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[2010] ZAECPEHC 67
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Kriel v Bowels (1951/2008) [2010] ZAECPEHC 67; 2012 (2) SA 45 (ECP) (11 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
Case no: 1951/2008
Date Heard:04/11/2010
Date Delivered:11/11/10
In
the matter between:
MARTIN
PHILIP KRIEL
…...............................................
PLAINTIFF
Versus
OCKERT
JOHANNES BOWELS
…....................................
DEFENDANT
JUDGMENT
SMITH
J:
[1] This is an application for an
order compelling the defendant to provide meaningful responses to
certain enquiries contained
in the plaintiff’s Rule 37(4)
agenda. The plaintiff initially also sought an order compelling the
defendant to comply with
his Rule 35(3) notice. I have been informed
at the commencement of the hearing however that the defendant has
since replied adequately
to the aforesaid notice and that this aspect
is no longer in issue. For the sake of convenience I shall refer to
the parties as
they are in the main action.
[2] In the main action the plaintiff
claimed damages from the defendant in respect of repairs done to the
defendant’s trailer.
The claim relates to costs in respect of
component parts supplied by the plaintiff necessary to carry out the
aforesaid repairs,
as well as charges due to a third party in respect
of work done on the trailer and commissioned by the plaintiff on the
defendant’s
behalf.
[3] The plaintiff served the Rule
37(4) agenda on defendant on 23 February 2010. On 23 March 2010 the
defendant filed a reply thereto.
[4] The plaintiff did not regard the
aforesaid reply as being satisfactory and on 26 March 2010 the
plaintiff’s attorneys
addressed a letter to defendant’s
attorneys wherein it complained about the lack of meaningful replies
to certain paragraphs
of the Rule 37(4) agenda. Quite significantly
the following is stated in the aforesaid letter:
“
In
general, my client is of the view that your client’s response
to the Agenda in question is evasive, not in the spirit of
the Rule
and design to frustrate my client’s preparation for trial.
Accordingly, your client is invited to reconsider his
attitude to my
client’s agenda and given notice that if that Agenda has not
been dealt with properly by the close of business
on Tuesday, my
client will approach a judge in chambers as envisaged in Rule
37(8)(a)”
[5] Defendant thereafter filed a
further reply under the heading: “
Defendant’s
supplementary written Reply to Plaintiff’s enquiries in terms
of Rule 37(4).”
[6] It appears that the application
was thereafter set down for hearing on 1 June 2010 but was removed
from the roll by agreement
between the parties and on the
understanding that the defendant “
will provide proper
answers, in the spirit of the relevant rule”
to the
plaintiff’s Rule 37(4) agenda and comply with the Rule 35(3)
notice by 16 July.
[7] On 23 July 2010 the defendant’s
attorneys again wrote to plaintiff’s attorneys stating an
intention to amend its
pleadings and that they were awaiting
instructions to join a third party to the proceedings. They therefore
regarded it as “
meaningless”
to reply to the Rule
37(4) enquiries and stated that: “
We have been advised by
counsel that the response to the above rule should be dealt with in a
further conference.”
[8] Even on a perfunctory reading of
the Rule 37(4) enquiries, and in particular those in respect of which
the plaintiff contends
there have not been meaningful replies, they
are indeed of the kind usually contained in a request for trial in
terms of Rule 21.
They relate mainly to detail of the causes of the
trailer axle's failure and particulars of other damage to the
trailer. They are
undoubtedly of the kind usually intended to enable
a party to prepare for trial.
[9] Mr Mullins, who appeared on
behalf of the plaintiff, submitted that the defendant had for the
first time in his heads of argument
taken the point that the
questions submitted in terms of Rule 37(4) is an abuse of the process
of the court and that Rule 21 was
the appropriate rule in the
circumstances. He submitted further that in the light of the fact
that the defendant did purport to
respond to the Rule 37(4) enquiries
and when plaintiff objected to the inadequacy of the reply, the
defendant undertook to provide
further and better replies and did in
fact,
albeit
again inadequately, the defendant had committed
to the process. He submitted therefore that the defendant had
effectively agreed
to provide meaningful replies to the aforesaid
enquiries. In these circumstances, so he submitted, it was not open
for the defendant
to resist the application on the aforesaid basis.
[10] Mr Mullins submitted further
that the two rules overlap to a large extent and that they are
complimentary and not exclusive
of each other. He referred in this
regard to the matter of
Bosman v AA Mutual Insurance Association
Ltd
1977 (2) SA 407
(C)
at 408 H-409A where Grosskopf J said the
following:
“
The
conclusion set out above may, I think, also be supported by the
following reasoning by analogy. Rule 37 serves much the same
purpose
as the provisions relating to the furnishing of further particulars
for purposes of trial. Both are intended to assist
in curtailing the
proceedings, but Rule 37 should be (and was probably intended to be)
of greater significance. Firstly it is designed
to secure agreements
between the parties, and not mere allegations or contentions as is
the case with further particulars. Secondly,
a Rule 37 conference is
intended to cover a wider ambit than the furnishing of further
particulars for purposes of trial - indeed,
one of the nine subjects
in respect of which an agreement at such a conference is specifically
contemplated by the Rule, is "the
giving of any further
particulars reasonably required for the purposes of trial" (Rule
37 (1)
(a)
(v)).”
