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2011
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[2011] ZAGPPHC 16
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Laverack v Day (28266/09) [2011] ZAGPPHC 16 (11 February 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 28266/09
DATE:
11/02/2011
In
the matter between:
MARGARET
SARAH ANNETTA LAVERACK
...............................
Plaintiff
(Respondent)
and
VAUGHN
GAVIN
DAY
........................................................................
Defendant
(Applicant)
JUDGMENT
MNGQIBISA-THUSI
J
[1]
Before me are two applications in terms of Rule 30 of the Rules of
Court wherein the defendant is seeking orders in the following
terms:
1.1
setting
aside the plaintiff's notices in terms of Rule 36(10)(a) and
36(10)(b) served on the defendant on 21 August 2009 and 2 September
2009, respectively;
1.2
directing
that the plaintiff pay the costs of these applications.
[2]
The defendant is seeking an order setting aside of the two notices on
the ground that they constitute an irregular step and
are not in
compliance with the peremptory requirements of Rule 36 (10).
[3]
In the main matter, instituted during June 2009, the plaintiff is
suing the defendant for damages as a result of the injuries
she
sustained after allegedly being assaulted by the defendant.
[4]
The plaintiff issued summons against the defendant on 13 May
2009.
[5]
On 3 June 2009 the defendant filed a notice of intention to
defend.
[6]
Without filing its plea, the defendant brought two other
interlocutory applications.
[7]
On 21 August 2009 the plaintiff served the defendant with a Rule
36(10)(a) Notice dated 18 August 2009. This Notice reads
as follows:
"GELIEWE
KENNIS TE NEEM
dat
die Eiseres van voorname is om tydens die verhoor 18 [Agtien] foto's
van Eiseres se beserings as getuienis in die saak sal bied.
GELIEWE
VERDER KENNIS TE NEEM
dat
die Eiseres verlang dat die Verweerder die foto's binne 10 (tien) dae
van datum hiervan erken."
[8]
On 27 August 2009 the defendant served the plaintiff with a Rule
30(2)(a) Notice calling upon the plaintiff to remedy the irregular
step it has taken. The irregularity complained of is that:
8.1
The
notice is premature as it was delivered before the close of
pleadings;
8.2
Inspection
of the photographs is not offered in compliance with the provisions
of Rule 36(10)(a);
8.3
The
notice requires the defendant to admit the photographs within 10 days
of the date of the notice, rather that within 10 days
after receipt
thereof, as is required in terms of the sub-rule.
[9]
In response to the defendant's rule 30(2)(b) Notice, on 2
September 2009, the plaintiff served the defendant with a similar
Rule 36(10)(a) Notice as the one delivered on 21 August 2009. This
Notice, however, contained an additional paragraph even though
it was
also dated 18 August 1009. This Notice reads as follows:
"GELIEWE
KENNIS TE NEEM
dat
die Eiseres van voorneme is om tydens die verhoor 18 (Agtien) foto's
van Eiseres se beserings as getuienis in die saak sal bied.
GELIEWE
VERDER KENNIS TE NEEM
dat
die Eiseres die foto's hierby aanheg.
GELIEWE
VERDER KENNIS TE NEEM
dat
die Eiseres verlang dat die Verweerder die foto's binne 10 (tien) dae
van datum hiervan erken."
[10]
Attached to this Notice were black and white pictures apparently
depicting the injuries sustained by the plaintiff as a result
of the
alleged assault on her. It is contended on behalf of the defendant
that the photos supplied were in black and white and
fuzzy. It was
further alleged that it had come to his notice that subsequent to the
delivery of the black and white photos, the
plaintiff had filed
coloured photos with the court.
[11]
The defendant again delivered a Rule 30 (2) (b) Notice on the
plaintiff dated 22 October 2009. The irregularity complained
of is
that:
8.1
The
notice is premature as it was delivered before the close of
pleadings;
8.2
Inspection
of the photographs is not offered in compliance with the provisions
of Rule 36(10)(a);
8.3
The notice requires the defendant to admit the photographs within 10
days of the date of the notice, rather that within 10 days
after
receipt thereof, as is required in terms of the sub-rule.
