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[2010] ZAGPPHC 140
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DFS Flemingo SA (Pty) Limited v Airports Company South Africa (Pty) Ltd and Others (70057/09) [2010] ZAGPPHC 140 (5 October 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NUMBER: 70057/09
DATE:
5 October 2010
DFS
FLEMINGO SA (PTY)
LIMITED
.....................................................
APPLICANT
v
AIRPORTS
COMPANY SOUTH AFRICA (PTY) LTD
........................
1
st
RESPONDENT
BIG
FIVE DUTY FREE (PTY)
LIMITED
...............................................
2
nd
RESPONDENT
THE
TENDER BOARD OF
ACSA
........................................................
3
rd
RESPONDENT
Judgment:
MabuseJ
JUDGMENT
MABUSE
J
:
1.
This is an application by the Applicant to compel the First and Third
Respondents to produce for its inspection certain documents
referred
to in a record filed and to permit the applicant to make copies of
such documents and certain ancillary relief. This application
is
brought under the provisions of Rule 35(12) of the Uniform Rules of
Court.
2.
The
main application by the Applicant is for a review in terms of rule 53
and the reviewing and setting aside of the decision of
the Third
Respondent to award a tender for the operation Core Duty and Vat Free
stores in the international departure and arrival
terminals of O.R.
Tambo, Cape Town and King Shaka International Airports.
3.
Initially
the First and Third Respondents had filed their notice of opposition
to the application but have since withdrawn such
opposition and
indicated that they would abide the decision of this court.
Consequently, although no relief is sought against it,
it is only the
Second Respondent that opposes this application. Pending the Review
application the Applicant has successfully applied
for an interim
interdict which prevents the First and Second Respondents from
concluding any lease agreement in respect of the
said stores at the
abovementioned International Airports.
4.
The
Applicant participated in a tender process for the award of a 10 year
lease to the successful tenderer in respect of the Core
Duty and Vat
Free stores in the international departure and arrival terminals of
the O.R. Tambo, Cape Town and King Shaka International
Airports. The
second respondent was, at the time of the process for the award of
the tender, the incumbent and was, at the conclusion
of the said
tender process, the successful tenderer for the award of the 10 (ten)
year lease which would have commenced from March
2010.
5.
The
Applicant, a private company with limited liability duly registered
in terms of the company laws of the Republic of South Africa
and
having its place of business at 281 Jan Smuts Dunkeld West Centre,
Hydepark in Johannesburg, has now launched a review application
against the Respondents in which he challenges the First and Third
Respondent's decision to award the said tender to the Second
Respondent. The Applicant intends supplementing its founding
affidavit as it is entitled to in terms of the provisions of Rule
53(4) and this can only be achieved if the Applicant is in possession
of the full record of the process in which the Second Respondent
became the successful tenderer. Accordingly, the purpose of the
current application is to compel the First and Third Respondents
to
deliver to the Applicant outstanding documents of the complete record
which will put it in a better position to augment its
founding
affidavit and to develop its grounds of review.
6.
The
history of this matter commenced with the applicant serving a notice
in terms of Rule 35(12) on the Respondents on 18 December
2009. In
the said notice the
Respondent
required the
First
and
Third Respondents to produce for inspection, and
to permit it to make copies, of certain documents which have been
fully set out in the said notice. In view of the fact that the
said
notice forms part of the papers I do not deem it necessary to repeat
all the documents that have been listed by the Applicant
in the said
notice. According to the Applicant the said documents listed in the
said notice form part of a record forming the subject
matter of the
review application. These documents are required by the Applicant for
the purposes of the review application and
are also referred to as
part of the record filed on December 2008 but which have not been
supplied. At the pain of repetition it
is important to know that
these documents are referred to as part of the record of the tender
proceedings in which the Second Respondent
became a successful
tenderer. It is also important to know that certain documents which
were referred to in paragraph 1.1 to 1.3
of the said notice was
supplied to the Applicant on 15 January 2010.
