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[2018] ZANCHC 93
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Burger N.O. and Others v Land and Agricultural Development Bank of South Africa (324/18 & 409/2018) [2018] ZANCHC 93 (22 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 324/18 & 409/2018
Heard
on: 08/08/2018
Delivered on: 22/11/2018
In
the matter between
MICHIEL
DANIëL BURGER N.O.
First Applicant/Respondent
CAROLINA
JOHANNA BURGER N.O.
Second Applicant/Respondent
ESTHER
BURGER N.O.
Third Applicant/Respondent
MICHIEL
DANIëL BURGER
Fourth Applicant/Respondent
CAROLINA
JOHANNA BURGER
Fifth Applicant/Respondent
ESTHER
BURGER
Sixth Applicant/Respondent
And
THE
LAND AND AGRICULTURAL
Respondent/Applicant
DEVELOPMENT
BANK OF SOUTH AFRICA
JUDGMENT
PAKATI
J
[1]
There are two main applications before court. Regarding the first
one, the applicant, Land and Agricultural Development
Bank of
South Africa (“Land Bank”), approached this Court on an
urgent basis and without notice to the respondents,
MD Burger, CJ
Burger and E Burger, the first to third respondents in their
representative capacities as trustees of Michiele Burger
Boerdery
Trust, and as fourth to sixth respondents in their personal
capacities as sureties and co-principal debtors (“the
respondents”), on 13 February 2018 under Case Number 324/2018,
and was granted a
rule nisi
returnable on 06 March 2018 for
the perfection of a notarial bond and an order authorising the
Sheriff to attach all movable assets
of Michiele Burger Boerdery
Trust duly represented by the respondents.
[2]
In the second main application Land Bank seeks judgment against the
respondents under Case Number 409/2018 in respect of the
following
amounts; R 14 541 346-35, R 1 663 978-60, R
295 811-83, R 222 598-33 and R 248 088-78
with
interest calculated at 15.25% per annum calculated daily and
capitalised and compounded from 01 November 2017 to date of payment.
For convenience, I will refer to the parties as they appear in the
main applications.
[3]
In both applications Land Bank relies on written agreements, a sale
agreement and a service level agreement. These agreements
were not
attached to the founding papers in order to avoid prolixity. The
respondents oppose the applications.
[4]
The respondents allege that the interim order granted on 13 February
2018 and application papers regarding the main applications
were
served on them on 22 February 2018, save for the first respondent who
only became aware of the applications on 23 February
2018. On 28
February 2018 he consulted with his legal representative, Mr Steyn,
and an arrangement to consult with counsel on 06
March 2018 was made.
Before the said date the main applications were postponed to 08 June
2018 and on this date, to 08 August 2018.
[5]
During the said consultation with counsel the first respondent was
advised to obtain as of necessity the following documents
as
mentioned in paragraphs 31.1 to 31.3 of the founding affidavit for
consideration before filing an answering affidavit:
’
31.1
Die gehele leêrinhoud van die prokureurs belas met die oordrag
van die eiendom voormeld, synde Mnre De Villiers &
Stenvert te
Hertzogville;
31.2
Die kontrakte na verwys in die respondent se funderende verklaring;
en
31.3
Alle state deur my ontvang van Suidwes Landbou aangande die lenings
wat die onderwerp van die twee hoofaansoeke vorm.’
[6]
On 08 March 2018 Mr Steyn addressed a letter to Land Bank’s
attorneys of record, Van de Waal Attorneys, requesting the
documents
mentioned above which were forwarded
via
email eighteen days later. The next day Mr Steyn arranged another
consultation with counsel after receipt of the said documents.
During
such consultation it transpired that the documents forwarded were
incomplete copies of the written sale and service level
agreements
and the annexures to the said agreements were not attached. The
respondents discovered at that stage that the agreements
relied upon
by Land Bank in the main applications to establish
locus
standi
were subject to suspensive conditions.
