2
Introduction
[1] This is an opposed application in terms of rule 35(7) of the Uniform Rules
of Court. The applicant is the defendant in a pending action instituted against it
by the responden t in September 2021. The parties in this application will be
referred to as they are cited in the action. In the notice of motion delivered on
22 November 2024 the defendant sought the dismissal of the plaintiff’s claim
with costs. In an amended notice of motion delivered on 12 December 2025
pursuant to a notice of intention to amend to which no objection appears from
the papers , the defendant now also seeks the striking out of the plaintiff’s
defence to its counterclaim, together with the costs of the action and of this
application.1
[2] The application is the sequel to an order of Meaden AJ of 10 June 2024
compelling the plaintiff to comply with the defendant’s notice in terms of rule
35(3) of the Uniform Rules of Court, and to his judgment of 19 November 2024
refusing condonation for, and dismissing, the plaintiff’s application for leave to
appeal against that order. Two interlocutory questions travel with the main
application. The first relates to the plaintiff’s application for condonation of the
late delivery of its answering affidavit, which the defendant opposes, and the
second relates to the plaintiff’s contention that the application was launched
prematurely.
The legal framework
[3] Rule 35(3) of the Uniform Rules of Court entitles a party who believes that
documents relevant to any matter in question, in addition to those already
disclosed, are in the possession of an opposing party, to give notice requiring
that party to make them available for inspection or to state on oath , within 10
days, that such documents are not in its possession. In which event, the party
making the disclosure shall state their whereabouts, if known. Rule 35(7) of the
Uniform Rules of Court empowers the Court, on application of the party desiring
Uniform Rules of Court empowers the Court, on application of the party desiring
1 Amended notice of motion, CaseLines 000022-1; notice of intention to amend, 28 November 2025,
CaseLines 000021-1 to 2.
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discovery, to order compliance with the rule and, failing such compliance, to
dismiss the claim or strike out the defence.2
[4] The effect of a sworn statement of non-possession is settled. It is ordinarily
the answer the subrule contemplates, and a court does not lightly go behind it.
In Bank of Transkei Ltd v Mfana ,3 where such an affidavit followed an order
compelling compliance, Pakade J declined to strike out the defence and stated
the following, “The rule requires him to say so. What else is he expected to say?
Nothing.”
The whereabouts of the documents need be stated only if known. A party may
supplement its discovery by successive affidavits; equally, where reasonable
grounds exist for supposing that relevant documents are in a party’s
possession, the court may direct that party to respond comprehensively. The
principle presupposes, however, a genuine and bona fide response. A court is
not obliged to accept at face value a statement of non -possession which is
contradicted by the party’s own prior statements, or which on its face is not a
real answer to what was asked.4
[5] The sanction in Uniform Rule 35(7) is drastic, and the discretion to impose
it must be exercised judicially. In MEC for the Department of Public Works v
Ikamva Architects,5 on which both parties rely, the full court emphasised that
section 34 of the Constitution of the Republic of South Africa (“the Constitution”)
is engaged, because the sanction may bring an end to a claim or a defence
without a hearing on the merits; that the rules provide flexible remedies giving
the court the opportunity to make the sanction fit the breach; and that the power
is to be exercised only after the defaulting party has been heard. The Court’s
inherent power under section 173 of the Constitution to protect and regulate its
2 Rule 35(3) and rule 35(7) of Uniform Rules of Court, with the commentary in Erasmus: Superior Court
Practice, Jutastat e-publications CD Rom & Intranet: ISSN 1561-7467 Internet: ISSN 1561-7475 at RS
20, 2022, D1-477, referred to in the applicant’s heads, at paras 11.1–11.2, CaseLines 000011-11 to 12.
3 [2003] JOL 12198 (Tk) at paras 17– 18; Lot 38 Bizana Properties CC v Tiador 119 CC [2024]
ZAECGHC 2 at para 13; Biermann v Eastern Cape Development Corporation [2017] JOL 37733 (EL).
52022 (6) SA 275 (ECB); Mukaddam v Pioneer Foods (Pty) Ltd 2013 (5) SA 89 (CC); Changuete v
Minister of Home Affairs 1990 (2) SA 836 (W).
