Roper and Others v Gert Nel Incorporated (29116/2022) [2024] ZAGPPHC 1058 (31 October 2024)

Roper and Others v Gert Nel Incorporated (29116/2022) [2024] ZAGPPHC 1058 (31 October 2024)

The court held that Rule 35(3) clearly requires the respondent to respond to the applicants' notice by way of affidavit, either making the requested documents available or stating under oath that they are not in possession and, if known, disclosing their whereabouts. The respondent's submission that a further affidavit is unnecessary is rejected. The court further found that the deponent to the founding affidavit, a candidate attorney with sufficient knowledge of the matter, is competent to depose to the affidavit. The applicants are entitled to the relief sought, and the respondent's opposition is without merit.

Citation
[2024] ZAGPPHC 1058
Parties
Applicant: Leon Albert Roper; Applicant: Brooklyn Psychological Services CC; Applicant: Siza Medico Legal Centre (Pty) Ltd; Respondent: Gert Nel Incorporated
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 October 2024
Case Number
29116/2022
Procedural Posture
Civil Application / Application to Compel Compliance With Rule 35(3)
Outcome
Application granted; respondent ordered to comply with Rule 35(3) within three days, failing which its defence will be struck out.
Judges
MPN Mbongwe
Legal Topics
Discovery Affidavit, Rule 35 3 Compliance, Affidavit Deponent Qualification
Civil Procedure Discovery Affidavit Rule 35 3 Compliance Affidavit Deponent Qualification

Case Brief

Summary, issues, holding and outcome

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Parties

Leon Albert Roper

Applicant

Brooklyn Psychological Services CC

Applicant

Siza Medico Legal Centre (Pty) Ltd

Applicant

Gert Nel Incorporated

Respondent

Procedural Posture

Civil Application / Application to Compel Compliance With Rule 35(3)

Legal Issues

  1. 1 Whether the respondent is obliged to respond to a Rule 35(3) notice by way of affidavit as required by the rule.
  2. 2 Whether the deponent to the founding affidavit, being a candidate attorney, is competent to depose to the affidavit.
  3. 3 Whether the applicants have established entitlement to the documents requested under Rule 35(3).

Ratio Decidendi

The court held that Rule 35(3) clearly requires the respondent to respond to the applicants' notice by way of affidavit, either making the requested documents available or stating under oath that they are not in possession and, if known, disclosing their whereabouts. The respondent's submission that a further affidavit is unnecessary is rejected. The court further found that the deponent to the founding affidavit, a candidate attorney with sufficient knowledge of the matter, is competent to depose to the affidavit. The applicants are entitled to the relief sought, and the respondent's opposition is without merit.

Court Disposition

Application granted; respondent ordered to comply with Rule 35(3) within three days, failing which its defence will be struck out.

Orders

  • The Respondent is ordered to deliver and/or upload its response to the Applicants’ Rule 35(3) within three days from the date of service of the order.
  • In the event of the Respondent failing to comply with paragraph 1 above, the Respondent’s defence in the action instituted under case number 29116/2022 is struck out.