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[2010] ZAGPJHC 189
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Denmyr Body Corporate v Van Den Bos (52828/09) [2010] ZAGPJHC 189 (1 October 2010)
REPUBLIC
OF
SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 52828/09
In the matter
between:
DENMYR
BODY CORPORATE
Applicant
and
JAN VAN
DEN
BOS
First
Respondent
DOC J
PROPERTIES (PTY)
LIMITED
Second
Respondent
JUDGMENT
MEYER,
J
[1] The applicant seeks the
review and setting aside of a procedural ruling which the first
respondent made in his capacity as arbitrator in arbitration
proceedings between the applicant and the second respondent.
The applicant is registered and incorporated as a body corporate in
terms of the
Sectional Titles Act 95 of 1986
. The second
respondent is the registered owner of six units together with
undivided shares in the common property in the
sectional titles
scheme controlled and managed by the applicant.
[2] The applicant, as claimant,
required discovery or inspection of
inter alia
the following
documents from the second respondent, as defendant, in the
arbitration proceedings:
(a)
‘
Copies
of all monthly statements and/or accounts for levies and other
charges for the period May 2004 to date;
’
(b)
‘
Copies
of all lease agreements entered into between the Respondent and the
various tenants, both current and past, who occupy/occupied
the
Respondent’s units over the period May 2004 to date;
’
(c)
‘
Copies
of all statements and/or accounts by the Respondent to the various
tenants of the Respondent’s units relating to rental,
operating
costs and consumption charges in respect of the Respondent’s
units for the period May 2004 to date.
’
[3] The second respondent
refused to furnish the required documents to the applicant.
The
arbitrator (first respondent) was accordingly requested to make a
ruling on the applicant’s entitlement to discovery
of
inter
alia
the said documents at a preliminary meeting that was held on
Wednesday, 18 November 2009.
[4] The ruling made by the
first respondent in respect of the required ‘
monthly
statements and/or accounts for levies and other charges’
was that the applicant ‘
has this information’
, and
in respect of the required ‘
lease agreements’
and
‘
copies of all statements and/or accounts’
rendered by the second respondent to its various tenants that the
arbitrator “
cannot see that this information requested will
advance Claimant’s case or damage the case of the Respondent,
but will only
cause further delays
”. The applicant
now seeks a review and setting aside of this ruling of the first
respondent. A “
report
” dated 14 January 2010
“
on what happened
” at the preliminary meeting on
18 November 2009 was also furnished by the first respondent in which
further grounds were
set out for his refusal of the applicant’s
request for discovery of such documents.
[5] A party required to
make discovery is obliged to make discovery of documents which
may
directly or indirectly enable the party requiring the discovery
either to advance his or her own case or to damage the case
of his or
her adversary. See: Erasmus:
Superior Court Practice
at
page B1-251. “
What is relevant in an action will be
determined by the pleadings
.”
Copalcor
Manufacturing (Pty) Ltd v GDC Hauliers (Pty) Ltd
2000 (3) SA 181
(WLD) at 194A.
[6] The applicant in the
arbitration proceedings claims payment of the sum of R623,632.67
from
the second respondent in respect of alleged arrear levy
contributions, electricity charges, and other charges, including
legal costs and interest, for the period September 2007 to July
2009. The applicant also claims that the second respondent
restores the
status quo ante
on the grounds that the second
respondent allegedly extended the limits of one of the units that it
owns with resultant unlawful
encroachment on common property to the
exclusion of all the other owners.
[7] The second respondent in its
statement of defence
inter alia
alleges that the applicant
intentionally failed to advise the second respondent in writing, as
it is required to do in terms of
the applicable management rules, of
the amounts payable by the second respondent, and it also, by way of
general denial, denies
the applicant’s claim in respect of
arrear levy contributions, electricity and other charges. The
second respondent
specifically denies that it is indebted to the
applicant in the amount claimed or any part thereof. Any
unlawful encroachment
is denied and a plea of estoppel is raised in
the alternative. Various counterclaims are raised against the
applicant,
inter alia
, for the alleged overpayment of levy
contributions and/or electricity charges in the sum of R175,662.10
during the period May 2004
up to and including June 2009.
[8] I agree with the learned
arbitrator that the required lease agreements are not, with reference
to the pleadings, relevant. The learned arbitrator, however,
was, in my view, clearly wrong in refusing the discovery “
of
all monthly statements and/or accounts for levies and other charges
”
and of copies “
of all statements and/or accounts
”
by the second respondent to its tenants “
relating to rental,
operating costs and consumption charges in respect of the
respondent’s units
”. The relevance of these
documents appears from the issues raised on the pleadings. The
required documents, at
the very least, “
may
”
advance the applicant’s own case or damage that of the second
respondent in that it may show that the second respondent
was made
aware and was indeed aware of the various charges levied and it may
assist the applicant in proving the quantum of its
claims.
[9] This matter, in my view, is
an exceptional one where intervention in the course of the
arbitration proceedings is warranted prior to an award. The
first respondent’s procedural ruling could result in the
applicant being prevented “…
from having his case
fully and fairly determined
”.
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC),
para [262]. See also:
Tuesday Industries v Condor Industries
and Another
1978 (4) SA 379
(TPD), at pages 382B
et seq
;
Badenhorst-Schnetler v Nel en ‘n Ander
2001 (3) SA 631
(CPD), para [11]
et seq
. It undisputed that the
applicant’s legal representative informed the arbitrator that
copies of the monthly statements
and accounts for levies and other
charges are not kept by the applicant after dispatch to the second
respondent each month.
[10] In the result the application for
review succeeds in part and the following order is made:
1. The first
respondent’s ruling on the applicant’s request
for
documents as set out in paragraphs 2.1 and 2.3 at page 3 of the
minutes of the preliminary meeting held on 18 November 2009
(annexure
‘X’ to the notice of motion) is set aside.
2. The
second respondent is ordered to make discovery of the documents
requested in paragraphs 2.1 and 2.3 at page 1 of the said minutes.
3. The
second respondent is ordered to pay the applicant’s costs
of
this application.
______________________________
P A MEYER
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
1
October 2010