About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
You are here:
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 632
|
Noteup
|
LawCite
Ross v City of Johannesburg Metropolitan Council (0860/2020) [2026] ZAGPJHC 632 (23 March 2026)
Download original files
PDF format
RTF format
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NO:0860/2020
In the matter between:-
ARDE
ERIC
ROSS
Applicant
and
CITY OF JOHANNESBURG
METROPOLITAN
COUNCIL
Respondent
REASONS
FOR ORDER MADE IN STRIKE- OUT APPLICATION
[1]
The applicant, as plaintiff in the main action, instituted
proceedings against the respondent, cited as defendant, claiming
damages for injuries allegedly sustained when the applicant fell into
an open manhole while walking along the pavement.
[2] The respondent
defended the action and filed its plea. It later sought and was
granted leave to amend its plea, to allege
that it owed no duty of
care to the applicant as the manhole where the incident occurred
belongs to Telkom SA SOC Limited ( Telkom).
The amendment was not
effected.
[3] On 10 June
2022, the respondent delivered its discovery affidavit and on 8 July
2024, the applicant delivered a notice
in terms of Rules 35(3) and
(6), requiring the respondent to deliver specified documents listed
in the notice, which the applicant
believes are in the possession of
the respondent and are relevant to the dispute between the parties.
[4]
On 14 October 2024, the respondent served a supplementary discovery
affidavit dated 10 October 2024, adding two documents
to its initial
discovery affidavit: an “internal JRA report” and
“photographs of the manhole.”
[5]
After the respondent failed to make the requested documents
available, the applicant brought an application in terms of
Rule
35(7) to compel the respondent to deliver those documents within 10
days of the granting of the order. The respondent did
not oppose the
application, and on 24 October 2024, Mabesele J granted an order
compelling delivery of the specified documents
within 10 days.
[6] When the
respondent failed to comply with the order of Mabesele J, compelling
delivery of the said documents within the
stipulated time, the
applicant delivered an application to have the respondent’s
defence struck out in accordance with Rule
35(7) and a cost order
against the respondent.
[7] The applicant
contends that it is prejudiced by the respondent’s tardiness,
as the applicant considers the requested
documents to be material to
its case and the issue of liability.
[8]
The respondent opposed the application. In its answering affidavit,
the deponent avers that the application is ill-conceived
and legally
untenable,
inter alia
,
because the applicant withheld relevant information from the court,
which would influence the granting of the order sought, and
misled
the court. While the information ostensibly withheld by the applicant
is not specified, from what could be gleaned from
the answering
affidavit, this relates
inter alia
,
to the filing of the supplementary discovery affidavit, ostensibly,
in response to the Rule 35(3) notice and the amendment to
the plea.
This information is set out in the founding affidavit and features
prominently in the record of this matter.
[9] Incorporated in
the answering affidavit is an application for condonation, in which
the deponent cites work pressure and
inability to hold meetings with
the relevant employees of the respondent as a reason why a ‘reply’
to the applicant’s
rule 35(3) notice was delivered 60 days
later. Notwithstanding, the deponent states that a meeting
aimed at addressing the
applicant’s Rule 35(3) notice was held
on 22 July 2024, 4 days after the notice was served. On 5 September
2024, the respondent
commissioned an investigation to establish the
whereabouts of the documents, the report of which was provided to the
respondent
the following day.
[10] The deponent
to the respondent’s discovery affidavit avers that on 14
September 2024, after a diligent search,
it was established that the
documents requested by the applicant could not be found.
[11] It was only a
month later, on 14 October 2024, that the supplementary discovery
affidavit was delivered, which, according
to the respondent, was in
reply to the applicant’s notice.
[12] The respondent
avers that the delay of 60 days in filing the supplementary discovery
affidavit was not due to its fault,
as it conducted a diligent search
but could not find the documents. Interestingly, the respondent avers
that the compelling order
by Mabesele J issued on 24 October 2024
should not have been granted as the respondent had already delivered
its supplementary
discovery affidavit in which it stated that it was
not in possession of the documents requested by the applicant, and
the court
was therefore aware of this.
[13] In addressing
its prospects of success, the respondent contends that it “has
prospects of success in this application,
and in the main action”
… and from the plea it is clear that the applicant (respondent
in the main application) has
the prospects of success”(
sic
).
[14] As to
prejudice, the respondent asserts that the applicant would not suffer
any prejudice if condonation is granted,
while the respondent would
suffer prejudice as it has no alternative remedy and its
constitutional right to have access to courts
would be compromised.