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own process, and to prevent its abuse, points the same way . The rules exist
for the courts, and their primary function is the attainment of justice. A litigant
deprived of documents which it requires in order to plead or to defend is the
very mischief at which compelled discovery is aimed.6
[6] The principles governing condonation are equally settled. The Court
exercises a discretion judicially upon a consideration of all the facts. In essence
it is a matter of fairness to both sides, the degree of lateness, the explanation,
the prospects of success and the importance of the case being inter -related
and none individually decisive. Condonation is not to be had for the mere
asking: a par ty must give a full and reasonable explanation for the non -
compliance, and the ultimate criterion is the interests of justice, as supported in
Melane v Santam Insurance Co Ltd.7
[7] Section 18(1) of the Superior Courts Act ,8 provides that, subject to
subsections (2) and (3) , and unless the court orders otherwise under
exceptional circumstances, the operation and execution of a decision which is
the subject of an application for leave to appeal, or of an appeal, is suspended
pending the decision of the application or appeal.
The background facts
[8] The plaintiff, a water board established under the Water Services Act 9,
is the primary supplier of potable water to the defendant’s nature reserve. On 6
September 2021 it sued the defendant for payment of R 724 022.11 with
interest, an order restricting or suspending the water supply pending payment,
and costs, founded on a written agreement of 30 April 1997.10
6 MEC for the Department of Public Works v Ikamva Architects 2022 (6) SA 275 (ECB); Mukaddam v
Pioneer Foods (Pty) Ltd 2013 (5) SA 89 (CC); Changuete v Minister of Home Affairs 1990 (2) SA 836
(W).
71962 (4) SA 531 (A) at 532C–F; Brummer v Gorfil Brothers Investments (Pty) Ltd; Grootboom v
National Prosecuting Authority, quoted with approval in Steenkamp v Edcon Ltd.
National Prosecuting Authority, quoted with approval in Steenkamp v Edcon Ltd.
8 10 of 2013.
9 108 of 1997
10 Meaden AJ, at paras 1– 4, CaseLines 000-3; plaintiff’s answering affidavit in the compel application,
at paras 3–6, CaseLines 003-2 to 3.
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[9] The defendant admits the agreement but denies the debt. Its pleaded
case is that the plaintiff never installed a meter at the supply point on the
boundary of the property; that it relies instead on a meter some 1.2 kilometres
away; that the existing connec tion was temporary, pending a permanent
connection first adjacent to the Wallmansthal Road and later on the Downbern
side; that maintenance of the pipeline up to the supply point was the plaintiff’s
obligation; and that leaks downstream of the metering point caused it to be
billed for water it never received. It counterclaims R1 504 452.95 for
overpayment and R 146 492.42 for repairs, being a total of R 1 650 945.37. The
plaintiff joins issue on each score. As Meaden AJ observed, the disputes range
well beyond non-payment: they embrace the scope of the parties’ agreements,
the location of the temporary and permanent supply points, the metering point,
maintenance of the supply line, volumes supplied and consumed, and the
competing money claims.11
[10] The plaintiff delivered its discovery affidavit on 10 February 2023. On 20
February 2023 the defendant’s attorney recorded its deficiencies in
correspondence and served a rule 35(3) Notice in terms of the Uniform Rules
of Court, identifying fifteen categories of documents. Nine are material here .
Items 1, 3, 4, 6, 7, 10, 11, 12 and 13 . The plaintiff’s planning of the Downbern
area water network; its correspondence with the local authority regarding the
defendant’s development; its correspondence with, and written instructions to,
its own appointed engineers concerning the network and its connection to the
development; reports on the availability of water within the supply area;
correspondence with the Department of Roads and/or municipalities regarding
servitudes and road works; and the documents and correspondence
concerning the original subdivision application and the town planners.12
[11] On 22 May 2023 the plaintiff answered on oath (the first version ). For
[11] On 22 May 2023 the plaintiff answered on oath (the first version ). For
items 1, 4, 6, 7, 10, 11, 12 and 13 the response was that the documents “are
irrelevant to any pleaded issue in dispute between the parties. Accordingly, the
11 Meaden AJ, at paras 5– 11 and 23, CaseLines 000-3 to 5 and 000-7.
12 Letter of 20 February 2023, CaseLines 000007-29 to 30; rule 35(3) notice, CaseLines 000007-31 to
35; Meaden AJ, at para 16, CaseLines 000-5.