Counsel then advised the first respondent to obtain complete copies
of the agreements and
prepare a notice in terms of Rule 35.
[1]
[7]
On 05 April 2018 the respondents filed a notice in terms of Rule 35
(12) and (14)
[2]
in respect of both cases. This rule provides thus:
‘
35
Discovery, inspection and production of documents
(12)
Any party to any proceeding may at any time before the hearing
thereof 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, save with 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.
(14)
After appearance to defend has been entered, any party to any action
may, for purposes of pleading, require any other party
to make
available for inspection within five days a clearly specified
document or tape recording in his possession which is relevant
to a
reasonably anticipated issue in the action and to allow a copy or
transcription to be made thereof.’
[8]
In response to the respondents’ request Land Bank stated that
the respondents were furnished with the sale and the service
level
agreements
via
email
dated 26 March 2018 and refused to comply in terms of sub rule (14)
contending that it was inapplicable to application proceedings.
Land
Bank states that it would only comply with the said request if it
were directed by the court. The respondents then filed a
notice in
terms of Rule 30A
[3]
on 07 May 2018 informing Land Bank that an application to compel
would follow if it failed to comply with the said notice.
[9]
On 15 May 2018 Land Bank, in response to the said notice, contended
that the annexures to the agreements were privileged, irrelevant
and
unnecessary for the issues in dispute. The respondents argue that
Land Bank’s contention was without legal or factual
basis,
hence the interlocutory application.
[10]
On 22 May 2018 the respondents filed an application for condonation
for the late filing of their answering affidavit. They
also apply for
an extension of time for the filing of same, an order declaring Rule
35 (14) applicable to the main applications
and also compelling
compliance with paragraphs A (a) and (b) as well as Part B of the
applicant’s notice in terms of Rule
35 (12) and (14). The
respondents allege that the application for condonation is based upon
Land Bank’s non-compliance with
Rule 35 (12) which resulted in
its failure to file its opposing affidavit timeously. This, according
to the respondents, is the
reason why they failed to comply with the
court order dated 08 June 2018. Land Bank vehemently opposes the
application.
[11]
In order to decide whether condonation should be granted it is
necessary to determine whether or not Land Bank failed to comply
with
Rule 35 (12). The respondents only seek condonation for its failure
to file its answering affidavit in terms of the Court
order which was
granted by agreement.
[12]
Land Bank contends that it had already furnished the respondents with
the relevant agreements. Mr de Koning, for Land Bank,
submits that
the respondents failed to comply with their undertaking to file their
answering affidavit in time as ordered by Court
and now seek
condonation. He submits further that the respondents play delaying
tactics as what they seek from Land Bank has already
been discovered.
Mr Van Niekerk, for the respondents, contends that the respondents
made no undertaking as alleged by Land Bank
and disputes that the
respondents are playing for time.
[13]
Rule 35 (12) authorises the production of documents referred to in
general terms in a party’s pleadings or affidavits.
It does not
refer to detailed or descriptive reference to such documents.
[4]
The entitlement to see a document or tape recording arises as soon as
reference is made thereto in a pleading or affidavit and
a party
cannot ordinarily be told to draft and file his or her own pleadings
or affidavits before he or she will be given an opportunity
to
inspect and copy, or transcribe, a document or tape recording
referred to in his or her adversary’s pleadings or
affidavits.
[5]
[14]
Regarding the request in terms of Rule 35 (14) Mr de Koning submits
that the respondents are not entitled to the documents
that they seek
discovery of. He submits further that seeking to invoke Rule 35 (14)
in application proceedings and later realise
that the respondents
first need a court order to procure leave to render this sub-rule
applicable is itself a delaying tactic.
Despite having been warned
unequivocally that sub-rule (14) could not be resorted to, the
respondents were adamant and filed a
notice in terms of Rule 30A
accusing Land Bank of failing to comply with its obligations flowing
from the rules of court, the argument
goes.
