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[2022] ZAECQBHC 39
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Stapelberg Vervoer CC t/a Mill Trans v Nordicbau Master Builder & Renovator CC (601/2017) [2022] ZAECQBHC 39 (1 November 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: GQEBERHA]
CASE NO. 601/2017
In the matter between:
STAPELBERG VERVOER CC
t/a MILL TRANS
Applicant/Defendant
and
NORDICBAU MASTER
BUILDER & RENOVATOR CC
Respondent/Plaintiff
JUDGMENT
JOLWANA J
:
[1]
This judgment concerns two applications that were heard at the same
time. The first one is in respect of trial particulars and
the second
one is about further discovery. Both the trial particulars and
further discovery were requested in the appropriate fashion
but were
however rebuffed. There was no issue raised regarding non-compliance
with any of the rules.
[2]
The applicant trades as a transport contractor. The respondent had
purchased two telehandler machines from a third party for
purposes of
renting them out to the film industry in order to generate income.
The applicant was contracted to transport the said
machines from
Gqeberha to the respondent’s premises in Cape Town in November
2015. One of the two machines was damaged while
being loaded in a
vehicle for purposes of transportation. At some point the applicant
paid the reasonable costs of repairing it.
The second telehandler
machine was damaged beyond repairs following an accident involving
the vehicle used to transport it which
occurred on the way to the
respondent’s premises while being transported by the applicant
in its vehicle. The applicant also
paid for the replacement of the
second machine which had to be written off.
[3]
The respondent’s claim is now in respect of loss of rental
income allegedly suffered during the period in which the two
telehandler machines were not available to be rented out by the
respondent to the film industry resulting in loss of income. This
is
a period of 144 days for the one machine and 137 days for the second
one according to the pleadings. The respondent alleges
that it would
have been able to rent out both machines for half of each period and
generated income which it could not during the
whole time the two
telehandler machines were out of commission. I consider it necessary
to briefly set out the requested information
for a proper
appreciation of the pertinent issues in each application.
The
trial particulars.
[4]
In the request for further particulars for trial the applicant
requested the following trial particulars:
1.
A detailed calculation of the income, expenditure and profit on each
telehandler machine rented out to third parties during the
period
2013 to 2019.
2.
A work sheet for each machine the respondent owns for the period 2013
to date.
3.
The average income for each machine the respondent owns which it
received from 2013 to date.
[5]
It was the refusal by the respondent to provide these further
particulars which led to the applicant launching this application
to
compel the provision of the same. The reason cited by the respondent
in its refusal to provide the requested further particulars
is that
what the respondent’s expert report has provided is sufficient
and that the requested further particulars form part
of the evidence.
Its main contention is that the request constitutes a mere fishing
expedition for information that is not necessary
for trial
preparation.
[6]
There does not seem to be any reason cited why the requested
particulars were not provided to the applicant beyond the
respondent’s
skepticism about the need therefor. It appears
from the answering affidavit that part of the reasons for the refusal
was that the
requested information is for a period spanning over 3
years before the date of the damage and 4 years subsequently. Beyond
that,
there is no issue raised about the information either not being
available or the respondent being somehow unable to provide it to
the
applicant as requested.
[7]
What the respondent does not seem to appreciate is the fact that a
party to proceedings must be given as much leeway as possible
within
reason to prove its case or disprove that of its adversary. The use
of the words “strictly necessary” in the
rule must be
understood in the context of Rule 21 creating a mechanism of ensuring
that the parties are enabled to ventilate the
issues between them
without being hamstrung by not having access to available documents.
I must however point out that the applicant’s
affidavit is
rather terse and on the face of it deficient to some extent. This
makes it difficult for the court to appreciate why
the requested
particulars should be provided and why the court should exercise its
discretion in its favour in light of the deficient
averments
contained in the founding affidavit. The reliance by the applicant on
the respondent not having a reason for its refusal
seems to miss this
point as Mr Bands who appeared for the respondent submitted, a point
also well made in his heads of argument.
[8]
In
Szedlacsek v Szedlacsek
2000 (4) SA 147
(ECD) at 150 A-C
Leach J expressed the applicable legal position in the following
terms with which I am in respectful agreement:
“
It
is clear from the final words of this subrule … that this
Court retains a discretion to grant or refuse on 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 or
sufficiently, but must set out sufficient information to enable
the
Court to consider whether or not to exercise its discretion in his
favour. It is impossible to lay down any test which can
be slavishly
applied to determine whether an order compelling delivery should be
granted as each case must turn upon its own particular
facts and
circumstances, but it seems to me that in most cases it would
probably be wholly insufficient for a party seeking relief
under Rule
21 (4) to rely solely upon the other party’s failure to
timeously comply with the ten-day time period laid down
by Rule 21
(2).”
[9]
Mr Marais who appeared for the applicant did file very useful and
detailed heads of argument which threw a lot of light on why
the
particulars should be provided which in some way ameliorated the
inadequacies in the applicant’s affidavit. However,
this is not
how it should be. The full basis for the application must be set out
in the affidavit so that the court is placed in
a position of
properly exercising its discretion. Lest I am misunderstood, I am not
suggesting that a party needs to prove if and
how the information
will be used during trial. However, its relevance to the issues that
arise in the pleadings must be established.
The documents sought are
clearly relevant in my view even considering the inadequacies in the
founding affidavit. The respondent
itself has also not given any
reason why this Court should exercise its discretion in its favour
and dismiss the application. In
fact there does not appear to be any
cogent reason at all at least in the answering affidavit. I am
accordingly of the view that
the applicant should succeed in its
application for an order compelling the provision of the requested
information. However, the
period covered in the request appears to be
excessive unnecessarily. I consider a period of 2 years before and 2
years after the
date of the incidents to be reasonable.
