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2024
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[2024] ZAECQBHC 4
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G.I.DP v M.DP (born M) (3619/2022) [2024] ZAECQBHC 4 (30 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, GQEBERHA]
CASE
NO.: 3619/2022
In
the matter between: -
G[…]
I[…] D[…] P[…]
APPLICANT
and
M[…]
D[…] P[...] (born M[…])
RESPONDENT
JUDGMENT
ZONO
AJ:
[1]
The applicant instituted the instant proceedings pursuant to Rule
35(3) notice dated 8 September
2023 which, according to the applicant
has not been complied with.
[2]
After it became clear to the applicant that the respondent has not
complied with the aforesaid
notice, she resorted to the instant
proceedings, with a view of compelling the respondent to comply with
applicant’s Rule
35(3) notice dated 8 September 2023. In
essence, the applicant seeks discovery and inspection of the document
listed in the notice.
[3]
The underpinning Rule 35(3) of the Uniform Rules provides as follows:
“
(3)
If any party believes that there are, in addition to documents or
tape recordings disclosed as
aforesaid, other documents (including
copies thereof) or tape recordings which may be relevant to any
matter in question in the
possession of any party thereto, the former
may give notice to the latter requiring him to make the same
available for inspection
in accordance with subrule (6), or to state
on oath within 10 days that such documents are not in his possession,
in which event
he shall state their whereabouts, if known to him.”
[4]
It is apposite for present purposes to set out the documents the
applicant seeks discovery of.
They are clearly set out in paragraphs
1 to 7 of the notice aforesaid. The documents referred to therein are
the following:-
“
1.
All invoices and proof of payments for hunting packages provided by
Tootabi Valley
Safaris CC to its clients/consumers for the period 01
March 2023 to 31 August 2023;
2.
Bank statements, for the periods indicated and for the following
accounts held
by Tootabi Valley Safaris CC:
2.1
FNB Business Cheque account 622[…] from 1 May 2023 to 31
August 2023;
2.2
FNB Credit Card accounts 881[…] from 1 April 2023 to 31 August
2023; and
2.3
FNB Agricultural loan account 400[…] for the period 1 July
2023 to 31 August 2023.
3.
Bank account statements for the plaintiff’s following
personally held accounts
and for the periods indicated:
3.1
FNB account 530[…] for the period 1 May 2023 to 31 August
2023, and
3.2
FNB credit card account 490[…] from 1 July 2023 to 31 August
2023.
4.
All Value Added Tax returns for Tootabi Valley Safaris CC for the
period 01 March
2023 to 31 August 2023.
5.
Notwithstanding the request pertaining to 2 and 3 above, the
plaintiff is specifically
requested to provide:
5.1
Statement No. 227 for plaintiff’s FNB Private Cheque Account
530[…], and
5.2
Statement No. 145 for Tootabi Vallet Safaris CC FNB Business Cheque
Account 622[…].
6.
Notwithstanding the requests pertaining to the accounts mentioned in
2, 3, 4
and 5 above, the plaintiff is further specifically requested
to provide full and complete banking statements for the period 1
September
2022 to 31 August 2023 for the following accounts held
either by plaintiff personally or by Tootabi Valley Safaris CC:
6.1
FNB Credit Card 490136********3040,
6.2
FNB Credit Card 422824*****7002,
6.3
FNB Credit Card 881[…],
6.4
FNB Loan 000[…],
6.5
FNB Business Credit Card 422[…], and
6.6
FNB Private Credit Card 490[…].
7.
All quotes requested, orders placed, or receipts for payments made by
either
the plaintiff or Tootabi Valley Safaris CC for period 1 July
2023 to 31 August 2023 towards or in respect of:
7.1
The purchase of game (wildlife) of any kind;
7.2
Erecting or maintaining the fencing on the Farm Doornhoek;
7.3
The purchase of feed and the supply of veterinarian services,
treatment or medicines for
any game (wildlife) kept on the Farm
Doornhoek, and
7.4
The purchase of any other assets, of whatever nature, for the use,
conduct or furtherance
of the business activities of Tootabi Safaris
CC.”
[5]
It is clear from the closer scrutiny of those documents that the
applicant does not only require
respondent’s personal documents
relating to his finances. The applicant, by and large requires
documents relating to financial
affairs of Tootabi Valley Safaris CC,
which is close corporation registered in terms of the Laws of the
Republic of South Africa.
[6]
The reason for the applicant to seek discovery of these documents
from the respondent, so it is
argued, is that the respondent is the
sole director or member of the of the close corporation. The
applicant further contends that
there is interwovenness of
respondent’s business and personal accounts. That essentially
constitutes the basis for seeking
respondent to discover the
documents which do not belong to his personal accounts, but also to
the close corporation.
[7]
I will thereinafter deal with the reason why such a contention cannot
be sustained. The contention
is unavailing. The close corporation is
not joined in present proceedings.