[15] An applicant
for condonation seeks indulgence from the court and is therefore
required to show good cause for the delay.
Such an applicant must set
out comprehensively the reasons for its non-compliance, providing a
reasonable and acceptable explanation
for each period of delay.
Condonation is therefore not granted for the mere asking.
[16] The respondent
has not done this. It glibly skates over the extent of the delay in
complying with the Rules, the reasons
therefor and the prejudice
occasioned by it. The same thread runs through the entire affidavit,
providing no cogent reasons why
it believes that it enjoys good
prospects of success, save for what is stated in its amended plea.
This falls short of the
requirements for an application for
condonation. The court is thus left to perform guesswork as to what
the basis for the respondent’s
assertion is. This cannot be.
The fact of the matter is that there is no amended plea. I do not
intend to venture further in this
discourse as it is beyond the scope
of these reasons.
[17] Similarly, the
respondent’s citation of the Constitution does not take the
matter much further. Mere reference
to constitutional provisions does
not bring them into existence or breathe life into an otherwise
meritless application. Besides,
the respondent’s right to
access the courts has not been impacted in any way, as alleged by the
respondent.
[18] The respondent
provides no cogent explanation for the delay, first, for the period
of over a month following the meeting
held on 22 July 2024 to address
the applicant’s Rule 35(3) notice. Secondly, after the
supplementary discovery affidavit
was deposed to, which, according to
the respondent, was on 14 September 2024, the same affidavit would
only be delivered a month
later. Thirdly, there is no
explanation why the respondent considered it necessary to conduct a
search of the documents,
which seemingly lasted a good three months,
and conduct an investigation for the same reason, if it already knew
that it was not
in possession of the documents.
[19] By its own
admission, the respondent knew as early as 22 July 2024 that it was
not in possession of the requested documents.
There can thus be no
merit to the condonation application.
[20] Importantly,
the respondent avers that by filing the supplementary discovery
affidavit, it complied with the applicant’s
request and
indicated that it is not in possession of the documents requested by
the applicant, and does not know their whereabouts.
Thus, it contends
that the court is not empowered, in terms of the Rules, to strike out
its defence.
[21] Rule 35(3)
states:
“
If
any party believes that there are, in addition to documents or tape
recordings disclosed … 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 such party to make the same available
for inspection in accordance with sub-rule(6),
or to state on oath
within 10 days that such documents or tape recordings are not in such
party’s possession, in which event
the party making the
disclosure shall state their whereabouts, if known.
[22] The
supplementary discovery affidavit does not specify which documents
could not be found. Save for specifying two additional
documents in
the possession of the respondent, it is a replica of the initial
discovery affidavit. In paragraph 4 thereof, the
deponent states:
“
To
the best of my knowledge and belief, the Defendant has not now and
never had in its possession, custody or power or in the possession,
custody or power of his attorneys or agents or any other person
acting on his behalf, any documents or tape recordings or copy
of or
extract from any document or tape recording relating to any matters
in question in this suit, other than the documents and
tape
recordings set forth in the first and second parts of the schedule
hereto.”
[23]
The applicant requested certain documents, which he listed in his
Rule 35(3) notice. The respondent did not reply
to this notice
as envisaged in Rule 35(3). As previously noted, the respondent
instead discovered further documents in its supplementary
discovery
affidavit, which are not the same as those sought in the applicant’s
35(3) notice. Quite apart from its form, the
substance of that
document falls far short of complying with the applicant’s Rule
35(3) notice and cannot be regarded as
a reply, let alone an adequate
one in accordance with the subrule or Rule 35 in general.
[24]
The effect of the respondent’s conduct is that it remains non-
compliant with the order of Mabesele J, compelling
compliance with
the applicant’s Rule 35(3) notice. For as long as that
order, which remains effective, has not been
complied with, the
strike-out application and the concomitant order were warranted. The
respondent’s contention that
the ‘compelling order’
ought not to have been granted is misplaced, as there has been, and
continues to be, no compliance
with the compelling order.
[25] In the result,
I ordered that the respondent’s defence be struck out, with the
respondent to pay the costs.
S MFENYANA
Judge of the High Court
Date
order granted:
16 September 2025
Date
reasons provided:
23 March 2026
These reasons were handed
down electronically by circulation to the parties’
representatives via email. The date and time
for the hand-down is
deemed to be
23 March 2026.
Appearances
For
the applicant:
Counsel:
P van Niekerk
Instructed
by Swartz Attorneys
For
the respondent
Counsel:
S Dlali
Instructed
by: K Matji &Partners Attorneys