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[2020] ZAGPJHC 109
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Incubeta Holdings (Pty) Limited v Mindshare South Africa (Gauteng) (Pty) Limited (07182/2016) [2020] ZAGPJHC 109 (6 May 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
07182/2016
DATE
:
6
th
May 2020
In
the matter between:
INCUBETA
HOLDINGS (PTY)
LIMITED
Plaintiff
and
MINDSHARE
SOUTH AFRICA (GAUTENG) (PTY)
LIMITED
Defendant
Coram:
Adams J
Heard
:
5 May 2020
Delivered:
6 May 2020 – This judgment was handed down electronically
by circulation to the parties' representatives by email, being
uploaded
to the CaseLines system of the GLD and by release to SAFLII.
The date and time for hand-down is deemed to be 14h30 on 6 May 2020.
Summary:
Practice and Procedure – applications to
compel better discover and application to compel better further
particulars for trial
– rule 35(3) and rule 21(2) discussed –
applications to compel better discovery granted – application
to compel
better further particulars for trial refused
ORDER
(1)
The defendant shall within ten days from
the date of this order comply with the plaintiff’s notice in
terms of rule 35(3)
dated the 21
st
of December 2019 by making available for inspection in accordance
with rule 35(6) the documents referred to in paragraphs 1, 2,
3, 4,
6, 7, 8, 9, 10, 11 and 12 of the plaintiff’s aforementioned
rule 35(3) notice, as well as any and/or all invoices received
by the
defendant from Xaxis for the period 1 April 2016 to 30 June 2016
(2)
In the event of the defendant’s
non-compliance with the order in paragraph (1) above, the plaintiff
is hereby granted leave
to apply on the papers in this application,
duly supplemented, to have struck out the defendant’s defence
and for judgment
against the defendant.
(3)
The defendant shall pay the plaintiff’s
costs of plaintiff’s application in terms of rule 35(7) to
compel better discovery,
including the costs consequent upon the
employment of two Counsel.
(4)
The defendant’s application in terms
of rule 21(4) to compel better further particulars is dismissed with
costs, which costs
shall include the plaintiff’s costs
consequent upon the employment of two Counsel.
(5)
The defendant’s application in terms
of rule 35(7) to compel plaintiff to better comply with defendant’s
rule 35(3)
notice succeeds with costs.
(6)
The plaintiff shall within ten days from
the date of this order comply with the defendant’s notice in
terms of rule 35(3)
dated the 20
th
of January 2020 by filing an affidavit in reply to paragraphs 8, 10
and 13 of the said rule 35(3) notice in which affidavit the
plaintiff
shall declare under oath which of the documents requested in the said
notice are not in its possession and also state
the whereabouts of
such documents, if known to it.
(7)
In the event of the plaintiff’s
non-compliance with the order in paragraph (6) above, the defendant
is hereby granted leave
to apply on the papers in this application,
duly supplemented, for a dismissal of the plaintiff’s claim.
(8)
The plaintiff shall pay the defendant’s
costs of defendant’s application in terms of rule 35(7) to
compel better discovery.
JUDGMENT
Adams
J:
[1].
I shall refer to the parties as referred to
in the main action.
[2].
Before me are three
interlocutory applications, one by the plaintiff and two by the
defendant. In the first application the plaintiff
applies in terms of
uniform rule of court 35(7) for an order compelling the defendant to
comply with its rule 35(3) notice. In
the second application the
defendant applies in terms of rule 21(4) for an order compelling the
plaintiff to deliver further and
better particulars of claim to
enable it to prepare for trial. Lastly the defendant applies in terms
of rule 35(7) for an order
compelling the plaintiff to comply with
its (the defendant’s) rule 35(3) notice.
Plaintiff’s
application to compel better discovery
[3].
On 8 January 2020,
the plaintiff delivered its Rule 35(3) Notice, calling upon the
defendant to make available for inspection further
documents in its
possession which documents the plaintiff believes to be relevant to
matters in question in the action. On 25 February
2020, the defendant
replied by serving its affidavit in terms of Rule 35(3). With
reference to each and every one of the documents
requested to be
inspected by the plaintiff, the defendant gave the following generic
response.
