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[2023] ZAFSHC 501
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Member of the Executive Council for Health, Free State v Boss and Another (3413/2021) [2023] ZAFSHC 501 (27 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3413/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
THE
MEMBER OF THE EXECUTIVE COUNCIL
Applicant
FOR
HEALTH, FREE STATE
and
HAROLD
TYRONE BOSS
1
st
Respondent
HELEN
BOSS
2
nd
Respondent
HEARD
ON:
14 SEPTEMBER 2023
JUDGMENT
BY:
DANISO, J
DELIVERED
ON
27 DECEMBER 2023
[1]
On
29 December 2019, the respondents’ daughter (the
deceased) passed away at Pelonomi hospital due to injuries she had
sustained
in a motor vehicle which took place the previous day on 28
September 2019. Pursuant to the death of their daughter, the
respondents
(plaintiffs) instituted a claim against the applicant
(defendant) for loss of support in the amount of R2 million on the
grounds
that at the time of her death the deceased supported the
plaintiffs financially and her death was caused by the negligence of
the
defendant’s employees namely: the medical and nursing staff
who attended to the deceased after she was injured and during
her
hospitalization at Thebe Hospital from where she was transferred to
Pelonomi hospital where she passed away.
[2]
The claim was defended by the defendant.
At
the close of the pleadings the plaintiffs delivered their discovery
affidavits on
21 January 2022
which the
defendant found to be inadequate as a result on 5 May 2022 the
defendant served the plaintiffs with a notice in terms
of rule 35(1)
of the Uniform Rules of Court (the rules).
The plaintiffs were requested to discover the following documents:
“
1.
Payslips and/or proof of income and/or financial statements of the
deceased;
2.
Payslips and/or proof of income and/or financial statements of the
first and
second plaintiff;
3.
Proof of employment of the deceased (the hospital admission documents
reflect
the deceased as unemployed);
4.
Proof of the relationship between the deceased and the first and
second plaintiffs;
5.
Confirmation of whether there was a RAF claim for loss of support and
if so, all the documentation
regarding such a claim.
[3]
Pursuant to the defendant’s rule 35(1) notice, the plaintiffs
only discovered
the information listed under item 4 namely, the
deceased’s unabridged birth certificate.
It is in that
regard that the defendant has launched these proceedings in terms of
rule 35(3) seeking an order to compel the plaintiffs
to produce the
remaining information.
[4]
The provisions of rule 35(3) are trite: upon the request of an
opponent, a party to
an action is required
to make available
for inspection documents or tape recordings discovered or disclosed
which may be relevant to any matter in question
in its possession or
to state on oath within 10 days that such documents or tape
recordings are not in such party’s possession,
in which event
the party making the disclosure shall state their whereabouts, if
known.”
[5]
It is the defendant’s case that the production of the
deceased’s proof of income and that
of the plaintiffs and their
financial records is relevant
to the matter in question.
So
far, the plaintiff has only provided the defendant with copies of the
deceased’s qualifications which do not constitute
proof of her
employment. Except to aver that the remainder of the information is
not relevant at this stage as merits and quantum
have been separated,
not even an attempt was made to explain why the said documents have
not been discovered. The documents must
be discovered despite the
separation as the rule does not provide for different stages of
discovery.
[6]
The
defendant continues to state that it
is
prejudiced by the plaintiffs’ failure to discover the requested
documents as its legal representative is unable to advise
it
accordingly.
[7]
The application is opposed on the grounds that: the documents
required are not relevant at this stage because they
relate to
quantum and the parties had agreed to separate and stay the quantum
for later determination and the information regarding
employment and
earnings of the deceased is not available yet it. It has been
requested from the deceased’s erstwhile employer
on 15 March
2023 which is a Chinese Agency where she taught English but since
then, there has been no response. The documents will
be provided to
the defendant once they become available.
[8]
In argument, counsel for the plaintiffs stated that at this stage the
plaintiffs are not required
to produce documents they are only
required to state under oath the list of the documents in their
possession and if they are not
in possession of the documents to
state their whereabouts.
[9]
To
arrive at an appropriate determination of this issue I must have
regard to the principles laid down in
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
[1]
at p 316E-317B:
‘
The requirement
of relevance, embodied in both 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 E 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
adversary. 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.''