7.
On
18 January 2010 the attorneys acting for the Applicant sent a letter
to the attorneys acting for the First and Third Respondents
in which
they acknowledged receipt of the documents that had been served on
them on 15 January 2010 and in which furthermore they
informed the
said attorneys that the record that had been forwarded to them was
incomplete. They undertook in the same letter to
contact the office
of the First and Third Respondents in order to make arrangements for
the inspection of the bid proposal. It
is clear from the application
by the Applicant that the First Respondent had not filed any complete
record and as a result the
Applicant contended that the First
Respondent did not only refuse the Applicant its right in terms of
Section 5(1)
of the
Promotion of Administrative Justice Act No. 3 of
2000
but had also placed the court at disadvantage by reason of the
fact that the court did not have a complete record before it and
in
that situation the court will not be in a position to determine
exactly how the administrative action, the award to the tender
to the
Second Respondent was done.
8.
Following
the
Rule 35(12)
notice the Applicant's attorneys sent further
correspondence on 8 January 2010 to the First Respondent's attorneys.
In the said
correspondence the Applicant's attorneys stated as
follows:
"In
terms of paragraph 1 of
(Rule 35(12)
notice), we requested the
complete bid proposal of the Second Respondent, and indicated certain
documents that were omitted from
same (without derogating from the
generality of our request). Over and above the documents listed in
paragraphs 1.1 to 1.10 of
the said notice, we point out that from
V
(10)
-
Method of operation / Management is incomplete, in that the document
pertaining to customer service philosophy, goals with regard to
customer service staff, training programme and uniforms, is not
provided, as well as the inventory and cash control systems are not
provided.
We
request you to furnish us with the omitted documents as referred to
in our
Rule 35(12)
notice dated 18 December 2009, within 10 (ten)
court days from date of receipt hereof failing which we shall proceed
with an application
to compel"
9.
On
14 January 2010 the First Respondent's attorneys addressed a letter
to the Applicant's attorneys in which they acknowledged that
they had
received a letter from the Applicant's attorneys of 13 January 2010
and confirmed that they would forthwith attend to
the request
contained in the said letter. In addition they requested an
indulgence until Wednesday 20 January 2010 to supplement
the record.
On 15 January 2010 the First Respondent's attorneys furnished the
documents requested as per paragraphs 1.1, 1.2 and
1.3 of the notice
and invited the Applicant to attend to their offices to inspect the
complete bid proposals of the Second Respondent.
It is only apposite
to mention that the Second Respondent's complete bid proposals
constitute part of the review application.
10.
In
a letter dated 18 January 2010 the Applicant's attorneys informed the
First Respondent's attorneys that the record that they
had received
was still incomplete. Marius van Staden ("Van Staden"), who
deposed to the Applicant's founding affidavit,
attended upon the
office of the First Respondent's attorneys on 18 January 2010 where
he pointed out to the First Respondent's
attorneys that, in further
responding to
Rule 35(12)
notice of the Applicant. The First
Respondent only had regard to the first page of the said notice. He
furthermore indicated to
the said attorneys that some of the portions
of the Second Respondent's bid proposals were not made available,
whereupon the First
Respondent's attorneys undertook to supplement
the record, take into account the second and third pages of the
notice in terms
of
Rule 35(12)
and also the letter dated 18 January
2010.
11.
On
18 January 2010, that is the very same date on which Van Staden had
visited the offices of the First Respondent's attorneys,
the
Applicant's attorneys wrote a letter confirming the aforementioned
visit and also the undertaking made by the First Respondent's
attorneys. On 21 January 2010 the Applicant's attorneys wrote a
letter to the First Respondent's attorneys in which they complained
that the First
Respondent's
attorneys still had not yet complied with their Rule
35(12)
notice
dated
18 January 2010 in as much as despite their undertaking as contained
in their correspondence of 14 January 2010 that they would
do so by
20 January 2010, they had not yet complied with such an undertaking.
Once more they threatened that they would approach
the court for an
order compelling the First Respondent to comply.
