Omega Civils (Proprietary) Limited v C Max Civil Construction & General Trading (Pty) Ltd (3123/2016) [2018] ZAFSHC 11 (22 February 2018)

Omega Civils (Proprietary) Limited v C Max Civil Construction & General Trading (Pty) Ltd (3123/2016) [2018] ZAFSHC 11 (22 February 2018)

The Applicant described the requested documents with sufficient accuracy and established their relevance to the issues in the main action, particularly regarding payments received from the Department and evidence of alleged defective work. The Respondent failed to raise valid objections or demonstrate that the documents were not in its possession or irrelevant. The court exercised its discretion in favour of the Applicant, finding that a better discovery affidavit was warranted and ordering the Respondent to comply with Rule 35(3) by providing a proper reply within ten days. Costs were awarded against the Respondent.

Citation
[2018] ZAFSHC 11
Parties
Applicant: Omega Civils (Proprietary) Limited; Respondent: C Max Civil Construction & General Trading (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
22 February 2018
Case Number
3123/2016
Procedural Posture
Interlocutory Application / Application to Compel Better Discovery Under Rule 35(7)
Outcome
Application granted. Respondent ordered to provide a proper reply to Rule 35(3) Notice within ten days and to pay costs.
Judges
R O Bokwa
Legal Topics
Discovery Procedure, Rule 35 Application, Relevance of Documents, Costs Order
Civil Procedure Discovery Procedure Rule 35 Application Relevance of Documents Costs Order

Case Brief

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Parties

Omega Civils (Proprietary) Limited

Applicant

C Max Civil Construction & General Trading (Pty) Ltd

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the Respondent complied with Rule 35(3) in responding to the Applicant's discovery request.
  2. 2 Whether the documents requested by the Applicant are described with sufficient accuracy and are relevant to the main action.
  3. 3 Whether the Applicant is entitled to a better discovery affidavit from the Respondent.

Ratio Decidendi

The Applicant described the requested documents with sufficient accuracy and established their relevance to the issues in the main action, particularly regarding payments received from the Department and evidence of alleged defective work. The Respondent failed to raise valid objections or demonstrate that the documents were not in its possession or irrelevant. The court exercised its discretion in favour of the Applicant, finding that a better discovery affidavit was warranted and ordering the Respondent to comply with Rule 35(3) by providing a proper reply within ten days. Costs were awarded against the Respondent.

Court Disposition

Application granted. Respondent ordered to provide a proper reply to Rule 35(3) Notice within ten days and to pay costs.

Orders

  • The Defendant is ordered to furnish a proper reply to Plaintiff's Rule 35(3) Notice served on 3 May 2017 within ten days from the date of this Order.
  • Failing delivery of the reply, Plaintiff may apply for the dismissal of Defendant's defence on the same papers, duly supplemented if necessary.