[11] Mr Nepgen who appeared on
behalf of the defendant, however correctly pointed out that this
matter dealt with the old Rule 37
which specifically contemplated the
providing of further particulars reasonably required for the purposes
of trial.
[12] Rule 37(4) reads as follows:
“
Each
party shall, not later than 10 days prior to the pre-trial
conference, furnish every other party with a list of –
(a)
the admissions which he requires;
(b)
the enquiries which he will direct and which are not included in a
request for the particulars for trial; and
(c)
other matters regarding preparation for trial which he will raise for
discussion.”
[13] Mr Nepgen submitted further
that the overriding purpose of Rule 37 is to provide a platform for
the parties to reach agreement
on issues to facilitate a limitation
thereof for the purposes of trial. He referred in this regard to the
matter of
Paterson N.O. v Kelvin Park Properties CC
1998 (2) SA 89
(E)
at 104C-D where Leach J said the following:
“
The
procedure laid down by the subrule is merely to enable the respective
parties to prepare properly for a Rule 37 conference,
to facilitate
the smooth running of that conference and to enable them to reach
agreement on as many issues as possible without
unnecessary delay. A
formal notice is not envisaged by the subrule; all that a party is
expected to do is to provide his opponent
with a list of the items he
wishes to discuss to enable him to prepare for the conference. The
procedure of filing formal notices
and replies thereto purportedly
under this subrule amounts to an abuse of the process of the Court.”
[14] Mr Nepgen submitted further
therefore that there is no provision in Rule 37 to compel a party in
respect of the enquiries directed
in terms of Rule 37(4).
[15] It so that Rule 37 is intended
primarily to curtail the duration of a trial, narrow down issues, cut
costs and facilitate settlements.
Parties are required to attempt, in
a bona fide manner, to reach settlement either on issues which could
serve to shorten the proceedings
or resolve the main issues.
[16] A party can however not be
compelled to agree to anything during the course of Rule 37
proceedings. This much is evident from
the fact that Rule 37(8)(c)
provides that even in a case where a conference had been convened
before a judge in chambers, the judge
may give directions which might
promote the effective conclusion of the matter, but only with the
consent of the parties. It appears
that the remedy for any party who
is frustrated by the lack of cooperation from the other party during
Rule 37 proceedings, is
to request for a conference to be convened
before a judge in chambers in terms of Rule 37(8). The plaintiff gave
an indication
of his intention to pursue this course of action in the
letter to the defendant’s attorneys on 26 March 2010 but for
some
reason did not do so. I am in agreement with Mr Nepgen’s
submission that these enquiries should have been contained in a
request for particulars for trial in terms of Rule 21. It is
abundantly clear from Rule 37(4) that a formal request in the form
served and filed by the plaintiff in this matter is not contemplated.
What is contemplated is a list to be provided to the other
party not
later than 10 days before the pre-trial conference,
inter alia
,
of enquiries which he will direct and which are not included in the
request for particulars for trial and other matters regarding
preparation for trial which he will raise for discussion. The list of
enquiries is therefore intended to relate to matters which
will be
discussed at the pretrial conference. The remedy therefore available
to any party who is frustrated by a lack of cooperation
or
bona
fides
on the part of his opponent, is to request that a
conference be held before a judge in chambers. The Rule clearly does
not envisage
a formal request to which there must be a formal reply.
See
Paterson N.O. v
Kelvin Park Properties CC
(supra).
[17] I am also not convinced that
the defendant had in effect agreed to provide the further and more
meaningful replies as was contended
by Mr Mullins. It is clear from
the correspondence between the parties that the defendant had adopted
the attitude that these issues
should be discussed at a conference
and specifically stated that it had been advised accordingly by
counsel. This is therefore
not a case where a party is attempting to
renege from an agreement reached during the course of pre-trial
proceedings. For these
reasons the defendant can in my view not be
compelled to provide the "
more meaningful"
replies
which plaintiff seeks in terms of Rule 37(4). For this purpose the
plaintiff will be constrained to request particulars
for trial in
terms of Rule 21.
[18] There is in my view a further
difficulty with the nature of the relief sought by the plaintiff and
that is that the court is
called upon to pronounce upon the adequacy
of the replies provided by the defendant and to give directions
regarding the content
of the further replies in order for them to
constitute a
"meaningful
" response to the
plaintiff's Rule 37(4) agenda. Such an approach will in my view serve
to undermine the primary objectives
of Rule 37 proceedings which I
have referred to above.
[19] Mr Nepgen has submitted that
the plaintiff has deliberately abused the process of this court and
that a punitive costs order
should therefore be made. I am of the
view that there is no basis for such an order. The plaintiff appeared
to have proceeded on
the basis of bona fide belief that the defendant
was committed to provide the further and better replies.
[20] In the result I make the
following order:
(1) The application is dismissed;
The plaintiff is ordered to pay
defendant’s costs on the party and party scale.
______________________
J.E
SMITH
JUDGE
OF THE HICH COURT
Appearances
Counsel
for the Applicant : Advocate Mullins
Attorney
for the Applicant : Boqwana Loon & Connellan
4
Cape Road
PORT
ELIZABETH
Ref:
Mr. L. Schoeman/wjd/K44466
Counsel
for the Defendant : Advocate Nepgen
Counsel
for the Defendant : Booysens & Rossouw Attorneys
18
Newton Park
PORT
ELIZABETH
Ref:
ME Rossouw/wlf/BRS070
Date
Heard : 04 November 2010
Date
Delivered : 11 November 2010