E.G v J.C.G (35083/2008) [2010] ZAGPPHC 547 (12 February 2010)

E.G v J.C.G (35083/2008) [2010] ZAGPPHC 547 (12 February 2010)

The court found that the respondent had complied with the requirements of rule 35(3) by delivering an affidavit that addressed each document listed in the applicant's notice and tendered inspection where appropriate. Rule 35(3) does not require the format of a discovery affidavit with schedules, as argued by the applicant. The adequacy of the respondent's answer is not for determination at this stage; if the applicant is dissatisfied, the correct procedure is to bring a separate application under rule 35(7). The application to compel was therefore unnecessary after the respondent's compliance, and the matter should be removed from the roll. Costs were apportioned according to the timing...

Citation
[2010] ZAGPPHC 547
Parties
Applicant: E G[...]; Respondent: J[...] C[...] G[...]
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 February 2010
Case Number
35083/2008
Procedural Posture
Civil Application / Application to Compel Compliance With Rule 35(3) Notice
Outcome
Application removed from the roll; costs apportioned between the parties according to compliance and persistence.
Judges
T.M. Makgoka
Legal Topics
Discovery Procedure, Rule 35 Compliance, Costs Award
Civil Procedure Discovery Procedure Rule 35 Compliance Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

E G[...]

Applicant

J[...] C[...] G[...]

Respondent

Procedural Posture

Civil Application / Application to Compel Compliance With Rule 35(3) Notice

Legal Issues

  1. 1 Has the respondent complied with the applicant's notice in terms of rule 35(3)?
  2. 2 Is the respondent required to deliver a discovery affidavit in the format suggested by the applicant?
  3. 3 Is the adequacy of the respondent's answer to the rule 35(3) notice properly before the court at this stage?

Ratio Decidendi

The court found that the respondent had complied with the requirements of rule 35(3) by delivering an affidavit that addressed each document listed in the applicant's notice and tendered inspection where appropriate. Rule 35(3) does not require the format of a discovery affidavit with schedules, as argued by the applicant. The adequacy of the respondent's answer is not for determination at this stage; if the applicant is dissatisfied, the correct procedure is to bring a separate application under rule 35(7). The application to compel was therefore unnecessary after the respondent's compliance, and the matter should be removed from the roll. Costs were apportioned according to the timing...

Court Disposition

Application removed from the roll; costs apportioned between the parties according to compliance and persistence.

Orders

  • The application is removed from the roll.
  • The respondent is ordered to pay the costs of the application up to and including 18 December 2009 on an unopposed scale.