Twins Professional Communications CC v Gold Brands Investments Lyd and Others (85540/17) [2020] ZAGPPHC 304 (9 June 2020)

IN THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 85540/17

9/6/2020

TWINS PROFESSIONAL COMMUNICATIONS CC APPLICANT/PLAINTIFF

and

GOLD BRANDS INVESTMENTS LYD

1ST RESPONDENT /DEFENDANT

FRANCHISING TO AFRICA (PTY) LTD

2ND RESPONDENT/DEFENDANT

NATHANAEL, EFPRAXIA

3RD RESPONDENT/DEFENDANT

JUDGMENT

NV KHUMALO J

Introduction

[1] This is an application in terms of Rule 30A upon which the Applicant is seeking an order to strike out the Respondents' defence in an action it has instituted against the Respondents, for the reason that the latter have failed to comply with a directive issued by the Acting Deputy Judge President, Potterill ("ADJP") on 19 February 2020, for the latter to reply to Applicant's Rule 35 (3) Notice dated 5 February 2020. The Directive was issued at a pre-trial judicial management meeting convened at the instance of the Applicant in the absence of the Respondents.

[2] The ADJP's Directive read:

1. The Defendant is ordered to file answers to the Rule 35 (3) Notice within 10 days;

2. A pre-trial conference was held before the Acting Deputy Judge President;

3. The parties are to proceed to trial on 26 May 2020;

4. The Defendant is directed to answer admissions which will be served on them forthwith within 10 days."

[3] Rule 30A reads:

"(1) Where a party fails to comply with these rules or with a request made or notice given pursuant thereto, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days, to apply for an order that such rule, notice or request be complied with or that the claim or defence be struck out."

(2) Failing compliance within ten (10) days, application may on notice be made to the court and the court may make such order thereon as to it seems meet."

[4] The procedure on considering an Application in terms of Rule 30A is clearly outlined in Erasmus' Superior Court Practice 2nd Ed, Volume 2 at 01-481 that, under this Rule a party making a request, or giving a notice, to which there is no response by the

other party, may through a further notice to the other party warn that after the lapse of 10 days, application will be made for an order that the notice or request be complied with, or that the claim or defence be struck out, as the case may be. Failing compliance within the 10 days mentioned, application may then be made to court and the court may make an appropriate order, that being within the discretion of the court. That, as Botha J described it in Coucourakis (at 459H), is a "positive form of relief." which is aimed at compelling compliance with the notice or request, and at striking out the claim or defence when non-compliance cannot be enforced.

[5] Furthermore that in general terms, the rules exist to regulate the practice and procedure of the courts. Their object is to secure "the inexpensive and expeditious completion of litigation before the courts." They are not an end in and of themselves. A case study considered on the Application of Rule 30A was that of sub nomine Governing Body, Hoerskool Fochville v Centre for Child Law 2014 (6) SA 561(GJ) where it was held that, "having given notice in terms of Rule 35 (12) that has not been complied with, it was for the school to give notice in terms of Rule 30A that it intended, after the lapse of 10 days, applying for an order that its rule 35 (12) notice be complied with. That the school did not do. Nor did it apply to court in terms of rule 30 A to compel production of the documents

sought. That, in and of itself was considered to may have been fatal to the Application. Therefore ordinarily strong grounds would have to be advanced to persuade a court to act outside the powers specifically provided for in the rules. Striking out a defence or a claim is a drastic remedy and, accordingly, the court must be appraised of sufficient facts on the basis of which it could exercise its discretion in favour of such order. Relevant factors when the procedure decreed by the rule has been followed include (a) the reasons for non-compliance with the rules, request or notice concerned and, in this regard, whether the defaulting party has recklessly disregarded his obligations, (b) whether the defaulting party's case appears to be hopeless; and (c) whether the defaulting party does not seriously intend to proceed. In addition if prejudice to either party is a relevant factor. Going straight to striking out without having sought to enforce compliance would require even more stringent factors to be considered.

