Howard v Bliumenthal (44102/2019) [2021] ZAGPJHC 363 (3 June 2021)

Howard v Bliumenthal (44102/2019) [2021] ZAGPJHC 363 (3 June 2021)

The court held that the period for compliance with the discovery orders ran from the date of service of the orders on the respondent, not from the date the orders were granted. The respondent complied within the prescribed period, and the application to strike out was launched prematurely. The applicant failed to demonstrate any prejudice resulting from the respondent's conduct. The court exercised its discretion under Rule 35(7) and dismissed the application, finding that the applicant's insistence on pursuing the application despite compliance constituted an abuse of process warranting a punitive costs order.

Citation
[2021] ZAGPJHC 363
Parties
Applicant: George Howard; Respondent: Clive Chaim Bliumenthal
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
3 June 2021
Case Number
44102/2019
Procedural Posture
Civil Application / Application to Strike Out Particulars of Claim Under Rule 35(7)
Outcome
Application to strike out dismissed; costs awarded against applicant on attorney and client scale.
Judges
M A Makume
Legal Topics
Discovery Procedure, Rule 35 Application, Strike Out Proceedings, Service of Court Orders
Civil Procedure Discovery Procedure Rule 35 Application Strike Out Proceedings Service of Court Orders

Case Brief

Summary, issues, holding and outcome

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Parties

George Howard

Applicant

Clive Chaim Bliumenthal

Respondent

Procedural Posture

Civil Application / Application to Strike Out Particulars of Claim Under Rule 35(7)

Legal Issues

  1. 1 Whether the respondent failed to comply with court orders within the prescribed period under Rule 35(7).
  2. 2 Whether the period for compliance with the court orders runs from the date of granting or the date of service of the order.
  3. 3 Whether the applicant suffered prejudice justifying a striking out of the respondent's particulars of claim.

Ratio Decidendi

The court held that the period for compliance with the discovery orders ran from the date of service of the orders on the respondent, not from the date the orders were granted. The respondent complied within the prescribed period, and the application to strike out was launched prematurely. The applicant failed to demonstrate any prejudice resulting from the respondent's conduct. The court exercised its discretion under Rule 35(7) and dismissed the application, finding that the applicant's insistence on pursuing the application despite compliance constituted an abuse of process warranting a punitive costs order.

Court Disposition

Application to strike out dismissed; costs awarded against applicant on attorney and client scale.

Orders

  • The application to strike in terms of Rule 35(7) is dismissed.
  • The applicant is ordered to pay the respondent's taxed costs on an attorney and client basis.