Lusaseni v Mashamaite (64478/2017) [2024] ZAGPPHC 846 (26 August 2024)

Lusaseni v Mashamaite (64478/2017) [2024] ZAGPPHC 846 (26 August 2024)

The court found that the respondent's affidavit did not comply with Rule 35(3) because it failed to state unequivocally whether the respondent knew the whereabouts of the requested documents or to declare if such knowledge was lacking. The court rejected the respondent's argument that Rule 35(7) was applicable, holding that Rule 35(3) governs supplementation of inadequate discovery, not total failure to discover. The court also dismissed the procedural objection regarding the notice of motion, noting that the respondent was aware of the proceedings and had responded. Accordingly, the application was properly before the court under Rule 35(3), and the respondent was ordered to deliver the...

Citation
[2024] ZAGPPHC 846
Parties
Applicant: Kholiswa Lusaseni; Respondent: Maleria Daniel Mashamaite
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 August 2024
Case Number
64478/2017
Procedural Posture
Civil Application / Application Under Rule 35(3) for Further Discovery
Outcome
Application granted. Respondent ordered to deliver documentation within five days; failing compliance, defence and plea to be struck out and matter referred to default judgment roll. Costs awarded against respondent on attorney and client scale.
Judges
M J Mpshe
Legal Topics
Discovery Procedure, Rule 35 Application, Affidavit Compliance, Default Judgment, Costs Award
Civil Procedure Discovery Procedure Rule 35 Application Affidavit Compliance Default Judgment Costs Award

Case Brief

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Parties

Kholiswa Lusaseni

Applicant

Maleria Daniel Mashamaite

Respondent

Procedural Posture

Civil Application / Application Under Rule 35(3) for Further Discovery

Legal Issues

  1. 1 Whether the respondent complied with Rule 35(3) regarding discovery of documents.
  2. 2 Whether the respondent's affidavit sufficiently addressed the whereabouts of requested documents.
  3. 3 Whether the application should have been brought under Rule 35(3) or Rule 35(7).

Ratio Decidendi

The court found that the respondent's affidavit did not comply with Rule 35(3) because it failed to state unequivocally whether the respondent knew the whereabouts of the requested documents or to declare if such knowledge was lacking. The court rejected the respondent's argument that Rule 35(7) was applicable, holding that Rule 35(3) governs supplementation of inadequate discovery, not total failure to discover. The court also dismissed the procedural objection regarding the notice of motion, noting that the respondent was aware of the proceedings and had responded. Accordingly, the application was properly before the court under Rule 35(3), and the respondent was ordered to deliver the...

Court Disposition

Application granted. Respondent ordered to deliver documentation within five days; failing compliance, defence and plea to be struck out and matter referred to default judgment roll. Costs awarded against respondent on attorney and client scale.

Orders

  • The respondent is ordered to deliver the documentation as required by the applicant in the notice in terms of Rule 35(3) dated 17 May 2024 within 5 days from date of service of this order on the applicant’s attorneys.
  • In the event the respondent fails to comply with the order above, the respondent’s defence and plea will automatically be struck out and the applicant will be entitled to refer the matter to the default judgment roll.