Makgato and Another v Local Government Sector Education and Training Authority (21244/18) [2024] ZAGPJHC 639 (15 July 2024)

Makgato and Another v Local Government Sector Education and Training Authority (21244/18) [2024] ZAGPJHC 639 (15 July 2024)

The court found that the respondent had acted candidly and openly in its discovery affidavit, testifying under oath that it was not in possession of some of the requested documents and did not know their whereabouts. The applicants failed to establish entitlement to the order sought, as the court cannot compel discovery of documents that are unknown or unavailable. The application to compel was therefore refused.

Citation
[2024] ZAGPJHC 639
Parties
Applicant: Mothoabela Kgolo Ephraim Makgato N.O; Applicant: Thizwilondi Sharon Makgato N.O; Respondent: Local Government Sector Education and Training Authority
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 July 2024
Case Number
21244/18
Procedural Posture
Interlocutory Application / Application to Compel Discovery Under Rule 35(7)
Outcome
Application to compel discovery dismissed; costs awarded against the applicants.
Judges
Dlamini
Legal Topics
Discovery Affidavit, Rule 35 Application, Compel Discovery, Court Discretion
Civil Procedure Discovery Affidavit Rule 35 Application Compel Discovery Court Discretion

Case Brief

Summary, issues, holding and outcome

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Parties

Mothoabela Kgolo Ephraim Makgato N.O

Applicant

Thizwilondi Sharon Makgato N.O

Applicant

Local Government Sector Education and Training Authority

Respondent

Procedural Posture

Interlocutory Application / Application to Compel Discovery Under Rule 35(7)

Legal Issues

  1. 1 Whether the respondent should be compelled to make further discovery of documents under Rule 35(7).
  2. 2 Whether the respondent's affidavit sufficiently explains the absence of the requested documents.
  3. 3 Whether the applicants have established entitlement to the order sought.

Ratio Decidendi

The court found that the respondent had acted candidly and openly in its discovery affidavit, testifying under oath that it was not in possession of some of the requested documents and did not know their whereabouts. The applicants failed to establish entitlement to the order sought, as the court cannot compel discovery of documents that are unknown or unavailable. The application to compel was therefore refused.

Court Disposition

Application to compel discovery dismissed; costs awarded against the applicants.

Orders

  • The order marked 'X' signed on 20 March 2024 is made an order of this court.