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[2021] ZAGPJHC 363
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Howard v Bliumenthal (44102/2019) [2021] ZAGPJHC 363 (3 June 2021)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 44102/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: /NO
REVISED.
DATE: 2/6/2021
In the matter between:
GEORGE
HOWARD
APPLICANT
And
CLIVE CHAIM
BLIUMENTHAL
RESPONDENT
JUDGMENT
MAKUME
J
:
[1]
The Respondent issued summons against the Applicant on the 12
th
December 2019 arising out of a business arrangement that had come to
an end. In the particulars of claim the Respondent seeks amongst
others an order directing the Applicant to render an account of all
the partnership transactions for the period 1
st
July 2015
to 30 November 2016.
[2]
A plea including a special plea of prescription was filed followed by
a replication
to the special plea.
[3]
On the 5
th
May 2020 the Applicant served and filed notices
in terms of Rule 35(1)(6)(8) and (10) calling upon the Respondent to
within 20
days make discovery. These notices were followed by a
notice in terms of Rule 35(3) & (6) on the 23
rd
June
2020.
[4]
On the 3
rd
September 2020 an order was granted by
Matsemela AJ in terms of which the Respondent was ordered to:
a)
Deliver to the Applicant a full and complete response to the
Applicant’s notice in terms
of Rule 35(3) within 10 days of the
order.
[5]
On the 2
nd
September 2020 before Siwendu J the Applicant
obtained an order compelling the Respondent to within 10 days deliver
a full and
complete response to the Applicant’s notice in terms
of Rule 35(6) dated the 5
th
May 2020. The response was to
be delivered within 10 days from date of the order being granted.
[6]
On the 17
th
September 2020 some three days prior to the
launching of the Rule 35 (7) application the Respondent’s
attorneys Messrs Larry
Marks addressed an email to the Applicant’s
attorneys in the following words:
“
As advised
previously, our client had to travel overseas for a funeral and due
to the covid travel restrictions has had to remain
overseas for some
period of time. Our client departed from South Africa on the 23
rd
August 2020 and is booked to return to South Africa on the 20
th
September 2020.
We request that you allow us until the
25
th
September 2020 to consult with our client and to
finalise the reply to the Rule 35 notice under the above
circumstances. In addition
we tender inspection of our clients
discovered documents. Kindly advise us of three alternative dates and
times that are convenient
to yourselves.”
[7]
On the 18
th
September 2020 the Applicant’s attorneys
Messrs Schindler responded to the above letter as follows:
“
It is quite
clear that your client has no regard for his obligations under the
court orders and has simply chosen to ignore them.
Our client is not in a position to
indulge your client and will proceed to avail himself of rights in
this regard. Our client’s
rights are and remain strictly
reserved.”
[8]
On the same day Larry Marks the Respondent’s Attorneys having
noted the Applicant’s
attorneys’ response addressed
another email to them and said the following:
“
We refer you
to our previous correspondence where we invited you to provide us
with three dates and times that were convenient to
you to inspect our
client’s discovered documents, it seems you do not wish to
avail yourselves of that courtesy. We accordingly
advise you that the
discovered documents may be inspected at 15h00 on the 21
st
September 2020 in terms of Rule 35(6). Please find formal notice of
the time and place to inspect annexed hereto together with
the notice
of change of address.”
[9]
On the 21
st
September 2020 the Applicant launched the
present application in terms of Rule 35(7) of the Uniform Rules
seeking an order to strike
out the Respondent’s particulars of
claim on the basis that the Respondent failed to comply with the
orders granted on the
2
nd
and 3
rd
September
2020 within the time prescribed in the two orders.
[10] On
the 25
th
November 2020 the Respondent filed his answering
affidavit opposing the striking application in terms of Rule 35 (7).
In his affidavit
Mr Clive Blumenthal the Respondent said that the
application in respect of the order granted by Matsemela AJ was
issued prematurely
as the order was only served on the 10
th
September 2020 and the dies expired only on the 25
th
September 2020. Secondly that he complied with that order on the 25
th
September 2020.
[11] In
respect of the order granted by Siwendu J on the 2
nd
September 2020 he said that, that order was served on him on the 8
th
September 2020 which means that he was only obliged to comply on the
22
nd
September 2020, accordingly that the striking off
application was issued prematurely on the 21
st
September
2020.
[12] In
conclusion the Respondent told the court that he complied with the
Siwendu J’s order
on the 25
th
September 2020.
[13] In
his replying affidavit the Applicant says that the two orders should
read that the Respondent
had to comply with the two orders within 10
days from the granting of the order and not 10 days from date of
service of the order.
THE
ISSUE
[14]
What is in issue in this application is firstly the proper
interpretation of the two orders in
particular whether the orders had
to be complied with 10 days from date of granting of such order or 10
days from date of service
of such order.
[15]
Secondly what the purpose of Rule 35(7) is having regard to the
circumstances, especially taking
into consideration the
correspondence exchanged between the attorneys on the 17
th
and 18
th
September 2020.
[16]
Rule 35(7) reads as follows:
“
If any party
fails to give discovery as aforesaid or having been served with a
notice under sub-rule (6) omits to give notice of
a time for
inspection as aforesaid or fails to give inspection as required by
that sub-rule, the party desiring discovery or inspection
may apply
to court, which may order compliance with this rule and failing such
compliance may dismiss the claim or strike out the
defence.”
[17]
Rule 35(7) must be interpreted purposefully and in accordance with
the guidelines established
in
Natal Joint Municipal Pension Fund
vs Endumeni Municipality
2012 (4) SA 593
SCA.
Put simply the
court has a discretion whether to order compliance or to strike. This
is made clear by the words used in the section
namely “The
court may order compliance and failing such compliance may dismiss
the claim or strike out the defence.”
