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[2021] ZAGPJHC 860
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Cragg v Patterton (26968/2019) [2021] ZAGPJHC 860 (22 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
26968/2019
DATE
:
22
nd
july 2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
In
the matter between:
CRAGG
,
DEBBIE GRACE
Plaintiff
and
PATTERTON
,
ELEANOR
KAREN
Defendant
Coram:
Adams
J
Heard
: 20
July 2021 – The ‘virtual hearing’ of the
application
was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
22
July 2021 – This judgment was handed down electronically by
circulation to the parties' representatives by email, being
uploaded
to the
CaseLines
system of the GLD and by release to SAFLII. The date and time for
hand-down is deemed to be 13:00 on 22 July 2020.
Summary:
Practice and Procedure – application to compel
better discover – rule 35(3) discussed – application to
compel
better discovery granted –
(1)
The plaintiff shall within ten days from the date of this order
comply with
the defendant’s notice in terms of rule 35(3) dated
the 27
th
of November 2020 by discovering and making
available for inspection in accordance with rule 35(6) the documents
referred to in
paragraphs 1, 2 and 3 of the defendant’s
aforementioned rule 35(3) notice.
(2)
The plaintiff shall pay the defendant’s costs of her
application in terms
of rule 35(7) to compel better discovery.
JUDGMENT
Adams
J:
[1].
I shall refer to the parties as referred to in the main action.
[2].
Before me is an application by the defendant in
terms of uniform rule of court 35(7) for an order compelling the
plaintiff to comply
with her (defendant’s) rule 35(3) notice,
in which the plaintiff was required to discover the following
documentation: (1)
Bank statements for the period 1 January 2016
until 1 November 2020; (2) Pension fund statements for the Gauteng
Department of
Education; and (3) A detailed list of all endowment
policies, life policies and annuities reflecting the current values
thereof.
[3].
On 1 December 2020, the defendant delivered her
Rule 35(3) Notice, calling upon the plaintiff to disclose and make
available for
inspection further documents in her possession which
documents the defendant believed to be relevant to matters in
question in
the action. On 26 March 2021, the plaintiff replied by
serving her affidavit in terms of Rule 35(7), objecting to producing
any
and all of the documents listed and averring that these documents
are not relevant to the issue between the parties, that being
whether
a universal partnership existed between them during the period when
they lived together. The plaintiff conceded that these
documents may
be relevant to the distribution of the assets of the parties in the
event of it being found that a universal partnership
indeed existed,
but not before such a ruling is made by the court.
[4].
The plaintiff therefore refuses to make
available to the defendant for inspection the documents listed in
defendant’s rule
35(3) notice, because, so the plaintiff
alleges, the documents are not relevant to the main issue to be
decided between the parties,
although they may very well be relevant
once the main issue has been decided.
[5].
Rule 35(3) provides as follows:
‘
(3)
If any party believes that there are, in addition to documents or
tape recordings disclosed as
aforesaid, 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 subrule (6), or to state
under oath within ten days that such documents are not in his
possession, in which
event he shall state their whereabouts, if known
to him.’
[6].
My reading of the plaintiff’s reply to
the defendant’s rule 35(3) notice is that the plaintiff in
essence objects to
the production of the documents on the basis that
they are irrelevant. However, on plaintiff’s own version the
documents
are relevant to issues between the parties, albeit that
those issues only arise between the parties once it has been
established
that a universal partnership did exist. That, in my view,
is sufficient and more than adequate to bring these documents within
the ambit of rule 35(3), as being documents relevant to
any
matter in question in this action. The point is that, even on
plaintiff’s version, the relevance of the documents is clear.
[7].
I am therefore of the view that the documents
are relevant to the matters in the main action. Accordingly, the
defendant’s
application to compel discovery and inspection of
the documents listed in her rule 35(3) should succeed.
Costs
[8].
The general
rule in matters of costs is that the successful party should be given
her or his costs, and this rule should not be
departed from except
where there are good grounds for doing so, such as misconduct on the
part of the successful party or other
exceptional circumstances. See:
Myers v
Abramson
[1]
.
[9].
In this matter, I can think of no reason why I should deviate from
the general
rule and I therefore intend ordering the plaintiff to pay
the defendant’s costs of this application.
Order
[10].
In the result, I make the following order:
(1)
The plaintiff shall within ten days from the date of this order
comply
with the defendant’s notice in terms of rule 35(3) dated
the 27
th
of November 2020 by discovering and making
available for inspection in accordance with rule 35(6) the documents
referred to in
paragraphs 1, 2 and 3 of the defendant’s
aforementioned rule 35(3) notice.
(2)
The plaintiff shall pay the defendant’s costs of her
application
in terms of rule 35(7) to compel better discovery.
________________________________
L
R ADAMS
Judge
of the High Court
Gauteng
Local Division, Johannesburg
HEARD
ON: 20
th
July 2021 – in a ‘virtual hearing’ during a
videoconference on the
Microsoft Teams
digital platform
JUDGMENT
DATE: 22
nd
July 2021 – judgment handed down electronically
FOR
THE PLAINTIFF /
RESPONDENT:
Ms Magda Vermeulen
INSTRUCTED
BY:
Magda Vermeulen Attorneys, Vereeniging
FOR
THE DEFENDANT /
APPLICANT:
Advocate W F Wannenburg
INSTRUCTED
BY:
Esthé Muller Incorporated, Vereeniging
[1]
Myers v
Abramson
,
1951(3) SA 438 (C) at 455.