12.
The
First Respondent's attorneys had on 20 January 2010 written a letter
to the Applicant's attorneys in which, having referred
to the
documents requested by the Applicant in terms of
Rule 35(12)
, they
indicated that they had requested some of the documents that the
Applicant had requested in their correspondence and notice
from their
client and would accordingly require more time in order to supplement
the record. Once more they requested an indulgence
in order to
collate all the relevant documents properly. In the same letter they
indicated that they anticipated that they would
be in a position to
transmit the outstanding documents and accordingly supplement the
record before midweek of the following week.
The Applicant's
attorneys responded in a letter dated 25 January 2010 and indicated
to the First Respondent's attorneys that they
would grant them an
extension until 27 January 2010 to comply with the
Rule 35(12)
notice. They furthermore indicated their aversion to granting any
further extensions beyond 27 January 2010.
13.
On
29 January 2010 the First Respondent's attorneys wrote a letter to
the Applicant's attorneys and informed them that they wished
to point
out that they believed that the Applicant's notice in terms of
Rule
35(12)
was not the correct rule to employ in the circumstances. In
the same letter they informed the Applicant's attorneys that they had
sought the consent of the Second Respondent for the disclosure of the
documents the Applicant had sought in
part 1
of the aforementioned
notice and undertook, in the same letter, to advise the Applicant's
attorneys about the attitude of the Second
Respondent to the
disclosure of such documents. They had anticipated that they would
revert to by not later than 8 February 2010.
14.
On
9 February 2010 the Applicant's attorneys Van Staden spoke
telephonically with one Ms Lekwane of the First Respondent's
attorneys'
office and during the said conversation indicated to her
that the First Respondent still had not made available to the
Applicant,
and had omitted, portions of the record and still had not
complied with the demands of
Rule 35(12)
notice. During the said
conversation she undertook to revert to the said Van Staden. It would
appear that up to the stage this
application to compel was made she
had not done so. The Applicant is of the view that, firstly, it is
prejudiced
by
the
fact that
it
does
not have the complete record
of
the
proceedings and
furthermore that this court will not be placed in a better position
to decide on the matter. It is also of the view that the conduct
of
the First Respondent is not in the interest of justice.
15.
On
19 April 2010 the Applicant then launched an application to compel
and in that application sought the following order:
1.
An order ordering the First and Third Respondents to comply with
the Applicant's
Rule 35(12)
notice dated 18 January 2009, save in so
far as paragraphs 1.1, 1.2 and 1.3 thereof are concerned, within 10
days of the service
of the order and ordering the First and Third
Respondents to pay the costs of the application.
16.
On
22 March 2010 the First and Second Respondents filed their notice of
opposition to the Applicant's application to compel and
on 8 March
2010 the Second Respondents also filed its notice of intention to
oppose the Applicant's interlocutory application to
compel.
17.
In
opposition to the application the Second Respondent has, through one
of the directors one Christos Haralampos Harilaou, an affidavit
which
clearly sets out the grounds on which the Second Applicant opposes
the application to compel by the Applicant. In the said
affidavit he
states that the application by the Applicant is fatally defective in
that the provisions of
Rule 35(12)
do not provide for the bringing of
this application nor does the general compelling provision of
Rule
35(12)
permit the bringing of such an application. He contends in his
affidavit that the proper procedure in the event where a party who
has been called to discover documents in terms of
Rule 35(12)
fails
to hearken such a notice is by preventing such a party from using the
said documents at the hearing of the matter. According
to the Second
Respondent the bringing of an application to compel the production of
documents sought in terms of
Rule 35(12)
can only be competently
brought under and in terms of the provisions of
Rule 30A
in terms of
the Rules of the court. The said Rule 30A of the Uniform Rules of
Court states as follows:
"(1)
Where a party fails to comply with these rules or with a request
made or notice
given
pursuant thereto, any other parties may notify the defaulting party
that he or she intends, after the lapse of 10 days, to
apply for an
order that such rule, notice or
request
be complied
with
or that
the
claim
or
defence
be struck out.
