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[2014] ZAGPPHC 248
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Lubbe v Loots and Another (71481/2011) [2014] ZAGPPHC 248 (11 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH DIVISION, PRETORIA)
NOT
REPORTABLE
NOT
FOR THE ATTENTION OF OTHER JUDGES
REVIEWED
ON 10/4/2014
JUDGE
:P.Z. EBERSOHN
CASE
NO.: 71481/2011
In the matter
between:
CONRAD
LUBBE
.........................................................................................
APPLICANT/DEFENDANT
and
PATRICK
HENDRIK
LOOTS
.....................................................
FIRST
RESPONDENT/PLAINTIFF
CHRISTOFFEL
BOUWER NEL
.............................................
SECOND
RESPONDENT/PLAINTIFF
CORAM:
EBERSOHN AJ.
DATE
APPLICATION: HEARD 5 JUNE 2013
DATE
JUDGMENT HANDED DOWN: 11 APRIL 2014
JUDGMENT
EBERSOHN
AJ
:
[1] The parties will
be referred to herein as in convention namely “plaintiffs”
and “defendant” respectively.
[2] The plaintiffs
issued summons against the defendant wherein an amount of R6 776 426.
08 is claimed on the grounds of an alleged
suretyship for Avello
Blyde CC. The defendant pleaded a denial regarding the merits and
prescription by way of a special plea,
and thereafter called for
particulars for trial purposes. Thirteen questions were contained in
the request for particulars about
the alleged suretyship, eg. when
the plaintiffs’ alleged claim against the debtor arose, whether
a claim was lodged in the
estate of Avello Blyde CC after it was
liquidated. These particulars are of cardinal importance to a surety
to prepare for trial.
[3] The response of
the plaintiffs to the request was brisk and evasive and particulars
were refused in an argumentative manner.
The defendant replied by
bringing an application in terms of Rule 21. The plaintiffs opposed
the application and the matter was
argued and judgment was reserved.
[4] Having studied
the voluminous papers in the file it is clear that the defendant is
entitled to some of the particulars called
for, for the reasons
stated in paragraph [5] infra.
[5] The plaintiffs
alleged in the particulars of claim that they took cession from the
cessionary. The defendant is hampered by
a lack of information and
this rendered the defendant unable to prepare for trial there being
no dates as when the alleged goods
were delivered to Avello Blyde cc
and invoices rendered and when the claim allegedly arose against
Avello Blyde CC and the defendant
as alleged surety.
[6] The court is of
the opinion that the defendant is entitled to the information
requested in questions 1., 6., 8., 10., 12. and
13. of the request
dated the 25
th
October 2012. The defendant was entitled to
approach the court for assistance and is entitled to the costs of the
application.
[7] The following
order is made:
“
1.
The plaintiffs are ordered to furnish full replies to the questions
numbered 1., 6., 8., 10., 12. and 13. contained in the defendant’s
request for particulars for trial purposes dated the 25
th
October 2012 on or before the 5
th
May 2014, with costs.”
P.Z.EBERSOHN
ACTlNG JUDGE OF
THE HIGH COURT
Applicant’s
Counsel: Adv. A.P J. Els
Applicant’s
Attorneys: Thomas & Swanepoel
c/o
Van
der Merwe & Associates
Tel.
012 343 5432
Ref.
Mr. P. Van der Merwe/YG/PT00170
Respondent’s
Counsel: Not recorded
Respondent’s
Attorney: De Swardt Vogel Myambo
Ref. Dr. de
Swardt/NDUP/A7063
Tel 012 346 0050