[4].
The defendant refuses
to make available to the plaintiff for inspection the documents
listed in plaintiff’s rule 35(3) notice,
because, so the
defendant alleges, the documents are not relevant to any of the
matters in the action and because the documents
were so widely
framed. The defendant alleges in any event that, where the documents
do in fact exist, they should not be discovered
on the basis that the
documents are privileged and/or confidential and/or that it would not
be in the interest of justice to be
disclosed.
[5].
Rule 35(3) provides
as follows:
‘
(3)
If any party believes that there are, in addition to documents or
tape recordings disclosed as aforesaid, other documents (including
copies thereof) or tape recordings which may be relevant to any
matter in question in the possession of any party thereto, the
former
may give notice to the latter requiring him to make the same
available for inspection in accordance with subrule (6), or
to state
under oath within ten days that such documents are not in his
possession, in which event he shall state their whereabouts,
if known
to him.’
[6].
My reading of the
defendant’s reply to the plaintiff’s rule 35(3) notice is
that the defendant in essence objects to
the production of the
documents on the basis that they are irrelevant. In addition, the
defendant avers that the documents are
framed too widely.
[7].
In my view, the
latter ground of objection is without merit. One needs look no
further than the description of the documents required
as per the
plaintiff’s rule 35(1) notice. So for example the plaintiff
requires inspection of:
‘
1.
All invoices submitted by the defendant to any and/or all of its
clients relating to the management by the defendant of all
Google
search and
Google
display campaigns for the period 1 January 2014 to 30 June 2016’.
[8].
This is as wide as
the documents requested are framed. This example also represents a
good example of all of the documents requested
to be inspected by the
plaintiff. Most, if not all, of the documents requested relate to the
period from the 1
st
of January 2014 to the 30
th
June 2016. Although the documents listed may be voluminous, I do not
believe that the description is widely framed. On the contrary,
if
regard is had to all of the documents listed in the rule 35(3)
notice, the description is very specific and crystal clear. To
give
another example, the plaintiff requires inspection of:
‘
10.
All agreements concluded by the defendant with any service providers
in respect of the management of
Google
search and
Google
display campaigns for the period 1 January 2014 to 30 June 2015.’
[9].
Therefore, the
contention by the defendant that the documents requested have been
framed too widely as a ground of objection is
not sustainable and is
devoid of any merit.
[10].
That brings me back
to the main ground of the objection, namely the contention that the
documents requested to be inspected by the
plaintiff are not relevant
to the matters in the action.
[11].
The plaintiff
contends that it is clear that the documents are relevant to matters
in question in the action and that the defendant’s
reasons for
its failure to make the documents available for inspection are
without merit.
[12].
The case of the
plaintiff in the main action is based on damages for the breach of a
contract, which contract was to endure from
the 1
st
of January 2014 to the 30
th
of June 2016 – therefore for a period of two years and six
months. In its particulars of claim the plaintiff avers that the
defendant breached the terms of the contract between the parties in
that it (the defendant)
inter
alia
failed to make use exclusively of the services of the plaintiff as
provided for in the agreement. This, so the plaintiff alleges,
was a
breach of the exclusivity clause 2.4 of the Agreement. Therefore, in
a nutshell it is the case of the plaintiff that the
defendant
utilised the services of other service providers or performed the
duties itself when it was obliged in terms of the agreement
to
utilise the plaintiff’s services in the provision of services
agreed upon in the contract.
[13].
The documents which
the plaintiff requires the defendant to discover, such as the
invoices mentioned above, so the plaintiff contends,
will demonstrate
exactly the breach and the extent thereof. The defendant charged its
clients, so the argument on behalf of the
plaintiff continues, for
the services which were supposed to be rendered by the plaintiff to
the defendant but instead was rendered
by the defendant itself or
outsourced to other service providers. The documents required, so
contends the plaintiff, will prove
the breach by the defendant of the
exclusivity clause in the agreement.
[14].
The relevance of the
documents requested by the plaintiff, including emails between
employees of the defendant and defendant’s
clients relating to
managing
Google
search and
Google
display campaigns – showing the breach of the exclusivity
clause of the agreement, is, according to the plaintiff,
self-evident.
