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[2026] ZAGPJHC 709
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Danone Southern Africa (Pty) Limited v Gwala (43726/17) [2026] ZAGPJHC 709 (30 April 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number: 43726/17
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
30
April 2026
In the matter between:
DANONE
SOUTHERN AFRICA (PTY) LIMITED
Applicant
and
JABULILE
GWALA
Respondent
JUDGMENT
CRUTCHFIELD J
[1]
The applicant, Danone Southern Africa (Pty)
Ltd, brings application proceedings in the special interlocutory
court for an order
compelling discovery in terms of rule 35(1) read
together with rule 35(7) of the uniform rules of court, together with
an order
for punitive costs against the respondent, Jabulile Precious
Gwala.
[2]
The respondent opposes the application.
[3]
The factual matrix to this matter, briefly
stated, is the following. The proceedings commenced during 2017. The
applicant delivered
a notice in terms of rule 35(1) on 9 May
2018 calling for the respondent to furnish discovery in terms of the
rule. The respondent
undertook during January 2025, amongst other
occasions, to make that discovery, but to no effect. Arbitration
proceedings transpired
in the CCMA. A ruling was made in the CCMA on
1 September 2021 providing for the dismissal of the dispute of
the respondent,
Ms Jabulile Precious Gwala, in terms of her alleged
constructive dismissal.
[4]
By way of notice in terms of rule 28(1)
brought during August 2025, the respondent notified her intention to
amend her pleadings
in terms of rule 28. Notwithstanding the
respondent‘s counsel submitting to me at the hearing that the
respondent perfected
the amendment by delivering the amended pages,
the respondent’s counsel was not able to point me to when the
amended pages
were delivered. The applicant’s counsel was
adamant that the reason the respondent’s counsel was unable to
do so was
that the amended pages were not ever delivered, and the
amendment lapsed as a result.
[5]
The applicant’s attorney, pursuant to
the notice of intention to amend delivered by the respondent, wrote
to the respondent’s
attorney at the time correcting the
respondent’s factual misstatement in respect of the outcome of
the CCMA proceedings,
reiterating that the CCMA proceedings were
dismissed, and stating unequivocally that the applicant did not
intend to object to
the notice of intention to amend. The applicant’s
attorney called upon the respondent to proceed to finalise the
amendment.
[6]
Notwithstanding, the respondent apparently
failed to deliver the amended the pages and I must conclude, on the
papers before me,
that the amendment lapsed at the latest during
September 2025.
[7]
Ultimately, the issue of the amendment is
irrelevant as the respondent has the remedies available to her in
terms of rule 28. The
respondent’s counsel initially argued
however that the amendment took effect as of right in the light of
the applicant declining
to object to the amendment, alternatively,
that the applicant was deemed to have acquest in the amendment.
[8]
Both submissions are without merit as
notwithstanding the applicant making clear that it did not intend to
object to the proposed
amendment, that proposed amendment lapsed in
terms of rule 28 in the absence of delivery of the amended pages. The
amendment lapsed
during or about September 2025 at the latest, and
the pleadings closed because the amendment lapsed.
[9]
The applicant delivered its notice calling
for discovery in terms of rule 35(1) as long ago as 9 May 2018.
[10]
The respondent’s attorneys proffered
more than one undertaking to make discovery, all to no effect. The
respondent’s
discovery did not materialise notwithstanding
various indulgences granted by the applicant’s attorney. The
latter, during
December 2025, issued the application to compel
discovery in terms of rules 35(1) and 35(7). This was pursuant to the
closure of
the pleadings during September 2025.
[11]
The application in terms of rules 35(1) and
35(7) was set down for hearing on 21 January 2026. The applicant
was well within
its rights to bring the application. The respondent,
at the proverbial eleventh hour, one day prior to the date of the
hearing,
delivered an answering affidavit to the application. As a
result, the application was removed from the unopposed roll of
21 January
2026 and the costs reserved.
[12]
The respondent raised three grounds of
opposition in terms of the answering affidavit. I deal with each
ground in turn.
[13]
Firstly, the respondent took issue with the
authority of the deponent to the applicant’s founding
affidavit, alleging that
the deponent lacked the required authority
to so depose.
[14]
Furthermore, the respondent denied, without
any substantiation whatsoever, that the deponent to the founding
affidavit had personal
knowledge of the facts relevant to the
application. The deponent to the founding affidavit is the sole
director of the applicant,
meaning that there is no person better
placed to depose to the founding affidavit than the deponent. Such an
allegation as made
by the respondent that the deponent did not have
the necessary personal knowledge to depose to the founding affidavit
in the absence
of any substantiation whatsoever, in the light of the
deponent’s position within the applicant, can only indicate
mala fides
on the part of the respondent.