[15]
According to Mr de Koning the respondents require various documents
to assist them to establish whether or not Land Bank acquired
rights
from Suidwesfin Landbou (Pty) Ltd (“Suidwes”) and whether
or not the suspensive condition has been fulfilled.
He states further
that if they would be able to establish that the suspensive condition
was not, that would mean that Land Bank
has not acquired rights from
Suidwes and therefore lacks
locus standi
.
[16]
Mr de Koning contends that Land Bank and Suidwes, the parties to the
agreements (the sale agreement and the level service agreement),
have
acted according to the said agreements and have given full effect
thereto. He contends further that there is no dispute between
Land
Bank and Suidwes regarding the agreements as they regard the
agreements as binding and operative between the parties. This,
according to Land Bank leaves the respondents in limbo as they were
not parties to the agreements. It argues further that as third
parties, it is not open to the respondents to raise an issue whether
or not a suspensive condition has been fulfilled.
[17]
For this contention Mr de Koning relies on
ABSA
BANK BPK v VON ABO FARMS BK & ANDERE
[6]
where the question raised was whether or not the defendants, as
outsiders, were entitled to rely on the non-fulfilment of the
conditions in the agreement for its cancellation. In answering this
question the following points had to be considered; (a) that
the
principle that courts had to endeavour to interpret commercial
contracts as to render them effective was applicable; (b) that
those
who wanted the agreement set aside namely, the defendants had not
been parties thereto, but outsiders, and years after the
parties had
fulfilled their obligations in terms thereof; (c) that the parties to
the agreement had not been strangers, but for
all intents and
purposes members of one big family. The court held that it was
obvious that the parties to the agreement had achieved
that which
they had intended. It held further that the defendant’s attempt
to have the agreement set aside was doomed to
failure as there was no
principle in law whereby a greater power to cancel an agreement was
conferred on third parties than on
the contracting parties
themselves.
[18]
Mr de Koning submits that there is no merit in the relief sought by
the respondents and they have themselves to blame for not
heeding to
Land Bank’s attorneys of record that they had to file their
answering affidavit. He further relied on
NEDCOR
INVESTMENT BANK LTD v VISSER NO AND OTHERS
[7]
which referred to
Absa Bank
supra
where it was
said that it ill-behoves a third party to challenge an agreement
where parties to the agreement with the authority
of the regulatory
authorities implemented and persisted with the implementation of the
terms of the agreement.
[19]
Mr Van Niekerk submits that the deponent to the founding affidavit,
Mr Rudolph Nagel, gave a clear and unambiguous undertaking
to provide
complete copies of the relevant documents in the event of its
request. However, Land Bank failed to discover the said
documents
thereby breaching the said undertaking. Paragraph 1.3 of Mr Rudolph
Nagel’s founding affidavit in Case Number 324/18
records:
‘
Suidwes is authorised to act as an agent of the
Land and Agricultural Development Bank of South Africa in terms of a
written sale
agreement and the service level agreement. The said
agreements are not annexed to this application in order to avoid
prolixity.
Copies of the agreements will be at all relevant times
whilst the application is pending, be available at the offices of the
applicant’s
attorneys for perusal and copies thereof will be
available on request. The agreements will be bound and available in
that form
at the hearing of this application should it become
necessary for any of the parties or the Court to have sight of the
agreements
and the contents thereof. To the extent that some of the
clauses are relevant to the current proceedings, they are pertinently
pleaded in this application.’
I
n
paragraph 1.4 Mr Nagel added that he also has in his possession and
control the loan agreement, security agreements and all related
documents entered into between the respondents and Suidwes.
[20]
The relevant paragraphs that Land Bank relies on in order to support
the main applications are 3.7 and 3.8 of the founding
affidavit which
state:
‘
3.7
In terms of and pursuant to the aforesaid sale agreement, the
applicant is the holder of all right, title and interest in and
to
all claims and related securities against the respondents;
3.8
The applicant as cessionary accordingly has
locus
standi
with regards to all matters pertaining
to the sale book debts and in particular the respondents’
indebtedness to which this
claim pertains.’