[15].
The defendant
contends in the main action that the plaintiff failed to comply with
the Service Level Agreement in that the plaintiff’s
reporting
was inaccurate and/or late, which in turn affected the defendant’s
ability to report back to its clients timeously.
In this
interlocutory application the defendant contends that the conduct by
the defendant, which, according to the plaintiff amounts
to breaches
of the agreement, is admitted by the defendant, and those issues are
no longer in dispute. The defendant admits that
they engaged the
services of other service providers or performed some of the services
themselves, so it is not necessary for the
plaintiff to have access
to the documents listed because there is agreement on these issues,
which, in turn means that the documents
are not relevant.
[16].
There are two
difficulties with defendant’s contention in that regard.
Firstly, the documents requested may still be relevant
to the quantum
of the plaintiff’s claim in that the extent of the breaches may
give an indication of the damages suffered
by the plaintiff as a
result of the breaches. Secondly and more importantly, the defendant
denies that its admitted conduct amounted
to breaches of the
agreement, and avers that its conduct was necessitated by the
plaintiff’s breach of the agreement. The
point is that, even on
defendant’s version, the relevance of the documents is clear.
Depending for example on the timing
of certain of the conduct on the
part of the defendant, its version will be demonstrated by these
documents to be either true or
false. Either way, I am of the view
that the documents are relevant to the matters in the main action.
[17].
The defendant then,
almost as an afterthought, contends that the documents should not be
inspected by the plaintiff because they
may be privileged and/or
confidential. However, in its reply to the plaintiff’s rule
35(3) notice no particulars are furnished
of the alleged privilege or
confidentiality claimed. During the hearing of the applications, Mr
Silver, Counsel for the defendant,
submitted that the plaintiff is
not entitled to have access to the details of other entities with
whom the defendant does business
or to information relating to the
terms of such contracts with such clients and/or service providers,
especially the prices/charges/costs
and payment terms in terms of the
contracts. These entities with whom the defendant contracted, so Mr
Silver argues, are competitors
of the plaintiff and, if the contracts
are ordered to be produced, the plaintiff would be enabled to
unlawfully compete with such
entities and the defendant.
[18].
There is no merit in
these contentions by the defendant for the simple reason that no such
case is made out by the defendant in
its affidavit in reply to the
plaintiff’s rule 35(3) notice. In any event, confidentiality of
a document of and by itself
is not a ground for the refusal to
disclose such document.
[19].
In
Crown
Cork & Seal Co Inc & Another v Rheem South Africa (Pty) Ltd &
Others
[1980] 4 All SA 412
(W);
1980 (3) SA 1093
(W), Schutz AJ states, in
relation to confidentiality issues in the context of discovery of
documents, as follows:
‘
In
my view it is open to a South African Court to adopt the English
practice. Nothing has been pointed out that persuades me that
the
English practice is based upon any provision in the English Rules
that is not contained in ours. Then, our Courts have a discretion
in
enforcing Rule 35 (7). The crux of the matter is the reasons which
underlie the practice. No less in South Africa than in England
does
the conflict arise between the need to protect a man's property from
misuse by others, in this case the property being confidential
information, and the need to ensure that a litigant is entitled to
present his case without unfair halters. And, although the approach
of a Court will ordinarily be that there is a full right of
inspection and copying, I am of the view that our Courts have a
discretion
to impose appropriate limits when satisfied that there is
a real danger that if this is not done an unlawful appropriation of
property
will be made possible merely because there is litigation in
progress and because the litigants are entitled to see documents to
which they would not otherwise have lawful access. But it is to be
stressed that care must be taken not to place undue or unnecessary
limits on a litigant's right to a fair trial, of which the discovery
procedures often form an important part’.
[20].
The above passage was
cited with approval by the Constitutional Court in
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services: In Re
Masetlha v President of the Republic of South Africa
and Another
2008 (5) SA 31
(CC) at paragraph 27.
[21].
