Ramakarane v Centlec (Pty) Ltd (4907/2006) [2016] ZAFSHC 47 (18 February 2016)

Ramakarane v Centlec (Pty) Ltd (4907/2006) [2016] ZAFSHC 47 (18 February 2016)

The court held that 'possession' in Rule 35(3) refers to actual possession or possession by an agent, not to documents merely obtainable from third parties such as banks or SARS. The respondent is not obliged to discover documents not in her possession or control, nor to obtain them from third parties. The respondent's failure to state the whereabouts of her bank statements in her Rule 35(3) affidavit was a procedural defect, but she is only required to disclose the particulars of the banks where accounts were held, not to obtain the statements themselves. The applicant's main relief to compel discovery of documents not in the respondent's possession was refused, but the respondent was...

Citation
[2016] ZAFSHC 47
Parties
Plaintiff: Goitse Griesel Ramakarane; Defendant: Centlec (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 February 2016
Case Number
4907/2006
Procedural Posture
Civil Application / Application to Compel Discovery Under Rule 35(7)
Outcome
Application to compel discovery of documents not in respondent's possession refused; respondent ordered to file supplementary affidavit stating whereabouts and particulars of bank accounts; costs awarded against applicant.
Judges
Pienaar
Legal Topics
Discovery Affidavit, Rule 35, Possession of Documents, Subpoena Duces Tecum
Civil Procedure Discovery Affidavit Rule 35 Possession of Documents Subpoena Duces Tecum

Case Brief

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Parties

Goitse Griesel Ramakarane

Plaintiff

Centlec (Pty) Ltd

Defendant

Procedural Posture

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

Legal Issues

  1. 1 Whether 'possession' in Rule 35(3) includes documents readily obtainable from third parties but not in actual possession of the respondent.
  2. 2 Whether the respondent's affidavit in response to Rule 35(3) complies with the requirements, specifically regarding the whereabouts of the documents.

Ratio Decidendi

The court held that 'possession' in Rule 35(3) refers to actual possession or possession by an agent, not to documents merely obtainable from third parties such as banks or SARS. The respondent is not obliged to discover documents not in her possession or control, nor to obtain them from third parties. The respondent's failure to state the whereabouts of her bank statements in her Rule 35(3) affidavit was a procedural defect, but she is only required to disclose the particulars of the banks where accounts were held, not to obtain the statements themselves. The applicant's main relief to compel discovery of documents not in the respondent's possession was refused, but the respondent was...

Court Disposition

Application to compel discovery of documents not in respondent's possession refused; respondent ordered to file supplementary affidavit stating whereabouts and particulars of bank accounts; costs awarded against applicant.

Orders

  • The respondent is directed to file a supplementary affidavit within 10 days stating the whereabouts of her bank statements for the period August 2005 to 31 August 2010, and the particulars of all bank institutions at which she held accounts during that period.
  • The applicant is ordered to pay the costs of the application.