Morakaladi and Others v Bakone ba Masha Mokopole Communal Property Association and Others (2854/2020) [2021] ZALMPPHC 67 (4 October 2021)

Morakaladi and Others v Bakone ba Masha Mokopole Communal Property Association and Others (2854/2020) [2021] ZALMPPHC 67 (4 October 2021)

The court held that Rule 35(12) applies to both application and action proceedings and entitles a party to request documents referred to in pleadings or affidavits at any time before the hearing. Filing an answering affidavit does not bar a party from pursuing discovery under Rule 35(12) or from seeking leave to supplement their affidavit upon receipt of the requested documents. The respondents failed to provide sufficient grounds for refusing discovery, as mere assertions of irrelevance are inadequate without substantiation. The applicants are entitled to the documents requested, but any application to supplement their affidavit must be brought separately after receipt of the documents....

Citation
[2021] ZALMPPHC 67
Parties
Applicant: Tshehla Tshupaja Morakaladi; Applicant: Peta Morgan; Applicant: MTD 8 Group (Pty) Ltd; Applicant: Minister of Police; Respondent: Bakone ba Masha Mokopole Communal Property Association; Respondent: Masha Makilope Tribal Authority; Respondent: Kgoshi Masha Legwai Aron
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
4 October 2021
Case Number
2854/2020
Procedural Posture
Civil Application / Application to Compel Discovery Under Rule 35(12) Prior to Hearing of Main Interdict Application.
Outcome
Application to compel discovery granted; respondents ordered to reply to Rule 35(12) notices within 10 days and to pay costs.
Judges
Kganyago
Legal Topics
Discovery, Rule 35 12, Interdict Application, Supplementary Affidavit, Costs Order
Civil Procedure Discovery Rule 35 12 Interdict Application Supplementary Affidavit Costs Order

Case Brief

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Parties

Tshehla Tshupaja Morakaladi

Applicant

Peta Morgan

Applicant

MTD 8 Group (Pty) Ltd

Applicant

Minister of Police

Applicant

Bakone ba Masha Mokopole Communal Property Association

Respondent

Masha Makilope Tribal Authority

Respondent

Kgoshi Masha Legwai Aron

Respondent

Procedural Posture

Civil Application / Application to Compel Discovery Under Rule 35(12) Prior to Hearing of Main Interdict Application.

Legal Issues

  1. 1 Whether the respondents are obliged to discover documents referred to in their founding papers under Rule 35(12).
  2. 2 Whether the applicants' application to compel discovery is moot after filing their answering affidavit.
  3. 3 Whether the respondents have justified their refusal to discover the requested documents.

Ratio Decidendi

The court held that Rule 35(12) applies to both application and action proceedings and entitles a party to request documents referred to in pleadings or affidavits at any time before the hearing. Filing an answering affidavit does not bar a party from pursuing discovery under Rule 35(12) or from seeking leave to supplement their affidavit upon receipt of the requested documents. The respondents failed to provide sufficient grounds for refusing discovery, as mere assertions of irrelevance are inadequate without substantiation. The applicants are entitled to the documents requested, but any application to supplement their affidavit must be brought separately after receipt of the documents....

Court Disposition

Application to compel discovery granted; respondents ordered to reply to Rule 35(12) notices within 10 days and to pay costs.

Orders

  • The respondents are ordered to file their reply to the applicants’ notices in terms of Rule 35(12) of the Uniform Rules of Court within 10 days of date of this order.
  • In the event that the respondents should fail to file their reply to the notices as envisaged herein, the first and second applicants are allowed to approach this Court on supplemented papers for an order striking out the respondents main application.