[6] This is a case in point where such strong grounds will have to be shown or advanced since the Applicant served its Rule 30A application for the striking out of the Respondent's defence, subsequent to notifying them of the directives by the ADJP, evading enforcing compliance in accordance with the provisions of Rule 30A. A notice seeking an order compelling compliance within 10 days and warning to seek the striking out of the defence on failure to comply was never served upon the Respondents. The Respondents have raised the point. The Applicant has indicated that the historical recalcitrant and dilatory behaviour of the Respondents since the inception of this matter and the extra ordinary circumstances under which its Application was brought to court justifies the court to act outside the powers provided for specifically in the rules.

[7] The background circumstances are common cause between the parties. The Applicant's action against the Respondents was instituted on 14 December 2017 for payment of amounts owed for advertising services it alleges to have rendered to the 2nd Respondent, Franchising to Africa (Pty) Ltd, at the instance of its owner the 3rd Respondent, Nathanael Expraxia. The action constituted of three monetary claims A, Band C for the services Applicant rendered and a claim D for consequential damages as a result of failure by the 2nd Respondent to pay for the services. A claim E that is against the 3rd Respondent based on s 22 (1), 77 (3) (b) and (c) and 218 (2) of the Companies Act 61 of 1973 to hold her jointly and severally liable with the 2nd Respondent to pay the stated monetary claims. The Applicant's action also included a claim F that is in delict against Goldbrands Investments Ltd, the 1st Respondent, to be held liable jointly and severally, with the 2nd and 3rd Respondent to pay the monetary claims.

[8] The Respondents' defence is that services that were rendered were not rendered at all and or were not rendered in a proper and workmanlike manner and that in any event the Applicant warranted that payment by the 1st and 2nd Respondent was conditional upon the 1st and 2nd Respondent showing an increase in turnover. The Applicant submitted that the documents requested were crucial and premised on such a defence.

[9] The Respondents filed its notice of intention to defend on 23 January 2018. The Applicant alleges that subsequent thereto the Respondents commenced with dilatory conduct. They would not do anything unless under compulsion. Applicant referred to the Respondents' Plea filed under bar on 5 March 2018. The Respondents' failure to respond to Rule 35 (1), (6), (8) and (10) Notices and the Rule 37 (1) Notice to attend a pre-trial conference served upon them on 27 March 2018 by hand and email. They also failed to respond to repeated requests Applicant made thereafter between September 2018 and November 2018.

[10] Consequently, the Applicant's attorney approached the Deputy Judge President (DJP) Ledwaba on 7 November 2018 to convene a judicial pre-trial conference. The DJP directed that a conference be held on 5 December 2018 in his chambers. On 26 November 2018 the Respondent's attorneys Hattingh and Ndabandzaba withdrew due to failure by the Respondents to furnish them with instructions on attendance of the pre-trial conference. Respondents appointed new attorneys who attended the meeting. With all parties represented the DJP on 5 December 2018 issued a directive that the Respondents file their Discovery affidavits, a second pre-trial conference be held by the parties and a list of common cause facts and a summary of their respective versions be compiled by the parties.

[11] The Respondents accordingly filed their Discovery Affidavits by 12 December 2018 which Applicant points out that it was under the compulsion of the DJP's directive. A second pre-trial conference was duly attended on 27 February 2019 and the parties agreed on dates for the filing of the list of common cause facts and summary of their respective versions, to be 20 September and 30 September 2019, respectively. The parties also recorded that the matter is set down for trial on 26 May 2020.

[12] Since then nothing happened from the Respondent's side. Thy failed to take any steps to comply with the dates set for filing of the summary of their version. The Respondents are said to have defied a reminder sent by Applicant's attorney on 1 October 2019. On 2 October 2019 the Respondents' attorney Ms Riana Heunis from Hatting, Hart Solomon and Nicholsen withdrew due to lack of instructions. The Respondents were unrepresented.

