Braude N.O and Others v Murray In re: Murray v Braude N.O and Others (42542/2018) [2021] ZAGPJHC 572 (19 October 2021)

Braude N.O and Others v Murray In re: Murray v Braude N.O and Others (42542/2018) [2021] ZAGPJHC 572 (19 October 2021)

The court found that although the respondent's delay in delivering proper replies to the discovery notices was substantial and not fully explained, the prejudice to the respondent if condonation was refused would be severe and outweigh the prejudice to the applicants. The respondent attempted to comply, and the defects in his replies were ultimately rectified before the hearing. The applicants' own delays were noted, and their claims of prejudice were found to be speculative. The interests of justice required that condonation be granted for the late delivery of replies. The setting aside application was dismissed as the defects had been cured and no prejudice was established. The...

Citation
[2021] ZAGPJHC 572
Parties
Applicant: Kenneth David Braude N.O; Applicant: Julian Richard Polantisky N.O; Applicant: Moria Bruyns N.O; Respondent: James Blackwood Murray
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 October 2021
Case Number
42542/2018
Procedural Posture
Civil Interlocutory Application / Opposed Interlocutory Applications: Condonation, Setting Aside Irregular Step, Dismissal Under Rule 35(7)
Outcome
Condonation granted for the respondent's late delivery of replies to discovery notices; applications to set aside replies and dismiss the claim are refused; costs awarded against the respondent; matter referred to case management.
Judges
E F Dippenaar
Legal Topics
Condonation, Discovery Procedure, Irregular Step, Dismissal of Claim, Prejudice, Case Management
Civil Procedure Delict Condonation Discovery Procedure Irregular Step Dismissal of Claim Prejudice Case Management

Case Brief

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Parties

Kenneth David Braude N.O

Applicant

Julian Richard Polantisky N.O

Applicant

Moria Bruyns N.O

Applicant

James Blackwood Murray

Respondent

Procedural Posture

Civil Interlocutory Application / Opposed Interlocutory Applications: Condonation, Setting Aside Irregular Step, Dismissal Under Rule 35(7)

Legal Issues

  1. 1 Whether condonation should be granted for the respondent's late delivery of replies to discovery notices.
  2. 2 Whether the respondent's defective replies to discovery notices should be set aside as irregular steps under rule 30(2).
  3. 3 Whether the respondent's claim should be dismissed under rule 35(7) for non-compliance with a compelling order.

Ratio Decidendi

The court found that although the respondent's delay in delivering proper replies to the discovery notices was substantial and not fully explained, the prejudice to the respondent if condonation was refused would be severe and outweigh the prejudice to the applicants. The respondent attempted to comply, and the defects in his replies were ultimately rectified before the hearing. The applicants' own delays were noted, and their claims of prejudice were found to be speculative. The interests of justice required that condonation be granted for the late delivery of replies. The setting aside application was dismissed as the defects had been cured and no prejudice was established. The...

Court Disposition

Condonation granted for the respondent's late delivery of replies to discovery notices; applications to set aside replies and dismiss the claim are refused; costs awarded against the respondent; matter referred to case management.

Orders

  • The respondent is granted condonation for the late delivery of his replies to the applicants' notices in terms of rule 35(3), (6), and rule 35(12).
  • The respondent is directed to pay the costs of his condonation application.