Also, in
Cape
Town City v South African National Roads Authority and Others
[2015] 2 All SA 517
(SCA), at par 37 the SCA stated as follows:
‘
Discovery
impinges upon the right to privacy of the party required to make
discovery. According to Lord Denning MR (in
Riddick
v Thames Board Mills Ltd
1977, 3 All ER
677
(CA) at 678) “compulsion is an invasion of a private right
to keep one's documents private". But while there is an interest
in protecting privacy there is also the public interest in
discovering the truth. .... Litigants must accordingly be encouraged
to make full discovery on the assurance that their information will
only be used for the purpose of the litigation and not for
any other
purpose. In that sense ... the interests of the proper administration
of justice require that there should be no disincentive
to full and
frank discovery’.
[22].
This principle was
applied in
Governing
Body of Hoërskool Fochville and Another v Centre for Child Law;
In re: Governing Body of Hoërskool Fochville
and other
[2014]
4 All SA 204
(GJ) at paras 22 to 25. In that case this court held
that in the context of Rule 35(12) a party is excused from disclosing
a document
if that party shows that the document sought is irrelevant
to the issues in the matter, or is privileged, but that party cannot
refuse to discover a document on the grounds of confidentiality.
[23].
As I indicated above,
the defendant in this matter refuses inspection of the documents in
question on the basis that the said documents
are confidential and/or
privileged. If these documents are seen by the plaintiff, so the
defendant contends, it would be harmful
to the defendant because the
plaintiff would be placed in a position to compete unlawfully with
the defendant and its other service
providers.
[24].
During the hearing of
the application, Mr Hollander indicated that the plaintiff, in order
to address the concerns of the defendant
relating to issues of
confidentiality, would be willing to give an undertaking that the
documents will be inspected only by its
legal representatives and not
by the plaintiff itself. That, in my view, would have been sufficient
safeguard against the confidentiality
concerns raised by the
defendant. In that regard, I was referred to
Unilever
PLC and Another v Polagric (Pty) Ltd
2001 (2) SA 329
(C).
[25].
However, the
defendant did not avail itself of this offer by the plaintiff. As was
the case in the
Unilever
matter, the defendant showed no interest in addressing plaintiff’s
proposal that limits be imposed on the production of the
documents. I
infer therefore that the defendant’s attitude is an
all-or-nothing one – the application should be refused
in its
entirety, with no attempt to carve out a compromise solution. In the
circumstances I, like Thring J in
Unilever
,
have decided to exercise my discretion against imposing such
qualification on the plaintiff’s right to inspect the documents
concerned.
[26].
The point is this: in
balancing the competing interest of the plaintiff to a fair trial on
the one hand and, on the other hand,
the defendant’s right to
have its confidential information protected, the plaintiff’s
entitlement to have its matter
adjudicated effectively should, in my
view, enjoy preference. As was said by Sutherland J in the
Hoërskool
Fochville
matter (supra), there is clear authority that confidentiality does
not trump the rule relating to discovery.
[27].
One last issue which
requires my attention relates to item 5 of the plaintiff’s rule
35(3) notice which requires the defendant
to make available for
inspection the following documents:
‘
5.
All invoices received by the defendant from Xaxis for the period
1 January 2014 to 30 June 2016’.
[28].
After delivery of its
notice in terms of rule 35(3) it came to the attention of the
plaintiff that this company, Xaxis, was in fact
only incorporated in
April 2015. It is therefore not possible for the defendant to be in
possession of invoices from this company
issued prior to the date of
its incorporation. The plaintiff therefore asks for an order at
variance with the rule 35(3) notice
to the effect that the documents
under 5 to be made available should only be for the period from April
2015. In my view, this is
an order which can competently be granted
by this court.
[29].
In the circumstances,
I am satisfied that the plaintiff has made out a case for the relief
sought albeit in a modified form. Accordingly,
the plaintiff’s
application to compel inspection of the documents listed in its rule
35(3) should succeed.
Defendant’s
application to compel better further particulars for Trial
[30].