[13] On 5 February 2020 the Applicant applied to the ADJP for a judicial case management meeting and was granted the date of the 19th February 2020. In the meantime on 10 February 2020, Applicant's attorneys sent a Rule 35 {3) Notice by email directly to the 3rd Respondent indicating that Applicant believes that in addition to the documents the Respondents discovered there were still other documents in Respondents' possession relevant to the Respondents' defences against the Applicant's monetary claims. The Applicant called for the Respondents production of the documents, specifying inter alia, Bank statements and Audited financial statements dating back from 2014 to 2016. The documents were said to be relevant as proof of the solvency of the 1st and 2nd Respondents when the agreement for rendering services was concluded, and its relevant turnover thereafter.

[14] Subsequent to sending the Rule 35 (3) Notice, the Applicant on 12 February 2020 sent to 3rd Respondent a notification of the judicial management conference to be held at the ADJP's chambers on 19 February 2020. It is Applicant's complaint that by the time of the meeting the Respondents had failed to reply within the prescribed period to the Plaintiff's Rule 35 (3) Notice. Applicants further point out that the Respondents failed to attend the meeting notwithstanding being notified of the date. It is at this meeting where the ADJP issued the directive that the Respondents reply to the Rule 35 (3) Notice within 10 days.

[15] On 24 February 2020, the Applicant emailed the ADJP's directives to the Respondents. By 9 March 2020 which is the 10th day the Respondents have not filed their Reply. On 10 March 2020, Ms Aysen, from the Respondents' newly appointed attorneys who remains now their attorney of record sought an indulgence for an extension of the period of service of the Reply. The attorney wrote "in principle our clients have no difficulty in complying with your client's Rule 35 {3) Notice. However 'the requested bank statements dating back six years are currently in archives and our clients have requested same from its bankers. Upon receipt of the bank statements, our clients will be in a position to comply with the provisions contemplated in your client's notice." On 17 March 2020, the Respondents were notified of their non-compliance with the ADJP's directives and warned that if they are not in compliance by the 24 March 2020 the Applicant would apply for the striking out of the Defendant's defence. The attorney Ms Aysen indicated that from 25 March 2020 to 2 May 2020 she was in Durban and trapped there due to the lockdown, tending to her school going child. She also had limited access to the internet.

[16] On 6 May 2020, the Applicant launched the Application to strike out electronically after an attempt to do so in April failed. On 24 May 2020 at 19h50, the Respondents delivered their Answering Affidavit to the Application to strike out. Their Reply to Rule 35 (3) Notice was delivered also delivered on the day and a Supplementary Reply constituting of 1940 pages of documents delivered the next day on 25 May 2020, the day of the Application, and a day before trial on 26 May 2020.

[17] The Applicant argues that the Respondents' initial and continued non-compliance with the directives was reckless if not deliberately intended to avoid the trial from proceeding on 26 May 2020. The trial did not proceed and on 29 May 2020 the matter was allocated to me for the hearing of the interlocutory Application. As of the date of trial, the Respondents have not delivered their answers to the Applicant's request for admissions as directed by the ADJP.

[18] The Respondents' Reply to Rule 35 (3) Notice although it complied substantially with the request of the Applicant it did not comply fully. Only Audited financial and Bank statements for the period 2014 -2015 were provided. Applicant dismisses the Respondent's complaint that although the Applicant gave them 10 days within which to respond to the notification of the 17th March 2020, by 24 March 2020, the Applicant launched the Rule 30A Application prematurely, before the expiry of 10 days and no formal notification was forthcoming. The Respondents were never placed on terms as envisaged by Rule 30A.

