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[2014] ZAGPJHC 295
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M v M (A3062/14, RC/GP/Pal 464/2013) [2014] ZAGPJHC 295 (31 October 2014)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
HIGH
COURT CASE NO: A3062/14
CASE
NO: RC/GP/Pal 464/2013
DATE:
31 OCTOBER 2014
In the
matter between:
[M………..]
S……….. B….........…….
Appellant
And
[M……………]
T………. C……….
Respondent
SUMMARY
Practice and procedure – application to compel discovery in
terms of Rules 23(3), 23(6) and 23(8) of the Magistrates’
Courts Rules – appellant and responding in process of divorce –
appellant’s application for further and better
discovery
refused by Regional Magistrate – interlocutory order of
Regional Magistrate in refusing application to compel further
–
whether appealable and if so – whether appellant entitled to
production and inspection of documents required for
proper and
equitable distribution of assets of joint estate in pending divorce –
appeal allowed.
J U D G
M E N T
MOSHIDI,
J
:
[1]
This is an appeal against the judgment and order of the Regional
Magistrate, Palmridge, in dismissing the appellant’s
application for better and further discovery in terms of Rule 23(8)
of the Magistrates’ Courts Rules (“
the
Rules
”).
THE
BACKGROUND
[2]
The applicant is the plaintiff in a pending divorce action against
his wife, the respondent. For the sake of convenience,
I shall
henceforth refer to the parties as “
the
plaintiff
” and “
the
defendant
”, respectively.
[3]
The pleadings in the divorce action are closed, and awaiting a trial
date. The defendant has filed a plea and a counterclaim.
The parties
were married to each other in community of property at Alberton, on
21 June 2001. Out of this union two minor
children were born.
[4] In March 2014 the plaintiff served on defendant’s
attorney’s of record, Buthelezi Attorneys (“
Buthelezi
Attorneys
”), a notice of discovery in terms of Rule 23(1)
of the Rules. In April 2014, the defendant made discovery.
The
plaintiff, unhappy with such discovery, and acting in terms of
Rule 23(3) of the Rules, requested better and further discovery.
In
such request, the plaintiff specified certain documents as set out in
Annexure “A” of his notice. I shall
deal with the
nature of these documents later herein below. The defendant’s
response to the above request, in the form of
an affidavit dated 19
June 2014, was that:
“
I am
not in possession of all documents mentioned in annexure “A”
in terms of Rule 23(3), all the documents aforementioned
are actually
in the possession of the plaintiff who took the entire bag with all
my personal and private documents since we are
in the process of
divorce …
”
[5] On 9 June 2014, the plaintiff filed and served a notice of
motion in which he claimed relief under Rule 23(8) of the Rules.
The
latter Rule provides as follows:
“
If any
party fails to give discovery as aforesaid or, having been served
with a notice under subrule (6)(a), omits to give a time
for
inspection as provided for in subrule (6)(b) 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.
”
The application was opposed by the defendant who was legally
represented by Buthelezi Attorneys. On the other hand, the
plaintiff, as in the present appeal appeared in person. On 3
July 2014, the learned Regional Magistrate dismissed the application.
This led to the instant appeal in which the defendant has elected not
to participate.
THE
APPEALABILITY OF THE REGIONAL COURT ORDER
[6]
It is trite that court orders that are interlocutory in nature,
having no final or irreparable effect, are not appealable.
[1]
However, orders refusing or granting better discovery and the
production of documents may, depending on the circumstances,
be
appealable. See
Santam
Ltd and Others v Segal.
[2]
In the latter case, and in preparation for trial, the appellant’s
caused a notice in terms of Rule 35(3) of the Uniform Rules
to be
served on the respondent. The appellants were not satisfied with the
answers given in the respondent’s reply, and launched
an
application in terms of Uniform Rule 35(7). The Court
a
quo
dismissed the application with costs, and a subsequent application
for leave to appeal was dismissed. The appellants thereafter
applied for special leave to appeal to the President of the Supreme
Court of Appeal, which leave was granted. In ultimately
allowing the appeal, the Court said:
“
In
event of a challenge a court will only order production of documents
for inspection if it is necessary either for disposing of
the matter
or for saving costs. The burden of proof must be on the party
making the challenge. The Court has a discretion
to order production,
which discretion must be exercised judicially. A court will in
each case have to strike a balance between
the importance of ordering
production, from the point of view of doing justice or saving costs
in the proceedings in question,
and respecting confidentiality.
A distinction must be drawn between confidentiality as between the
immediate parties to the
litigation and confidentiality involving
third parties. In my view the discretion to refuse production
of documents should
most commonly be applied where disclosure would
breach confidentiality involving a third party. See Science
Research Council
v Nassê (1980) AC 1028.
