Burger N.O. and Others v Land and Agricultural Development Bank of South Africa (324/18 & 409/2018) [2018] ZANCHC 93 (22 November 2018)

Burger N.O. and Others v Land and Agricultural Development Bank of South Africa (324/18 & 409/2018) [2018] ZANCHC 93 (22 November 2018)

The court found that Land Bank failed to comply with Rule 35(12) by not providing complete copies of the agreements and annexures referenced in its founding affidavit. The respondents were entitled to inspect and copy these documents before filing their answering affidavit, and Land Bank's refusal was not justified by privilege or confidentiality. The court held that exceptional circumstances existed, warranting the application of Rule 35(14) to these proceedings. The respondents' inability to file their affidavit timeously was directly caused by Land Bank's non-compliance, and condonation for late filing was therefore granted. The court declared Rule 35(14) applicable, ordered Land Bank...

Citation
[2018] ZANCHC 93
Parties
Applicant: Michiel Daniël Burger N.O.; Applicant: Carolina Johanna Burger N.O.; Applicant: Esther Burger N.O.; Applicant: Michiel Daniël Burger; Applicant: Carolina Johanna Burger; Applicant: Esther Burger; Respondent: Land and Agricultural Development Bank of South Africa
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
22 November 2018
Case Number
324/18 & 409/2018
Procedural Posture
Urgent Application / Interlocutory Application for Condonation and Discovery in Main Urgent Application and Related Proceedings
Outcome
Condonation granted for late filing of answering affidavit; extension of time for filing granted; Rule 35(14) declared applicable; Land Bank ordered to make documents available; main application postponed; costs reserved.
Judges
BM Pakati
Legal Topics
Discovery in Application Proceedings, Rule 35 Production, Condonation, Privilege and Confidentiality, Locus Standi, Extension of Time
Civil Procedure Discovery in Application Proceedings Rule 35 Production Condonation Privilege and Confidentiality Locus Standi Extension of Time

Case Brief

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Parties

Michiel Daniël Burger N.O.

Applicant

Carolina Johanna Burger N.O.

Applicant

Esther Burger N.O.

Applicant

Michiel Daniël Burger

Applicant

Carolina Johanna Burger

Applicant

Esther Burger

Applicant

Land and Agricultural Development Bank of South Africa

Respondent

Procedural Posture

Urgent Application / Interlocutory Application for Condonation and Discovery in Main Urgent Application and Related Proceedings

Legal Issues

  1. 1 Whether the respondents' failure to file their answering affidavit timeously should be condoned.
  2. 2 Whether Land Bank failed to comply with Rule 35(12) by not discovering documents referred to in its founding affidavit.
  3. 3 Whether Rule 35(14) applies to application proceedings and whether the respondents are entitled to discovery under it.

Ratio Decidendi

The court found that Land Bank failed to comply with Rule 35(12) by not providing complete copies of the agreements and annexures referenced in its founding affidavit. The respondents were entitled to inspect and copy these documents before filing their answering affidavit, and Land Bank's refusal was not justified by privilege or confidentiality. The court held that exceptional circumstances existed, warranting the application of Rule 35(14) to these proceedings. The respondents' inability to file their affidavit timeously was directly caused by Land Bank's non-compliance, and condonation for late filing was therefore granted. The court declared Rule 35(14) applicable, ordered Land Bank...

Court Disposition

Condonation granted for late filing of answering affidavit; extension of time for filing granted; Rule 35(14) declared applicable; Land Bank ordered to make documents available; main application postponed; costs reserved.

Orders

  • The respondents' failure to file their answering affidavit within the time given in the order dated 06 March 2018 is condoned.
  • The time for filing answering affidavits is extended to 15 days after the specified documents are made available for inspection.