[19] In response to the complaint the Applicant has submitted that Rule 30A only requires a party to notify the defaulting party and does not require 'formal notification' in any prescribed form. It argued that it is in contradistinction to other rules such as Rule 35 (12), that require the party to deliver "a notice as near as may be in accordance with form 15 in the First Schedule." He argues that a written notification by means of an attorney's letter is sufficient. The Application was as a matter of law only served on 6 May 2020 disregarding the attempt to do so electronically on 2 April 2020 which the Respondents have complained was an attempt to serve the Notice during lockdown. The Applicant states that this was after

a month and a half the Applicant's attorneys had notified the Respondents of the Applicant's intention to launch the Application to strike out the Respondent's defence. Applicants further argued that the purpose of providing the 10 day period in Rule 30A and only permitting a party to launch an application for relief after 10 days have lapsed is in order to provide the defaulting party a reasonable period in which to purge their non-compliance. The stipulation of a shorter period by the Applicant is immaterial and occasioned no prejudice to the Respondents who remained in default a month and a half thereafter when the Application was duly served and remained in default today.

[20] The Applicant therefore argues that the striking out of the Respondents defence would be justified as:

[20.1] There was reckless non-compliance by the Respondents with the ADJP's directives.

[20.2] The Respondents by their conduct have demonstrated that they do not seriously intend to proceed to defend the matter at trial. Had they had a genuine and bona fide defence they would have availed themselves of the rules and the processes of the court that enable a Defendant to have access to court and defend an action brought against them.

[20.3] The only steps the Respondent have taken have been under compulsion (either by directive or notice of bar); and

[20.4] Their filing of their Answering Affidavit to the Application in the last minute on the eve of the date of hearing of the Application on 25 May 2020 was another cynical tactical measure aimed at delaying the hearing of the interlocutory application and, as a consequence, the trial.

[20.5] The timing and content of the Respondent's reply to Rule 35 (3) notice indicates that the Respondent do not intend to proceed with the action and do not want to bring information to support their alleged own defence to the Applicant's monetary claims which involves the tracking of the 2nd Respondent's turnover. The documents sought are patently relevant to the Applicant's monetary claim. Only 2 of the specified category of documents have been discovered.

[21] Applicant further argues that the content of the Respondents' Reply to Rule 35 (3) where it states regarding the banking statements requested that: "these documents are not in my possession." And in regard to every other document that: "these documents, if any, are not relevant for purposes of the proceedings instituted by the Plaintiff" is the most gross and cynical attempt to frustrate the purpose of the ADJP 's directive and to prevent the

trial from proceeding. Especially when they have in their attorney letter indicated that they have no problem in principle to the

documents requested.

[22] Mr D'Oliveira for the Applicant argued with reference to Leask v East Cape Forest ltd 2008 JDR 1316; [2008] ZAECHC 71 that the Defendants in casu fall into the category of the Defendants in that case, where the Defendant's defence was struck out. He argued that the only inference to be drawn from the Respondents' kind of conduct is that the Respondents are entirely recalcitrant and are prepared to do anything to delay and avoid justice. In the process they squandered their own right of access to court by their contravention of the rules and directives that have as their consequence the pain of being prevented from proceeding with a claim or defence. He also implored the court to award punitive costs on a scale as between attorney and client which was not repeated during argument. The Respondents' conduct was referred to as gross and wilful that drastic measures justified; see Wilson v Die Afrikaanse pers Publikasie (Edms) Bpk. 1971(3) SA 455 at 463 They have denied themselves access to justice.

Respondent's Answer

[23] It is on behalf of the Respondents raised in limine, that the relief that the Applicant has decided to seek and or procedure it followed is flawed. They argue that both Rule 35(7) and 30A processes envisage and require the non-compliance with a court order before a defence can be struck out. Therefore before the Applicant could seek an order to strike out the defence, the Applicant was supposed to apply to court for an order, ordering compliance with the Plaintiff's Rule 35 (3) notice. No such order exists. Or the Applicant was supposed to formally give the Defendants notice that it intended, after the lapse of ten (10) days, to apply for an order to strike out the Defendants' defence, putting the Respondents on terms as is required by Rule 30A (1).

[24] The Respondents submit that there has been partial non-compliance with the directive, the permissible order under these circumstances would therefore be in terms of Rule 30A (1).