On 29 November 2019,
the defendant served its request for further particulars in terms of
Uniform Rule of Court 21(2) to enable
it to prepare for trial. On 9
January 2020, the plaintiff delivered its ‘reply to the
defendant’s request for further
particulars’, consisting
of some twenty four pages of further particulars and numerous
annexures. The defendant’s request
for further particulars
itself consisted of no less than seventeen pages and interrogated
each and every aspect of any and/or all
possible issues in the
matter.
[31].
The defendant was not
satisfied with all of the plaintiff’s replies and launched this
application to compel further and sufficient
replies to certain
paragraphs. The aforesaid application was served on the plaintiff on
25 March 2020.
[32].
Rule 21(2) provides
as follows:
‘
(2)
After the close of pleadings any party may, not less than twenty days
before trial, deliver a notice requesting only such further
particulars as are strictly necessary to enable him to prepare for
trial. Such request shall be complied with within ten days after
receipt thereof.’
[33].
It is trite that the
purpose of further particulars for trial is firstly to prevent
surprise. Secondly, parties should be told with
greater precision
what the other party is going to prove in order to enable his
opponent to prepare his case to combat counter
allegations. This does
not however mean that the other party should be tied down and
unfairly limited in presenting his case during
the trial.
[34].
The defendant bears
the onus to satisfy the court that the particularity sought is
strictly
necessary for the purposes of preparing for trial.
[35].
The plaintiff
contends that its replies to defendant’s request for further
particulars are sufficient to enable the defendant
to prepare for
trial. In any event, so the plaintiff submits, the better further
particulars sought in this application are not
strictly necessary for
the defendant to prepare for trial.
[36].
I will now proceed to
deal with further particulars requested by the defendant which is the
subject of this application.
[37].
In paragraph 1.5 of
its request the defendant required the plaintiff to ‘plead the
charge/fee for each service rendered’.
In its reply the
plaintiff states that the fees charged for the services rendered were
in accordance with the provisions of the
agreement and refers the
defendant to the relevant clauses in the contract.
[38].
I agree with the
plaintiff’s submission that the reply to this request is
sufficient. I cannot see what more the plaintiff
can say.
[39].
In paragraph 8 and
paragraph 12 the defendant enquires whether the plaintiff persists
with its allegation that it complied with
its obligations in terms of
the agreement and the service level agreement. The plaintiff replies
in the affirmative, and then goes
on to aver that insofar as the
plaintiff did not at any stage comply with any of its obligations
same was remedied. I understand
this reply to mean that, according to
the plaintiff, it has complied with its obligations as provided for
the agreement. There
is nothing more that the plaintiff needs to say.
[40].
In paragraph 9.4 the
defendant requires the plaintiff to furnish the dates on which each
feedback session with the defendant occurred.
The plaintiff replies
that it had monthly campaign feedback sessions with the defendant.
Further that, the plaintiff stated that
it was not in a position to
provide further particularity and that the dates of feedback sessions
are within the knowledge of the
defendant. Again, I agree with the
submission on behalf of the plaintiff that this reply was more than
sufficient to enable the
defendant to prepare for trial.
[41].
In paragraph 18 the
defendant asks for precise details and exact particulars relating to
credit notes issued by the plaintiff. In
its reply, the plaintiff
refers the defendant to all of the credit notes which had been
discovered. Similarly, the defendant in
paragraphs 19 and 20 requires
full details and exact particulars relating to any and/or all
invoices issued to the defendant by
the plaintiff and Net Media
Planet respectively. Again, in its reply the plaintiff refers the
defendant its (plaintiff’s)
discovery affidavit in which all of
the invoices are discovered.
[42].
The defendant is not
satisfied with these answers. Mr Silver submitted that the replies
are wholly insufficient. The plaintiff cannot
expect, so Mr Silver
contended, the defendant to ‘wade through hundreds of pages of
discovered documents instead of simply
providing sufficient answers
to the request for trial particulars’.
[43].
I cannot agree with
these submissions. The information required by the defendant are
contained in the documents to which the plaintiff
had referred the
defendant. This is not disputed by the defendant, whose only gripe is
that the particulars are provided in a format
not acceptable to it.
There is no merit in this objection by the defendant.
[44].
