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[2020] ZAGPJHC 440
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Lilac Moon Trade and Investments 189 (Pty) Limited v 131 Northriding CC and Another (22832/2019) [2020] ZAGPJHC 440 (14 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
22832/2019
DATE
:
14
th
September 2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
In
the matter between:
LILAC
MOON TRADE & INVESTMENTS 189 (PTY) LIMITED
Plaintiff
and
131
NORTHRIDING
CC
First Defendant
KASSEL
,
HILLIARD
FRANK
Second Defendant
Coram:
Adams
J
Heard
: 11
September 2020
Delivered:
14
September 2020 – This judgment was handed down electronically
by circulation to the parties' representatives by email,
by 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 11h00 on 14 September
2020.
Summary:
Practice and Procedure – application to compel
better discover – rule 35(3) discussed – the affidavit of
a person
against whom discovery is sought is
prima facie
conclusive – application dismissed.
ORDER
(1)
The second defendant’s application to compel the plaintiff to
make
better discovery in terms of rule 35(7) is dismissed with costs.
(2)
The second defendant shall pay the plaintiff’s costs of the
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 is an interlocutory application by
the second defendant, who applies in terms of uniform rule of court
35(7) for an order
compelling the plaintiff to comply with his rule
35(3) notice.
[3].
On 19 June 2020, the second defendant delivered
his Rule 35(3) Notice, calling upon the plaintiff to make available
for inspection
further documents in its possession which documents
the second defendant believes to be relevant to matters in question
in the
action. On 01 July 2020, the plaintiff replied by serving its
affidavit in terms of Rule 35(3). With reference to most of the
twenty
one documents or sets of documents requested to be inspected
by the second defendant (items 1, 2, 5, 12, 18 and 19 of the second
defendant’s Rule 35(3) notice), the plaintiff gave a response
to the effect that these documents are not in its possession
or that
the documents requested are not relevant to the main action (items 6,
7, 8, 9, 10, 11, 20 and 21). As for the balance of
the documents
(items 3, 4, 13, 14, 16 and 17), the plaintiff states that these
documents have already been discovered.
[4].
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.’
[5].
As indicated, the plaintiff’s formal
response to the second defendant’s notice in terms of 35(3) was
in the form of
an affidavit deposed to by the Chief Legal Advisor of
the Holding Company of the plaintiff, who confirmed that the
plaintiff does
not have in its possession any of the documents
mentioned above and furthermore expressed the view that other
documents are not
relevant to the main action.
[6].
The deponent goes on to explain in the said
affidavit that the reason for this is the context in which the
dispute between the parties
arose. In particular, so it is explained,
when the sale of land agreement was concluded between the plaintiff
and the first defendant
the plaintiff’s shareholders were not
the same persons as the present members. It is therefore not
implausible that documents
relating for example to the said agreement
and drafts thereof are not in possession of the plaintiff.
[7].
The second defendant disputes the aforegoing
and denies that the plaintiff is not in possession of the
documentation requested.
In the founding affidavit in support of this
application in terms of rule 35(7), the second defendant expresses
the view that it
is unlikely that the plaintiff, now controlled by
its Holding Company, which bought out the shareholding from the
previous owner
would not have taken possession and control of all
legal documents of the plaintiff. This is exactly what the Chief
Legal Advisor
says, and in the context of this matter there is
nothing implausible about that.
[8].
Therefore, as regards those documents, the
plainitff opposes this application to compel inspection of the
documents on the basis
that the court cannot and should not go behind
its affidavit and find, contrary to what is stated in the discovery
affidavit, that
the documents do in fact exist and are in the
possession of the plaintiff. The opposition to the relief sought
relative to documents
requested as items 1, 2, 5, 12, 18 and 19 of
the second defendant’s Rule 35(3) notice) that the plaintiff
should be excused
for the non – production thereof on the
grounds that they are not in its possession is therefore well
founded.
[9].
Sutherland J in the unreported judgment in
Dube v Member of the
Executive Council for Health, Gauteng Province,
Case no: 6279/17
had occasion to consider a similar situation in this division. In
that matter, the Judge held as follows:
‘
In
my view the
de facto
position is deplorable and the idea of a
breach of statutory obligations is on the probabilities in my view a
plain fact. Notwithstanding
these considerations, the ambit of rule
35 of the uniform rules is limited to imposing a duty on a litigant
to discover what it
has got.
In
circumstances where it ought to have a document but cannot access it
and may even confess to not knowing whether or not it still
exists,
and is still in its possession, the duty imposed by rule 35 requires
a party merely to frankly declare what the true state
of affairs is
at the time that discovery is demanded. Ostensibly that is what the
respondent has done. Assuming that the defendant
/ respondent is
rightly to be rebuked for its poor record keeping it has not violated
rule 35 by stating that it cannot lay its
hands on the relevant
documentation.