[21]
Marais J in
PROTEA ASSURANCE CO
LTD v WAVERLEY AGENCIES CC AND OTHERS
[8]
laid down the fundamental principles regarding Rule 35 (12) as
follows:
‘
[The] applicant’s desire that second
respondent should first have to file his affidavit in response to the
allegations made
by Roberts as to what second respondent said to him
during the telephone conversations which were recorded on the tape
before being
allowed to listen to the tape is understandable as a
forensic strategy, but to gratify it would be to defeat the object of
Rule
35 (12). That Rule plainly entitles a litigant to see the whole
of a document or tape recording and not just the portion of it upon
which his adversary in the litigation has chosen to rely. That
entitlement, unlike the entitlement to general discovery for which
Rule 35 (1) provides, does not arise only after the close of
pleadings in a trial action, or after both answering and replying
affidavits have been filed in motion proceedings: it arises as soon
as reference is made in the pleading or affidavit to a document
or
tape recording. It is inherent in that that a litigant cannot
ordinarily be told to draft and file his own pleadings or affidavits
before he will be given an opportunity to inspect and copy, or
transcribe, a document or tape recording referred to in his
adversary’s
pleading or affidavits.’
[22]
In its response to the notice in terms of Rule 30A Land Bank
indicated that ‘
more than sufficient particularity has been
given regarding the agreement.
It states further that ‘
the
agreement contains private and confidential information, and the
portions not supplied are covered by privilege. Consequently
the
respondents are entitled to no more than what has already been
granted to them.’
[23]
Thring J in
UNILEVER plc AND ANOTHER v
POLAGRIC (PTY) LTD
[9]
and also quoting dictum of Marais J, as he then was,
in
Protea Assurance Co Ltd
supra
stated thus:
‘
It
is clear from these decisions that, otherwise than is the case with
discovery under Rule 35 (1) and (2) read with Rule 35 (13),
a
defendant or respondent does not have to wait until the pleadings
have been closed or his opposing affidavits have been delivered
before exercising his right under Rule 35 (12): he may do so at any
time before the hearing of the matter. It follows that he may
do so
before disclosing what his defence is, or even before he knows what
his defence, if any, is going to be. He is entitled to
have the
documents ‘for the specific purpose of considering his
position’
(Erasmus v Slomowitz
(2) (supra at 244); see also
Gehle v
McLoughlin
1986 (4) SA 543
(W) at 546D-E). I
conclude that the applicants’ refusal to produce the documents
sought cannot be justified on this ground.’
[24]
It is of great significance to refer to sub rule (13) as well. It
provides:
‘
(13)
The provisions of this rule relating to discovery shall mutatis
mutandis apply, in so far as the court may direct, to applications.’
Clearly the purpose of this sub rule is to extend the
provisions of Rule 35 which focuses on action proceedings to also
apply to
application proceedings.
[25]
The issues for determination are whether or not Land Bank failed to
discover in terms of Rule 35 (12) thereby allegedly rendering
the
respondents unable to file their answering affidavit timeously. The
issue further is whether the provisions of Rule 35 (14)
are
applicable to the main applications. In
FIRSTRAND
BANK LTD t/a WESBANK v MANHATTAN OPERATIONS (PTY) LTD AND OTHERS
[10]
Molahlehi AJ held:
‘
[17]
The authorities are in agreement that, in general, discovery does not
apply in application proceedings as a matter of course
(African Bank
Ltd v Buffalo City Municipality and Others
2006 (2) SA 130
(Ck HC) in
para 6). In this respect the court in Moulded Components and
Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another
(1979
(2) SA 457
(W) at 470D-E quoting Stuart v Ismail
1942 AD 327
at 332 –
Eds) held that
‘
In
application proceedings we know that discovery is a very, very rare
and unusual procedure to be used and I have no doubt that
is a sound
practice and it is only in exceptional circumstances, in my view,
that discovery should be ordered in application proceedings.’