In paragraph 23 the
defendant requests details relating to the dates upon which the
plaintiff alleges the defendant committed the
breaches of the terms
of the agreement. The plaintiff’s reply is that the agreement
was breached during the period between
August 2014 and 2 June 2015. I
agree with the plaintiff that this answer is more than sufficient for
purposes of rule 21 further
particulars.
[45].
Then in paragraph 35
the defendant enquires about the plaintiff’s knowledge as to
the alleged consequences to the defendant
if the plaintiff breached
its material obligations in terms of the agreement. This inquiry, as
rightly stated by the plaintiff,
in its reply does not fall within
the ambit of rule 21. If anything, it calls for irrelevant
speculation on the part the plaintiff.
[46].
In paragraph 39 to
41, 44 to 46, 49 to 51 the defendant enquires as to the legal basis
upon which the plaintiff’s claim for
damages is premised. The
plaintiff responds that the legal basis is on a balance of
probabilities with reference to remuneration
earned by the Plaintiff
during prior periods. I am not convinced that the answer given by the
plaintiff is appropriate. However,
there can be no doubt that the
particulars requested by the defendant relative to the quantum of the
plaintiff’s claim are
strictly necessary to enable the
defendant to prepare for trial. The point is that the quantum of the
plaintiff’s claim will
be assessed on the basis of the facts in
the matter and by the application of the applicable legal principles.
The plaintiff is
dominus
litis
and
will be required to prove the quantum of its claim. I am therefore of
the view that the defendant is not entitled to further
particulars
requested in these paragraphs.
[47].
In paragraph 54 the
Defendant enquires as to the total amount of the plaintiff’s
expenses for the period 2 June 2015 to 30
June 2016 in the
hypothetical scenario in which the plaintiff had complied with its
obligations in terms of the agreement (and
the SLA) and rendered the
services for the period 2 June 2015 to 30 June 2016. The plaintiff’s
reply was a simple R312 000
and then proceeds to provide details
and particulars of how this amount is arrived at. The plaintiff
submits that no more is required
of it in order to answer the
enquiry. I find myself in agreement with this submission.
[48].
In sum, I am not
persuaded that the better further particulars requested by the
plaintiff are strictly necessary for purposes of
enabling the
defendant to prepare for trial. The replies given by the plaintiff
originally are sufficient and in compliance with
the provisions of
rule 21.
[49].
In the premises, the
defendant’s application in terms of rule 21(4) stands to be
dismissed.
Defendant’s
application to compel better discovery
[50].
On 21 January 2020,
the defendant served its rule 35(3) notice calling upon the plaintiff
to make available further documents which
the defendant believes to
be in the plaintiff’s possession and which documents are
relevant to matters in question in the
action.
[51].
On 13 March 2020, the
plaintiff delivered its affidavit in reply to the defendant’s
rule 35(3) notice. In the said affidavit
the plaintiff made available
to the defendant those documents requested which exist and which ‘can
be located’. This
answer the defendant is not happy with. It
alleges that the plaintiff has not complied with the provisions of
rule 35(3).
[52].
The defendant did not
avail itself of the plaintiff’s offer to make available the
requested documents for inspection. Instead,
the defendant insisted
that the plaintiff provide a list of those documents which are not in
its possession. This is so despite
the fact that in its description
of the documents in its rule 35(3) notice the defendant grouped
documents together. So for example
in paragraph 10 of the notice the
plaintiff is required to make available for inspection the payslips
of thirty two of plaintiff’s
erstwhile and present employees
for the period from the 1
st
of January 2014 to the 30
th
of June 2016.
[53].
Understandably, this
would be a huge task for the plaintiff and its legal representatives
to collate and list these documents, hence
their approach to make
available to the defendant these documents in bulk for inspection.
However, the question remains whether
the plaintiff had complied with
the provisions of the rule 35(3) and considerations of volumes and
cost saving measures do not,
in my judgment, should play any role in
answering that question.
[54].
To demonstrate the
point it may be apposite to make reference to one further example of
the documents in dispute. In its rule 35(3)
notice at par 8, the
defendant requires the plaintiff to make available to it (the
defendant) the following documents:
‘
8.