”
[3]
In the present appeal, the question of the appealability of the order
made by the learned Regional Magistrate was never raised
at any
stage. Not even in the learned Regional Magistrate’s
reasons for judgment. As stated above, the defendant chose
not to
take part in this appeal. Her only resistance to the better and
further discovery as sought by the plaintiff was that
the plaintiff
‘
stole an entire bag with all her personal and private
documents
’. She does not claim any privilege to the
documents requested. In any event, the plaintiff has denied
strongly
the allegation of theft.
[8]
I must say more about the appealability of the kind of order under
discussion. In
Invictus
Holdings (Pty) Ltd (formerly Meridian Investments Holdings (Pty) Ltd
and Others
v
AdvTech Ltd and Others
,
[4]
the Court held that in deciding the appealability of the order all
factors impacting on the issue must be considered. It had also
become
clear that the stringent approach adopted on the appealability of
interlocutory orders in
Zweni
v Minister of Law and Order (supra)
has since become somewhat modified. In this regard, in
Phillips
v SA Reserve Bank and Others
,
[5]
the Court held,
inter
alia
,
that:
“
The
appealability of an order made in proceedings which have not yet
terminated has generally been addressed against the question
of
whether or not the order is definitive of the rights being contended
in the main proceedings, and whether it disposes of any
relief
claimed. However, the present Court referred with approval to
case authority for the proposition that those factors
are not
decisive.
”
At para [25] of the judgment, the Court went on to state that:
“
It must
be remembered, however, that, as Hefer JA said in Moch v Nedtravel
(Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1
(A) at
10F [also reported at
[1997] JOL 161
(A) - (Ed], the passage in
Zweni: ‘does not purport to be exhaustive or to casts the
relevant principles in stone’.
”
At
para [26], the Court went on to say that:
“
The
question of appealability in a case such as this, where a party seeks
to attack on appeal an order made in judicial proceedings
which have
not yet terminated, was discussed by Nugent JA in a judgment with
which the other members of the court concurred in
National Director
of Public Prosecutions v King
2010 (2) SACR 146
(SCA) at 166e-167c
(paragraphs [50]-[51]) [also reported at
2010] 3 All SA 304
(SCA) –
Ed], where he said the following:
‘
There
will be few orders that significantly affect the rights of the
parties concerned that will not be susceptible to correction
by a
court of appeal. In Liberty Life Association of Africa Ltd v
Niselow (in another court), which was cited with approval
by this
court in Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA), I observed that when
the question arises whether an order is appealable what is most often
being asked is not whether the
order is capable of being corrected,
but rather whether it should be corrected in isolation and before the
proceedings have run
their full course. I said that two
competing principles come into play when that question is asked.
On the one hand
justice would seem to require that every decision of
a lower court should be capable not only of being correct but of
being corrected
forthwith and before it has any consequences, while
on the other hand the delay and inconvenience that might result if
every decision
is subject to appeal as and when it is made might
itself defeat the attainment of justice. In this case it was
said on behalf
of Mr King that the order is not appealable because it
is interlocutory. Whether that is its the proper classification
does
not seem to me to be material. I pointed out in Liberty
Life that while the classification of the order might at one time
have been considered to be determinative of whether it is susceptible
to an appeal the approach that has been taken by the courts
in more
recent times has been increasingly flexible and pragmatic. It
has been directed more to doing what is appropriate
in the particular
circumstances than to elevating the distinction between orders that
are appealable and those that are not to
one of principle. Even the
features that were said in Zweni v Minister of Law and Order to be
characteristic, in general, of orders
that are appealable was later
said by this court in Moch v Nedtravel (Pty) Ltd not to be exhaustive
nor to cast the relevant principles
in stone. As appears from the
decision in Moch, the effect that the order is not ‘definitive
of the rights about which the
parties are contending in the main
proceedings’ and does not ‘dispose of any relief claimed
in respect thereof’,
which was one of the features that was
said in Zweni to generally identify an appealable order, is far from
decisive.’
See also
Trustees for the time being of the Children’s Resource Centre
Trust and Others v Pioneer Food (Pty) Ltd and Others
(Legal Resources
Centre as amicus curiae)
.”
[6]
[9] Based on all of the above legal principles, in particular, those
set out in
Santam Ltd and Others v Segal (supra)
, I was more
than persuaded that in the circumstances of the present matter, the
order of the learned Regional Magistrate in dismissing
the
plaintiff’s application for better and further discovery, was
appealable. I was also convinced that to now order
the
defendant to make discovery of the documents in question, as
requested by the plaintiff, will be in the interest of justice.
The
learned Regional Magistrate’s reasons for the order, requested
at the instance of this Court shortly before the hearing
of this
appeal, and pursuant to the plaintiff’s failure to obtain such
reasons, took the matter no further in favour of the
defendant.
The documents sought by the plaintiff are clearly relevant to the
pending action.
