Schoobee and Another v Firstrand Bank (Pty) Ltd (389/07) [2007] ZANWHC 30 (12 July 2007)

Schoobee and Another v Firstrand Bank (Pty) Ltd (389/07) [2007] ZANWHC 30 (12 July 2007)

The court held that the applicants failed to follow the correct procedure by not first applying under Rule 35(13) for the rules of discovery to be made applicable to motion proceedings. Even if the application is treated as one under Rule 35(13), the applicants did not demonstrate exceptional circumstances warranting discovery. The applicants did not specify which documents were already in their possession or what became of other relevant documents, nor did they provide examples of unlawful charges or overdrawings. The court found that the application was a fishing expedition aimed at delaying the main proceedings and was not justified by the facts. Consequently, the application was...

Citation
[2007] ZANWHC 30
Parties
Applicant: Jan Johannes Schoonbee; Applicant: Rosalino Johanna Catharine Schoonbee; Respondent: Firstrand Bank (Pty) Ltd
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
12 July 2007
Case Number
389/07
Procedural Posture
Interlocutory Application / Application for Discovery in Motion Proceedings
Outcome
Application dismissed with costs on attorney and client scale.
Judges
A A Landman
Legal Topics
Discovery in Motion Proceedings, Rule 35 Application, Acknowledgment of Debt, Exceptional Circumstances, Costs Order
Civil Procedure Banking and Finance Discovery in Motion Proceedings Rule 35 Application Acknowledgment of Debt Exceptional Circumstances Costs Order

Case Brief

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Parties

Jan Johannes Schoonbee

Applicant

Rosalino Johanna Catharine Schoonbee

Applicant

Firstrand Bank (Pty) Ltd

Respondent

Procedural Posture

Interlocutory Application / Application for Discovery in Motion Proceedings

Legal Issues

  1. 1 Whether Rule 35(13) and Rule 35(14) of the Uniform Rules of Court apply to motion proceedings.
  2. 2 Whether the applicants have shown exceptional circumstances justifying discovery in motion proceedings.
  3. 3 Whether the requested documents are relevant to the applicants' defence.

Ratio Decidendi

The court held that the applicants failed to follow the correct procedure by not first applying under Rule 35(13) for the rules of discovery to be made applicable to motion proceedings. Even if the application is treated as one under Rule 35(13), the applicants did not demonstrate exceptional circumstances warranting discovery. The applicants did not specify which documents were already in their possession or what became of other relevant documents, nor did they provide examples of unlawful charges or overdrawings. The court found that the application was a fishing expedition aimed at delaying the main proceedings and was not justified by the facts. Consequently, the application was...

Court Disposition

Application dismissed with costs on attorney and client scale.

Orders

  • The application is dismissed with costs on an attorney and client scale.
  • The main application is postponed sine die.