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[2023] ZAFSHC 59
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Standard Bank of South Africa Limited v Pretorius and Others (5268/2019) [2023] ZAFSHC 59 (23 February 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No.: 5268/2019
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter between: -
THE STANDARD BANK OF
SOUTH AFRICA LIMITED
Plaintiff/Respondent
and
PETRUS
ALBERTUS PRETORIUS
1
st
Defendant/Applicant
ANNA MAGDALENA
PRETORIUS N.O
2
nd
Defendant
PETRUS ALBERTUS
PRETORIUS N.O
3
rd
Defendant
WIL
CORAM:
N. M.
MBHELE, DJP
HEARD
ON:
03 NOVEMEBR 2022
DELIVERED
ON:
23 FEBRUARY 2023
[1]
The defendants approached this court for an application to compel the
plaintiff to
comply with their request for discovery made in terms of
Rule 35(14). They seek an order compelling the plaintiff to comply
with
the first to fifth defendant’s request for discovery,
filed on 18 February 2020, and to make available for inspection
within
5 days of the order the documents in its possession and to
allow copies of transcriptions thereof to be made. They further seek
leave for the first to fifth Defendants to approach court on the same
papers for an order that the plaintiff’s claim be struck
out in
the event that the plaintiff fails to comply with the order as set
out above.
[2]
On 18 February 2020 the defendants filed a notice in terms of Rule 35
(14) calling
upon the plaintiff to provide the below stated
documentation:
2.1
Bank
Statements and / or Agreements for the following account numbers:
2.1.1 Account number
[....] from 25/09/2016 till 25/01/2018;
2.1.2 Account number
[....] from 25/09/2016 till 25/01/2018;
2.1.3 Account number
[....] from 25/09/2016 till 25/01/2018;
2.1.4 Account number
[....] from 25/09/2016 till 25/01/2018.
[3]
On 27 February 2020 the
Defendants served the notice in terms of Rule 30 A on the plaintiff’s
attorneys. On 06 March 2020 the plaintiff served an answer to the
Defendant’s notice in terms of Rule 35 (14) and 35 (10)
and
refused to make available the requested documents on the basis that
they are not relevant for the purpose of pleading as the
application
was served long after the defendants’ plea was filed. They
further allege that the requested documents do not
fall within the
ambit of Rule 35(14) as they relate to accounts that were closed
between 2017 and 2018 and have nothing to do with
the case that the
defendants are called upon to answer.
[4]
The defendants submit that they have appointed a forensic auditor to
determine whether the plaintiff’s calculations of
the
defendants’ alleged indebtedness was in fact correct. The said
forensic auditor alleges that there are certain account
entries which
are linked to the aforementioned account numbers and it would be
impossible to finalise his audit without the information
relating to
these accounts.
[5]
The plaintiff contends that the Defendants’ auditor will be in
a position to finalise his audit without the requested
information.
The plaintiff gave the following account in respect of the
aforementioned accounts:
[....]- an
agricultural production loan opened in December 2015 and closed
during February 2018 and has zero balance;
[....]– an
agricultural production loan opened during August 2015, repaid and
closed during 2017 and has zero balance;
[....]- an agricultural
production loan opened during August 2015 and closed in March 2018
and has zero balance;
[....]- the account
is closed and no longer exists on the plaintiff’s records.
[6]
Rule 35(14) of the Uniform Rules of Court provides as follows:
(14)
After appearance to defend has been entered, any party to any action
may, for purposes
of pleading, require any other party to —
(a)
make available for inspection within five days a clearly specified
document or tape recording in such party’s possession
which is
relevant to a reasonably anticipated issue in the action and to allow
a copy or transcription to be made thereof; or
(b)
state in writing within 10 days whether the party receiving the
notice objects to the production of the document or tape recording
and the grounds therefor; or
(c)
state on oath, within 10 days, that such document or tape recording
is not in such party’s possession and in such event to
state
its whereabouts, if known.
[7]
Rule 35 (14) prescribes that a document or tape recording may be
required (a) after
an appearance to defend has been entered, (b) it
must be for the purposes of pleading, (c) it must be clearly
specified and (d)
it must be relevant to a reasonably anticipated
issue in the action.
[8]
This was amplified in
Cullinan
Holdings LTD v Mamelodi Stadsraad
[1]
1992 (1) SA 645
(T) at 647F
where
the following was said:
Die
eerste vereiste is dat die aangevraagde dokument 'vir doeleindes van
pleit' benodig word. Uit die eedsverklaring van Nel is
dit duidelik
dat die verweerder sy verwere duidelik kon formuleer sonder die
vermelde dokumente. Die dokumente is nie noodsaaklik
ten einde te kan
pleit nie. Die feit dat dit nuttig kan wees indien die opsteller van
die pleitstuk dit beskikbaar het, is nie
die toets nie. Om hierdie
rede alleen al moet die aansoek onder Reël 30 faal.
[9]
The rule does not give parties carte blanche to request any document
even if it bears
no relevance to the issue at hand. The document must
be pertinent to the issue in dispute, it must have some connection
with the
issue to be determined in the action or have some tendency
to prove a matter of fact significant to the issue in dispute.