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disclosure sought is refused.” For item 3, the answer was that the request was
so broad that the plaintiff cannot reasonably be expected to identify those
documents which are relevant and those that are not, as the defendant does
not make mention of which local authority they refer to. The covering advice of
the plaintiff’s attorney, of the same day, is significant . It states that, “Kindly be
advised that our client was having difficulties with obtaining all the
documentation requested due to the length of time that has passed since they
were generated.”13
[12] The defendant applied to compel. In its answering affidavit in that
application (the second version), the plaintiff did not, for most categories, deny
possession. It contended that reticulation falls within the mandate of the City of
Tshwane (the City) and the information sought would better be requested from
the City; that the letter of 12 June 1997 provides a clear picture of the parties’
intention; that the requests were fishing and an abuse of process; that the
availability of water has never been in dispute; that it was not involved in the
subdivision; and that the City’s town planners ought to be approached. It did
say, for item 3, that it did not correspond with the local authority in concluding
the contract, and, for item 10, that it never had any correspondence with the
Department of Transport.14
[13] On 10 June 2024 Meaden AJ ordered the plaintiff to properly comply with
the defendant’s Notice in terms of rule 35(3) of the Uniform Rules of Court and
within 10 days of this Order; by delivering the documents called for in respect
of the nine items. Paragraph 3 of the order provided that, should the plaintiff fail
to comply, the defendant shall be entitled to approach the above Honourable
Court on the duly supplemented papers for further relief and costs were ordered
on Scale B. In his written reasons of 16 July 2024 , Meaden AJ analysed each
on Scale B. In his written reasons of 16 July 2024 , Meaden AJ analysed each
category against the pleaded disputes and concluded that the plaintiff’s refusals
were “best described as being bald, incomplete and unsustainable”.15
13 Meaden AJ, at paras 17– 21, CaseLines 000-6; the attorney’s advice, quoted in the replying affidavit,
at para 6.3.1, CaseLines 000007-10, and in the applicant’s heads, CaseLines 000011-19.
14 Plaintiff’s answering affidavit in the compel application, at paras 38–59, CaseLines 003-10 to 15.
15 Order, CaseLines 000-1 to 2; reasons, at paras 22 and 24–25, CaseLines 000-6 to 13.
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[14] The plaintiff requested for written reasons on 18 June 2024 and received
them on 17 July 2024. Its application for leave to appeal was uploaded only on
3 September 2024, about a month out of time and without condonation; a
condonation application followed on 15 November 2024, on the direction of
Meaden AJ. On 19 November 2024 , Meaden AJ refused condonation and
dismissed the application, with costs on attorney and own client scale, finding
that in the interim, the Plaintiff has not abided and given effect to the above
court order, thus placing itself in contempt thereof, and that it “is a busing court
process and timelines … while perpetuating its contempt of the Court Order
handed down back on 10 June 2024”. Moreover, paragraph 3 of the resulting
order records that the order of 10 June 2024 remains of full force and effect and
repeats the defendant’s entitlement to approach the Court on duly
supplemented papers.16
[15] Three days later, on 22 November 2024, the defendant delivered this
application. The founding affidavit is brief . It records the order, states that the
plaintiff has failed to deliver any of the documents referred to in the order,
invokes paragraph 3, and claims dismissal of the claim. The plaintiff noted its
opposition the same day.17
[16] On 3 December 2024 the plaintiff served a supplementary affidavit in
response to a rule 35(3) notice, deposed to by its legal advisor, Mr Petros
Morwane (the third version). It records that the earlier affidavit discovered for
paragraph 1, 8, 9 and 14 of the Notice, and then answers the compelled items
seriatim. For item 1: It states that , “The Plaintiff is not in possession of any
written advises, opinion, correspondence from the inception of Defendant’s
development … to date. The Plaintiff has no knowledge of the required
documents.” The answers to items 3 and 4 are identical to one another, each
denying possession of any correspondence between the plaintiff and a local
denying possession of any correspondence between the plaintiff and a local
authority. For every remaining items 6, 7, 10, 11, 12 and 13, the answer is one
16 Judgment of 19 November 2024, at paras 2–6, 11 and 15 and the order, CaseLines 0003-3 to 5;
order issued 22 November 2024, CaseLines 000-3.
