Haywood and Others v Foresta Timber and Board (41657/2020) [2023] ZAGPJHC 272 (17 March 2023)

Haywood and Others v Foresta Timber and Board (41657/2020) [2023] ZAGPJHC 272 (17 March 2023)

The application to compel discovery became moot once the respondents served their discovery affidavit. The applicant impermissibly introduced new matter in reply, seeking to challenge the authority of the deponent and the validity of the affidavit, which was not raised in the founding affidavit. Such new matter must be struck out, and any challenge to authority should have been brought under the appropriate procedural rules. The application was devoid of merit, constituted an abuse of process, and unnecessarily delayed the proceedings. The applicant is ordered to pay costs on a punitive scale due to its conduct.

Citation
[2023] ZAGPJHC 272
Parties
Respondent: Mari Haywood NO; Respondent: Kgashane Christopher Monyele NO; Respondent: Ally Sumaya Mohamed NO; Applicant: Foresta Timber and Board (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 March 2023
Case Number
41657/2020
Procedural Posture
Interlocutory Application / Opposed Motion to Compel Discovery Under Uniform Rule 35
Outcome
Application dismissed; paragraphs 6, 7, 13, and 15 of the applicant's replying affidavit struck out; costs awarded against the applicant on the scale of attorney and client.
Judges
Wanless
Legal Topics
Discovery Affidavit, Uniform Rules of Court, Authority of Deponent, Striking Out New Matter, Costs Punitive Scale
Civil Procedure Discovery Affidavit Uniform Rules of Court Authority of Deponent Striking Out New Matter Costs Punitive Scale

Case Brief

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Parties

Mari Haywood NO

Respondent

Kgashane Christopher Monyele NO

Respondent

Ally Sumaya Mohamed NO

Respondent

Foresta Timber and Board (Pty) Ltd

Applicant

Procedural Posture

Interlocutory Application / Opposed Motion to Compel Discovery Under Uniform Rule 35

Legal Issues

  1. 1 Whether the respondents' discovery affidavit complies with Uniform Rule 35(2).
  2. 2 Whether new matter raised in the applicant's replying affidavit should be struck out.
  3. 3 Whether the applicant is entitled to relief based on alleged defects in the discovery affidavit.

Ratio Decidendi

The application to compel discovery became moot once the respondents served their discovery affidavit. The applicant impermissibly introduced new matter in reply, seeking to challenge the authority of the deponent and the validity of the affidavit, which was not raised in the founding affidavit. Such new matter must be struck out, and any challenge to authority should have been brought under the appropriate procedural rules. The application was devoid of merit, constituted an abuse of process, and unnecessarily delayed the proceedings. The applicant is ordered to pay costs on a punitive scale due to its conduct.

Court Disposition

Application dismissed; paragraphs 6, 7, 13, and 15 of the applicant's replying affidavit struck out; costs awarded against the applicant on the scale of attorney and client.

Orders

  • Paragraphs 6, 7, 13 and 15 of the applicant’s replying affidavit are struck out.
  • The application is dismissed.