SB Guarantee Co (RF) (Pty) Ltd v Malope (3607/2020) [2023] ZAGPJHC 888 (8 August 2023)

SB Guarantee Co (RF) (Pty) Ltd v Malope (3607/2020) [2023] ZAGPJHC 888 (8 August 2023)

The court found that the defendant's request for proof of payments by the plaintiff to Standard Bank did not meet the requirements of rule 35(14). The documents were not clearly specified, their possession by the plaintiff was not established, and most importantly, they were not relevant to any reasonably anticipated issue in the action. The indemnity agreement expressly precluded the defendant from refusing payment to the plaintiff on the basis that the plaintiff had not paid Standard Bank. Therefore, the defendant's liability to the plaintiff was not conditional on the plaintiff's payment to the bank. The application to compel further and better discovery was dismissed, and costs were...

Citation
[2023] ZAGPJHC 888
Parties
Plaintiff: SB Guarantee Co (RF) (Pty) Limited; Defendant: Malope, Kholofele Peter
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 August 2023
Case Number
3607/2020
Procedural Posture
Civil Interlocutory Application / Application to Compel Further and Better Discovery Under Rule 35(14)
Outcome
Defendant's application to compel further and better discovery is dismissed with costs.
Judges
Adams
Legal Topics
Discovery Procedure, Rule 35 14, Pleading Requirements, Indemnity Agreement
Civil Procedure Discovery Procedure Rule 35 14 Pleading Requirements Indemnity Agreement

Case Brief

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Parties

SB Guarantee Co (RF) (Pty) Limited

Plaintiff

Malope, Kholofele Peter

Defendant

Procedural Posture

Civil Interlocutory Application / Application to Compel Further and Better Discovery Under Rule 35(14)

Legal Issues

  1. 1 Whether the defendant is entitled to compel the plaintiff to produce proof of payments made to Standard Bank under the guarantee for purposes of pleading.
  2. 2 Whether the documents requested by the defendant are relevant to a reasonably anticipated issue in the action as required by rule 35(14).

Ratio Decidendi

The court found that the defendant's request for proof of payments by the plaintiff to Standard Bank did not meet the requirements of rule 35(14). The documents were not clearly specified, their possession by the plaintiff was not established, and most importantly, they were not relevant to any reasonably anticipated issue in the action. The indemnity agreement expressly precluded the defendant from refusing payment to the plaintiff on the basis that the plaintiff had not paid Standard Bank. Therefore, the defendant's liability to the plaintiff was not conditional on the plaintiff's payment to the bank. The application to compel further and better discovery was dismissed, and costs were...

Court Disposition

Defendant's application to compel further and better discovery is dismissed with costs.

Orders

  • The defendant’s application to compel the plaintiff to make further and better discovery by replying to his notice in terms of rule 35(14) dated 21 June 2021 is dismissed with costs.
  • The defendant shall pay the plaintiff’s costs of the application on the scale as between attorney and client.