17 Founding affidavit, at paras 3.1–4.1, CaseLines 000003-5 to 6; notice of intention to oppose,
CaseLines 000005-1.
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formula and is the following: “The Plaintiff is not in possession of the documents
sought in paragraph of the notice. Plaintiff has no knowledge of the required
documents.” No answer states the whereabouts of any document; nor does any
describe the search, record system, archive or custodian.18
[17] The plaintiff’s answering affidavit in this application, also deposed to by
Mr Morwane, was deposed to in January 2025, served by email on 20 January
2025 and uploaded on 14 February 2025. It raises two defences. The first being
prematurity, as the application was launched before the 10 days running, on
the plaintiff’s approach, from 19 November 2024 had expired . The plaintiff
responded within 10 days as per paragraph 3 of the order; the application is
immature and ill fated. The second being c ompliance, as the supplementary
affidavit, annexed as “MGB1”, outlined the steps that the plaintiff took after the
19 November 2024 to search for documents and the documents not in its
possession; the plaintiff has therefore complied with the rule and the order, and
there is no jurisdictional factor for the application.19
[18] The defendant’s replying affidavit of 29 January 2025 takes in limine the
point that the answering affidavit, due by 13 December 2024, was late and
unaccompanied an application for condonation. On the merits it disputes that
the supplementary affidavit constitutes compliance, denies that it outlines any
steps taken to search, and points to no less than three different versions, under
oath, of why the plaintiff does not want to comply with the rule 35(3) Notice.20
[19] The plaintiff’s condonation application followed on 21 February 2025 after
the default had been raised in reply and again in the defendant’s heads of
argument of 19 February 2025 and it was opposed. Answering and replying
18 CaseLines 00007-1 to 7; service e-mail of 3 December 2024, CaseLines 00007-8 and annexure “A2”,
CaseLines 000007-28.
CaseLines 000007-28.
19 Answering affidavit, at paras 2.2–3.4, CaseLines 000006-3 to 5; service e-mail, annexure “A1”,
CaseLines 000007-14; as to the deposition date, CaseLines 000016-14, at para 15.1.
20 Replying affidavit, at paras 3.1–3.7, 4.10, 6.2–6.3 and 11.1–11.4, CaseLines 000007-4 to 13.
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affidavits were exchanged in March 2025. The amendment of the notice of
motion followed in November and December 2025, as set out above.21
Condonation
[20] The plaintiff elected to deliver its notice of intention to oppose on 22
November 2024, the day on which the application was served. On the
defendant’s computation , the answering affidavit fell due on 13 December
2024. The plaintiff’s own founding affidavit fixes 15 December 2024. Nothing
turns on the difference: on either approach the affidavit was due in mid -
December 2024 and was served only on 20 January 2025, and the condonation
application came only on 21 February 2025 more than two months after the due
date, a month after the affidavit itself, and only after the defect had twice been
pointed out.22
[21] The explanation is that the attorney is said to have been engaged, until 3
December 2024. On the supplementary affidavit , the attorneys’ offices closed
from 13 December 2024 to 6 January 2025 . The deponent was on leave from
20 January to 7 February 2025. The first leg occupies only the period before
the affidavit fell due, and the period 4 to 13 December 2024 is not explained at
all. The closure commenced on the very day the affidavit was due . The leave
commenced on the day it was served. There is no confirmatory affidavit from
the attorney. And the submission that, had the notice of intention to oppose
been delivered on the last permissible day, the affidavit would in any event have
been due only on 20 January 2025, does not assist the plaintiff. The period in
rule 6(5)(d)(ii) of the Uniform Rules of Court runs from the date the notice was
delivered, and a litigant cannot claim the benefit of a default it did not commit.23
[22] Against this: the delay is measured in weeks, over the December recess.