[10]
Rule 23(8) of the Magistrates’ Courts Rules, is the equivalent
to Uniform Rule 35(7). (
Cf
Envirosore
(Pty) Limited v Energy Brokers (Pty) Limited.
[7]
In certain foreign jurisdictions, failure to comply with a court
order to make further and better discovery can have drastic
repercussions
for the party in default. For example in Texas, US, in
a recent decision, in
Byrd
v Phillip Galyen, P.C
[8]
the facts were briefly as follows: the plaintiff ran into
trouble in his divorce proceedings. He had commenced the divorce
action during April 2006, and was served with a discovery request
during November 2006. However, by February 2007, when no
response had been provided, his wife, the defendant, moved to compel
and for sanctions. In September 2007, the Court ordered
the
plaintiff to respond to the outstanding discovery. At a later
hearing, the Court struck the plaintiff’s pleadings,
and
prohibited him from making any claim
for a disproportionate division of property in his favour
,
and committed him to jail for 30 days for failure to comply with the
court’s order compelling discovery responses.
(Underlining added.) Apart from the drastic sanctions, the
facts in the above case, are pertinent in some way to the conduct
of
the defendant in the instant matter.
[11] In the instant matter, the plaintiff in the pending divorce
action has claimed division of the joint estate in the event
of a
divorce order, based on the irretrievable breakdown of the marriage.
He has also undertaken to contribute towards the
maintenance of the
minor child. In addition, he has claimed that 50% of the pension
interest due to his wife up to the date of
the divorce order be paid
to him. The defendant, in her plea and counterclaim, in which
she also seeks a divorce, has claimed
that the plaintiff be ordered
to forfeit the benefits in respect of the common home, situated at
2380 Mokhothu Street, Spruitview
Gardens, Katlehong, as well as an
order for the plaintiff to forfeit any benefits in respect of her
pension fund. It is common
cause that the respondent is employed as a
professional nursing sister and a member of the National Pension Fund
For Municipal
Works.
[12] The documents presently sought by the plaintiff by way of
further discovery contained in Annexure “A” of its
application, are undoubtedly relevant for the equitable and just
determination of the total value of the joint estate in the divorce.
These documents include the defendant’s bank statements, bank
accounts, credit card statements, a statement of the defendant’s
assets and liabilities, shares in companies, her interest in her
pension or provident fund, loan accounts, income tax assessments
for
2010 up to 2012 tax years, salary advices, investments, as well as
copies of her employment contract. In the counterclaim,
the defendant
admitted that she had a motor vehicle on hire purchase, loans and
credit card with banks, and with Old Mutual.
[13] In his closing argument, the plaintiff, appearing in person
before us, appeared impressive and genuine in his pursuit to
have the
listed documents, primarily to ascertain the total value of the
liability of the joint estate. He requires the documents
in
order to challenge the defendant’s counterclaims. The
order of forfeiture sought by the defendant in the pending
divorce
proceedings is a rather drastic one. The divorce court ought to be
placed in the best position to make a proper assessment
in terms of
sec 9
of the
Divorce Act 70 of 1979
. In my view, these are
genuine concerns and pertinent to the pending divorce action.
The defendant’s discovery
affidavit was rather evasive and
scanty and highly suspect, to say the least. Her assertion that
she was not in possession
of the requested documents, as well as the
reasons therefor, appeared significantly improbable. In any
event, the nature
of the documents sought by way of better and
further discovery is such that the defendant has easy access thereto
or copies thereof.
Examples of these are her monthly bank statements
and pension/preservation fund details.
[14]
It is so that the court in matters of this nature was not entitled
to proceed beyond the oath of the deponent in discovery.
See, for
example,
United
Tobacco Companies (South) Ltd v International Tobacco Co of SA
Ltd.
[9]
However, in the circumstances of the instant matter, there was more
than sufficient grounds to do so. In
Federal
Wine and Brandy Co. Ltd v Kantor,
[10]
the Court said that:
“
An
affidavit of discovery is conclusive, save where it can be shown
either (i) from the discovery affidavit itself or (ii) from
the
documents referred to in the discovery affidavit or (iii) from the
pleadings in the action or (iv) from any admissions made
by the party
making the discovery affidavit, that there are reasonable grounds for
supposing that the party has or has had other
relevant documents in
his possession or power, or has misconceived the principles upon
which the affidavit should be made.
Following Tait v Bothwell,
1912 C.P.D. 60
, the conclusiveness of an affidavit of discovery can
always be challenged where mala fides can be shown.
”
In
my view, this aptly described the conduct of the defendant in the
present matter. See also
Continental
Ore
Construction
v Highveld Steel and Vanadium Corp Ltd,
[11]
and
S
v Western Areas Ltd and Others.