[18] In
Continental Ore Construction vs Highveld Steel & Vanadium
Corporation Ltd
1971 (4) SA 589
(W) at 594 H
, the court held that
neither party has an absolute right to discovery the court has a
discretion whether or not to order compliance
with the rule.
[19] In
Burmah Oil Co Ltd v Governor and Co of the Bank of England [1980]
AC1090 at 1145
Lord Scarman said:
“
Although in
the High Court discovery of documents is automatic in most civil
litigation, this is no more than a convenient practice
ordered and
regulated by the Rules of Court: See RS 024, and the recent decision
of this
House in Science Research
Council v Nasse [1980] AC1028
.
Discovery of documents remains ultimately a matter of the discretion
of the court.”
[20] A
court may not grant an application to strike out unless it is
satisfied that the Applicant
will be prejudiced in the conduct of the
claim or defence if the application is not granted (See
Putco Ltd
v TV & Radio Guaranteee Co Pty Ltd
1984 (1) SA 443
(W)
).
Although this case dealt with strike out as regulated in Rule 23(2)
and Rule 6(15) it is in my view also relevant for striking
in terms
of Rule 35(7). The Applicant must prove prejudice. This is not the
case in the present matter.
[21]
Rule 35(7) applies only where there has been a failure to comply with
sub-rules (1) to (6) for
it refers to “failure to give
discovery as aforesaid.” The rule does not apply when there has
been compliance after
the period specified in the order, which is
what the Applicant’s case is in this matter. This brings me to
the second issue
that is when did failure to comply with such order
commence was it 10 days calculated from date of such order or was it
10 days
after service of such order on the Respondent.
[22] The
court in
Wilson v Die Afrikaanse Pers Publikasies (EDMS) BPK
1971
(3) SA 455
(T) at 462 H- 463 B
held as follows:
“
The striking
out of a defendant’s defence is an extremely drastic step which
has the consequences that the action goes forward
to a trial as an
undefended matter. In the case if the orders were granted it would
mean that a trial court would eventually hear
this action without
reference to the justification which the Defendant has pleaded and
which it might conceivably be in a position
to establish by evidence.
I am accordingly of the view that very grave step will be resorted to
only if the court considers that
a Defendant has deliberately and
contemptuously disobeyed its order to furnish particulars.”
[23] The
facts in this matter show that the order was not only complied with
but also that the Rule
35(7) striking application was launched prior
to the expiry of the 10-day period to stipulated in the second order.
On the 18
th
September 2020 before the application was
launched Respondent tendered compliance which was ignored.
[24] It
is clear that the application was conceived and predicated on a false
premise that the court
order is triggered from the date of the court
order and not service. This is clear from the contents of paragraph
30 of the founding
affidavit in which the applicant says:
“
Notwithstanding
this complaint this defence is not available to the respondent as the
orders expressed to provide for ten days from
the date of the order
and not ten days from the date of service of the order.”
[25] In
the present matter the court orders only became effective against the
Respondent from the
day they were served. The SCA in the mater of
Fakie N.O. VCC II Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at
paragraph 22
laid down the basis for a conviction of contempt of
court as follows:
a) The
civil contempt procedure is a valuable and important mechanism from
securing compliance with
the court orders, and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.
b) In
particular the Applicant must prove the requisites of contempt (the
order, service or notice,
non-compliance, and wilfulness and
mala
fides
) beyond reasonable doubt.
c)
But once the Applicant has proved the order, service or notice and
non-compliance, the Respondent
bears an evidential burden in relation
to wilfulness and
mala fides.
[26]
Ndlovu J in
Mounitzen vs Greystone Enterprises (Pty) Ltd &
Another
2012 (5) SA 74
(KZD)
stated the following in regard to
the purpose of service:
“
[28] In
general terms the purpose of service in the present context is clear,
it is firstly intended to notify the person intended
to be served of
the nature, contents and exigency of the process of court or other
documents served upon such person and secondly
to return to the court
proof of such services in the manner prescribed by the law. Indeed
the Appellate Division (Now Supreme Court
of Appeal) once observed in
S v Watson that the term “served” has the ordinary
connotation of legally delivered i.e.
delivered in accordance with
the law so as to notify the person on whom it is served of its
content.”
[27] It
is undoubtedly clear that a court order has to be served upon a
Respondent in order for it
to have effect.
[28] In
my view the court orders did not have any effect until the day they
were served on the Respondent
in this matter. Accordingly, the Rule
35(7) application was served prematurely and has no legal effect in
any case the Respondent
has proved compliance with the court order
and as Rule 35(7) dictates this court has a discretion whether to
order compliance or
to strike.
[29] On
the facts in the present matter, it was unnecessary for the Applicant
to have brought this
application and persisted with it despite the
Respondent having complied. The Applicant has failed to show any
prejudice in the
conduct of his defence. He should have withdrawn the
application on receipt of the answering affidavit. His insistence in
pursuing
the relief of striking is in my view an abuse of the rules
and should be visited with a punitive costs order as argued by the
Respondent.
[30] In
the result I make the following order:
ORDER:
1.
The
Application to Strike in terms of Rule 35(7) is dismissed.
2.
The
Applicant is ordered to pay the Respondents taxed costs on an
attorney and client costs.
DATED at
JOHANNESBURG this the 02
nd
day of JUNE 2021.
M A MAKUME
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
DATE OF HEARING
:
25 MAY
2021
DATE OF JUDGMENT
: 03 JUNE
2021
FOR APPLICANT
:
ADV K
REDDY
INSTRUCTED BY
:
MESSRS
SCHINDLERS ATTORNEYS
FOR RESPONDENT
:
ADV S
COHEN
INSTRUCTED BY
:
MESSRS
LARRY MARKS ATTORNEYS