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[2026] ZAGPPHC 933
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Rhyzotherm Proprietary Limited v Boston Scientific International B.V and Another (2025-133257) [2026] ZAGPPHC 933 (26 August 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO.:
2025-133257
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHERS JUDGES:
NO
(3)
REVISED: YES
In
the matter between:
RHYZOTHERM
PROPRIETARY
LIMITED
Applicant
and
BOSTON
SCIENTIFIC INTERNATIONAL
B.V.
First Respondent
BOSTON
SCIENTIFIC SOUTH AFRICA PROPRIETARY
LIMITED
Second Respondent
In
re:
BOSTON
SCIENTIFIC INTERNATIONAL
B.V.
First Plaintiff
BOSTON
SCIENTIFIC SOUTH AFRICA PROPRIETARY
LIMITED
Second Plaintiff
and
RHYZOTHERM
PROPRIETARY
LIMITED
Defendant
Delivered
:
This judgment was prepared and authored
by the Judge whose name is reflected herein and is handed down
electronically by circulation
to the parties’ legal
representatives by email and by uploading it to the electronic file
of this matter on CaseLines. The
date and time for hand-down is
deemed to be 10:00 on 26 August 2026.
JUDGMENT
SUMMARY
:
Rule
35(14) – Upliftment of Bar
ERASMUS,
AJ:
INTRODUCTION
:
[1]
Two applications were argued before me namely one in terms of Rule
35(14)
and the other for upliftment of bar to a Plea.
[2]
Applicant is the Defendant in the main action. It is sued by
Respondents
(Plaintiffs) essentially for monies due in respect of
medical goods sold and delivered.
[3]
The action was defended on 15 August 2025. On the date on which
its Plea was due, Applicant served a Notice in terms of Rule 35(14).
A host of documents was requested.
[4]
On 29 September 2025, Respondents served their response to the Rule
35(14)-notice.
Within half an hour thereafter they served a
Notice of Bar.
[5]
Certain correspondence followed in which Applicant’s attorney
expressed
his dissatisfaction with the Rule 35(14)-response and
requested extra time to consider it. Respondents were firm that
the
Notice of Bar would not be withdrawn.
[6]
Applicant then served a Notice in terms of Rule 30A and a demand for
security.
The latter was provided. The Rule 30A-notice
was premised on the allegation that the Rule 35(14)-notice had not
been properly
answered. Also, on 2 October 2025, Applicant
served a Rule 30(2)(b)-notice complaining that the Notice of Bar was
an irregular
step.
[7]
On 6 November 2025, Applicant launched an application seeking
compliance
with Rule 35(14) and setting aside the Notice of Bar as an
irregular step.
[8]
As a cautionary measure, Applicant then launched “the second
application”
for upliftment of the bar – on 20 March
2026.
RELEVANT AUTHORITY
:
[9]
It is important to distinguish between Rules 35(12) and 35(14):
·
Rule 35(12) entitles a party to seek a specific document
referred to
in the other party’s pleadings.
·
Rule 35(14) stipulates that after appearance to defend
has been
entered, a party (Defendant
in casu
) may for purposes of
pleading require the other party to make available for inspection
within 5 days a clearly specified document
in the other party’s
possession
which is relevant to a reasonably anticipated issue in
the action
.
[10]
There appears to be some debate as to the question whether notices in
terms of Rule
35(12) and (14) suspend the period in which a defendant
must plead:
10.1
In
Potpale
Investments (Pty) Ltd v Mkize
Gorven J observed that the delivery of a Notice in terms of Rule
35(12) or (14) did not suspend the period for delivery of a further
pleading or affidavit.
[1]
10.2
In
Caxton and CTP Publishers and Printers Ltd v Novus Holdings
Ltd
the Supreme Court of Appeal referred to the
Potpale-decision and stated:
“
Whilst there is
much to be said for the view expressed by the learned Judge, sight
should however not be lost of the fact that it
is open to the court,
in the exercise of its discretion, to extend the time periods
prescribed in terms of the rules whenever a
proper case therefor has
been made out by the party seeking such indulgence.”