[12]
In
addition, see
MV
Alina II Transnet Ltd v MV Alina II,
[13]
at
para [19] where the Court said:
“
Rule
35(7)
is designed to assist a party that is dissatisfied with the
discovery or supplementary discovery that has been made, and remedies
under
rule 35(3)
have been exhausted (Tractor and Excavator Spares
(Pty) Ltd v Groenedijk 1976 (4) SA 359 (W)).
Rule 35(7)
empowers the court to dismiss a claim or strike out the defence, if a
party fails to give discovery in compliance with the rules.
Discovery was defined in STT Sales (Pty) Ltd v Fourie and Others
2010
(6) SA 272
(GSJ) at 276C-D as ‘a tool used to identify factual
issues once legal issues are established’. The purpose of
discovery
is not only to assist the parties as well as the court in
determining the truth, but also to save costs as stated in Air Canada
v Secretary of State for Trade
[1983] 2 AC 394
at 445-446 and Santam
Ltd and Others v Segal
2010 (2) SA 160
(N) at 162E-F.
”
For a proper context of the present matter,
Rules 23(3)
,
23
(6) and
23
(8) of the Magistrates’ Courts Rule are the equivalents of
Uniform Rules 35(3), 35(6) and 35(7), respectively. I am not
aware of any subsequent Appellate Court decision disapproving of the
principles set out in
Santam Ltd and Others v Segal (supra).
The plaintiff argued that he requires the documents in Annexure “A”
of his papers in order to assert his rights
in an equitable
distribution of the joint estate in the divorce action. He has no
other means of doing so except by way of compelling
the defendant to
produce the documents. In my view, this is a legitimate
request.
[15] There was, in my view, another reason why the appeal must
succeed. This is that, from the annexures to the plaintiff’s
application, there is
prima facie
evidence, which may suggest
strongly that the defendant had been unfaithful to him, during the
marriage. It was unnecessary
though, for present purposes, to
make any definitive finding on this issue. In fact it would be
premature to do so.
[16] For all the aforegoing reasons, I conclude that the order made
by the learned Regional Magistrate was appealable in the particular
circumstances of this matter, and that the appeal must succeed. The
plaintiff is entitled to the documents requested in order to
ensure
an equitable distribution of the joint estate.
COSTS
[17]
There is no reason why the costs should not follow the result.
The defendant was served with the appeal proceedings.
On 26 August
2014 the plaintiff served on her attorneys of record an application
for a trial date of the appeal. In addition, on
10 September 2014 the
Registrar of this Court notified the defendant’s attorneys of
record of the date of the hearing of
this appeal. In spite
hereof, the defendant elected not to appear at the hearing. More
disturbing and
prima facie
unprofessional, was the fact that, on the same day of the hearing of
the appeal i.e. 20/10/2014, Buthelezi Attorneys, on behalf
of the
respondent, sent and e-mail to the Registrar of this Court, enquiring
about the outcome of the appeal. This was unacceptable
procedure
since judgment had inevitably to be reserved for a proper
consideration of the matter.
ORDER
[18] In the result I make the following order:
1.
The
appeal succeeds.
2.
The
order of the court
a
quo
is hereby set aside and replaced with the following order.
3.
“
The
defendant is ordered to make discovery to the plaintiff of all the
documents listed in Annexure “A” of his notice
to compel,
and in terms of Rules 23(3), and 23(6) and 23(8) of the Rules of the
Magistrates’ Courts Rules. This order
shall be complied
with within fifteen (15) days of this judgment.
4.
Failing
compliance with order number three (3) above, the plaintiff is hereby
granted leave to apply to this Court (Palmridge Regional
Court), on
the same papers (duly amplified as necessary), for an order striking
out the defendant’s defence to the plaintiff’s
claim with
costs.
”
5.
The
respondent is ordered to pay the costs of this appeal.
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur:
P
KENNEDY
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPELLANT IN PERSON
INSTRUCTED
BY IN PERSON
COUNSEL
FOR THE RESPONDENT NO APPEARANCE
DATE OF
HEARING 20 OCTOBER 2014
DATE OF
JUDGMENT 31 OCTOBER 2014
[1]
See
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A), and
Metlika
Trading Ltd and Others v Commissioner, SARS
2005
(3) SA 1
(SCA)
[2]
2010
(2) SA 160
(N)
[3]
See
para [9]
[4]
[2009]
JOL 24145
(GSJ) para [4]
[5]
[2012]
2 All SA 532
(SCA)
[6]
[2013]
1 All SA 648
(SCA) at para [25]
[7]
[2014]
JOL 32038
(GP)
[8]
S.W.
3d, 2014 WL 1499648 (Tx.Ct.App)
[9]
1958
(1) SA (T) 66 at 70
[10]
1958
(4) SA 735
(E) at 749H
[11]
1971
(4) SA 589
(W)
[12]
2005
(5) SA 214
(SCA)
[13]
2013
(6) SA 556
(WCC)