ABSA Bank Limited v XCD Props (Pty) Ltd; ABSA Bank Limited v GR and RJ Properties (Pty) Ltd (25253/2009) [2010] ZAWCHC 45 (18 March 2010)

ABSA Bank Limited v XCD Props (Pty) Ltd; ABSA Bank Limited v GR and RJ Properties (Pty) Ltd (25253/2009) [2010] ZAWCHC 45 (18 March 2010)

The court held that Rule 35(12) applies to application proceedings and entitles a party to demand production of documents referred to in an affidavit at any time before the hearing. The applicant, having referred to 'data and records' in its founding affidavit, became prima facie obliged to produce these documents for inspection when called upon to do so. None of the exceptions to production, such as privilege, irrelevance, or lack of possession, were raised by the applicant. The respondents are not required to file their answering affidavits before being afforded an opportunity to inspect and copy the documents. The applicant's refusal to produce the documents was unjustified, and the...

Citation
[2010] ZAWCHC 45
Parties
Applicant: ABSA Bank Limited; Respondent: XCD Props (Pty) Ltd; Respondent: GR and RJ Properties (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 March 2010
Case Number
25253/2009
Procedural Posture
Urgent Application / Interlocutory Application for Production of Documents Prior to Filing Answering Affidavits in Liquidation Proceedings.
Outcome
Application granted. Applicant ordered to comply with Rule 35(12) notices and produce documents for inspection before respondents file answering affidavits.
Judges
Olivier
Legal Topics
Discovery in Motion Proceedings, Rule 35 12, Production of Documents, Liquidation Application
Civil Procedure Discovery in Motion Proceedings Rule 35 12 Production of Documents Liquidation Application

Case Brief

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Parties

ABSA Bank Limited

Applicant

XCD Props (Pty) Ltd

Respondent

GR and RJ Properties (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Interlocutory Application for Production of Documents Prior to Filing Answering Affidavits in Liquidation Proceedings.

Legal Issues

  1. 1 Whether respondents are entitled to demand production and inspection of documents referred to in applicant's founding affidavits under Rule 35(12) before filing answering affidavits.
  2. 2 Whether applicant can refuse production of such documents absent a court direction under Rule 35(13).

Ratio Decidendi

The court held that Rule 35(12) applies to application proceedings and entitles a party to demand production of documents referred to in an affidavit at any time before the hearing. The applicant, having referred to 'data and records' in its founding affidavit, became prima facie obliged to produce these documents for inspection when called upon to do so. None of the exceptions to production, such as privilege, irrelevance, or lack of possession, were raised by the applicant. The respondents are not required to file their answering affidavits before being afforded an opportunity to inspect and copy the documents. The applicant's refusal to produce the documents was unjustified, and the...

Court Disposition

Application granted. Applicant ordered to comply with Rule 35(12) notices and produce documents for inspection before respondents file answering affidavits.

Orders

  • The applicants are to comply with the notices filed in terms of Rule 35(12) by not later than 1 April 2010.
  • The respondents are to file their answering affidavit by not later than 8 April 2010.