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[2021] ZAGPJHC 130
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East Asian Consortium BV v MTN Group Limited and Others (2013/44462) [2021] ZAGPJHC 130 (9 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBERS: 2013/44462
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
EAST
ASIAN CONSORTIUM
B.V.
Plaintiff
and
MTN
GROUP
LIMITED
First Defendant
MTN
INTERNATIONAL (MAURITIUS) LIMITED
Second Defendant
MTN
HOLDINGS (PTY)
LIMITED
Third Defendant
MTN
INTERNATIONAL (PTY)
LIMITED
Fourth Defendant
NHLEKO,
PHUTUMA
FREEDOM
Fifth Defendant
CHARNLEY,
IRENE
Sixth Defendant
Heard
:
26 and 27 January 2021
Delivered
:
9 February 2021
JUDGMENT
Wepener,
J:
[1]
The plaintiff is East Asian Consortium, B.V. a private company with
limited liability
incorporated under the laws of the Netherlands and
with its principal place of business at Rokin 55, 1012 KK Amsterdam,
The Netherlands.
[2]
During the course of this matter progressing a further plaintiff
referred to as Turkcell
Iletşim Hizmetleri A.S has fallen away
resulting in the current plaintiff being the only plaintiff in the
matter.
[3]
The first defendant is MTN Group Limited, a company incorporated in
terms of the company
laws of the Republic of South Africa with its
principal place of business at 216 14th Avenue, Fairlands,
Johannesburg.
[4]
The second defendant is MTN International (Mauritius) a company 100%
owned by the
first defendant and incorporated in terms of the laws of
the Republic of Mauritius with its principal place of business at 5th
Floor, Barkley Wharf, Suite 525, Le Caudan Waterfront, Port Louis,
Mauritius.
[5]
The third defendant is Mobile Telephone Networks Holdings (Pty) Ltd,
a company 100%
owned by the first defendant and incorporated in terms
of the company laws of the Republic of South Africa with its
principal place
of business at 216 14th Avenue, Fairlands,
Johannesburg.
[6]
The fourth defendant is MTN International (Pty) Ltd, a company
incorporated in terms
of the company laws of the Republic of South
Africa with its principal place of business at 216 14th Avenue,
Fairlands, Johannesburg.
[7]
The second to fourth defendants
are referred to as the ‘MTN defendants’ and
the MTN Group
interchangeably, although strictly speaking, no interlocutory order
can be made against the second defendant as it
has disputed the
jurisdiction of this court.
[8]
The fifth defendant is Freedom Phuthuma Nhleko, an adult male, the
chairman of the
first, third and fourth defendants and at all
material times a director of the first, third and fourth defendants
and the Chief
Executive Officer of the first defendant, with business
address c/o Pembani Group, Inanda Greens Office Park, 2nd Floor,
Building
3, Wierda Road West, Sandton.
[9]
The sixth defendant is Irene Charnley, an adult female and at all
material times a
director of the first, second, third and fourth
defendants with business address at Smile Communications, 12 Culross
Road, Bryanston.
[10]
I refer to the parties as plaintiff and defendants as they are
referred to in the pleadings,
although the plaintiff is the
respondent and the MTN defendants and the fifth defendant are the
applicants in these proceedings.
The sixth defendant took no part in
these proceedings.
[11]
This is an application in which the defendants seek to compel the
plaintiff to furnish further
particulars for purposes of preparing
for trial. The basis of the plaintiff’s claim is the wrongful
and deliberate interference
of the defendants with contractual rights
which the plaintiff obtained. In the alternative, the plaintiff
relies on corrupt conduct
of the defendants which was designed to
prevent the conclusion of contractual obligations between the Iranian
government and the
plaintiff, which caused it damages. The
particulars sought by the defendants, and persisted with during
argument, can be summarised
into different main categories:
1.
Particulars requested but
which have become obsolete due to the plaintiff having affected
an
amendment on 20 November 2020 and also by furnishing additional
particulars on 14 December 2020. This issue only impacts on
the
question of costs;
2.
The issue of jurisdiction over the second defendant;
3.
The requirement by the defendants for the plaintiff to make a choice
regarding
the legal system relied upon;
4.
Identification of wrongdoers;
5.
The prescription issue and other defences pleaded by the defendants;
and
6.
The malfeasance issue.
[12]
The approach to the furnishing of further particulars for trial has
been set out in a number
of cases. In terms of Rule 21 the following
is provided:
‘
(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.’