[2]
[11]
It speaks for itself that a defendant can abuse Rule 35(12) and (14)
as an efficient
tool to drag out an action. In each case the
court should therefore exercise its discretion as to whether a
defendant is
really at a disadvantage in pleading without an
(alleged) proper response to its Rule 35(12) or (14)-notice.
[12]
The requirements for upliftment of a Notice of Bar are trite:
12.1
The applicant must provide a reasonable explanation for its delay.
12.2
The application should be
bona fide
and not made with the
object of delaying the opposite party’s claim.
12.3
The applicant must show that there has been a reckless or intentional
disregard of the rules
of court.
12.4
The applicant’s action or application should clearly not be
ill-founded; and
12.5
Any prejudice caused to the opposite party could be compensated by an
appropriate order as to
costs.
[3]
THE RULE
35(14)-APPLICATION
:
[13]
In argument before me, counsel for Applicant did not vigorously
pursue the Rule 35(14)-application.
I shall therefore deal with
it only briefly.
[14]
In a nutshell, Applicant’s argue was that it intends pursuing
two defences
in the main namely:
·
Respondents breached an agreement in respect of
a payment plan.
·
Respondents breached the implied covenant of good faith
and fair
dealing. Such defence is allegedly available to it as the
Massachusetts Law is applicable to the underlying agreements.
For
this purpose, it requires the documents sought in the notice that
were not supplied – more pertinently an audit trail
and certain
credit notes.
[15]
It is significant that the Rule 35(14)-notice is quite wide in ambit
and that certain
documents were indeed supplied – although
Respondents contend it was not strictly speaking necessary.
[16]
Whether the requisite threshold is that the outstanding documents
sought are “essential”
or “reasonably required”
for Applicant to plead, I am of the view that the Rule
35(14)-application should fail, mainly
for the following reasons:
16.1
Rule 35(14) was not meant to justify a fishing expedition or to
facilitate delay on the part
of a defendant.
16.2
In its Founding Affidavit in the initial application, Applicant made
a number of allegations
to support its defences – see the
Founding Affidavit, paragraphs 10.3 to 10.9, 10.13, 10.15 to 10.17
and 10.19.
16.3
In my view the Founding Affidavit shows that Applicant had sufficient
facts or documents to formulate
its plea as at receipt of the Rule
35(14)-answer on 29 September 2025.
THE APPLICATION FOR
UPLIFTMENT OF THE BAR
:
[17]
In my view and although Applicant should have either pleaded or
sought an extension
of time to plead in terms of Rule 27 upon receipt
of the Notice of Bar, this is not a case where the doors of the court
should
effectively be closed to the Applicant. Applicant has
provided a reasonable explanation for the delay. Its conduct
cannot be classified as reckless or intentional. It “
did
not do nothing”
even if it could be criticised for not
launching the application for upliftment of the bar earlier. I
also do not think that
punitive costs are warranted.
ORDER
:
[18]
In the result, I make the following order:
(1)
Applicant’s application in terms of Rule 35(14) is dismissed.
(2)
The bar flowing from the Notice of Bar delivered on 29 September
2025
is uplifted.
(3)
Applicant is afforded 20 (twenty) court days from date of this
order
to file its Plea.
(4)
Applicant is ordered to pay the costs of both applications
on Scale
B.
F
J ERASMUS
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Electronically
delivered and signed.
APPEARANCES
:
APPLICANT:
Adv J Eastes
INSTRUCTED BY:
Morné
Coetzee Attorneys
RESPONDENTS:
Adv C Bekker
INSTRUCED BY:
Bowman Gilfillan
Inc.
[1]
2016
(5) SA 96 (KZP)
[2]
[2022]
2 All SA 299 (SCA)
[3]
Smit
NO v Brummer NO,
1954 (3) SA 352
(O) at 358A.