[12]
Rule 36 (10)(a) of the Rules of Court provides that:
"(a)
No person shall, save with the leave of the court or the consent of
all the parties, be entitled to tender as evidence
any plan, diagram,
model or photograph unless he shall not less than fifteen days before
the hearing have delivered a notice stating
his intention to do so,
offering inspection thereof and requiring the party receiving notice
to admit the same within ten days
after receipt of the notice."
[13]
The purpose of Rule 36(10)(a) of the Rules of Court is to make all
parties aware of the existence of the objects referred to
therein so
that the issues might be narrowed down and incontrovertible points
eliminated in preparation for trial.
[14]
The rule provides for party the who has objects he wishes to be
admitted as evidence to invite the other party to peruse and/or
view
the objects so that if the other party if comfortable with the goods
being admitted give his consent even before the trial
starts. If the
other party does not accept the invitation, the judge the party
seeking to use the objects can simply reject the
invitation.
[15]
In brief arguement on behalf of the defendant was that since there
were two pending applications with regard to the matter
it was not to
the advantage of the plaintiff, necessary or relevant for the
plaintiff to deliver the notices at this stage. Furthermore
it was
argued that since the photographs attached to the second Notice were
fuzzy and not in colour, the plaintiff had not complied
with Rule
36(10)(a). Furthermore, the defendant argued that there was also
no-compliance with the calculation of the timeframes
as set out in
the Rule 36(10)(a).
[16]
Counsel for the plaintiff concede that the Notices constituted an
irregularity but only in so far as they did not strictly
follow the
wording used in the Rule and in the calculation of the period for a
response. It was however argued that since the defendant
had not
approved prejudice as a result of the step taken by the plaintiff,
the defendant's application should not be granted.
[17]
Rule 30(1) provides that:
"Any
party to any cause in which an irregular or improper step or
proceeding has been taken by any party, may within 14 days
of the
taking of such step or proceeding apply to Court to set it aside."
[18]
In order to succeed in its application the defendant has to show
that it has suffered prejudice as a result of the plaintiff's
conduct. A court is entitled, in a proper case, to overlook any
irregularity which does not work any substantial prejudice to the
other party.
Levitan
v Newhaven Holiday Enterprises
1991
(2) SA 297
(C) at 298A. In Afrisun Mpumalanga (Pty) Ltd v Kunene NO
and Others
1999 (2) SA 599
the court at 611 stated that:
"Such
an application will only be granted where the irregular step would
cause prejudice to the applicant seeking to set it
aside. The
prejudice that is referred to is prejudice which will be experienced
in the further conduct of the case if the irregular
step is not set
aside. There is no prejudice if the furtherance of the case is not
affected by the irregular step and the irregular
step can simply be
ignored."
Furthermore,
even if there is an irregularity, the court still has a discretion
whether or not to grant the order.
[19]
I am not convinced by the argument on behalf of the defendant that
the
Rule
36(10
)(a)
Notice cannot be
delivered
before
the close of pleadings.
What
has happened here is that the plaintiff has given the defendant the
opportunity to see the photos it intends using as evidence
during the
trial well in advance. I do not find any prejudice to the defendant's
conduct of its case by the step taken by the plaintiff
nor was any
prejudice to the defendant argued. Nor was it argued that this step
hindered the defendant in preparing and filing
its plea.
[20]
If the defendant was not happy with being served with the Rule
36(10)(a) Notice at this early stage they could have simply
ignored
the step or responded by refusing the admission of the photos without
further proof. [21] Regarding the shortened timeframes
given for a
response to the Rule 36(10)(a) Notice, the defendant and the quality
of the photos attached to the second Rule 36(10(a)
Notice, the
defendant could have alerted the plaintiff as to the time limit as
allowed by the Rule and sought to be supplied with
better quality
photos and requested an extension of time for a response since he
would need time to consider his response.
[22]
I am of the view that this application was unnecessary if the
defendant had just sought other less formal ways to resolve
this
dispute. It is a matter which could have been sorted out by the
attorneys of the parties.
[23]
I have dealt with the defendant's two applications in view of the
fact that the grounds for complaint are the same.
[24]
Accordingly the following order is made:
24.1
The
defendant's applications are dismissed.
24.2
Costs
are costs in the cause.
MNGQIBISA-THUSI
Judge
of the North Gauteng High Court