The
Rule 35 (3) application.
[10]
In terms of its Rule 35(3) notice the applicant sought from the
respondent documents such as the financial statements and asset
register since 2013 to date, all telehandler contracts with any other
parties from 2013 to 2019, debtors ledger for 12 months since
November 2015, bank statements from November 2015 to a period of six
months thereafter, booking cancellations, if any, for plaintiff’s
telehandlers for 2015 and 2016, written proof, if any, that the
respective two telehandlers were in fact booked for the period
relevant to the claim. The applicant also sought a service history
and logbooks for all the respondent’s telehandlers from
2013 to
2016.
[11]
It seems to me that some of the information requested is over an
excessive period. However, beyond that the respondent seems
not to
have a proper basis for its refusal to make the discovery save for
its reference to the request being a fishing expedition.
This
characterization of the request for discovery cannot be a proper
basis for objection or refusal without more. The applicant
explains
in its replying affidavit that it needs these documents to inform
itself of the trends in the respondent’s industry
with which I
take it that it may not necessarily be familiar. Furthermore, the
documents will enable the applicant’s own
expert to engage more
meaningfully with the report of the respondent’s expect report
which has been filed. This should assist
the trial to run much more
smoothly and thus facilitate the speedy finalization of the matter
with as little hiccups as possible.
[12]
The legal position relating to further discovery is explained in some
detail in
Swissborough
Diamond Mines v Government of the
RSA
1999 (2) SA 279
(TPD) at 316 E-G as follows:
“
The
requirement of relevance, embodied in Rule 35(1) and 35(3), has been
considered by the Courts on various occasions. The test
for
relevance, as laid down by Brett LJ in
Compagnie
Financiere et Commerciale du Pacifique v Peruvian Guano
Co
(1882) 11 QBD 55
, has often been accepted and applied. See for
example, the Full Bench judgment in
Rellams
(
Pty) Ltd v James
Brown & Hamer Ltd
1983 (1) SA 556
(N) at 564A, where it was held that:
‘
After
remarking that it was desirable to give a wide interpretation to the
words “a document relating to any matter in question
in the
action”, Brett LJ stated the principle as follows:
“
It
seems to me that every document relates to the matter in question in
the action which, it is reasonable to suppose, contains
information
which
may
̶ not which
must
– either directly or indirectly enable the party requiring the
affidavit either to advance his own case or to damage the
case of his
advesary. I have put in the words ‘either directly or
indirectly’ because, as it seems to me, a document
can properly
be said to contain information which may enable the party requiring
the affidavit either to advance his own case or
to damage the case of
his adversary,
if it
is a document which may fairly lead him to a train of enquiry which
may have either of these two consequences
.”’
(My underlining)
[13]
What immediately becomes apparent from the principles articulated
above is that what the respondent regards as a “fishing
expedition” and therefore irrelevant may very well be useful to
the applicant in advancing its own case or poking holes in
the
respondent’s case. Even if it turns out not to be so useful
after all, that is something that may become clearer during
the trial
itself. How the trial court deals with documents sought and
discovered which later turn out not to be relevant is something
else.
It surely cannot be up to the one party to determine in advance for
its adversary, which documents are relevant and which
ones are not.
[14]
Doing so would be contrary to the adversarial nature of our court
proceedings. The documents in question do not seem to relate
to
anything else other than the business of telehandlers of the
respondent for which it claims damages for loss of income in its
pleadings. These are not documents relating to anything that has
nothing to do with the business of telehandlers that the respondent
conducts and for which it claims loss of income. There has been no
indication as to why any of the documents required should be
considered as irrelevant. In fact it seems to me that if anything, it
is the respondent itself that seems to be overly cautious
and
skeptical about how the documents may be useful to the applicant,
something that it is not entitled to do. The applicant’s
contention that these documents will enable it to engage its own
expert meaningfully as it seeks to prove its defence or even damage
the case of the respondent is not without basis. It was never argued
that the applicant is not entitled to the documents for this
purpose
or that the documents are not otherwise available.
[15]
I have therefore come to conclusion that the applicant must succeed
in both applications subject to the rider that where the
applicant
seeks documents for a period in excess of two years before or after,
the period should be limited to a two-year period
either way from the
date of each incident. There is no reason why the costs should not
follow the result.
[16]
In the result the following orders shall issue:
1.
The respondent is hereby directed to sufficiently reply to paragraphs
4, 5 and 7 of the applicant’s request for further
particulars
for trial dated 2 November 2020 within 10 days of the granting of
this order.
2.
In the event of the respondent failing to comply with the above order
the applicant is granted leave to approach this Court on
the same
papers, suitably amplified for an order dismissing the respondent’s
claim.
3.
The respondent is directed to reply to the applicant’s notice
to discover in terms of Rule 35 (3) dated 26 January 2022
within 10
days of the granting of this order.
4.
In the event of the respondent failing to comply with the order
referred to in 3 above the applicant is granted leave to approach
this Court on the same papers suitably amplified for an order
dismissing the respondent’s claim.
5.
The respondent is ordered to pay costs of both the application to
compel further particulars and the application to compel further
discovery.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the applicant: P.T. MARAIS
Instructed
by: GREYVENSTEINS INC.
GQEBERHA
Counsel
for the respondent: D.S. BANDS
Instructed
by: WELGEMOED ATTORNEYS c/o LAWRENCE MASIZA & VORSTER
GQEBERHA
Date
head: 20 October 2022
Delivered
on: 01 November 2022