In
the absence of facts from which I can on these papers infer the
affidavit of the defendant is untruthful, the plaintiff in such
circumstances must unhappily accept the position as described,
however disgraceful the conduct of the respondent, objectively,
may
be. Rule 35 itself plays no role in the disciplining of state
officials to perform their statutory duties. There may indeed
be
other remedies in order to compel compliance with those statutory
duties but they do not fall within the ambit of rule 35.
In
the circumstances I have taken the view that there is no useful
purpose in granting the relief which is sought, which would achieve
no more than to provoke a contempt application which would be readily
answered by the same explanation which is proffered now.
In the
circumstances, therefore, the application must be dismissed.’
[10].
I respectfully agree with the sentiments expressed and the findings
made by Sutherland J in
the above quoted passage.
In casu
a
probability has not been shown to exist that the deponent to the
plaintiff’s affidavits are either mistaken or false in
his
assertions that the required documents are not in the possession of
the plaintiff. In that regard see:
Richardson’s
Woolwasheries v Minister of Agriculture
,
1971 (4) SA 62
(ECD) at
67 D-F. It would therefore amount to a
brutum fulmen
to grant
to the second defendant the relief sought in this interlocutory
application relative to
items 1, 2, 5, 12, 18
and 19
.
[11].
As far as those documents are concerned which the plaintiff contends
are not relevant to the
action, a similar principle applies. In that
regard, see
Richardson's Woolwasheries Ltd v Minister of
Agriculture
(supra) 67C-D. See also Herbstein & Van Winsen:
The Civil Practice of the High Courts of South Africa: Fifth
Edition
by Cilliers, Loots & Nel, Vol I page 815.
[12].
In
Caravan Cinemas (Pty) Ltd v London Film Productions and Others
1951 (3) SA 671
(W), the court held as follows at 676C-D:
‘
This
importance attached to the affidavit relates not only to the matter
of privilege, but also to that of relevancy. In
Robinson v Farrar
and Others
, supra at p 743, the following words appear in the
judgment of Bristowe J: “According to a case to which I have
been referred,
decided by Mr Justice Wessels –
May & Co
v Meyer Ltd
1904 TS 278
– the affidavit of a person against
whom discovery is sought is
prima facie
conclusive, and it is
for the parties who seek further discovery to show the court some
facts which make it plain or at all events
raise a strong possibility
that that is a mistake, and that the documents are relevant”.’
[13].
As rightly pointed out by Mr Rademeyer, Counsel for the plaintiff,
the second defendant thus
bears the onus to prove the existence of a
strong possibility that the plaintiff has made a mistake and that the
documents sought
are relevant. I do not think that the second
defendant has discharged that onus. The bulk of the requested
documents falling into
this category are documents which relate to a
‘main agreement’ between the plaintiff’s Holding
Company and the
previous shareholder of the plaintiff in terms of
which agreement the Holding Company purchased from the previous
shareholder two
private schools. As part of this ‘main
agreement’ the shareholding in the plaintiff was also acquired
by the Holding
Company. The plaintiff questions the relevance of
documents relating to the main agreement to the sale of land
agreement concluded
between the plaintiff and the first defendant,
which agreement the second defendant alleges to be a fraud
perpetrated by the members
at the time of the plaintiff and the first
defendant. I agree with the plaintiff that there is no relevance
demonstrated by the
second defendant.
[14].
In any event, whist the plaintiff maintains its stance that the main
transaction is irrelevant
and immaterial to this action, in order to
show that it has nothing to hide the Plaintiff discovered the main
agreement, consisting
of multiple step agreements, all of which were
included in the discovery. The step agreement dealing with the
Holding Company’s
acquisition of the plaintiff (Step 9) is part
of the documents discovered. That, in my view, is the end of the
second defendant’s
case in this application to compel further
and better discovery.
[15].
In the circumstances, I am not satisfied that
the second defendant has made out a case for the relief sought in
this interlocutory
application. Accordingly, the second applicant’s
application to compel inspection of the documents listed in its rule
35(3)
should fail.
Costs
[16].
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.
[17].
I can think of no reason why I should deviate from the general rule
in this matter. I therefore
intend ordering the costs in the
application to follow the suit.
Order
In
the result, I make the following order:
(1)
The second defendant’s application to compel the plaintiff to
make
better discovery in terms of rule 35(7) is dismissed with costs.
(2)
The second defendant shall pay the plaintiff’s costs of the
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:
11
th
September 2020
JUDGMENT
DATE:
14
th
September 2020
FOR
THE PLAINTIFF:
Advocate Henk Rademeyer
INSTRUCTED
BY:
De Klerk & Van Gend Incorporated, Cape Town
FOR
THE FIRST DEFENDANT:
No appearance
INSTRUCTED
BY:
No appearance
FOR
THE SECOND DEFENDANT:
Adv Grant Quixley
INSTRUCTED
BY:
Barry Aaron & Associates, Cape Town