Ramakarane v Centlec (Pty) Ltd (4907/2006) [2016] ZAFSHC 51 (18 February 2016)

Ramakarane v Centlec (Pty) Ltd (4907/2006) [2016] ZAFSHC 51 (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 accessible or obtainable from third parties such as banks or SARS. The respondent was not obliged to source documents not in her possession for discovery. The applicant's interpretation of 'possession' was rejected as inconsistent with the wording and purpose of Rule 35 and the settled law of discovery. However, the respondent failed to state the whereabouts of the bank statements in her affidavit, as required by Rule 35(3), and was directed to file a supplementary affidavit disclosing the particulars of the relevant banks. The applicant was not substantially...

Citation
[2016] ZAFSHC 51
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 dismissed; respondent directed to file supplementary affidavit stating whereabouts of bank statements; costs awarded against applicant.
Judges
Pienaar, AJ
Legal Topics
Discovery Affidavit, Rule 35, Document Possession, Subpoena Duces Tecum
Civil Procedure Discovery Affidavit Rule 35 Document Possession 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 the respondent is in possession of the requested documents as contemplated in Rule 35(3), despite not having actual physical possession.
  2. 2 Whether the respondent's affidavit in terms of Rule 35(3) and 35(6) complies with the requirements of Rule 35(3), and if not, whether the respondent can be compelled to file a further and better affidavit stating 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 accessible or obtainable from third parties such as banks or SARS. The respondent was not obliged to source documents not in her possession for discovery. The applicant's interpretation of 'possession' was rejected as inconsistent with the wording and purpose of Rule 35 and the settled law of discovery. However, the respondent failed to state the whereabouts of the bank statements in her affidavit, as required by Rule 35(3), and was directed to file a supplementary affidavit disclosing the particulars of the relevant banks. The applicant was not substantially...

Court Disposition

Application to compel discovery of documents dismissed; respondent directed to file supplementary affidavit stating whereabouts of bank statements; costs awarded against applicant.

Orders

  • The respondent is directed to file a supplementary affidavit in terms of Rule 35(3) within 10 days stating the whereabouts of her bank statements for August 2005 to August 2010 and particulars of all bank institutions at which she held accounts during that period.
  • The applicant is ordered to pay the costs of the application.