Jonker v Thomas International Limited Company Number 01568983 (A UK Company)

Thomas International Limited, a UK company, has filed an application to strike out certain paragraphs of the defence submitted by Jonker, as well as a cross-application for discovery. The dispute revolves around allegations made by Thomas International that Assessment Technologies (Pty) Ltd (ACT) made representations to various entities. Thomas International admits that it cannot identify those entities, describe them as customers of ACT, or identify the persons who made the representations or their connection with ACT. Thomas International has not provided any evidence to support the belief or suspicion that representations were made to former customers.

The court was required to decide whether the defendant had identified a sufficiently good defence to overcome the suggestion that it was “fishing” for information and whether the defendant's pleadings were likely to cause prejudice, embarrassment, or a delay in the proceedings. The court concluded that the allegations in paragraph 16 could not, as they stand, be sustained, as there is no nexus between the conduct alleged and the making of a representation which would be necessary to found a defence based on clauses 7 and 8 of the Settlement Deed. The court found that the allegations that customers of ACT were the recipients of representations made by ACT is, on the material presently available, speculative, as is the allegation that the representations were made by persons who were agents of ACT.

The court found that the pleadings in this form would cause prejudice, embarrassment, or a delay in the proceedings were the allegations to remain. However, given that the legal representatives for Thomas International were not adequately informed of the arguments which were to be advanced on the strike-out application, Thomas International ought to be given a reasonable opportunity to amend its defence. Therefore, as a matter of discretion, the pleading should not be struck out at this stage. If, after the expiration of 14 days from the date of this order, Thomas International is not able to adequately remediate the deficiencies in its pleading, a different course may be adopted.

The court ordered that within 14 days from the date of these orders, the respondent shall file and serve any amended defence on which it intends to rely. The further hearing of the application to strike out certain paragraphs of the defence and the respondent's application for discovery be adjourned to a date to be fixed. The costs of each application are reserved for determination at the next Case Management Hearing.