Pheiffer and Others v About IT Pretoria (Pty) Ltd and Others (65188/2014) [2021] ZAGPPHC 641 (4 October 2021)

Pheiffer and Others v About IT Pretoria (Pty) Ltd and Others (65188/2014) [2021] ZAGPPHC 641 (4 October 2021)

The court found that the first respondent had not properly complied with rule 35(3) in respect of Item 3, as it failed to state under oath the whereabouts of the requested journals and descriptive reasons. The respondent's affidavits did not address the existence or non-existence of these documents, and its correspondence was insufficient. This non-compliance deprived the applicants of the opportunity to refer the matter to oral evidence. The court determined that a postponement was necessary to allow the first respondent to comply fully with rule 35(3) and ordered a special costs order against the first respondent due to its haphazard conduct.

Citation
[2021] ZAGPPHC 641
Parties
Applicant: Rudi Pheiffer; Applicant: Rudi Pheiffer N.O.; Applicant: Cornelia Maria Pheiffer N.O.; Respondent: About IT Pretoria (Pty) Ltd; Respondent: Gerhardus Marthinus Olivier; Respondent: Gerhardus Marthinus Olivier N.O.; Respondent: Madelein Olivier N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 October 2021
Case Number
65188/2014
Procedural Posture
Civil Application / Application to Compel Discovery Under Rule 35(7)
Outcome
Application postponed sine die; first respondent ordered to comply with rule 35(3) regarding Item 3 within five days; applicants granted leave to file supplementary affidavit; first respondent ordered to pay costs on attorney-client scale.
Judges
N Janse Van Nieuwenhuizen
Legal Topics
Discovery Procedure, Rule 35 Application, Share Valuation, Damages, Attorney Client Costs
Civil Procedure Commercial and Corporate Discovery Procedure Rule 35 Application Share Valuation Damages Attorney Client Costs

Case Brief

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Parties

Rudi Pheiffer

Applicant

Rudi Pheiffer N.O.

Applicant

Cornelia Maria Pheiffer N.O.

Applicant

About IT Pretoria (Pty) Ltd

Respondent

Gerhardus Marthinus Olivier

Respondent

Gerhardus Marthinus Olivier N.O.

Respondent

Madelein Olivier N.O.

Respondent

Procedural Posture

Civil Application / Application to Compel Discovery Under Rule 35(7)

Legal Issues

  1. 1 Whether the first respondent has complied with the applicants' rule 35(3) notice for discovery of documents.
  2. 2 Whether the first respondent is obliged to state under oath the whereabouts of journals and descriptive reasons requested under Item 3.
  3. 3 Whether the applicants are entitled to a postponement and special costs order due to the first respondent's conduct.

Ratio Decidendi

The court found that the first respondent had not properly complied with rule 35(3) in respect of Item 3, as it failed to state under oath the whereabouts of the requested journals and descriptive reasons. The respondent's affidavits did not address the existence or non-existence of these documents, and its correspondence was insufficient. This non-compliance deprived the applicants of the opportunity to refer the matter to oral evidence. The court determined that a postponement was necessary to allow the first respondent to comply fully with rule 35(3) and ordered a special costs order against the first respondent due to its haphazard conduct.

Court Disposition

Application postponed sine die; first respondent ordered to comply with rule 35(3) regarding Item 3 within five days; applicants granted leave to file supplementary affidavit; first respondent ordered to pay costs on attorney-client scale.

Orders

  • The application is postponed sine die.
  • The first respondent is ordered to file, within five days from date of this order, a response to Item 3 of the applicants' notice in terms of rule 35(3) dated 8 July 2020.