The defendant delivered a comprehensive reply . The application was , in my
21 Condonation notice of motion and founding affidavit, CaseLines 000014-1 to 10; the sequence,
CaseLines 000016-4 to 5, at para 3.3; answering and replying affidavits, CaseLines 000016 and
000017.
22 Replying affidavit, at paras 3.1–3.4, CaseLines 000007-4 to 5; condonation founding affidavit, at
paras 16–21, CaseLines 000014-7 to 8.
23 Condonation founding affidavit, at paras 19–23, CaseLines 000014-8 to 9; the criticisms, CaseLines
000016-13 to 16, at paras 14 –17.
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view, fully ventilated, and the prejudice of the delay itself is limited; and the
affidavit raises the very questions on which the application turns. Both parties,
indeed, invited this Court to determine whether the supplementary affidavit
complies with the order. It would be an unsatisfactory exercise of the discretion
to decide an application carrying the consequences this one carry while shutting
out the affidavit that articulates the answer to it. The interests of justice favour
a decision on full papers. Condonation is granted. It is the plaintiff which sought
an indulgence made necessary by its own conduct, on a materially deficient
explanation. It is only fai r for the plaintiff to pay the costs of the condonation
application.
Prematurity and section 18(1)
[23] The plaintiff contends that the institution of the application on 22
November 2024 was premature, the application for leave to appeal suspended
the order under s ection 18(1) of the Superior Courts Act , the dismissal of 19
November 2024 lifted the suspension, and the 10 days then ran afresh, expiring
on 3 December 2024 the very day the supplementary affidavit was served. It
relies on Varnardo Investments (Pty) Ltd and Another v K2012150042 South
Africa (Proprietary) Ltd.24 In response thereto, the defendant contends that the
10 days ran from the order and lapsed by no later than 26 June 2024, more
than two months before the leave to appeal application existed; that an
application delivered a month out of time, without condonation, could not revive
an expired period; and that Meaden AJ found that the plaintiff was in contempt
in the interim.25
[24] There is merit in the defendant’s answer, and whether a leave to appeal
application delivered after both the compliance and the appeal periods had
expired, unaccompanied by condonation, engages section 18(1) of the
Superior Courts Act at all is at the least doubtful. It is unnecessary to decide it,
Superior Courts Act at all is at the least doubtful. It is unnecessary to decide it,
for three reasons. First ly, paragraph 3 of both orders entitles the defendant,
24 [2023] JOL 57786 (WCC).
25 Respondent’s heads, at paras 2–5 and 20, CaseLines 000019-4 and 8; supplementary heads, at
paras 2 –4, CaseLines 000019-20 to 21; replying affidavit, at paras 4.2–4.4, CaseLines 000007-6;
CaseLines 000016-10 to 11, at paras 9–10; judgment of 19 November 2024, at para 11, CaseLines
0003-4.
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upon non-compliance, to approach the court on the duly supplemented papers.
Pursuant to the hearing the papers were duly supplemented . The
supplementary affidavit was placed before the court by the plaintiff itself,
annexed to its answering affidavit, and fully traversed in reply. Secondly, even
on the plaintiff’s own computation everything turns on whether what was served
on 3 December 2024 constitutes compliance: if it does, the applica tion fails on
the merits; if it does not, the default persisted at the hearing 14 months later,
and the amended notice of motion of 12 December 2025 in any event post -
dates any conceivable compliance period. Thirdly, to non-suit the defendant on
prematurity alone would invite the immediate re-issue of an identical application
on identical papers in an action pending since 2021. Prematurity is accordingly
not a self-standing bar.
Compliance with the order of 10 June 2024
[25] The question, then, is whether the third version is the compliance the order
required. In my view , it is not a proper and bona fide compliance, for reasons
which are cumulative.
[26] First, the order did not merely call for an answer to a notice. It followed a
fully contested application in which the plaintiff’s grounds of refusal were
adjudicated and rejected as bald, incomplete and unsustainable, and it directed
the plaintiff to properly comply by delivering the documents called for. What was
delivered was nothing accompanied by a ground of refusal never previously
advanced. That invites the closest scrutiny.26
[27] Secondly, the new ground contradicts the plaintiff’s own prior statements.
