Naude v Naude (589/2015) [2015] ZAECGHC 123 (23 October 2015)

Naude v Naude (589/2015) [2015] ZAECGHC 123 (23 October 2015)

The court accepted, on the respondent's version, that she is not in possession of the statement and cannot obtain it. As a result, she cannot be compelled to produce it for inspection. The application to compel production of the statement must therefore fail, as the respondent does not have the document nor the ability to procure it.

Citation
[2015] ZAECGHC 123
Parties
Applicant: Petrus Johannes Arnoldus Naude; Respondent: Elizabeth Johanna Maria Naude
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
23 October 2015
Case Number
589/2015
Procedural Posture
Civil Application / Application to Compel Production of Document
Outcome
Application dismissed with costs, including costs reserved on previous occasions.
Judges
C Plasket
Legal Topics
Discovery of Documents, Rule 35 Application, Possession of Evidence
Civil Procedure Discovery of Documents Rule 35 Application Possession of Evidence

Case Brief

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Parties

Petrus Johannes Arnoldus Naude

Applicant

Elizabeth Johanna Maria Naude

Respondent

Procedural Posture

Civil Application / Application to Compel Production of Document

Legal Issues

  1. 1 Whether the respondent is obliged to produce the allegedly defamatory statement for inspection under rule 35.
  2. 2 Whether the respondent is in possession or control of the statement sought by the applicant.

Ratio Decidendi

The court accepted, on the respondent's version, that she is not in possession of the statement and cannot obtain it. As a result, she cannot be compelled to produce it for inspection. The application to compel production of the statement must therefore fail, as the respondent does not have the document nor the ability to procure it.

Court Disposition

Application dismissed with costs, including costs reserved on previous occasions.

Orders

  • The application is dismissed with costs, including costs reserved on previous occasions.