[10]
In
Priday
v Thos Cook & Son (SA) Ltd
[2]
Van
Winsen J remarked as follows :
On
the other hand, there are decisions in our Courts which tend to show
that it is not the policy of our Courts to encourage a person
to
search amongst the books and documents of another in order to find
out whether or not he has an action against such other. Thus
for
instance in
Rogers
v Sanitary Board of
Johannesburg
1 OR 65
the Court refused to grant an application for discovery which
was made
''to
obtain evidence for the purpose of seeing if he (applicant) really
has a case and not with the object of using the evidence
in an action
already begun''.
An
application to hand over for inspection a letter alleged to contain
defamatory statements concerning the applicant so as to enable
the
applicant to institute an action for damages against the
respondent was refused, the Court holding that there was nothing
to
show that there had been a libel committed against the
applicant.
Attwell & Co v Van de Ven and Another
1875
B 93. So also in
Dabuku v Mann
9 NLR 253
, the Court
refused to allow the applicant inspection of books and documents in
order to ascertain whether or not he had an action
against the
respondent.'
6.
In
Quayside
Fish Suppliers CC v Irvin & Johnson Ltd
[3]
Traverso
J remarked as follows:
“
[16] Mr
Burger
,
who appeared for the applicant, submitted that the
Cullinan
Holdings
case
was wrongly decided. Mr
Burger
contended
that the interpretation attributed to Rule 35(14) by Van Dijkhorst J
effectively renders the Rule inoperative. I cannot
agree with this
submission. Rule 35(14) is limited in application and is aimed at
operating only in the very specific circumstances
set out in the
Rule. To interpret it more widely would make inroads into the general
principle that prior to the institution of
an action a party cannot
snoop around other people's books. See, too,
The
MV
Urgup
:
Owners of the MV
Urgup
v
Western Bulk Carriers (Australia) (Pty) Ltd and Others
1999
(3) SA 500
(C) at 515BI. In my view, the issues pending between the
parties are those reflected in the pleadings. What the applicant is
asking
me to do is to permit it to search amongst the documents of
the respondent to find out whether or not it has an additional or
alternative
counterclaim against the respondent. If this is what Rule
35(14) contemplates, it will give a plaintiff in reconvention a right
which a plaintiff in convention does not have. The legislature could
never have envisaged that once appearance to defend has been
entered
to a claim in convention it would give a plaintiff in reconvention
carte
blanche
to
ask for the production of documents to establish whether he/she has a
legal or factual foundation to formulate a claim in reconvention.”
7
The Plaintiff dispatched notices in terms of Section 129 of the
National
Credit Act 34 of 2005 (the NCA) to the defendants during
September 2018. When the section 129 notice was issued the accounts
that
are the subject matter of this application were already closed.
[11]
The defendants filed their plea in the main action
before their request in terms of Rule 35(14). They contend that they
require
the documents for the purposes of filing their counterclaim
and possibly amending their plea. The basis upon which they submit
that the requested documents are relevant to the main claim is that
according to their forensic auditor, the aforementioned accounts
are
still in existence and that there are unidentified interest
transactions relating to the said accounts being debited against
account number 30-166-346-6, being one of the accounts central to the
main claim. This allegation is denied by the plaintiff. There
is
evidence showing that all these accounts are closed and three of them
have zero balance while the fourth one is no longer available
on the
records of the plaintiff.
[12]
The correspondence from the forensic auditor shows
that these accounts have not been audited. It is not
clear how
interest can continue to be debited for accounts that are already
closed. There are closing statements showing that the
defendants do
not owe plaintiff a cent in respect of these accounts. There would be
no ongoing entries in these accounts if they
are closed.
[13]
The correspondence exchanged between the parties indicates that the
defendants require inspection of the documents relating
to the
aforementioned account to investigate and formulate their claim in
reconvention against the plaintiff. They are not required
for the
purpose of pleading because they would be able to file their plea and
formulate their defence on the information at their
disposal.
[14]
As stated in
Quayside
Rule 35(14) was not
designed to give plaintiff in reconvention freedom to ask for
production of documents to establish whether
he/she has grounds for a
counterclaim. The defendants require inspection of documents to
ascertain whether they have a claim in
respect of account numbers
that are not related to these proceedings. Nothing precludes the
defendants from instituting a separate
action against the plaintiff
outside of these proceedings. Litigation in this matter should not be
delayed by demanding access
to irrelevant information in a hope to
strengthen the defendant’s case.
[15]
The defendants failed to meet the requirements for the relief they
seek. Accordingly, the application
must fail. There is no reason why
costs must not follow the event. Plaintiff employed two counsel. The
matter is not so complicated
that it required employment of two
counsel.
[16]
I make the following order:
1.
The defendants’ application in terms of Rule 35(7) is dismissed
with costs.
2.
Costs to include those of employing one counsel.
N.M.
MBHELE, DJP
Appearances:
For the
Plaintiff/Respondent:
Adv.
Paul Zietsman SC
Adv.
Els
Blair Attorneys
Bloemfontein
For the
Defendant/Applicant:
Adv.
PJJ Zietsman
Instructed by Honey
Attorneys
Bloemfontein
[1]
Cullinan Holdings LTD v Mamelodi Stadsraad
1992 (1) SA 645
(T) at
647F
[2]
Priday
v Thos Cook & Son (SA) Ltd
1952 (4) SA 761
(C) at 764
[3]
Quayside Fish Suppliers CC v Irvin & Johnson Ltd
2000 (2) SA 529
(C)