‘
(4)
If the party requested to furnish any particulars as aforesaid fails
to deliver them timeously or sufficiently, the party requesting
the
same may apply to court for an order for their delivery or for the
dismissal of the action or the striking out of the defence,
whereupon
the court may make such order as to it seems meet.’
[13]
The rights pursuant to the Rule and the duty to
furnish further particulars was stated thus in
Thompson
v Barclays Bank DCO
[1]
‘
[T]he
purpose of further particulars for trial [is]
(a)
to prevent surprise;
(b)
that the 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
. . . [and]
(c)
having regard to the above nevertheless not
to tie the other party down and limit his case unfairly at the
trail.’
[14]
In addition, a court will not compel the
disclosing of evidence if it is solely used as a tool for the early
provision of evidence.
[2]
This
does not mean that further particulars may not be ordered if it will
disclose evidence – the test is if either party
would be
prejudiced in its preparation for trial.
[3]
In
Szedlacsek
v Szedlacsek
;
Van
der Walt v Van der Walt
;
Warner
v Warner
,
[4]
Leach J held:
‘
It
is clear from the final words of [Rule 21(4)] that this Court retains
a discretion to grant or refuse an order for the delivery
of further
particulars. An applicant is accordingly not entitled to an order
compelling a reply as of right should the opposing
party fail to
deliver further particulars timeously of sufficiently, but must set
out sufficient information to enable the Court
to consider whether or
not to exercise its discretion in his favour.’
Jurisdiction
[15]
The second defendant denied that this court has jurisdiction over it.
[16]
The question of further particulars became moot after particulars
were furnished on 14 December
2020 and, this issue, also only impacts
on the question of costs.
Choice
of legal system
[17]
The defendants complained that the plaintiff has failed to identify
whether the Iranian law or
other legal system governs the
unlawfulness of the fifth defendant’s conduct. In its pleading
the plaintiff relies on the
defendants’ unlawful conduct in the
alternative and in so doing, reliance is placed on the South African
law and in the alternative
on certain provisions of Iranian law. The
plaintiff sets out several paragraphs specifically quoting the
Iranian law relied upon.
[5]
A
complaint was made that the plaintiff claims that the conduct was
wrongful and unlawful in terms of South African law and entitles
the
plaintiff to claim damages under South African law calculated in the
manner set out below, and then in para 65 at the same
page in the
alternative to the previous paragraph, the conduct of the defendants
pleaded above is wrongful and unlawful in terms
of Iranian law and
entitles the plaintiff to claim damages under Iranian law calculated
in the manner set out below. The plaintiff
set out that the
unlawfulness is governed by the South African law, alternatively the
Iranian law. The complaint is that there
was no reference to which
law governs the quantification of damages. During argument, counsel
for the plaintiff assured me that
it was an oversight and further,
prepared a notice in which it was clarified that the alternative
allegations also apply to the
manner of the calculation of the
damages. That removed any uncertainty.
[18]
In my view, the plaintiff furnished sufficient particularity
regarding its reliance on Iranian
law. It is entitled to rely on
alternative allegations of fact provided they do not cause prejudice
to the opposing party.
[6]
The
complaint, as I see it, is that the defendants wish to force the
plaintiff to elect now on which legal system it wishes to
rely. But,
that is a fallacy as the evidence to be led may satisfy either the
South African law or the Iranian law or both. I can
find no
embarrassment nor prejudice for the defendants by virtue of the
allegations, which are made in the alternative and the
request based
on the plaintiff’s reliance on these allegations should not be
granted.
Wrongdoers
or malfeasance
[19]
The fifth defendant submitted that amongst the allegations made by
the plaintiff is that certain
persons performed certain acts and
these persons were the first and or second defendants and or third
and fourth defendants including
the fifth defendant and sixth
defendants acted in a certain way in relation to approaches made to
individuals in Iran.
[20]
The defendants then enquired who the authorised
representatives were who visited these individuals.
[21]
The plaintiff’s response was by naming certain individuals and
stating that ‘at least’
these individuals were so
involved. The defendants’ complaint is that others are not
identified and it is argued that the
plaintiff can later call
additional surprise witnesses. The defendants submitted that the
answer implies that there are indeed
other witnesses whom the
plaintiff elected not to name. The submission is made with reference
to case law regarding the identification
of particulars when serious
allegations of misconduct are made.