[18]
The exception to the general rule, that discovery does not apply in
application proceedings, does not arise as a matter of
course, but
can only be by way of an application. Once an application is made,
the court, in considering whether the exception
to the general rule
applies, has a discretion to exercise. In order to succeed, the
applicant has to persuade the court that there
exist exceptional
circumstances that justify the departure from the general rule. In
this respect the court in Krygkor Pensionfonds
v Smith
[1993] ZASCA 47
;
(1993 (3) SA
459
(A) at 467B-D) held:
’
The
answer to this contention is that the principle underlying the
procedure sanctioned by the courts in these cases is that the
courts
have, as stated in the passage quoted above from [Hart v Stone (1883)
Buch 309], “very large powers of ordering a
disclosure of facts
where justice would be defeated without such disclosure.”
[26]
Plasket AJ in
PREMIER FREIGHT (PTY) LTD v
BREATHETEX CORPORATION (PTY) LTD
[11]
stated:
‘…
[C]ertain important constitutional values
must also be borne in mind. The founding constitutional value of the
rule of law, enshrined
in s 1 (c) of the Constitution of the Republic
of South Africa Act 108 of 1996, and the right to access to court,
entrenched in
s 34 of the Constitution, encapsulate a commitment by
the State to make available to the public for the resolution of
disputes
courts that function according to fair procedures. Secondly,
while South Africa could once be described as a closed and secretive
society, that too has been changed by a constitutional commitment to
openness, not only in government but also in the private sphere:
s 32
of the Constitution provides for access to information held by the
State, or by private bodies if it is required for the exercise
or
protection of a right. Section 39 (2) of the Constitution requires me
to interpret Rule 35 (13) in such a way that the spirit,
purport and
objects of the Bill of Rights is promoted.’
[27]
It is not in dispute that the respondents were not parties to the
contract between Suidwes and Land Bank. Mr de Koning
argues
that the respondents’ application is ill conceived, irrelevant
and constitutes an abuse of process. He argues further
that the
respondents were not entitled to raise as an issue an argument that
the suspensive condition in the agreement between
Suidwes and Land
Bank was not fulfilled. Therefore their request to discovery does not
exonerate them from filing the opposed affidavit
as ordered on 06
April 2018. He relies on
POTPALE INVESTMENTS
(PTY) LTD v MKIZE
[12]
where Govern J held:
‘
[22]…It is clear that the court did not
regard the bringing of the application (let alone the request for
further particulars)
as suspending the time period under rule 26.
[23]
This reasoning commends itself to me as applying equally to the
present matter. The delivery of rule 35 notices did not suspend
the
period in which the defendant was obliged to deliver a plea or other
document referred to in rule 22. When he was confronted
with a rule
26 notice, he was put to an election. He could either have done his
best to plead and so have defeated the bar or he
could have applied
to extend the time within which to plead and to compel production of
the documents for that purpose.’
[28]
Importantly, in
Protea Assurance
it is stated that Rule 35
(12) plainly entitles a litigant to see the whole document or tape
recording and not just the portion
of it upon which his adversary in
the litigation has chosen to rely. This entitlement arises as soon as
reference is made in the
pleading or affidavit to a document or tape
recording as alluded to in the cases
supra
. A litigant has to
be given an opportunity to inspect and copy or transcribe such
document or tape recording before drafting and
filing his own
pleading.
[29]
Even though it has been stated in
MOULDED
COMPONENTS AND ROTOMOULDING SOUTH AFRICA (PTY) LTD v COUCOURAKIS AND
ANOTHER
that in application proceedings
discovery is a rare and unusual procedure to be used
[13]
but because of the fact that motion proceedings have been instituted
the respondent is called upon not only to plead to the claim
set out
in the founding affidavit and the notice of motion but is obliged to
place before court its evidence.