[25] Mr Malherbe, appearing on behalf of the Respondents also argued that failure to comply with the ADJP's directive cannot constitute a ground for the striking out of the Respondent's defence in terms of Rule 30A, particularly because:

[25.1] the ADJP directive tends to be ambiguous in that it refers to only the Defendant in the singular and in circumstances where there are three Defendants. The point was however not persisted with as the parties were agreed that what was meant was all the Respondents as it is obvious that all three were served with the Rule 35 (3) Notice.

[25.2] the Directive is not an order of Court and hence an order was supposed to be obtained.

[25.3] Furthermore the Respondents point out that the Applicant's Rule 35 (3) Notice is unusually onerous in that:

[25.3.1] claims A and F which are claims against the 3rd Defendant are conditional upon the Applicant's success in Claims A-E which are claims against the 1st and 2nd Respondents.

[25.3.2] Claims E and F instituted against the 3rd Respondent in the main seek to hold the 3rd Defendant personally liable together with the 1st and 2nd Respondents and is premised on allegations of reckless trading. Which are extremely serious claims that presents a high burden of proof.

[25] The Respondents' defence being that services that were rendered were not rendered at all and or were not rendered in a proper and workmanlike manner and that in any event the Applicant warranted that payment by the 1st and 2nd Respondent was conditional upon the 1st and 2nd Respondent showing an increase in turnover. The Applicant had stated that in relation to the validity of its claim "it will have to appoint an expert to analyse the financial statements of the 1st and 2nd Respondents to prove the above position.

[26] It is therefore argued on behalf of the Respondents that the striking out of the Respondents' defence is, under the circumstances a drastic remedy, when, save for the Respondents' delays, there are no other facts upon which this Honourable Court can exercise its discretion in favour of such an order.

[27] The Respondents allege intending to proceed to trial, as a result:

[27.1] They have served a supplementary response to the Applicant's Rule 35 (3) notice which contains approximately 1940 pages of financial documents, bank statements and the like, the disclosure of which alone, shows a serious intention to proceed to trial.

[27.2] The Applicant other than the wasted costs of the trial date and the costs of this Application both of which can be cured by an appropriate cost orders will not be prejudiced.

[28] The Respondents delay is also attributed to the National State of Disaster Management Restrictions (lockdown) during the period 26 March to 6 May 2020. As already indicated that the attorney was not available from 25 March 2020 until 2 May 2020 being down in Natal. Thereafter the 3rd Respondent had challenges with her daughter who got ill during March and throughout the lockdown in April suspected of suffering from COVID-19 and Neumonia but ultimately diagnosed with a Pulmonary Embolism disease. Due to the care 3rd Respondent's daughter required and for the fact that it was during the 1st phase of lockdown, 3rd Respondent alleges not to have been able to consult and give proper instructions to her attorneys.

[29] On whether or not the respondents' defence is hopeless the Respondents submit that on the first three claims it has a strong defence on which there are dispute of facts therefore valid and triable issues exist as to whether the services were rendered. On Claims E and F the Respondents contend that even if they had complied with the Notice, the Applicant would not have been able to proceed as it has indicated that it would need to appoint an expert who will analyse the discovered financial statements in order to prove the cogency of its claim. The Respondents therefore indicated that they definitely want to proceed to trial to finalise these issues.

[30] Furthermore the Respondents had indicated that although in principle they had no problem in discovering the requested documents, they regard or have been made to realise that the Applicant's request is a fishing expedition and that the relevant persons at the bank could have been subpoenaed to bring the documents. But they then again undertook to furnish the documents by 25 May 2020. Their discovery on 25 May 2020 was not in full compliant with the request although followed by a partly substantial supplementary discovery.