(2)
Failing complies within 10 days application may or notice be made
to the court and the court may make such order thereon
as to it deems
meet."
18.
The
second ground on which the Second Respondent objects to the
Applicant's application to compel is that Rule 35(12) notice upon
which the application is founded is itself incompetent and thus
renders the application itself incomplete. The Second Respondent
contends that Rule 35(12) notice affords a remedy requiring
production of documents referred to in pleadings or affidavits of the
party upon whom such notice is given. It is only apposite at this
stage to refer to the provisions of Rule 35(12). It states as
follows:
"Any
party to any proceeding may at any time before the hearing thereof
deliver a notice as near as may be in accordance with
Form 15 in the
First Schedule to any other party in whose pleadings or affidavits
reference is made to any document or tape recording
to produce such
documents or tape recording for his inspection and to permit him to
make a copy or transcription thereof. Any party
failing to comply
with such notice shall not, save with leave of the court, use such
document or tape recording in such proceeding
provided that any other
party may use such document or tape recording."
19.
The
Second Respondent applies that on these bases alone, the application
to compel should be dismissed with cost by reason of the
fact that
the documents called for are not referred to in any pleading or
affidavit of any of the Respondents.
20.
In
so far as the merits of the application are concerned, the Second
Respondent opposes the application in respect of only three
items of
the notice which have been set out in paragraph 1.4, 1.5 and 1.6 of
the said notice. According to the Second Respondent
the
aforementioned contested documents are: (a) the proposed minimum and
well guaranteed rental and percentage; (b) the Second
Respondent's
financial statements and sureties; and (c) the Second Respondent's
projected annual income and cash flow. The Second
Respondent opposes
the discovery of the aforementioned documents on the basis that; (a)
none of this documents is in any way relevant
to any of the grounds
of complaint raised by the Applicant in the review application; (b)
these documents are confidential to the
Second Respondent and there
is a very real apprehension of misappropriation of information
contained therein if the documentation
were to come into the hands of
the Applicant whose shareholders are on a worldwide scale competitors
GEBR Heinemann Beteilingungs
and GmBH
("Heinemann"),
who is the shareholder, business associate and supply of the Second
Respondent.
In addition paragraph 23.3 of Section 2 (II) of the bid documents
obliges the First Respondent to maintain the confidentiality
of
information designated as confidential by the Second Respondent. The
information sought by the Applicant at paragraphs 1.4,
1.5 and 1.6 of
its alleged Rule 35(12) notice is therefore confidential information
of the Second Respondent and in addition is
designated by the Second
Respondent as such; and (c) the provisions of the documents
particularly those in paragraph 1.4 and 1.6
would be unfair to the
Second Respondent and would give the Applicant an unfair advantage in
any future tender and in the event
that the review application were
to succeed and there were to be a retender.
21.
According
to the Second Respondent the Applicant's review application is
founded on five grounds and these are, firstly, the failure
of the
First Respondent to disclose the Second Respondent's historic
turnover figures; secondly, the failure of the Respondent
to indicate
with particularity how the components of each of the five main
criteria will be waited in competing the score for each
of the five
main criteria; thirdly, the failure of the First Respondent to accord
to the Applicant a notional value of the Second
Respondent's existing
staff of BBBEE proposes; fourthly, the failure of the Second
Respondent to give the relative weights of the
sub-criteria for the
business plan that the tenderers have to submit and that the
sub-criteria were themselves confusing and meaningless
and, fifthly,
the First Respondent's failure to accord the Applicant a score
commensurate with the standing and experience of its
primary
shareholders.
22.
The
Second Respondent contends that none of the grounds referred to above
is in any way relevant to what the Second Respondent proposed
as its
minimum and annual guaranteed rental and percentage rent to be paid.