[15]
As
to the respondent’s allegation that the deponent lacked the
necessary authority to depose to the founding affidavit, the
issue
has been dealt with and determined definitively by the Supreme Court
of Appeal in
Ganes
& Another v Telecom Namibia Ltd
[1]
as well as
Eskom
v Soweto City Council
[2]
.
[16]
The respondent’s remedy is to bring a
notice in terms of rule 7 of the uniform rules of court. The
respondent failed to do
so. In those circumstances the absence of the
rule 7 notice is dispositive of the point raised by the respondent.
[17]
The second ground of opposition raised by
the respondent is the attempted amendment. I have dealt with that
hereinabove and do not
intend to do so again. The amendment lapsed,
the pleadings closed and the respondent has remedies in terms of rule
28 should she
wish to proceed with a fresh amendment, as she is
entitled to do up until judgment.
[18]
The fact that the respondent potentially
may seek to amend her pleadings at a point in the future is, however,
not a reason in and
of itself not to grant the compelling order
sought by the applicant in terms of rules 35(1) and 35(7).
[19]
The third ground of the respondent’s
opposition is that the application was served during
dies
non
on 18 December 2025.
[20]
Dies
non
apply to a notice of intention to
oppose or delivery of an affidavit in terms of rule 6(5)(aa).
Dies
non
do not apply to interlocutory
applications such as the one before me in terms of rules 35(1) and
35(7). Thus, the third ground
of opposition raised by the respondent
is of no merit and must fail.
[21]
Given that the respondent’s grounds
of opposition are without substance, I intend to grant the order in
terms of rule 35(1)
read together with rule 35(7).
[22]
Turning to the costs of the application,
the respondent forced the applicant to bring an application to
procure an order in terms
of rules 35(1) and 35(7). This was
notwithstanding various indulgences granted by the applicant for the
respondent to file her
discovery and various undertakings given by
the respondent to do so.
[23]
The respondent did not allege in the
answering affidavit that she did not have any documents relevant to
the dispute in her possession.
The respondent’s opposition was
without merit and should never have been brought by the respondent. I
have already referred
to the
mala fides
evident in the respondent’s
opposition to the application.
[24]
The applicant ought not to have been forced
by the respondent to approach this court to bring the application, in
the face of the
respondent’s undertakings to make discovery,
and then to have to deal with the application on an opposed basis.
The waste
of time and money is wholly without any reason.
[25]
The respondent failed to proffer any proper
defence to the applicant’s application. The respondent’s
manner of dealing
with the request for discovery and forcing the
compelling application, justifiably resulted in the applicant’s
request for
costs on a punitive basis.
[26]
The respondent asked that I reserve the
costs of the application for the court dealing with the trial. It is
not appropriate for
me to acquiesce in that request. I have heard and
dealt with the merits of the application in terms of this judgment.
Costs orders
generally flow from the merits of a matter. It is not
appropriate for me to burden another court, which is not tasked with
dealing
with the merits of this application, with an order for
reserved costs and to expect that court in the future to deal with
those
costs.
[27]
It is for me to deal with the costs of the
application as I have done herein and to grant the appropriate order.
[28]
In short, the respondent’s opposition
to the application and the manner in which the respondent persisted
in prosecuting that
opposition was egregious and amounted to an abuse
of the rules, this court’s practice and its procedure. The
respondent’s
opposition was deserving of a punitive order in
respect of costs, as a measure of the displeasure of this court at
the manner in
which the respondent prosecuted her opposition to the
application.
[29]
By reason of the aforementioned, I grant
the following order:
1.
The respondent is ordered to deliver her
discovery affidavit within fifteen (15) days of the delivery of this
judgment on 30 April
2026.
2.
In the event of the respondent failing to
comply with the order in paragraph 1 immediately above, the applicant
is granted leave
to supplement its papers insofar as is necessary in
order to apply for an order that the respondent’s defence be
struck out
and the counterclaim be dismissed.
3.
The respondent is ordered to pay the costs
of this application on an opposed attorney and client scale.
I hand down the judgment.
CRUTCHFIELD J
JUDGE OF THE HIGH
COURT
JOHANNESBURG
For the
Applicant:
Adv
N Lombard instructed by Garlicke & Bousfield Inc.
For
the Respondent:
Adv S Alcock instructed by Phungula
Sibusiso Attorneys.
Date
of the hearing:
29 April 2026.
Date of the
judgment:
30 April 2026.
[1]
Ganes
& Another v Telecom Namibia Ltd
2004
(3) SA 615
(SCA) at 624I – 625A.
[2]
Eskom
v Soweto City Council
1992
(2) SA 703
(W).