[31] Mr Malherbe had pleaded with the court that the Respondents will be able to comply in full as soon as possible should they be given a chance by the court by ordering it to comply in terms of Rule 30A (1). He has likened the Respondents' situation with the matter of Biermann v Eastern Cape Development Corporation 2012 JDR 1620 (ECG), in the sense that the Respondents have discovered albeit not fully although partly substantially and in the midst of the Applicant not having followed the provisions of the rules. He for that reason does not think such a drastic sanction can be justified under the circumstances.

Analysis

[32] The process or how Rule 30A is applicable is as indicated in the introduction of the Judgement. It is supposed to be a positive form of relief aimed at enforcing compliance with the notice or request made, and at striking out the claim or defence when non-compliance cannot be enforced. Indeed the Rule 30A Application for the striking out of a defence or claim should be the last resort and a very drastic step. The Applicant argue that it is not necessary to obtain a compliance order after notice and that the notification by a letter of an attorney suffices for a follow up with a striking out Application. Contrariwise an attorney's notification suffices only prior to the Application for a compliance order, as it is regarded as prudent to notify the defaulting party of an intention to apply for the enforcement order (to compel compliance) prior thereto to cut costs, also for the sake of expediency but not to avoid the seeking of compliance in terms of court order or justify a process outside the provisions of the Rule. Such circumvention or failure to first seek an order in terms of rule 30 A (1) to compel compliance was regarded as fatal in Governing Body, Hoerskool Fochville. I do not share the same sentiments as far as regarding it as fatal to the Applicant as is suggested rather it be regarded as being

premature.

[33] The Applicant delivered its Rule 35 (3) Notice to the 3rd Respondent on 10 February 2020 by email. It then criticises the Respondents that by the time of the meeting they had failed to reply to the Notice within the prescribed period. The meeting was in 7 court days after the Notice was served, the prescribed period was therefore yet to expire. On 19 February 2020 the ADJP at a Judicial Management Conference (held in the absence of the Respondents

therefore without their consent issued a directive that the Respondents serve its discovery affidavit within 10 days. Such a directive lacks the effect of a court order; see Lekota v Editor Tribute Magazine 1995 (2) SA 706, and would have been equivalent to a letter from the opposite party's attorney demanding that the Respondent comply with the Notice. It was therefore still required of the Applicant to first enforce compliance with its Rule 35 (3) Notice prior to applying for the drastic remedy of striking out the Respondents' defence.

[34] Since striking out a defence or a claim is a drastic remedy even when it is considered after enforcement of compliance has failed, in an instance where compliance has not been enforced, the court has to be persuaded that there is justification for it to act outside the powers provided by the rules, ordinarily strong grounds would have to be advanced. The court must accordingly be appraised with extra ordinary circumstances on the basis of which it could exercise its discretion in favour of such an extreme remedy, denying the Respondents the right to access to the court. The Applicant has argued that even if the abovementioned process may be found to have been not followed, there was good reason (strong grounds) not to have done so as the Respondents were recalcitrant, guilty of such gross conduct and or wilfully reckless in not complying with the Notice. I

believe that Applicant understood that the bar is set higher therefore there must be extra ordinary circumstances other than the

simply relevant factors mentioned in Ford v South African Mine Workers Union 1925 TPD 405 at 406 and the other authorities for the Respondent to be denied access to court without having been compelled to comply.

[35] As a result there must then have been gross recalcitrance or wilful recklessness measured within the broader context of the values of fairness, equity, openness and transparency. In Wilson at 463 Phillips AJ held that:

"this grave step will be resorted to only if the Court considers that a defendant has deliberately and contemptuously disobeyed its order. ... "in the cited case failure to deliver further particulars)

Whilst Plasket J in Tertius Leask v East Cape Forest (Pty) Ltd (unreported case no: 1285/2007 ECO 2-10-2008 ECO, Grahamstown, delivered on 20 August 2008) 2008 JDR 1316 (E) justifying such a drastic step that followed an unsuccessful attempt to enforce compliance, spoke of the conduct of the Defendant's legal representative, and described it variously as; without contrition; arrogantly disdainful of the plaintiff, and concluded that the defendant was prepared "to do anything to delay the trial". He found that contumacy existed, and that, in the event, "the conduct of the Defendant was such of an egregious nature that the striking out of the Defendant's defence is warranted."