It contends furthermore that none of these complaints
is in any way
relevant to the financial statements and sureties of the Applicant;
and that none of these criteria is in any way
relevant to or has any
connection with the Applicant's projected annual income and cash
flow. According to the Second Respondent
what those documents show is
however financial information confidential to it which view is also
shared by the Applicant. The Applicant,
according to the Second
Respondent, is on record to the First Respondent to the effect that
it does not request of the First Respondent
any financial or
confidential information of any******.
23.
The
Second Respondent contends that the proposed minimum and well
guaranteed
rental
and percentage would disclose the operating margins of the Second
Respondent
and
in that manner would enable the Applicant to unfairly obtain a fairly
accurate estimate of the Second Respondent's cost price
and discount
structures negotiated with international suppliers and as negotiated
by Heinemann on the Second Respondent's behalf
with international
suppliers of goods which are commonly and almost universally sold in
duty-free shops and around the world including
those owned and/or
operated by the Applicant's International Shareholders whom:
"Separately,
... have developed strong retail management expertise in major
International Airports around the world. DFS operate
58 airport
concessions across Asia Pacific, North America and the Middle East
including San Francisco, Los Angeles, New York, Abu
Dhabi, Mumbai,
Singapore, Hong Kong, Auckland, Sidney, etc. Flemingo operates a
portfolio of 16 airport concessions across India
and Africa including
Chennai, Ahmedabad, Trichy, Kolcata, Calicut, Goa, Bangalore,
Mangalore, Trivandrum, Jaipur, Amritsav, Burundi,
Malawi, Rwanda and
Uganda, etc."
24.
The
origin of the above quote is the Applicant's bid document which for
purposes of convenience was attached to the Respondent's
affidavits
as annexures. The information would also disclose to the Applicant,
and in turn its shareholders, the superior bid price
which the Second
Respondent furnished with the First Respondent in order to win the
tender.
25.
The
Second Respondent's objection to furnish the said information is that
the Applicant would be vested with knowledge of the minimum
price it
would have to bid in order to make a superior competing bid. This can
only happen off course if there should be a re-tender
process. For
the Second Respondent with any subsequent tender the Second
Respondent would obviously not be in a position to repeat
its bid
price but would have to bid higher rental, not merely higher than the
rental at which it has successfully won the bid but
a rental higher
proposed by the Applicant. Similarly the documents that are sought in
item 1.6 of the Applicant's projected annual
income and cash flow
expose the confidential information of operating margins and the
Second Respondent's bid price and would in
the process give the
Applicant an unfair advantage in any future tender process. The
Second Respondent holds a view that its financial
statements and
sureties are not only irrelevant to the Applicant's grounds of
complaint but are also confidential to it by reason
of the fact that
it is a private company. These ******* statements similarly would
show margins and profitability which would give
the Applicant an
unfair advantage over the Second
Respondent
in
any
competing
future
bid.
It
is for these reasons among others
that
the Second Respondent objects and does not consent to the documents
referred to in items 1.4, 1.5 and 1.6 being disclosed to
the
Applicant. With regard to the founding affidavit of Van Staden the
Second Respondent denies that items 1.4, 1.5 and 1.6 of
the
Applicant's notice in terms of Rule 35(12) should form part of the
record performing the subject matter of this review application
and
furthermore that the Applicant requires the said documents for the
purposes of the review application.
26.
This
court is called upon to decide the three objections which were raised
by the Second Respondent. These three objections are,
firstly, the
point in
limine
raised
by the Second Respondent in which it contends that the Applicant's
application is fatally defective in that the provisions
of Rule
35(12) do not provide for the launch of an application of this nature
nor do the provisions of Rule 35(7) permit such an
application;
secondly, the court is called upon to determine whether or not the
documents that the Applicant has called for in
the aforementioned
notice are relevant to the grounds of review as formulated in the
pending review application; and thirdly, whether
or not such
documents are confidential and whether despite the fact that they are
confidential they should still be produced.
