Bertie Van Zyl (Pty) Ltd v Up To Date Tomatoes (Pty) Ltd (13329/14) [2016] ZAWCHC 105 (28 July 2016)

Bertie Van Zyl (Pty) Ltd v Up To Date Tomatoes (Pty) Ltd (13329/14) [2016] ZAWCHC 105 (28 July 2016)

The court held that the applicant, having relied on electronic records of the Johannesburg Fresh Produce Market to support its case, is obliged to make those records available for inspection under Rule 35(12). The tender of printed reports does not satisfy the rule, as the respondent is entitled to inspect the source electronic records to test the evidence. The applicant failed to provide adequate explanation for its inability to produce the records or facilitate equivalent access for the respondent. The court found that reasonable efforts must be made to produce and make available the electronic records, and if the applicant cannot comply, the respondent may seek relief under Rule 30A,...

Citation
[2016] ZAWCHC 105
Parties
Applicant: Bertie Van Zyl (Pty) Ltd; Respondent: Up To Date Tomatoes (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 July 2016
Case Number
13329/14
Procedural Posture
Interlocutory Application / Application to Compel Compliance With Rule 35(12) and Related Relief
Outcome
Application granted in favour of the respondent. The applicant is ordered to comply with paragraph 4 of the respondent's Rule 35(12) notice within ten days, failing which the respondent may seek to strike out the relevant paragraphs. The respondent is granted an extension to file its answering affidavit and is...
Judges
N P Boqwana
Legal Topics
Discovery of Documents, Trade Mark Infringement, Rule 35 12 Compliance, Inspection of Evidence
Civil Procedure Commercial and Corporate Discovery of Documents Trade Mark Infringement Rule 35 12 Compliance Inspection of Evidence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

Bertie Van Zyl (Pty) Ltd

Applicant

Up To Date Tomatoes (Pty) Ltd

Respondent

Procedural Posture

Interlocutory Application / Application to Compel Compliance With Rule 35(12) and Related Relief

Legal Issues

  1. 1 Whether the applicant is obliged to produce electronic records of the Johannesburg Fresh Produce Market for inspection under Rule 35(12).
  2. 2 Whether the tender of printed reports satisfies the requirements of Rule 35(12).
  3. 3 What relief is available to the respondent in the event of non-compliance with Rule 35(12).

Ratio Decidendi

The court held that the applicant, having relied on electronic records of the Johannesburg Fresh Produce Market to support its case, is obliged to make those records available for inspection under Rule 35(12). The tender of printed reports does not satisfy the rule, as the respondent is entitled to inspect the source electronic records to test the evidence. The applicant failed to provide adequate explanation for its inability to produce the records or facilitate equivalent access for the respondent. The court found that reasonable efforts must be made to produce and make available the electronic records, and if the applicant cannot comply, the respondent may seek relief under Rule 30A,...

Court Disposition

Application granted in favour of the respondent. The applicant is ordered to comply with paragraph 4 of the respondent's Rule 35(12) notice within ten days, failing which the respondent may seek to strike out the relevant paragraphs. The respondent is granted an extension to file its answering affidavit and is...

Orders

  • The applicant is directed to comply with paragraph 4 of the respondent's notice in terms of Rule 35(12) dated 9 September 2014 and served on it on 10 September 2014 within ten days of this order.
  • In the event of non-compliance, the respondent may approach the court to strike out as irrelevant matter those paragraphs of the applicant's founding affidavit in the main application referencing documents not produced.