Isakow v Erasmus (67003/2010) [2014] ZAGPPHC 656 (29 August 2014)

Isakow v Erasmus (67003/2010) [2014] ZAGPPHC 656 (29 August 2014)

The court found that the Defendant failed to honour his tender to make specific items available for inspection as required by Rule 36(6), and his explanations regarding theft were contradictory, unsupported, and did not constitute a real dispute of fact. The sanction under Rule 30A was held to apply only to those items for which inspection was tendered but not honoured, and not to unrelated claims. The Defendant's defence in respect of the specified items was struck out, and he was ordered to deliver those items or pay their ascribed value. Costs were awarded to the Plaintiff on an attorney and client scale due to the Defendant's obstructive conduct and lack of credible explanation.

Citation
[2014] ZAGPPHC 656
Parties
Applicant: Isaac Isakow; Respondent: Marius Erasmus
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 August 2014
Case Number
67003/2010
Procedural Posture
Interlocutory Application / Application Under Rule 30 a Following Partial Non Compliance With Rule 36(6) Inspection Procedures
Outcome
Defendant's defence struck out for specified items; ordered to deliver items or pay their value; costs awarded to Plaintiff on attorney and client scale.
Judges
N Davis
Legal Topics
Discovery Affidavit, Rule 30a Sanction, Inspection of Documents, Movable Property Claim, Striking Out Defence
Civil Procedure Land and Property Discovery Affidavit Rule 30a Sanction Inspection of Documents Movable Property Claim Striking Out Defence

Case Brief

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Parties

Isaac Isakow

Applicant

Marius Erasmus

Respondent

Procedural Posture

Interlocutory Application / Application Under Rule 30 a Following Partial Non Compliance With Rule 36(6) Inspection Procedures

Legal Issues

  1. 1 Whether the Defendant's defence should be struck out for failure to comply with Rule 36(6) inspection obligations.
  2. 2 Whether the sanction under Rule 30A should apply to all claims or only those items for which inspection was tendered but not honoured.
  3. 3 Whether the Defendant's explanation for non-availability of items due to alleged theft constitutes a real and bona fide dispute of fact.

Ratio Decidendi

The court found that the Defendant failed to honour his tender to make specific items available for inspection as required by Rule 36(6), and his explanations regarding theft were contradictory, unsupported, and did not constitute a real dispute of fact. The sanction under Rule 30A was held to apply only to those items for which inspection was tendered but not honoured, and not to unrelated claims. The Defendant's defence in respect of the specified items was struck out, and he was ordered to deliver those items or pay their ascribed value. Costs were awarded to the Plaintiff on an attorney and client scale due to the Defendant's obstructive conduct and lack of credible explanation.

Court Disposition

Defendant's defence struck out for specified items; ordered to deliver items or pay their value; costs awarded to Plaintiff on attorney and client scale.

Orders

  • The Defendant's defence in the main action pertaining to the following items is struck out: 1 x 400 litre mixer; 1 x 100 litre mixer; 1 x pedestal drill; 1 x 5-ton trolley jack; 1 x welder; 1 x steel cabinet.
  • The Defendant is ordered to deliver the aforementioned items to the Plaintiff within 7 days after service of this order, failing which he must pay the Plaintiff the amounts ascribed to each item in paragraph 5.2 of the Plaintiff's amended Particulars of Claim.