[7]
In my view, it is clear that the plaintiff does not have any other
witnesses at this stage but that it is hopeful to find additional
witnesses in the future, if they are indeed available. The
defendants’ position is that the words ‘at least’
should be removed and the plaintiff can always seek an amendment in
the future should it be able to find further witnesses. I am
of the
view that the defendants are neither embarrassed nor unable to
properly prepare for trial. The names of the known representatives
have been made available and the argument that the plaintiff implies
that there are other witnesses who are specifically left out
from the
list or that it has to reformulate its answer has no merit and no
place in an application to compel further particulars.
The plaintiff
has adequately complied with what is requires of it: In
Snyman
v Monument Assurance Corporation Ltd
[8]
,
Coleman J said
[9]
:
‘
It
has frequently been said that a Court dealing with an application of
this kind should not order the respondent to do what is
impossible.’
There
is no allegation that the plaintiff is not bona fide in its assertion
that it does not have further witnesses. Then what must
a court
compel them to do? There is nothing to compel them to do as it is not
clear that there are indeed further persons involved.
[22]
Counsel for the MTN defendants submitted that the plaintiff’s
refusal to answer a few ‘modest’
questions should result
in an order compelling it to answer. One such example is the
following:
‘
Do
the plaintiffs contend that the defendants caused the South African
government to take the actions described in paragraphs 56.6
and 56.7,
(that is to abstain from voting), abstain on the vote.
When and how did the
defendants do so? Why was it unlawful for them to do so and on what
grounds is the conduct described in paragraph
56.1 to 56.7 alleged to
have been corrupt?’
[
23]
I am of the view that the answers to these questions are matters for
evidence; they do not assist in
the preparation of trial, nor have I
been shown how they can so assist. There are a large number of
particulars sought which are
in this category and I am of the view
that the plaintiff is justified in its conduct by not furnishing it.
[24]
A further example is the argument that many of the allegations made
by the plaintiff are innocuous
and do not lead to the serious
conclusions of fraud and corruption. But the answer to this is that
the particulars of claim should
be read holistically and if so read,
the seemingly innocent conduct is alleged to have the wrongful result
alleged by the plaintiff.
A question such as
‘
on
what grounds is it alleged that the conduct is alleged to have been
corrupt?’
does
not, in my view, assist to prepare for trial. The court will one day
decide whether the conduct is such that it justifies the
result which
is pleaded to be the legal result of the conduct.
[25]
I am of the view that the plaintiff has set up a clear framework as
to the basis of its case
with sufficient precision for the parties to
prepare for trial.
Prescription
[26]
The plaintiff alleges that it first became aware of the facts
underlying its claim no earlier
than October 2011. Although it is an
allegation that impacts on the question of prescription, the
defendants, who pleaded prescription,
embarked on a series of
questions regarding when and where and how and who obtained knowledge
of the facts in relation to the precise
dates thereto.
[27]
The onus to prove prescription is on the party alleging prescription
to prove the facts that
would lead to the plea being successfully
upheld
[10]
. This is even if a
plaintiff foreshadows a plea of prescription the full onus remains
with the party relying on prescription
[11]
.The
defendants have the duty to collect and advance the evidence in this
regard. I am of the view that the interrogatories directed
at the
plaintiff regarding an aspect which the defendants bare the onus does
not require answers from the plaintiff.
[28]
Related to this heading are the vast number of questions directed at
the plaintiff which could
only be asked if regard is had to the
defence that has been pleaded. I am of the view that in those matters
where the defendants
bear the onus of the matters raised by them, the
questions directed at the plaintiff to obtain ‘more clarity’
are not
matters which the plaintiff is obliged to answer – the
defendants know their case and must prepare for trial and cannot
complain
that the plaintiff does not assist them with their pleaded
cases in an application to compel the furnishing of further
particulars.
Denials
[29]
The complaint that the plaintiff’s denials cause some
embarrassment has its origin in the
plaintiff’s replication.
The plaintiff commenced its replication by stating that which is
usually found in a replication
namely that the plaintiff joins issue
with the allegations set out in the plea. The plaintiff then stated
that without derogating
from the generality of the aforegoing, the
plaintiff replicates as set out where after a number of specific
allegations are made.
[30]
The main complaint that took some time before me is that the joining
of issue is too broad and
it contradicts some of the undisputed
allegations made by the defendants. But again, these are allegations
made by the defendants
and issues which the defendants have the onus
of proving. The series of questions are not to obtain clarity or to
prepare for trial
but rather, as submitted by counsel for the
defendants, the answers as furnished raises a ‘lack of clarity’
as the
general denial is against the authority of
Sterling
.
