ED Advisory Services (Pty) Ltd and Others v Marsay (8994/2021) [2023] ZAGPJHC 802 (21 July 2023)

ED Advisory Services (Pty) Ltd and Others v Marsay (8994/2021) [2023] ZAGPJHC 802 (21 July 2023)

The court found that the applicants were entitled to seek documents evidencing the respondent's relationships with clients allegedly serviced in breach of the commission agreement. The respondent's subjective belief regarding the nature of his services was not determinative; rather, the test was whether the documents might reasonably relate to the provision of economic development advisory services. The new material produced in reply was allowed, as there was no ambush and the respondent was not prejudiced, having had the opportunity to plead over. The application to strike out was dismissed, and the respondent was compelled to produce the specified documents for inspection.

Citation
[2023] ZAGPJHC 802
Parties
Applicant: ED Advisory Services (Pty) Ltd; Applicant: Economic Development Management and Administration Services (Pty) Ltd; Applicant: ED Reporting Services (Pty) Ltd; Respondent: Nicolas Marsay
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 July 2023
Case Number
8994/2021
Procedural Posture
Civil Application / Application to Compel and Application to Strike Out
Outcome
The respondent's application to strike out was dismissed and the applicants' application to compel was granted.
Judges
S D J Wilson
Legal Topics
Discovery of Documents, Breach of Contract, Commission Agreement, Strike Out Application
Civil Procedure Commercial and Corporate Discovery of Documents Breach of Contract Commission Agreement Strike Out Application

Case Brief

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Parties

ED Advisory Services (Pty) Ltd

Applicant

Economic Development Management and Administration Services (Pty) Ltd

Applicant

ED Reporting Services (Pty) Ltd

Applicant

Nicolas Marsay

Respondent

Procedural Posture

Civil Application / Application to Compel and Application to Strike Out

Legal Issues

  1. 1 Whether the respondent must produce documents evidencing his relationship with clients allegedly serviced in breach of the commission agreement.
  2. 2 Whether new material produced in reply should be struck out as an ambush.
  3. 3 Whether the documents sought are relevant and in the respondent's possession.

Ratio Decidendi

The court found that the applicants were entitled to seek documents evidencing the respondent's relationships with clients allegedly serviced in breach of the commission agreement. The respondent's subjective belief regarding the nature of his services was not determinative; rather, the test was whether the documents might reasonably relate to the provision of economic development advisory services. The new material produced in reply was allowed, as there was no ambush and the respondent was not prejudiced, having had the opportunity to plead over. The application to strike out was dismissed, and the respondent was compelled to produce the specified documents for inspection.

Court Disposition

The respondent's application to strike out was dismissed and the applicants' application to compel was granted.

Orders

  • The respondent is compelled to make available for inspection the documents specified in the applicants' discovery notice.
  • The respondent's application to strike out is dismissed.