Pop v Minister of Justice and Constitutional Development (987/11) [2022] ZAGPPHC 135 (1 March 2022)

Pop v Minister of Justice and Constitutional Development (987/11) [2022] ZAGPPHC 135 (1 March 2022)

The court found that the respondent had complied with its discovery obligations by filing and serving a discovery affidavit prior to the order granted by Tolmay J. The respondent had also provided an affidavit confirming diligent search for the requested documents, which could not be found. The applicant failed to establish grounds for striking out the respondent's defence. The court held that any reliance on undiscovered documents at trial would require leave from the trial court. Given the circumstances, including the applicant's status as a lay person and the respondent's failure to clarify the discovery position to Tolmay J, the court ordered that costs be costs in the trial.

Citation
[2022] ZAGPPHC 135
Parties
Applicant: Ion Pop; Respondent: Minister of Justice and Constitutional Development
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 March 2022
Case Number
987/11
Procedural Posture
Civil Application / Application to Strike Out Defence for Alleged Non Compliance With Discovery Order
Outcome
Application dismissed; costs to be costs in the trial.
Judges
E van der Schyff
Legal Topics
Discovery, Rule 35, Striking Out Defence, Costs Order
Civil Procedure Discovery Rule 35 Striking Out Defence Costs Order

Case Brief

Summary, issues, holding and outcome

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Parties

Ion Pop

Applicant

Minister of Justice and Constitutional Development

Respondent

Procedural Posture

Civil Application / Application to Strike Out Defence for Alleged Non Compliance With Discovery Order

Legal Issues

  1. 1 Whether the respondent failed to comply with the discovery order granted by Tolmay J on 17 November 2020.
  2. 2 Whether the respondent's defence in the main action should be struck out for alleged non-compliance with discovery obligations.
  3. 3 Whether the applicant is entitled to costs.

Ratio Decidendi

The court found that the respondent had complied with its discovery obligations by filing and serving a discovery affidavit prior to the order granted by Tolmay J. The respondent had also provided an affidavit confirming diligent search for the requested documents, which could not be found. The applicant failed to establish grounds for striking out the respondent's defence. The court held that any reliance on undiscovered documents at trial would require leave from the trial court. Given the circumstances, including the applicant's status as a lay person and the respondent's failure to clarify the discovery position to Tolmay J, the court ordered that costs be costs in the trial.

Court Disposition

Application dismissed; costs to be costs in the trial.

Orders

  • The application is dismissed.
  • Costs of the application are costs in the trial.