27.
With
regard to the point in
limine,
it
would appear that the Second Respondent's counsel was correct in his
argument that the Applicant should have invoked the provisions
of
Rule 35(11) and not 35(12). In his argument in an attempt to show
that the Applicant has, in terms of Rule of court 53(4), a
clear
right within seven days thereafter by notice together with
affidavits, to amend or add to his notice of motion and to supplement
his supporting affidavit, counsel for the Applicant referred the
court to the authority of
Pieters
v Administrateur Suidwes - Afrika en *n Andere, 1972(2) SA 220 SWA at
p. 228 A-E.
This
is the same authority in which the court held that Rule of court
35(11) was in a suitable case also applicable to the applications
and
without any direction. The said authority dealt with an almost
similar situation as the current one. After finding that a record
of
the proceedings concerned was incomplete, the court held that Rule
35(11) would have been applicable to the application to enforce
production of the outstanding parts of the record. It must be noted
that while Rule 35(12) deals with the production of documents
and
tape recordings, Rule 35(11) on the other hand deals with discovery
of documents and tape recordings.
28.
Accordingly,
the Applicant should have approached this matter by way of Rule
35(11) and not
Rule
35(12).
The remarks by
the
court
in
the
Pieters
v Administrateur
Suidwes
- Afrika en 'n Andere
supra
case were followed in
Seale
v Van Rooyen N.O. and Others 2008(4) SA 43 at p. 48 paragraph 11.
In
dealing with a similar situation as in the Pieters case above, the
court stated as follows:
"Counsel
for Seale cavilled at the fact that resolutions of the annual general
meeting at which trustees were elected, were
not annexed; but had
Seale entertained any doubt on this point, he could have obtained
those minutes by invoking Rule 35(11) which
applies to motion
proceedings
(Pieters
v Administrateur en Andere)."
29.
Another
reason why counsel for the Second Respondent holds the view that it
was inappropriate for the Applicant to invoke the provisions
of Rule
35(12), is that Rule 35(12) provides specifically that reference to
the document or tape recording that one party seeks
the other to
produce, not to discover, should have been made in the pleadings or
affidavit. What the Rule does is to create a
prima
facie
obligation
on a party who refers to a document in a pleading or an affidavit to
produce such a document one called upon to do so
in terms of the
sub-rule.
"In
my opinion the ordinary grammatical meaning of the words is clear:
once you make reference to the document, you must produce
it. Even
more
is
it
so in this case where the implication of paragraphs 19.4 and 19.6 is
that, if the NTC had called for and looked at the financial
statements of operations it might well have come to a different
conclusion."
See
Magnum
Aviation Operations v Chairman, NTC 1984(2) 398 WLD at p. 400 C.
See
also
Erasmus
v Slomovitz 2
1938 TPD 242
at p. 244.
30.
It
is clear that the Applicant requires the First and Third Respondents
to produce a record. A record is neither a pleading nor
an affidavit.
The documents that the Applicant seeks have not been mentioned in an
affidavit or a pleading.
31.
Finally,
on this point, counsel for the Second Respondent argued that, even if
the Applicant had followed Rule 35(12) and the Respondents
had failed
to comply with such a request, the proper procedure in the event of
failure to comply with the said notice would have
been to invoke the
provisions of Rule 30A.
I
already
have referred somewhere hereinabove to the provisions of Rule 30A.
According to him Rule 35(12) does not provide for the
launch of an
Application to compel. On the other hand counsel for the Applicant
was adamant, in reply, that the provisions of Rule
35(12) could, in
the circumstances of this case, be invoked and that the Applicant was
correct
to use the said rule. He relied on the authority of the Pieters case
supra. The
provisions of Rule 30A apply to a failure by a party to comply with a
notice under sub-rule 35(12) despite the fact that the said
sub-rule
itself provides a sanction for non-compliance.
