Nethavhani v Nuwe SA Eiendomme en Verhuring CC and Others [2023] ZAGPPHC 392; 20709/2022 (23 May 2023)

Nethavhani v Nuwe SA Eiendomme en Verhuring CC and Others [2023] ZAGPPHC 392; 20709/2022 (23 May 2023)

The court found that the application to compel discovery was unnecessary, as the third respondent had provided all required documents and a signed discovery affidavit within a reasonable period after the applicant's request. The applicant did not pursue the main relief in prayers 1 and 3 of the notice of motion and instead sought costs only. The applicant failed to exhaust remedies under Rule 35(3) if dissatisfied with discovery and did not properly notify the third respondent's legal representatives of any intention to seek costs de bonis propriis. The conduct of the applicant in persisting with the application and threatening punitive costs without foundation constituted an abuse of...

Citation
[2023] ZAGPPHC 392
Parties
Applicant: Khathutshelo Nethavhani; Respondent: Nuwe SA Eiendomme en Verhuring CC; Respondent: Jomar Properties (Pty) Ltd t/a Harcourt; Respondent: Maritz Bert Smith Attorneys and Conveyancers Inc
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 May 2023
Case Number
20709/2022
Procedural Posture
Civil Application / Opposed Motion Roll; Application for Costs Following Interlocutory Application to Compel Discovery
Outcome
Application dismissed; costs awarded against the applicant on the attorney and client scale.
Judges
De Beer
Legal Topics
Discovery Procedure, Costs De Bonis Propriis, Abuse of Process, Attorney and Client Costs
Civil Procedure Discovery Procedure Costs De Bonis Propriis Abuse of Process Attorney and Client Costs

Case Brief

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Parties

Khathutshelo Nethavhani

Applicant

Nuwe SA Eiendomme en Verhuring CC

Respondent

Jomar Properties (Pty) Ltd t/a Harcourt

Respondent

Maritz Bert Smith Attorneys and Conveyancers Inc

Respondent

Procedural Posture

Civil Application / Opposed Motion Roll; Application for Costs Following Interlocutory Application to Compel Discovery

Legal Issues

  1. 1 Whether the application to compel discovery under Rule 35(7) was necessary after compliance by the third respondent.
  2. 2 Whether punitive costs or costs de bonis propriis should be awarded against the third respondent or its attorneys.
  3. 3 Whether the applicant's conduct constituted an abuse of process warranting attorney and client costs.

Ratio Decidendi

The court found that the application to compel discovery was unnecessary, as the third respondent had provided all required documents and a signed discovery affidavit within a reasonable period after the applicant's request. The applicant did not pursue the main relief in prayers 1 and 3 of the notice of motion and instead sought costs only. The applicant failed to exhaust remedies under Rule 35(3) if dissatisfied with discovery and did not properly notify the third respondent's legal representatives of any intention to seek costs de bonis propriis. The conduct of the applicant in persisting with the application and threatening punitive costs without foundation constituted an abuse of...

Court Disposition

Application dismissed; costs awarded against the applicant on the attorney and client scale.

Orders

  • Prayer 2 of the notice of motion dated 30 August 2022 is dismissed.
  • The applicant is ordered to pay the costs of the third respondent, on the scale as between attorney and client.