[12]
But the questions, like the questions regarding prescription, are
largely in relation to issues pleaded by the defendants themselves
and I am not satisfied that the defendants require further answers to
that which the plaintiff has furnished. If the plaintiff
elected not
to replicate, the defendants would have been in the exact same
position where it is presumed that all the allegations
in the plea
are denied
[13]
and generally
speaking, an opposing party is not entitled to particulars in
relation to a mere denial
[14]
.
In
Hardy
v Hardy
[15]
it was said:
‘
From
a perusal of the numerous authorities quoted from the Bar by both
counsel for the plaintiff and counsel for the defendant,
it appears
that in each case where particulars were sought and granted, they
were particulars of allegations made in the pleadings
by the party
from whom such particulars were sought. No case is quoted to me in
which a party, who has pleaded a bare denial of
the allegations made
by his opponent, was ordered to give particulars of any matter placed
in issue by such a denial. That this
is so, is not surprising, as
this would be tantamount to ordering a party to furnish particulars
of allegations made by his opponent,
and it cannot be the function of
particulars to enable a party to prove allegations which he himself
has made.’
[31]
Some of the arguments before me may have been appropriate in
exception proceedings but I do not
believe that a court should saddle
a party with a duty to furnish particularity in the circumstances
prevailing in this matter.
The defendants know the case they have to
meet and know what case they are putting up and can prepare for
trial. If there is any
contradictions as result of any particular
denial, the defendant will, no doubt, capitalise on it during
cross-examination of the
plaintiff’s witnesses.
Costs
[33]
The defendants were not successful in this application, but also
launched it due to inadequate
answers which were eventually furnished
by 14 December 2020. In so far as the application to compel further
particulars were proceeded
with beyond these dates when the plaintiff
remedied the shortcomings, the defendants should bear the costs of
the application.
[34]
Although all parties were represented by several counsel, I am of the
view that this matter justifies
the employment of two counsel but not
more than two.
Order
1.
The applications to compel the plaintiff to
furnish further particulars are dismissed.
2.
The plaintiff is to pay the costs of the
defendants up to and including 14 December 2020. Such costs are to
include the employment
of two counsel by each defendant.
3.
The defendants are to pay the plaintiff’s
costs incurred after 14 December 2020 jointly and severally, the one
paying the
other to be absolved. Such costs are to include the
employment of two counsel.
W.L.
Wepener
Judge
of the High Court of South Africa
APPEARANCES
Counsel
for the Plaintiff: A Franklin SC with J.P.V. McNally SC with J.J.
Meiring and T. Moretlwe
Attorney
for the Plaintiff: Vasco de Oliviera Inc. Ref: V. De Oliviera
Counsel
for the First to Fourth Defendants: W. Trengrove SC with S. Symon SC
Attorney
for the First to Fourth Defendants: Webber Wentzel Ref: Mr. N. Alp
Counsel
for the Fifth Defendant: MD Kuper SC with J. Cane SC and L. Sisilana
Attorney
for the Fifth Defendant: Werksmans Attorneys Ref: D. Williams
[1]
1965
(1) SA 365
(W) at 369.
[2]
Carte
v Carte
1982
(2) SA 381D
at 319C-E.
[3]
Annandale
v Bates
1956
(3) 549 (W) at 550.
[4]
2000
(4) SA 147 (E).
[5]
In
this regard see the previous judgment in this matter in the
interlocutory application between the parties in
Turkcell
Iletisim Hizetleri AS and Another v MTN Group Limited and Others
(2013/44462) [2020] ZAGPJHC 244 (6 October 2020) paras 37-44.
[6]
Kragga
Kamma Estates CC and Another v Flanagan
[1994] ZASCA 137
;
1995
(2) SA 367
(A) at 374H-I.
[7]
Home
Talk Developments (Pty) Ltd and Others v Ekurhuleni Metropolitan
Municipality
2017 (1) SA 391
(SCA) paras 29-31.
[8]
Snyman
v Monument Assurance Corporation Ltd
1966
(4) SA 376 (W).
[9]
At
377H.
[10]
Mtokonya
v Minister of Police
2018
(5) SA 22
(CC) para 142.
[11]
Macleod
v Kweyiya
2013 (6) SA 1
(SCA) para 10.
[12]
Sterling
Consumer Products (Pty) Ltd v Cohen and Other Related Matters
[2000]
4 All SA 221 (W).
[13]
Rule
25 (2) of the Uniform Rules.
[14]
Swart
v De Beer
1989
(3) SA 622
(E) at 625.
[15]
1961
(1) SA 643
(W) at 646D-F.