) to
compel the Respondent to comply with the Rule
35(3) notice.
[2]
[6]
On
the 26
th
April
2022 a notice of set down for an application
in
terms of Rule 35(7) was served on the Respondents attorneys by
e-mail. The matter was set down for the 15
th
of July 2022 and was removed from the unopposed motion roll to be
enrolled on the opposed motion roll. The Respondent was ordered
to
pay the costs of the application.
[3]
Service
of The Rule 35(7) Application
[7]
On the 28
th
March
2022, the Respondents' attorneys received an e-mail from the
Applicants' attorneys to which was attached an Application
in terms
of Rule 35(7).
[8]
On the same day a further e-mail was
received from the Applicants' attorneys stating that the earlier two
e-mails must be withdrawn
as they contain errors.
[9]
The Respondents' attorneys concluded
based on the contents of the e-mails that the application in terms of
Rule 35(7) was withdrawn.
[10]
It was submitted by the Respondent that no agreement was reached
between the attorneys to effect
service by electronic mail
transmission.
[4]
[11]
It
was stated by the Applicant that there was an agreement
telephonically between the attorneys to serve via e-mail.
[5]
[12]
In my view mere knowledge of issue of
the application by the Respondent does not constitute service and
cannot relieve an Applicant
of his or her obligations to follow the
prescribed rules.
[13]
Having considered the papers I am not
persuaded that there was an agreement
between the parties to effect service by
e-mail.
I
concluded
that
there was no proper service of this application as prescribed in Rule
4 of the Uniform Rules of Court.
The
Response to Rule 35(3) Notice
[14]
In
its further discovery notice in terms of Rule 35(3) the Applicant
seeks inter alia copies of the Respondent's
[6]
:-
14.1
Life policies, investments and bank
account statements;
14.2
Disclosure of income and assets;
14.3
Financial statements relating to
businesses;
14.4
Registration documents (Title Deeds)
relating to immovable properties forming part of the joint estate;
14.5
Copies and or registration details of
all motor vehicles which form part of the joint estate
14.6
Details of the agent who sold the
immovable property situated at no [….] G[....] Street,
B[....], Kempton Park.
14.7
Details of
the
proceeds of sale and details of the
conveyancing attorney.
[15]
The
reply to the Applicants'
Rule
35(3) notice was served on the Applicants' attorneys on the 1
st
June 2022.
[7]
[16]
In this reply the Respondent answered as
follows;
"2.1.1
I do not have any investments and are not in possession of any
documents capable of being discovered
/ inspected by the Defendant.
2.1.2
My
FNB
Current Account statement, FNB Life, Hollard, 1 Life
and B3 Funeral policies documents may be inspected at my attorneys'
offices
between 08h00 to 16h00 on working days.
2.2.1
A completed Financial Disclosure Form
with supporting documents will be made available to the Defendant as
per the Judge President's
Directive.
2.2.2
The documents to the Plaintiff's spousal
pension income are obtainable from the Government Employees Pension
Fund.
2.3.1
I do not have any business banking
accounts or any business that has any financial record.
2.3.2
The bank account which belonged to the
business entity Seithati Trading Enterprises (Pty) Ltd has been
closed and the records or
documents in relation thereto are in the
possession of
FNB
under
account number [....]
2.4
I
am
not
in
possession
of
any
Title
Deed
in
respect
of
any
immovable property and there is no
immovable property registered in my name.
2.5.1
The registration certificates of the
three Toyota Quantum minibuses, Geely and Chevrolet Utility motor
vehicles may be inspected
at my attorney's offices during office
hours on working weekdays between 08h00 to 16h00.
2.5.2
The aforegoing are the only vehicles
registered in my name.
2.6.1
The immovable property referred to was
part of the Estate of the Late Molwazi Juliet Petunia Matiyane as per
the attached Deed of
Transfer No [….]
2.6.2
The documents relating to the
administration of the Estate of the deceased are in the possession of
the Master of the High Court,
Johannesburg.
2.7
I
have
completed
a
Financial
Disclosure
Form
as
per
the
Judge Presidents Directive and do not
have anything to add thereto."
[17]
Even if I erred in my view that there
was no proper service of this application, I concluded that the
Respondent gave a detailed
and full disclosure of the information and
or documents requested by the Applicant in the Rule 35(3) notice.
[18]
In the result:
1.
The application is dismissed with costs.
J.J.
STRIJDOM
Acting
Judge of the High Court of
South
Africa, Gauteng Division, Pretoria
Heard
on: 29
August 2022
Date
of Judgment: 07
November 2022
Appearances
For
the Applicant: Advocate
M.P. Zwane
Instructed
by: Tshabalala
A. Attorneys
For
the Respondent: Mr.
K.P. Seabi
Instructed
by: K.P.
Seabi & Associates
[1]
Caselines: p014- 9 to 12.
[2]
Caselines: p014 - 1 to 3.
[3]
Caselines: Court order p00 - 1 to 2.
[4]
Caselines: Answering affidavit p. 014-36 para 8.2.
[5]
Caselines: Replying affidavit p.014-62 para 20.
[6]
Caselines: p014-9 to 11.
[7]
Caselines: p014-46.