N.B v R.B (38752/2016) [2025] ZAGPJHC 523 (29 April 2025)
- Citation
- [2025] ZAGPJHC 523
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Crutchfield
- Case number
- 38752/2016
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Crutchfield
- Case number
- 38752/2016
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the respondent's claim to payment of R100 000.00 was not properly before it, as there was no application dealing with that entitlement. The respondent is free to bring a separate application for payment if he wishes. The only matter before the court was the application to compel discovery. The respondent admitted that nothing else prevented him from complying with the discovery request except the alleged payment issue, which the court could not adjudicate in this application. Accordingly, the court granted the order compelling discovery and provided that failure to comply would entitle the applicant to seek an order striking out the respondent's defence. Each party was ordered to pay their own costs.
Court disposition
Application to compel discovery granted.
Orders
- The respondent is ordered to make discovery in terms of rule 35(7) within one month of the date of service of this order on the respondent.
- If the respondent does not comply with the order, the applicant may approach the court on the same papers, duly supplemented, for an order striking out the respondent's defence.
- Each party will pay their own costs of this application.
02
Material facts
Parties
N[...] B[...]
ApplicantR[...] B[...]
RespondentAmounts and remedies
- Alleged Entitlement Claimed by Respondent: ZAR 100,000
03
Procedural history
Posture
Civil Application / Application to Compel Discovery
04
Questions and positions
Legal issues
- 01
Whether the respondent should be compelled to make discovery in terms of rule 35(7).
- 02
Whether the respondent's claim to payment of R100 000.00 is relevant to the present application.
- 03
Whether non-compliance with the discovery order should result in striking out the respondent's defence.
Party arguments
- Applicant
- The applicant seeks an order compelling the respondent to make discovery in terms of rule 35(7), arguing that the respondent has failed to comply with discovery obligations and that no valid reason has been provided for the delay.
- Respondent
- The respondent opposes the application, contending that a previous order by Adams J entitles him to payment of R100 000.00 and that this alleged entitlement is the only issue preventing delivery of his discovery affidavit. He maintains that discovery should be withheld until payment is made.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court, Rule 35(7)
A party may be compelled to make discovery in terms of rule 35(7) if they fail to comply with their discovery obligations.
- 02
General principles of civil procedure
A claim for payment must be brought by way of a proper application with supporting facts and annexures; it cannot be adjudicated in the absence of such an application.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the respondent's claim to payment of R100 000.00 was not properly before it, as there was no application dealing with that entitlement. The respondent is free to bring a separate application for payment if he wishes. The only matter before the court was the application to compel discovery. The respondent admitted that nothing else prevented him from complying with the discovery request except the alleged payment issue, which the court could not adjudicate in this application. Accordingly, the court granted the order compelling discovery and provided that failure to comply would entitle the applicant to seek an order striking out the respondent's defence. Each party was ordered to pay their own costs.
Obiter and limits
- The respondent may bring a proper application for payment of R100 000.00 with all appropriate facts and annexures if he wishes.
- The court cannot deal with claims not properly placed before it in the absence of a formal application.
Court disposition
Application to compel discovery granted.
- The respondent is ordered to make discovery in terms of rule 35(7) within one month of the date of service of this order on the respondent.
- If the respondent does not comply with the order, the applicant may approach the court on the same papers, duly supplemented, for an order striking out the respondent's defence.
- Each party will pay their own costs of this application.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 38752/2016
DATE: 29-04-2025
DATE 29 April 2025
REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) REVISED.
In the matter between
N[…] B[…]
Applicant
and
R[…] B[…]
Respondent
JUDGMENT
CRUTCHFIELD, J:
This is an application brought by the applicant, N[…] B[…], compelling the respondent, R[…] B[…], to make discovery within ten days of the date of service of this order on the respondent.
The respondent appeared in person before me, opposing the application to compel discovery. The respondent objected to the application pursuant to a previous order granted by my brother Adams J. According to the respondent, Adams J granted an order that the respondent be paid an amount of R100 000.00 from certain net proceeds.
I do not have an application in front of me dealing with the respondent’s alleged entitlement to payment of R100 000.00
from the applicant or her attorneys as alleged by the respondent. In the circumstances I am not able to deal therewith.
Furthermore, paragraph 4.2 of the order of Adams J is a provision in terms of which the first respondent in that matter, is ordered to withhold R100 000.00 from the net proceeds in favour of the second respondent.
In the circumstances I am not able to deal with the respondent’s claim to payment of R100 000.00 and the respondent, if he so wishes, may bring a proper application with all the appropriate facts and together with the necessary annexures to this court for the relief that he alleges he is entitled to.
The respondent alleges that the only issue holding up the delivery of his discovery affidavit is payment of the alleged R100 000.00.
Given that I am not in a position to deal with the R100 000.00 payment and that the respondent is free to bring the appropriate application should he wish to do so, I am left with the application to compel discovery alone before me.
In the light of the respondent’s averment that there is nothing else preventing his compliance with the request that he make
discovery, I intend to grant an order in terms of the application to compel, in particular the draft order that is uploaded by the applicant at CaseLines commencing at page 011-1 in the following terms:
1. The respondent is ordered to make discovery in terms of rule 35(7) within one month of the date of service of this order on the respondent.
2. In the event that the respondent does not comply with the order, the applicant is entitled to approach this court on the same papers duly supplemented, for an order striking out the respondent’s defence.
3. Each party will pay their own costs of this application.
I hand down the judgment together with the order.
CRUTCHFIELD, J
JUDGE OF THE HIGH COURT
DATE: 29 April 2025.
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