The broad meaning
ascribed to relevance is circumscribed by the requirement in both
subrules (1) and (3) of Rule 35 that the document
or tape recording
relates to (35(1)) or may be relevant to (35(3)) “any matter in
question”. The “matter in question”
is determined
from the pleadings. See in this regard SA Neon Advertising (Pty) Ltd
v Claude Neon Lights (SA) Ltd
1968 (3) SA 381
(W) at 385A-C;
Schlesinger v Donaldson and Another
1929 WLD 54
at 57, where
Greenberg J held “In order to decide the question of relevancy,
the issues raised by the pleadings must be considered
. . .”,
and Federal Wine and Brandy Co Ltd v Kantor
1958 (4) SA 735
(E) at
753D-G.’
[10]
Having regard to the plaintiffs’ pleaded case, the documents
required by the
defendant relates to the plaintiffs’ assertion
that they were depended on the deceased for financial support. The
onus is
on the plaintiffs to allege and prove the defendant’s
liability (the merits of the claim) that the deceased not only owed
them the duty of support and that she did in fact provide that
support.
It
is only when the plaintiffs have proven that they have suffered
pecuniary damages as alleged that
the court is bound to award damages by assessing quantum. I am thus
in agreement with the defendant’s
contention that the
deceased’s financial means in terms of which she provided the
alleged financial support to the plaintiff
is indeed relevant to the
matter in question including the extent of that financial support.
[11]
It must also be borne in mind that the purpose of an adequate
discovery is to afford a litigant
an opportunity to consider its
case
[2]
in this matter, it would
also be in the interest of justice and that of the plaintiffs that
the documents which will determine
the defendant’s liability
are produced timeously as the defendant may even consider a
settlement of the matter instead of
engaging in a costly trial.
[12]
I do not find the plaintiffs’ explanation regarding the
unavailability of the deceased’s
proof of earnings to be sound.
As at the date of the hearing about six (6) months had passed since
the date on which the plaintiffs
allege to have requested the
information that aside, proof of employment has been requested as an
alternative to the documents
relating to the deceased’s
payslips and /or financial statements. The plaintiffs have
deliberately avoided explaining the
whereabouts of the deceased’s
payslips and financial statements including the plaintiffs’ own
financial statements.
[13]
I
also do not deem it unreasonable for the defendant to require the
documents relating to whether the plaintiffs have instituted
a claim
against the Road Accident Fund because, the deceased’s injuries
arose from a motor vehicle accident and the Road
Accident Fund
[3]
is liable to compensate dependants for loss of financial support due
to the death of the bread winner in a motor vehicle accident.
Conclusion
and costs
[14]
Taking into consideration the facts of this matter, I am satisfied
that the
defendant
has made out a case to compel the plaintiffs to produce the documents
listed in the defendant’s rule 35(3) notice
dated 5 May 2022
(items 1,2, 3 and 5).
I have
found no reason for the departure from the general rule that costs
follow the result.
[15]
In the premises, I make an order in the following terms:
ORDER
1. The
respondents are ordered to
produce
for inspection:
payslips and/or proof of income and/or
financial statements of the deceased; payslips and/or proof of income
and/or financial statements
of the plaintiffs; and confirmation of
whether a Road Accident Fund claim for loss of support has been
lodged by the plaintiffs
pursuant to the death of the deceased if so,
all the documentation regarding such a claim.
2. The
respondents shall pay the costs of this application jointly and
severally, one paying the other to be absolved.
N S DANISO, J
APPEARANCES:
Counsel on behalf
of Applicant:
Ms. R. D. Canham
Instructed by:
Office of the State
Attorneys
BLOEMFONTEIN
Counsel on behalf
of Respondents:
Adv. P.C. Ploos van
Amstel
Instructed by:
Du Plessis
Attorneys.
c/o Lovius Block
BLOEMFONTEIN
[1]
1999 (2) SA 279
(T) at 316E-317B.
[2]
Independent
Newspapers (Pty) LTD v Minister for Intelligence Services (Freedom
of Expression Institute as Amicus Curiae) In re:
Masethla v
President of the Republic of South Africa and Another
ZACC
6;
2008 (5) SA 31
(CC)
2008 (80 BCLR 771
(CC) (22 May 2008)
[3]
Section
17 of the Road Accident Fund Act, 56 of 1966 (as amended by the
Road
Accident Fund Amendment Act 19 of 2005
).