The contracts of employment of the persons mentioned in paragraphs 9,
10, 12, 17, 21.2, 21.3 and 24 of the plaintiff’s
reply to the
defendant’s request for further particulars dated 9 January
2020 (“the persons”).’
[55].
The reference to the
persons mentioned in paragraphs 9, 10, 12, 17, 21.2, 21.3 and 24, is
a reference to a list of thirty two individuals
who were in the
employ of the plaintiff at some time or the other.
[56].
The plaintiff’s
reply to this request by the defendant is a rather general and
generic response as follows:
‘
12.
Ad paragraph 8
12.1.
Such of the contracts of employment of the persons referred to herein
that the plaintiff has been able to locate will be made
available to
the defendant’s attorneys for inspection at the offices of the
plaintiff’s attorneys at a mutually convenient
date and time.
12.2.
Save as stated in paragraph 12.1 above, the plaintiff has been unable
to locate, and is not aware of the whereabouts of, any
other
contracts of employment in respect of the persons mentioned herein.’
[57].
The defendant
complains that the plaintiff’s affidavit in terms of rule 35(3)
does not comply with said rule 35(3) in respect
of paragraphs 8, 10
and 13 of the defendant’s rule 35(3) notice. The replies given
to paragraphs 10 and 13 were along similar
lines as those given in
respect of paragraph 8 referred to above. The defendant’s
objection to these replies is that the
plaintiff has failed to state
under oath which documents are not in its possession and the
whereabouts thereof if known.
[58].
It was submitted by
Mr Hollander, who appeared on behalf of the plaintiff, that
paragraphs 8, 10 and 13 pertain to the documents
that were made
available to the defendant for inspection. These documents are
voluminous and fill three hard cover lever arch files.
The
Plaintiff specifically states that insofar as any of the documents so
requested are not contained in the inspection files, the
plaintiff is
unable to locate, and is not aware of the whereabouts of same.
In other words, the documents contained in the inspection files are
all that the Plaintiff has in its possession. Insofar as the
documents are not contained in the inspection files, such documents
cannot be located and the plaintiff is unaware of its whereabouts.
[59].
The defendant
contends that it is unable to determine which of the documents listed
in the rule 35(3) notice the plaintiff has in
its possession and are
being made available for inspection and which of those documents are
not in plaintiff’s possession.
This means, so the defendant
submits, that the plaintiff has not complied with the letter and the
spirit of rule 35(3) which
inter
alia
requires the plaintiff ‘to state under oath within ten days
that such documents are not in his possession, in which event
he
shall state their whereabouts, if known to him’.
[60].
I find myself in
agreement with these submissions on behalf of the defendant. In the
case of paragraph 8 of the defendant’s
rule 35(3) notice cited
above, the plaintiff was required to make available for inspection
the contracts of employment of thirty
two of its erstwhile or present
employees. Their reply to the rule 35(3) notice could and should be
along the lines, by way of
illustration, that the employment
contracts of say persons 1 to 16, naming these individuals, are
available for inspection and
that the contracts relating to
individuals 17 to 32, again listing these persons, are not available
and then, if possible, give
an indication of the whereabouts of such
contracts. Alternatively, the reply could be to the effect that the
employment contracts
of all thirty two employees, and then to name
them, are available for inspection. That, in my view, would amount to
proper compliance
with the provisions of rule 35(3).
[61].
The point is this:
the defendant has requested the plaintiff to make available for
inspection a list of documents, which had been
described clearly and
sufficiently. In terms of rule 35(3) the plaintiff is required to
deal with each and every document so listed
by the defendant in its
said notice. That the plaintiff has not done. The underlying
philosophy of discovery of documents is that
a party in possession or
custody of documents is supposed to know the nature thereof and thus
carries the duty to put those documents
in proper order for both the
benefit of his adversary and the court in anticipation of the trial
action. (See:
Copalcor
Manufacturing (Pty) Ltd v GDC Hauliers (Pty) Ltd (formerly GDC
Hauliers CC)
2000 (3) SA 181
(W) at 194I)
[62].
