Distell Limited v Naidoo and Others (2557/2016) [2019] ZAKZDHC 34 (4 December 2019)

Distell Limited v Naidoo and Others (2557/2016) [2019] ZAKZDHC 34 (4 December 2019)

The court found that the respondents, as sureties and co-principal debtors, were aware of the principal debtor's indebtedness and had not challenged the amount or material facts in prior proceedings. The documents requested (unpaid invoices) were therefore not relevant to any live issue between the parties. The application for production of documents under rule 35(12) was held to be an abuse of process, as the respondents failed to advance any bona fide defence or propose issues to be raised in the main application. The delivery of the rule 35(12) notice did not suspend the period for filing answering affidavits, and the respondents should have sought an extension under rule 27. The...

Citation
[2019] ZAKZDHC 34
Parties
Applicant: Distell Limited; Respondent: Chris Naidoo; Respondent: Kanthakumari Naidoo; Respondent: Pravesh Rajkumar Singh; Respondent: Hemanth Rajkumar Singh
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
4 December 2019
Case Number
2557/2016
Procedural Posture
Interlocutory Application / Opposed Interlocutory Application Under Rule 35(12) Seeking Production of Documents Prior to Main Application.
Outcome
Application dismissed with costs on an attorney and client scale.
Judges
Henriques
Legal Topics
Discovery of Documents, Rule 35 Application, Abuse of Process, Relevance of Evidence
Civil Procedure Discovery of Documents Rule 35 Application Abuse of Process Relevance 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 5 Authorities cited 19 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Distell Limited

Applicant

Chris Naidoo

Respondent

Kanthakumari Naidoo

Respondent

Pravesh Rajkumar Singh

Respondent

Hemanth Rajkumar Singh

Respondent

Procedural Posture

Interlocutory Application / Opposed Interlocutory Application Under Rule 35(12) Seeking Production of Documents Prior to Main Application.

Legal Issues

  1. 1 Whether the respondents as sureties are entitled to inspection and copying of documents referred to in the rule 35(12) notice.
  2. 2 Whether the documents requested are relevant to the proceedings.
  3. 3 Whether the interlocutory application constitutes an abuse of process.

Ratio Decidendi

The court found that the respondents, as sureties and co-principal debtors, were aware of the principal debtor's indebtedness and had not challenged the amount or material facts in prior proceedings. The documents requested (unpaid invoices) were therefore not relevant to any live issue between the parties. The application for production of documents under rule 35(12) was held to be an abuse of process, as the respondents failed to advance any bona fide defence or propose issues to be raised in the main application. The delivery of the rule 35(12) notice did not suspend the period for filing answering affidavits, and the respondents should have sought an extension under rule 27. The...

Court Disposition

Application dismissed with costs on an attorney and client scale.

Orders

  • The application is dismissed.
  • The first to fourth respondents are directed to pay the costs of the interlocutory application jointly and severally, the one paying the other to be absolved. Such costs are to be on an attorney and client scale.