Estates (Pty.) Ltd.
applicant Mr. Flynn
Respondent Mr. Howe
present interlocutory application was made following a previous order
made by me in connection with the main application.
main application is a claim for the ejectment of the Respondent from
property let by the applicant to the respondent. A registered
notarial lease governs their relationship as lessor and lessee. The
applicant's claim for ejectment is based on an allegation that the
Respondent is in breach of the lease as amended in failing despite
due notice to pay to the Municipal authorities monies which became
payable as a result of improvements having been effected to the
number of factual and legal issues have been raised in the Replying
affidavit. Of these only one is relevant at this stage. That issue is
whether the Respondent's representative who it is alleged effected
the amendment to the notarial lease was authorised so to do. The
Respondent has denied such authority in its replying affidavit. The
Applicant has not yet filed a n answering affidavit.
the time for the filing of a replying affidavit had passed the
Applicant applied for an order in terms of rule 35(19) requiring the
Respondent to produce under oath a large number of documents. The
application came before me. Its attorney, Mr. Howe who represented
the Respondent requested a postponement. I declined to order a
and informed the parties that I proposed, so to curtail the
proceedings, to order the production of the items specified in the
notice of application, and that the Respondent would if it objected
to the production of any document or was for any other reason unable
to do so, to deal with the reasons for non production in an
affidavit. I understood that Mr. Howe agreed to such an order.
Respondent produced no documents but filed an affidavit in which it
is submitted that I should not have made the order requiring
production in the first place. Because of the attempt to curtail the
proceedings, these arguments had not been advanced. Before I made my
respondent's reaction to the order of court has caused the Applicant
to make the present application. The relief sought is that, because
of the Respondent's willful disobedience of the order of court the
defence should be struck out and judgment entered. The applicant also
seeks that it be awarded the costs of the application and that it
also be awarded to costs in respect of which awards have been
reserved. This would be a draconian punishment for what amounts to
the respondent seeking to maintain its position on the production of
the documents. It would be a miscarriage of justice for the merits to
be determined in this manner.
it is not clear what is meant by striking out the defence. Is the
Respondent to be precluded from arguing the legal defences it has
raised? I think not. On reflection I consider the order for the
making of discovery to have prematurely made. The Applicant is would
not normally be entitled to discovery before the filing of its
answering affidavit. The Respondent is justified in its opposition to
the production of the documents requested by the applicant. My
previous order dealing with the production of the documents being
interlocutory, may be withdrawn. There is I think good reason why
this should be done. As claimed by the Respondent in its counter
application The order was I thought made with the concurrence of the
respondent" attorney. I was clearly under the wrong impression.
is really no reason for early discovery to be made especially in
these motion proceedings If and when the matter is referred to trial
or for the hearing of oral evidence on the factual dispute as to the
authority of the Respondent's representative, then discovery will be
not wish at this stage to make any further observations in regard to
order I make is.
The order of the 19th November is recalled.
No order is made on the present application.
The award of costs of these proceedings is reserved for decision by
the judge who eventually decides the main application.