[14]
[30]
In casu
Land Bank does not only refer to the agreements it
relies on but undertakes to make copies of the agreements to be ‘
at
all times available at the offices of the applicant’s attorneys
whilst the application is pending for perusal and copies
thereof will
be available on request.
’ In its founding affidavit
it did not mention that parts of the agreements were confidential and
or privileged or that
only parts would be made available. Its
allegation was unsubstantiated either legally or factually. It was
revealed for the first
time in response to the respondents’
notice in terms of Rule 30A. My emphasis
[31]
The entitlement and the obligation to produce the documents arise as
soon as reference is made thereto in the pleadings or
affidavit. Rule
30A provisions apply to a failure to comply with a notice under sub
rule (12) of Rule 35 despite that the sub rule
itself provides a
sanction for non-compliance.
[15]
It is inherent in the instant case too that the respondents cannot
ordinarily be told to draft and file their own pleadings or
affidavits before they are given an opportunity to inspect and copy,
or transcribe, the requested documents referred to in Land
Bank’s
founding affidavit. Therefore Rule 35 (12) plainly entitles the
respondents to see the requested documents. In the
circumstances it
would be safe to infer that the applicant waived its right to
privilege due to non-communication.
[32]
Upon interpretation of Rule 35 (12) a party called upon to comply
with this rule is excused from doing so if he/she can show
that the
document requested is irrelevant to the issues at hand or is
privileged but cannot refuse on the grounds of confidentiality.
[16]
[33]
The question is whether the documents in question are essential not
merely useful, in order to enable the respondents to plead.
[17]
The respondents in their notice in terms of Rule 35 (12) & (14)
state that the applicant failed to comply with Rule 35 (12)
by not
discovering documents referred to by Mr RM Nagel. The respondents
know and believe that the said documents are in Land Bank’s
possession and control and are relevant to the issues. They have
specified them with precision. Lack of these documents amongst
those
discovered by the applicant result in the respondents being unable to
draft their answering affidavit thereby complying with
the court
order dated 06 March 2018.
[34]
Land Bank discovered the sale agreement which contains 91 pages but
from page 56 to 57 of 91 only signatures appear. Pages
58 to 91 are
not included. Similarly, the service level agreement ends at page 73
of
95. Page 74
contains only signatures and pages 75 to 95 have not
been attached. The respondents have clearly specified the documents
which
they allege are relevant for the purposes of putting their full
defence. The respondents have, in my view, succeeded in showing
that
exceptional circumstances exist to exercise my discretion in their
favour. Land Bank had an
onus
setting up facts relieving them
of the duty to produce the documents requested by the respondents.
All that Land Bank does is to
oppose the application on the basis
that the respondents were not parties to the agreements and were
therefore outsiders.
[35]
Mr Van Niekerk argues that the validity of the agreements will be
placed in issue thereby showing that the respondents have
prima
facie
prospects of success in the main applications. The fact
that Land Bank relies on the agreements but refuse to discover same
puts
the respondents at a disadvantage in conducting their case. Its
refusal to disclose and failing to show that the undisclosed
documents
are privileged raises a concern.
[36]
Having regard to the circumstances referred to above the respondents
would be prejudiced if the interlocutory application is
not granted
by allowing Rule 35 (14) applicable in these proceedings so as to
give the respondents an opportunity to decide what
evidence should be
placed before court in answer to the application against them. Filing
an answering affidavit before such discovery
is made would be
prejudicial to them. It is only fair that they should be able to
refer to and rely upon the agreements in preparation
of their
affidavits. I take into consideration that this matter involves
millions and therefore it is in the interests of justice
that issues
be ventilated.
[37]
I am satisfied that Land bank failed to discover in terms of Rule 35
(12) and that the respondents were entitled to the agreements
hence
the respondents, after consultation, requested for full disclosure in
order to prepare and file their answering affidavit.
