Nethavhani v Nuwe SA Eiendomme en Verhuring CC and Others (20709/2022) [2023] ZAGPPHC 1213 (20 September 2023)

Nethavhani v Nuwe SA Eiendomme en Verhuring CC and Others (20709/2022) [2023] ZAGPPHC 1213 (20 September 2023)

The court found that the third respondent had produced all available documents referenced in its discovery affidavit except for the investment statements for September 2019 to April 2020, which, on oath, were said not to exist due to no investments being made during that period. The applicant cannot compel...

Source-derived case information.

Citation
[2023] ZAGPPHC 1213
Parties
Applicant: Khathutshelo Nethavhani; Respondent: Nuwe SA Eiendomme en Verhuring CC; Respondent: Jomar Properties (Pty) Ltd t/a Harcourt Maritz; Respondent: Bert Smith Attorneys and Conveyancers
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 September 2023
Case Number
20709/2022
Procedural Posture
Civil Application / Application to Compel Production of Documents Under Rule 35(6)
Outcome
Application struck from the roll; no order as to costs.
Judges
Mooki
Legal Topics
Discovery Affidavit, Rule 35 6, Production of Documents, Costs Award
Civil Procedure Discovery Affidavit Rule 35 6 Production of Documents Costs Award

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Summary, issues, holding and outcome

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Parties

Khathutshelo Nethavhani

Applicant

Nuwe SA Eiendomme en Verhuring CC

Respondent

Jomar Properties (Pty) Ltd t/a Harcourt Maritz

Respondent

Bert Smith Attorneys and Conveyancers

Respondent

Procedural Posture

Civil Application / Application to Compel Production of Documents Under Rule 35(6)

Legal Issues

  1. 1 Whether the third respondent can be compelled to produce investment statements and transaction reports referenced in its discovery affidavit.
  2. 2 Whether the applicant is entitled to an order compelling production of documents alleged not to exist.
  3. 3 Whether costs should be awarded given the conduct of the parties.

Ratio Decidendi

The court found that the third respondent had produced all available documents referenced in its discovery affidavit except for the investment statements for September 2019 to April 2020, which, on oath, were said not to exist due to no investments being made during that period. The applicant cannot compel production of non-existent documents. Both parties conducted themselves in a less than exemplary manner, with the applicant launching the application before the discovery affidavit was filed and padding the application unnecessarily. The relief sought had already been discharged before the hearing, and the applicant's conduct did not justify an award of costs.

Court Disposition

Application struck from the roll; no order as to costs.

Orders

  • The application is struck from the roll.
  • There is no order as to costs.