[36] The Applicant has likened the conduct of the Respondent to that of the Defendants in the Leask matter. The two are distinguishable in that the Application to strike out followed an order by the court to compel compliance. Further even after the Application to strike out was served the Defendant remained in default until the date of the hearing of the Application. In this instance the Respondents have complied albeit late and not fully. The Respondents' had delivered its discovery affidavit consisting of 1940 pages of the requested documents on 25 May 2020.

[37] In addition in casu, the Respondents have argued that when the Notice was served the 10 day period had not yet expired. It explained that on receipt of the Notice a request had to be made to the bank for the statements and indeed a communication was sent to the Applicant requesting an extension and confirming that they have attended to the request. The Respondents point to intervening factors that contributed to the delay which is the lockdown and the 3rd Respondent's daughter's health that required her attention and the business. It is perhaps not a satisfactory excuse as the 3rd Respondent could have communicated with her attorneys telephonically and gave the necessary instructions on the response required. At the least her attorney as well could have conveyed to the Applicant's attorney the difficulty she and her client were experiencing in attending to the reply and sought the further and necessary indulgence. It however does not take away the fact that there were

practical challenges to complying during that period. 3rd Respondent indicate that she was also anxious about what was going on with her daughter and her businesses.

[38] Taking into consideration all these factors I do not believe that the circumstances of this matter or Respondent's non compliance are that gross that the invocation of the extreme remedy, a striking out of their defence without the enforcement of compliance by a court order, is justified. The matter rightly fall within the purview of the Biermann matter. There has not been shown a deliberate and or contemptuous refusal by the Respondents to comply that obligates the court to exercise its discretion in favour of striking out the defence. The Respondents have made an attempt to discover the proper documents albeit on the eve of the Application to strike out (which was set down prematurely). As much as I do believe that the Applicant may suffer prejudice as a result of a further delay, I am of the view that such prejudice can be assuaged by a proper cost order. The matter was to proceed to trial on 26 May 2020, the Applicant is entitled to its wasted costs. The order as it was granted in Biermann is appropriate also in this matter.

[39] Under the circumstances, I make the following order:

1. The Respondents are ordered to file a further and comprehensive reply to the Applicant's notice in terms of Rule 35 {3) Notice served on 10 February 2020, within a period of 10 days from the date of the granting of the order;

2. In the event of the Respondents failing to comply with the provisions of paragraph (a), the Applicant shall be entitled to approach court on the same Application, suitably amplified where necessary, for an order striking out the Respondents' defence to the Applicant's claim, and for Judgment to be granted against the Respondent as claimed in the summons and particulars of claim or as set out in the Applicant's Draft Order.

3. The Respondents are ordered jointly and severally liable, the one paying the other to be absolved, to pay the costs of this Application, including the wasted costs of the trial date on 26 May 2020.

JUDGE OF THE HIGH COURT

GAUTENG DIVISION: PRETORIA

For the Applicant: A J D' Oliveira

Instructed by:

Cliffe Dekker Hofmeyer Inc

Ref: Hofmeyer/01999400

C/O Jasper Van Der Westhuizen

Tel: 012 342 4890

Ref: B Veldmany

Email: ad@counsel.co.za

For the Respondent: E Malherbe

Bilal Malani & Associates

Ref: 227/NSA/DB

Email:info@malanilaw.co.za

C/O Wiese Wiese INC

Email: liesl@wieseattorneys.co.za

Heard:

29 May 2020

[3] Rule 35 (7) reads:

"If any party fails to give discovery as aforesaid or, having been served with a Notice under subrule (6), omits to give notice of a time of inspection as aforesaid or fails to give inspection as required by that subrule, the party desiring discovery or inspection may apply to a court, which may order compliance with this rule and, failing such compliance, may dismiss the claim or strike out the defence."