The first version refused production because the documents were irrelevant, an
objection which presupposes that documents exist and were considered. Its
attorney recorded, on the same day, difficulties with obtaining all the requested
documentation due to the length of time that has passed since they were
documentation due to the length of time that has passed since they were
generated, the language of documents that exist but are old, not of documents
of which the plaintiff has no knowledge. The second version did not deny
26 Meaden AJ, at para 22 and the order, at para 2, CaseLines 000-6 and 000-13.
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possession of the documents in items 1, 4, 6, 7, 11, 12 and 13 . It said they
were better sought from the City, that the requests were fishing, and that the
1997 letter told the whole story. In fairness, for items 3 and 10 , the second
version did deny the existence of the correspondence there sought, so a stance
of non-possession on those two items is not new. For the rest , the plaintiff’s
own planning documents, its correspondence with and instructions to its own
engineers, its own reports on water availability, and the subdivision and town -
planning records, blanket non-possession and no knowledge surface for the
first time 18 months after the notice, and only once production had been
ordered.27
[28] Thirdly, the affidavit is, on its face, not a conscientious response. The
answer to item 4 correspondence with the plaintiff’s own engineers , repeats,
word for word the answer to item 3 concerning the local authority and does not
address engineers’ correspondence at all. Several answers speak of
documents “sought in paragraph 4 of the notice”, without saying which. No
answer states whereabouts; none discloses what search was undertaken, by
whom, of which records, or with what result. The plaintiff is an organ of state
which sues on a supply relationship it has maintained since 1 997. That the
plaintiff should possess no planning documents, no engineering
correspondence, no instructions to its engineers and no reports touching the
very supply on which it sues, and that, beyond non-possession, should have no
knowledge of any such documents is inherently improbable . Additionally, the
affidavit offers nothing to render it probable.28
[29] Fourthly, the plaintiff’s own characterisation of the affidavit undermines it.
The answering affidavit asserts that the supplementary affidavit “outlined the
steps that the respondent took after the 19 November 2024 to search for
documents”. It outlines no step, no search and no enquiry. An untrue
documents”. It outlines no step, no search and no enquiry. An untrue
27 CaseLines 000-6, at paras 19 – 20; CaseLines 003-10 to 15, at paras 38–59; CaseLines 000007-10,
at para 6.3.1; the analysis in the applicant’s heads, at paras 13–18, CaseLines 000011-18 to 29.
28 CaseLines 00007-4 to 6; the point on item 4, applicant’s heads, at para 14.5, CaseLines 000011-22.
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characterisation, on oath, of the very document relied upon as compliance does
not bespeak bona fides.29
[30] Fifthly, the authorities do not support the plaintiff’s case. Bank of Transkei
is distinguishable. In that case , the document principally in issue had in fact
been furnished; the statement of non -possession was specific and
uncontradicted; and there was no history of successive, inconsistent
explanations. In the matter in casu, the opposite is true on each score. The
point made in Lot 38 Bizana Properties CC v Tiador 119CC (in liquidation) and
Others,30 whereabouts only if known , does not rescue an affidavit which is
otherwise not a genuine answer . Moreover, Biermann v Eastern Cape
Development Corporation ,31cuts the other way where there are reasonable
grounds for supposing possession. Nor does rule 35(4) of the Uniform Rules of
Court assists. The rule protects the innocent party against ambush by
precluding the defaulter’s own use of undisclosed documents . It affords no
remedy to a defendant deprived of documents needed to conduct its defence
and prosecute its counterclaim. Subrule (7) exists precisely for this situation.32
[31] This Court concludes that the plaintiff has not complied with the order of
10 June 2024, and that, viewed against this history, its non -compliance is
deliberate.
The appropriate order
[32] Each consideration that restrains rule 35(7) of the Uniform Rules of Court
sanction has here been satisfied or exhausted. The plaintiff has been heard at
every stage in the compel application, in the leave to appeal, in the condonation
application granted precisely so that its answer could be considered, and in
argument. The grad uated response the authorities’ favour has run its course .
The order of 10 June 2024 was itself the lesser remedy, and its paragraph 3,
29 Answering affidavit, para 2.2, CaseLines 000006-3, compared with CaseLines 00007-1 to 7; the point
taken at CaseLines 000016-12, at para 11.2.
