Smith v Pretorious NO and Others (4479/09) [2012] ZAFSHC 161 (26 July 2012)

Smith v Pretorious NO and Others (4479/09) [2012] ZAFSHC 161 (26 July 2012)

The court held that the plaintiff had failed to make out a proper case for supplementary discovery under Uniform Rule 35(3) and (6). The documents sought were not relevant to any matter in question on the pleadings, as the issue of costs was only ancillary and not a substantive dispute between the parties at this stage. The court found that the plaintiff's request amounted to a fishing expedition, and the rule does not permit discovery for the purpose of investigating potential grounds for a future costs order. The first defendant's reply was deemed adequate, and the plaintiff was not debarred from seeking a personal costs order against the executor at trial should sufficient grounds...

Citation
[2012] ZAFSHC 161
Parties
Applicant: Sybrand Petrus Nicholas Smith; Respondent: Willem Lodewyk Pretorius N.O.; Respondent: Master of the High Court, Bloemfontein; Respondent: Gene Underay; Respondent: Sharon Dutly; Respondent: Charmaine Waterson; Respondent: Suriana Thompson N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
26 July 2012
Case Number
4479/09
Procedural Posture
Civil Application / Application for Supplementary Discovery Under Uniform Rule 35(3) and (6)
Outcome
Application dismissed with costs, including costs occasioned by the employment of two counsel.
Judges
Snellenburg
Legal Topics
Supplementary Discovery, Uniform Rule 35, Costs Order, Executor Liability
Civil Procedure Supplementary Discovery Uniform Rule 35 Costs Order Executor Liability

Case Brief

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Parties

Sybrand Petrus Nicholas Smith

Applicant

Willem Lodewyk Pretorius N.O.

Respondent

Master of the High Court, Bloemfontein

Respondent

Gene Underay

Respondent

Sharon Dutly

Respondent

Charmaine Waterson

Respondent

Suriana Thompson N.O.

Respondent

Procedural Posture

Civil Application / Application for Supplementary Discovery Under Uniform Rule 35(3) and (6)

Legal Issues

  1. 1 Whether the first defendant must be compelled to deliver documents requested under Uniform Rule 35(3) and (6).
  2. 2 Whether the documents sought are relevant to any matter in question on the pleadings.
  3. 3 Whether the plaintiff is entitled to supplementary discovery for the purpose of a potential costs order against the executor personally.

Ratio Decidendi

The court held that the plaintiff had failed to make out a proper case for supplementary discovery under Uniform Rule 35(3) and (6). The documents sought were not relevant to any matter in question on the pleadings, as the issue of costs was only ancillary and not a substantive dispute between the parties at this stage. The court found that the plaintiff's request amounted to a fishing expedition, and the rule does not permit discovery for the purpose of investigating potential grounds for a future costs order. The first defendant's reply was deemed adequate, and the plaintiff was not debarred from seeking a personal costs order against the executor at trial should sufficient grounds...

Court Disposition

Application dismissed with costs, including costs occasioned by the employment of two counsel.

Orders

  • The application is dismissed with costs, such costs to include the costs occasioned by the employment of two counsel.