Evrigard (PTY) Ltd and Another v Select PPE (PTY) Ltd and Others (2021/21896) [2022] ZAGPJHC 653 (7 September 2022)

Evrigard (PTY) Ltd and Another v Select PPE (PTY) Ltd and Others (2021/21896) [2022] ZAGPJHC 653 (7 September 2022)

The court held that rule 35(12) is clear and unambiguous in its application to any proceeding, including motion proceedings, and specifically refers to affidavits. There is no requirement for a party to obtain prior leave of court before delivering a rule 35(12) notice. The objections raised by respondents regarding the necessity of prior leave, the timing of discovery, the exhaustion of other remedies, and the alleged lis pendens were found to be without merit. The court distinguished between the operation of rule 35(12) and rule 35(13), confirming that the latter does not restrict the former in motion proceedings. The applications to set aside the rule 35(12) notices as irregular steps...

Citation
[2022] ZAGPJHC 653
Parties
Applicant: Evrigard (PTY) Ltd; Applicant: Rondo (PTY) Ltd; Respondent: Select PPE (PTY) Ltd; Respondent: NLG Gloves (PTY) Ltd; Respondent: Petri-JS Pieterse; Respondent: Sibanye Rustenburg Platinum Mines (PTY) Ltd.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 September 2022
Case Number
2021/21896
Procedural Posture
Civil Application / Application to Set Aside Rule 35(12) Notices Under Rule 30
Outcome
Both applications to set aside the rule 35(12) notices under rule 30 are dismissed with costs.
Judges
Swanepoel
Legal Topics
Discovery in Motion Proceedings, Rule 35 12, Rule 30 Irregular Step, Lis Pendens, Affidavit Document Reference
Civil Procedure Discovery in Motion Proceedings Rule 35 12 Rule 30 Irregular Step Lis Pendens Affidavit Document Reference

Case Brief

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Parties

Evrigard (PTY) Ltd

Applicant

Rondo (PTY) Ltd

Applicant

Select PPE (PTY) Ltd

Respondent

NLG Gloves (PTY) Ltd

Respondent

Petri-JS Pieterse

Respondent

Sibanye Rustenburg Platinum Mines (PTY) Ltd.

Respondent

Procedural Posture

Civil Application / Application to Set Aside Rule 35(12) Notices Under Rule 30

Legal Issues

  1. 1 Whether a party in motion proceedings may deliver a rule 35(12) notice without prior leave of court.
  2. 2 Whether the applicants' rule 35(12) notices constitute irregular steps under rule 30.
  3. 3 Whether the applicants are entitled to call for documents referred to in respondents' affidavits.

Ratio Decidendi

The court held that rule 35(12) is clear and unambiguous in its application to any proceeding, including motion proceedings, and specifically refers to affidavits. There is no requirement for a party to obtain prior leave of court before delivering a rule 35(12) notice. The objections raised by respondents regarding the necessity of prior leave, the timing of discovery, the exhaustion of other remedies, and the alleged lis pendens were found to be without merit. The court distinguished between the operation of rule 35(12) and rule 35(13), confirming that the latter does not restrict the former in motion proceedings. The applications to set aside the rule 35(12) notices as irregular steps...

Court Disposition

Both applications to set aside the rule 35(12) notices under rule 30 are dismissed with costs.

Orders

  • Both applications in terms of rule 30 are dismissed with costs.