The plaintiff cannot
be heard to complain that the documents are voluminous and that this
justifies its non-compliance with the
rules. That just cannot be. As
correctly submitted by Mr Silver, if regard is had to the wording of
rule 35(3), the defendant cannot
be expected to guess which documents
the plaintiff does not have in its possession. Rule 35(3) obliges the
plaintiff to indicate
under oath the documents that are not in its
possession, in which event it shall state their whereabouts if known
to it.
[63].
I am therefore of the
view that the plaintiff in its reply to the defendant’s rule
35(3) notice has not complied with the
provisions of the said rule.
Defendant’s application to compel better discovery in terms of
rule 35(7) should therefore succeed.
Costs
[64].
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so, such as misconduct on the part of the successful party or
other exceptional
circumstances. See:
Myers
v Abramson
, 1951(3) SA 438 (C) at 455.
[65].
I am also satisfied that, having regard to
the complexity of the issues involved in the main action and the
quantum of the plaintiff’s
claim, that the employment by the
plaintiff of two Counsel is justified even in these interlocutory
applications relating to discovery.
The importance of discovery in
the litigation process cannot and should not be underestimated. As
was said by the court in
MV Urgup:
Owners of the MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd
1999 (3) SA 500
(C) at 513G–H: ‘Discovery has been said
to rank with cross-examination as one of the mightiest engines for
the exposure
of the truth ever to have been devised in the
Anglo-Saxon family of legal systems. Properly employed where its use
is called for,
it can be, and often is a devastating tool.’
[66].
I therefore intend ordering the costs in
each of the applications to follow the suit.
Order
In
the result, I make the following order:
(1)
The defendant shall within ten days from
the date of this order comply with the plaintiff’s notice in
terms of rule 35(3)
dated the 21
st
of December 2019 by making available for inspection in accordance
with rule 35(6) the documents referred to in paragraphs 1, 2,
3, 4,
6, 7, 8, 9, 10, 11 and 12 of the plaintiff’s aforementioned
rule 35(3) notice, as well as any and/or all invoices received
by the
defendant from Xaxis for the period 1 April 2016 to 30 June 2016
(2)
In the event of the defendant’s
non-compliance with the order in paragraph (1) above, the plaintiff
is hereby granted leave
to apply on the papers in this application,
duly supplemented, to have struck out the defendant’s defence
and for judgment
against the defendant.
(3)
The defendant shall pay the plaintiff’s
costs of plaintiff’s application in terms of rule 35(7) to
compel better discovery,
including the costs consequent upon the
employment of two Counsel.
(4)
The defendant’s application in terms
of rule 21(4) to compel better further particulars is dismissed with
costs, which costs
shall include the plaintiff’s costs
consequent upon the employment of two Counsel.
(5)
The defendant’s application in terms
of rule 35(7) to compel plaintiff to better comply with defendant’s
rule 35(3)
notice succeeds with costs.
(6)
The plaintiff shall within ten days from
the date of this order comply with the defendant’s notice in
terms of rule 35(3)
dated the 20
th
of January 2020 by filing an affidavit in reply to paragraphs 8, 10
and 13 of the said rule 35(3) notice in which affidavit the
plaintiff
shall declare under oath which of the documents requested in the said
notice are not in its possession and also state
the whereabouts of
such documents, if known to it.
(7)
In the event of the plaintiff’s
non-compliance with the order in paragraph (6) above, the defendant
is hereby granted leave
to apply on the papers in this application,
duly supplemented, for a dismissal of the plaintiff’s claim.
(8)
The plaintiff shall pay the defendant’s
costs of defendant’s application in terms of rule 35(7) to
compel better discovery.
________________________________
L R ADAMS
Judge of the High
Court
Gauteng Local
Division, Johannesburg
HEARD ON:
5
th
May
2020
JUDGMENT DATE:
6
th
May
2020
FOR THE PLAINTIFF:
Advocate
L Hollander, together with Advocate C Dènichaud
INSTRUCTED BY:
Edelstein Farber
Grobler Incorporated, Johannesburg
FOR
THE DEFENDANT:
Adv
M D Silver
INSTRUCTED
BY:
David
Oshry & Associates, Johannesburg