Distell Limited v Naidoo and Others (2557/2016) [2019] ZAKZPHC 80 (4 December 2019)

Distell Limited v Naidoo and Others (2557/2016) [2019] ZAKZPHC 80 (4 December 2019)

The court found that the respondents, as sureties and co-principal debtors, were fully aware of the principal debtor's indebtedness, which was not disputed in prior liquidation proceedings. The documents sought (unpaid invoices for June and July 2013) were not relevant to any bona fide dispute, as the amount owed was established and accepted. The respondents failed to set out any substantive defence or issues to be raised in the main application, and their affidavits were not supported by confirmatory affidavits from the sureties themselves. The application for production of documents under rule 35(12) was therefore dismissed as the documents were irrelevant, and the interlocutory...

Citation
[2019] ZAKZPHC 80
Parties
Applicant: Distell Limited; Respondent: Chris Naidoo; Respondent: Kanthakumari Naidoo; Respondent: Pravesh Rajkumar Singh; Respondent: Hemanth Rajkumar Singh
Court
Kwazulu-Natal High Court, Pietermaritzburg
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 Answering Affidavit in Main Application.
Outcome
Application dismissed with costs on an attorney and client scale.
Judges
Henriques
Legal Topics
Rule 35 Discovery, Abuse of Process, Relevance of Evidence, Suretyship Liability
Civil Procedure Rule 35 Discovery Abuse of Process Relevance of Evidence Suretyship Liability

Case Brief

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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 Answering Affidavit in 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 or the application constitutes an abuse of process.
  3. 3 Whether the respondents are entitled to an extension of time to deliver their answering affidavit in the main application.

Ratio Decidendi

The court found that the respondents, as sureties and co-principal debtors, were fully aware of the principal debtor's indebtedness, which was not disputed in prior liquidation proceedings. The documents sought (unpaid invoices for June and July 2013) were not relevant to any bona fide dispute, as the amount owed was established and accepted. The respondents failed to set out any substantive defence or issues to be raised in the main application, and their affidavits were not supported by confirmatory affidavits from the sureties themselves. The application for production of documents under rule 35(12) was therefore dismissed as the documents were irrelevant, and the interlocutory...

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.