[8]
A close corporation is a juristic person, distinct from its members.
It has its own assets and
liabilities distinct from those of its
members. A close corporation can sue or be sued in its own name. That
is trite principle
of juristic personality.
[9]
This brings me to the question which was hotty debated in court, the
issue of joinder. The court
mero motu
raised the question of
joinder of Tootabi Valley Safaris CC as the majority of documents, if
not all, sought to be discovered belong
to the close corporation.
[10]
Firstly, the applicant seemed to take an issue with the fact that the
point of non-joinder was raised
mero
motu
by
the court. It was contended that the court has no power to raise a
point which the other party has not raised. I do not agree.
In
Cusa
v Tao Ying Metal Industries and Others
[1]
it was held that:
“
67.
Where a point of law is apparent on the papers,
but the common
approach of the parties proceeds on a wrong perception of what the
law is, a court is not only entitled, but is
in fact also
obliged, mero motu, to raise the point of law and require the
parties to deal therewith. Otherwise, the result
would be a decision
premised on an incorrect application of the law. That would infringe
the principle of legality. Accordingly,
the Supreme Court of Appeal
was entitled mero motu to raise the issue of the
Commissioner’s jurisdiction and to
require argument thereon.”
This
put paid to applicant’s complaint about court’s powers to
raise point of law
mero motu
.
[11]
Upon requesting submission from the parties on this point, the
applicant only relied on the submission she
made that the respondent
is a sole director or member of the close corporation and that the
accounts of the close corporation and
those of the respondent are
interwoven. This submission was not substantiated. However, the
applicant requested to be given time
to reflect on the issue by
filing supplementary written submissions. That request was granted
and parties were requested to file
their respective written
submissions, if any, on or before 10h00 on 26 January 2024.
11.1
Only the applicant has filed the written submissions. The nub of
applicant’s submissions is that the
respondent or close
corporation will not be prejudiced by discovery of the documents in
terms of Rule 35(3) notice and concludes
that the close corporation
is not a necessary party to be joined in the proceedings. Another
submission made is that a plethora
of divorce cases discovery of
financial documentation of private companies, close corporation,
Partnership and Trusts which parties
may have a direct and
substantial interest, orders were granted without joining those
entities.
11.2 I
may only comment that those orders, if they were granted under those
circumstances, were not founded on
sound legal principles affecting
joinder, which have been celebrated for years. Subject to the merits
of those cases, I find them
to be clearly wrong if they were to be
applied on the facts of this case.
[12]
A party is a necessary party to be joined on the proceedings, if he
has a direct and substantial interest
in the matter. I find that the
close corporation has legal interest in the matter as the order this
court is requested to grant
affects the disclosure of its financial
records. The order sought seeks to invade the financial privacy of
the close corporation.
That stands to reason that the court order
sought cannot be carried into effect without prejudicially affecting
the interests of
the close corporation. See
Amalgamated
Engineering Union v Minister of Labour
[2]
[13]
I am, as a matter of law, precluded from even considering whether a
case has been made out for the grant
of the relief being sought. I
have no discretion to exercise until all the necessary parties are
before court. See
Nyume
& Another v Walter Sisulu University and Others
[3]
.
[14]
In
Khumalo v Wilkins and Another
[4]
Milner
J remarked as follows:-
“
Once it is
shown that a party is a necessary party in the sense that he is
directly and substantially interested in the issues raised
in the
proceedings before the court and his rights may be affected by the
judgment of the court, the court will not deal with those
issues
without such a joinder being effected and no question of discretion
nor of convenience arises.”
[15]
In the result I make the following Order:
15.1
The application is, pending the joinder of Tootabi Valley Safaris
CC, postponed
sine die.
15.2
The applicant shall pay costs occasioned by the hearing of 25
January 2024 on an opposed scale.
A.S.
ZONO
ACTING
JUDGE OF THE HIGH COURT
Matter
heard on
:
25 January 2024
Judgment
Delivered on :
30 January 2024
APPEARANCES:
For
the APPLICANT
ADV
MORGAN
Instructed
by JACQUES DU PREEZ ATTORNEYS
96
Mangold Street
Newton
Park
GQEBERHA
TEL:
041 365 2232
EMAIL:
jacques@jdpattorneys.co.za
REF:
J du Preez/tlg/9960
For
the RESPONDENT
ADV
MORRIS
Instructed
by Troskie Inc.
40
Worraker Street
Newton
Park
GQEBERHA
TEL:
041 450 9400
EMAIL:
fritz@troskieinc.co.za
REF:
FT/G.I. Du Preez
[1]
2009
(10 BCLR 1
;
2009 (4) SA 204
para 67.
[2]
1949 (3) SA 637
(A) at 651.
[3]
(580/19) [2019] ZAECMHC 13 (20 February 2019) para 12.
[4]
1972 (4) SA 407
(N) 457 A - B.