30 (2278/2022) [2024] ZAECGHC 2.
taken at CaseLines 000016-12, at para 11.2.
30 (2278/2022) [2024] ZAECGHC 2.
31 [2017] JOL 37733 (EL).
32 Respondent’s heads, at paras 37–42, CaseLines 000019-13 to 14; supplementary heads, at paras 6
–11, CaseLines 000019-21 to 24.
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repeated on 19 November 2024, built in a final opportunity on pain of further
relief. Punitive costs have twice been ordered. A finding that the plaintiff placed
itself in contempt has been made and repeated. Nineteen months produced a
single affidavit which is not a bona fide response. The plaintiff is dominus litis
in an action instituted in September 2021, and the defendant which must meet
the claim and prosecute a counterclaim of R 1 650 945.37 arising from the same
supply relationship, remains deprived of the very categories of documents a
court has held to fall within the pleaded disputes. The prejudice is real and
continuing. It is my view under the circumstances, that the claim of the plaintiff
in the action falls to be dismissed.33
[33] The striking out of the plaintiff’s defence to the counterclaim is a yet more
drastic remedy. It would expose the plaintiff, without trial, to judgment on R 1
650 945.37. The withheld documents bear on the counterclaim as directly as
on the claim . As plaintiff, the respondent wields the process of the Court. As
defendant in reconvention, it answers to it. It is just to afford it one further, final
and closely defined opportunity on that limb. Proper compliance within 15 days.
The documents, or an affidavit which, item by item, identifies the searches
conducted, the record systems and archives examined, the persons who
conducted them and the results, and the whereabouts, insofar as known, of any
document once but no longer in its possession. A repetition of the formula of 3
December 2024 will not do. Failing that, the defendant may seek the striking
out on these papers, duly supplemented.
[34] Regarding the costs, the plaintiff’s conduct of persisting in defiance of an
order, successive irreconcilable versions under oath, and the
mischaracterisation of its own purported compliance , merits the Court’s
displeasure and is continuous with the conduct already twice visited in costs. I
displeasure and is continuous with the conduct already twice visited in costs. I
am persuaded that this application justifies costs on the scale as between
attorney and client. The dismissal of the claim disposes of the action in
convention, and the defendant is entitled to its costs of having defended it, on
33 Orders, CaseLines 000-1 to 3; judgment of 19 November 2024, at paras 11 and 15– 16, CaseLines
0003-4 to 5; replying affidavit, at para 10.1, CaseLines 000007-12.
15
the party and party scale. The costs of the counterclaim are reserved for later
determination in that proceeding.34
Order
[35] In the result, the following order is made:
1. The respondent’s late delivery of its answering affidavit is condoned.
The respondent shall pay the costs of the application for
condonation.
2. It is declared that the respondent has failed to comply with paragraph
2 of the order of this Court granted on 10 June 2024.
3. The respondent’s claim in convention in the action under case
number 44776/2021 is dismissed in terms of rule 35(7) of the
Uniform Rules of Court.
4. The respondent shall pay the applicant’s costs of the action in
convention on party and party scale, and the costs of this application
on the scale as between attorney and client.
5. The relief sought in respect of the striking out of the respondent’s
defence to the applicant’s counterclaim (the plea in reconvention) is
not granted at this stage and is regulated by paragraphs 6 and 7
hereof.
6. The respondent is afforded a final opportunity, within 15 days of the
date of this order, to comply properly with paragraph 2 of the order
of 10 June 2024, by delivering the documents called for in
paragraphs 1, 3, 4, 6, 7, 10, 11, 12 and 13 of the applicant’s rule
35(3) Notice in terms of the Uniform Rules of Court. Alternatively, by
delivering an affidavit which, in respect of each such paragraph,
discloses the searches undertaken, the record systems and archives
examined, the identity of the persons who undertook them and the
outcome thereof, and the whereabouts, insofar as known , of any
document formerly but no longer in the respondent’s possession.
34 Prior costs orders, CaseLines 000-2, at para 4, and 000-3, para 2; draft order, CaseLines 000027-1 to
2.