Zidla Ndawonye Bomake Trading CC and Another v Habana Trading (Pty) Ltd (61873/14) [2015] ZAGPPHC 93 (20 February 2015)

Zidla Ndawonye Bomake Trading CC and Another v Habana Trading (Pty) Ltd (61873/14) [2015] ZAGPPHC 93 (20 February 2015)

The court found that the application was set down prematurely because the respondent was entitled to inspect documents referenced in the founding affidavit before filing an answering affidavit, as provided for under Rule 35 (12). The applicants' reply to the respondent's notice did not cure the premature set down,...

Source-derived case information.

Citation
[2015] ZAGPPHC 93
Parties
Applicant: Zidla Ndawonye Bomake Trading CC; Applicant: Richard Bakithi Mlangeni; Respondent: Habana Trading (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 February 2015
Case Number
61873/14
Procedural Posture
Civil Application / Motion Court; Interlocutory Removal From Roll
Outcome
Application removed from the roll; costs to be costs in the application.
Judges
Msimeki
Legal Topics
Rule 35 Document Production, Premature Set Down, Costs in Application
Civil Procedure Rule 35 Document Production Premature Set Down Costs in Application

Source-derived case record

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Parties

Zidla Ndawonye Bomake Trading CC

Applicant

Richard Bakithi Mlangeni

Applicant

Habana Trading (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Motion Court; Interlocutory Removal From Roll

Legal Issues

  1. 1 Whether the application was properly set down for hearing on the unopposed roll.
  2. 2 Whether the respondent was entitled to inspect documents referenced in the founding affidavit before filing an answering affidavit.
  3. 3 Whether the time period for delivery of opposing affidavits was suspended pending production of documents under Rule 35.

Ratio Decidendi

The court found that the application was set down prematurely because the respondent was entitled to inspect documents referenced in the founding affidavit before filing an answering affidavit, as provided for under Rule 35 (12). The applicants' reply to the respondent's notice did not cure the premature set down, and the time for delivery of opposing affidavits was suspended pending production of the requested documents. Therefore, the matter was not properly before the court for determination and had to be removed from the roll to allow proper ventilation of the issues.

Court Disposition

Application removed from the roll; costs to be costs in the application.

Orders

  • The matter is removed from the roll.
  • The costs will be costs in the application.