"On
behalf of the Respondents, it was accepted that the wording of Rule
30(5) as it stands, is wide enough to cover a failure
to comply with
a notice under Rule 35(12). The argument put forward on behalf of the
Respondents in this regard was that Rule 30(5)
could not be applied
to a failure to comply with the notice under Rule 35(12), because of
the fact that the latter Rule in itself
provides a sanction for
non-compliance with a notice given in terms of that Rule. It was
submitted that, because sub-rule 35(12)
provides for a sanction,
there
is
no
room for the application of a further sanction such as is envisaged
in Rule 30(5).
32.
In support of this argument, counsel for the Respondents relied
upon
Norman
& Co. (Pty) Ltd. v Hansella Construction Company (Pty) Ltd.
1968(1} SA 503 (T)
contending
that
"the
framers of the Rules could not have intended Rule 30(5) prior to
non-compliance with the provisions of Rule 35(12), in
view of the
special sanction provide for in the latter Rule. In my view, the
argument is not correct. The sanction provided for
in Rule 35(12) is
in my view, quite different in nature and in fact from the kind of
sanction envisaged in Rule 30(5). The sanction
of Rule 35(12)
is
of a negative nature, deem to the fact that the party failing to
comply with the notice are not, say with the leave of the court,
and
view the documents in question, provided that any other party may use
such documents. It is a sanction that comes into operation
automatically upon non-compliance with the provisions of the Rule.
Rule 30(5) on the other hand, operates in an entirely different
manner. Under that Rule, a party making a request, or giving notice,
as the case may be, to which there is no response by the other
party,
may give a further notice to the other party that after the lapse of
seven days application will be made for an order that
the notice or
request be complied with or that the claim or defence be struck out,
as the case may be. Failing compliance within
the seven days
mentioned, application may then be made to court and the court may
make an appropriate order. That is a positive
form of relief provided
for and, as I have said, in my view it is quite different from the
sanction contained in Rule 35(12)."
See
Moulded
Components v Coucourakis and Another 1979(2) SA 457 at p. 459 D- 460
A.
See
also
Universal
City Studios v Movie Time 1983(4) SA 736 (D) at 746 A
where
the court ***** Booysen J stated as follows:
"I
am afraid that the logic which gave rights to the conclusion that
this course should be adopted escapes me.. It seems to
me quite clear
that the most obvious course for a respondent, desiring to contest an
application on its merits, to adopt in circumstances
where he has
given a notice in terms of Rule 35(12) which has not been complied
with, is to give notice, in terms of Rule 30(5),
that intends, after
the lapse of seven days, applying for an order that Rule 35(12)
notice be complied with.
(Moulded
Components and Rotomoulding South Africa (Pty) Ltd. v Coucourakis and
Another 1979(2) SA 457 (W) at 460 H).
It
is important to know that Rule 30{5) is now Rule 30A.
33.
For
the reasons which were clearly set out in the argument by counsel for
the Second Defendant and with which I agree, I do not
agree with the
view expressed by counsel for the Applicant. There, is in the
circumstances, sufficient authority on which one can
rely to come to
a conclusion that the Applicant has completely followed a wrong
approach in this matter. In the circumstances there
is no reason why
the point in
limine
raised
by the Second Defendant should not be upheld.
34.
In
view of the fact that the Applicant's application to compel the First
and the Third Respondents to comply with its Rule 35(12)
notice stood
to be dismissed and was in fact dismissed on the point in
limine,
I
do not deem it necessary to consider the merits of the Application.
35.
Accordingly,
1.
The
point in
limine
raised
by the Second Respondent against the application is upheld.
2.
The
Applicant's application to compel the First and Third Respondents to
comply with the Applicant's Rule 35(12) notice is dismissed
with
costs.
P
M MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Applicant's
Attorneys:
Applicant's
Counsel:
}st
&
3rd
Respondent's
Attorneys.
2
nd
Respondent's Attorneys:
2
nd
Respondent's Counsel: Date Heard: Date of Judgment: