Kriel v Bowels (1951/2008) [2010] ZAECPEHC 67; 2012 (2) SA 45 (ECP) (11 November 2010)

Kriel v Bowels (1951/2008) [2010] ZAECPEHC 67; 2012 (2) SA 45 (ECP) (11 November 2010)

The court held that Rule 37(4) does not contemplate formal requests and replies, but rather a list of matters for discussion at the pre-trial conference. The remedy for a party frustrated by lack of cooperation is to request a conference before a judge in chambers, not to seek a court order compelling replies. The defendant did not agree to provide further meaningful replies, and the plaintiff's application was misconceived. The court found no basis for a punitive costs order, as the plaintiff acted on a bona fide belief in the defendant's commitment to provide further replies.

Citation
[2010] ZAECPEHC 67
Parties
Plaintiff: Martin Philip Kriel; Defendant: Ockert Johannes Bowels
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
11 November 2010
Case Number
1951/2008
Procedural Posture
Civil Application / Application to Compel Meaningful Responses to Rule 37(4) Enquiries
Outcome
Application dismissed. Costs awarded to the defendant on the party and party scale.
Judges
J.E Smith
Legal Topics
Rule 37 Pre Trial Conference, Requests for Particulars, Abuse of Process, Costs Orders
Civil Procedure Rule 37 Pre Trial Conference Requests for Particulars Abuse of Process Costs Orders

Case Brief

Summary, issues, holding and outcome

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Parties

Martin Philip Kriel

Plaintiff

Ockert Johannes Bowels

Defendant

Procedural Posture

Civil Application / Application to Compel Meaningful Responses to Rule 37(4) Enquiries

Legal Issues

  1. 1 Whether the defendant can be compelled to provide more meaningful replies to the plaintiff's Rule 37(4) enquiries.
  2. 2 Whether the plaintiff's application constitutes an abuse of process.
  3. 3 Whether a punitive costs order should be made against the plaintiff.

Ratio Decidendi

The court held that Rule 37(4) does not contemplate formal requests and replies, but rather a list of matters for discussion at the pre-trial conference. The remedy for a party frustrated by lack of cooperation is to request a conference before a judge in chambers, not to seek a court order compelling replies. The defendant did not agree to provide further meaningful replies, and the plaintiff's application was misconceived. The court found no basis for a punitive costs order, as the plaintiff acted on a bona fide belief in the defendant's commitment to provide further replies.

Court Disposition

Application dismissed. Costs awarded to the defendant on the party and party scale.

Orders

  • The application is dismissed.
  • The plaintiff is ordered to pay the defendant's costs on the party and party scale.