If Land Bank had
not breached the undertaking as set out in the founding affidavit the
respondents could have been able to file
their answering affidavit
timeously. In the circumstances condonation should be granted.
In
the circumstances I make the following order:
1.
The respondents, MD Burger No and 5
others’ failure to file their answering affidavit in the main
applications within the
time given in the order dated 06 March 2018
is condoned.
2.
The time within which the respondents
should have filed the answering affidavits is extended to the date
being 15 days after the
date upon which the documents as specified in
the respondents’ notice in terms of Rule 35 (12) and (14), and
also paragraphs
A (a), A (b) and Part B, with subparagraphs thereof
would have been made available to the respondents by the applicant
for inspection.
3.
It is declared that the provision of Rule
35 (14) is applicable in this application.
4.
The applicant, The Land Bank and
Agricultural Development Bank of South Africa, is ordered to make
available as referred to paragraphs
A (a), A (b), with subparagraphs
of the respondents’ notice in terms of Rule 35 (12) and (14)
and allow the respondents’
attorneys of record to make copies
thereof within ten (10) days of this order.
5.
The main application is postponed to 23
November 2018 for the parties to arrange a date for hearing in
consultation with the Judge
President and the Registrar of this
Court.
6.
Costs are reserved for determination in
main application.
JUDGE
BM PAKATI
NORTHERN
CAPE DIVISION, KIMBERLEY
On behalf of the
applicant: ADV J VAN NIEKERK (SC) DUNCAN & ROTHMAN INC.
On behalf of the
respondents: ADV L DE KONING (SC) VAN DE WALL INC.
[1]
Uniform Rules of Court
[2]
Uniform Rules of Court
[3]
Uniform Rules of court dealing with non-compliance with rules. It
provides: (1) Where a party fails to comply with these rules
or with
a request made or notice given pursuant thereto, any other party may
notify the defaulting party that he or she intends,
after the lapse
of 10 days, to apply for an order that such rule, notice or request
be complied with or that the claim or defence
be struck out. (2)
Failing compliance within 10 days, application may on notice be made
to the court and the court may make such
order thereon as to it
seems meet.
[4]
Holdsworth & Othersv Reunert Ltd
2013 (6) SA 244
(GNP) at 246
para 12 where Mothle J held: The court in
Penta Communications
Services (Pty) Ltd v King and Another
2007 (3) SA 471
(C)
cautioned against attaching a wider meaning to the word ‘document’
in rule 35 (12). In particular, even though
it need not be described
in detail, a document need not be inferred, but rather be directly
referred to in the pleading or affidavit.’
[5]
Protea Assurance Co Ltd & Another v Waverley Agencies CC and
Others
1994 (3) SA 247
(C) at 249B
[6]
1999 (3) SA 262
(O) at 264D-G.
[7]
2002 (4) SA 588
(TPD) at 594 D-E.
[8]
(supra) at 249B-D; See also
Erasmus v Slomowitz
(2)
1938 TPD
242
at 244; and The Civil Practice of the High Courts of South
Africa, Fifth edition , volume 1 at 788.
[9]
2001 (2) SA 329
(C) at 336G-J.
[10]
2013 (5) SA 238
(GCJ) at paras [17] & [18].
[11]
2003 (6) SA 190
(SE) at para [8].
[12]
2016 (5) SA 96
(KZP) at 105 paras [22] and [23]
[13]
1979 (2) SA 457
(W) at 470D.
14 Saunders Vave Co
Ltd v Insamcor (Pty) Ltd
1985 (1) SA 146
(T) at 149.
[15]
Machingawuta and Others v Mogale Alloys (Pty) Ltd and Others2012 (4)
SA 113 (GSJ) at para [13].
[16]
Centre for child Law v Governing Body Hoërskool Foscville and
Another
[2015] 4 All SA 571
(SCA) at 582.
[17]
MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd
1999 (3) SA
500
(C) at 515C-I