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[2023] ZAECMKHC 100
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Intercape Ferreira Mainliner (Pty) Ltd v National Director of Public Prosecutions and Another (1013/2023) [2023] ZAECMKHC 100 (22 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – MAKHANDA)
CASE
NO.: 1013/2023
Matter
heard on: 10 August 2023
Judgment
delivered on: 22 August 2023
In
the matter between:
INTERCAPE
FERREIRA MAINLINER (PTY) LTD
APPLICANT
And
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
1
ST
RESPONDENT
HEAD
OF THE INVESTIGATING DIRECTORATE
2
ND
RESPONDENT
In
re:
INTERCAPE
FERREIRA MAINLINER (PTY) LTD
APPLICANT
And
MINISTER
OF POLICE
1
ST
RESPONDENT
NATIONAL
COMISSIONER, SOUTH AFRICAN
POLICE
SERVICES
2
ND
RESPONDENT
PROVINCIAL
COMMISSIONER, EASTERN CAPE
3
RD
RESPONDENT
SOUTH
AFRICAN POLICE SERVICE,
PROVINCIAL
COMMISIONER, WESTERN CAPE
4
TH
RESPONDENT
SOUTH
AFRICAN POLICE SERVICE
PROVINCIAL
COMMISIONER, KWA-ZULU NATAL
5
TH
RESPONDENT
SOUTH
AFRICAN POLICE SERVICE
PROVINCIAL
COMMISIONER, GAUTENG
6
TH
RESPONDENT
SOUTH
AFRICAN POLICE SERVICE
PROVINCIAL
COMMISIONER, NORTH WEST
7
TH
RESPONDENT
SOUTH
AFRICAN POLICE SERVICE
NATIONAL
HEAD OF THE DIRECTORATE FOR
PRIORITY
CRIME INVESTIGATION
8
TH
RESPONDENT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
9
TH
RESPONDENT
HEAD
OF THE INVESTIGATING DIRECTORATE
10
TH
RESPONDENT
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
JUDGMENT
MTSHABE
AJ:
INTRODUCTION
[1]
This is an application brought by the Applicant in terms of Rule 30A
of the Uniform Rules of this
Court, read with Rule 35(12).
[2]
The Applicant seeks an order against the First Respondent to produce
documents referred
to the answering affidavit deposed by
Adv Rodney De Kock dated 5 June 2023. In essence, this is an
application to compel.
[3]
The Applicants seeks an order of costs against the First Respondent.
[4]
The Respondent in his heads of arguments states that the Applicant’s
application does not
meet the requirements of Rule 35(12), with that
reason the Applicant’s Rule 35(12) notice and Rule 30A
application is fatally
flawed.
[5]
The paragraphs which triggered Rule 35(12) notice in the answering
affidavit of Adv De Kock are
the following:
[6]
Paragraph 2 of the Notice of Motion reads as follows:
2.
That the ninth and
tenth respondents are ordered to comply with the applicant’s
notice in terms of rule 35(12) dated 19 June
2023 by producing,
within three days of this order, the following documents referred to
in the ninth and tenth respondent’s
answering affidavit deposed
to by Adv Rodney de Kock dated 5 June 2023:
2.1.
the “enquiries into the status of the Applicant’s
complaints” made by Adv
de Kock, as referred to in
paragraph 66; and
2.2.
the “feedback……received” by Adv de Kock in
response to the enquiries he made into
the status of the applicant’s
complaints, as referred to in paragraphs 67 and 69.”
[7]
Paragraphs 66, 67 and 69 appear on pages 56 and 57 of the indexed
papers as an annexure “
MB3”.
They read as follows:
[7.1]
PARAGRAPH 66:
“
I
have, however made
enquiries
into the states of the Applicant’s complaints.”
[7.2]
PARAGRAPH 67:
“
From
the
feedback
that I have received there are common, problematic factors which
fundamental to the NPA’s ability to successfully prosecute
these matters.”
[7.3]
PARAGRAPH 69:
“
From
the
feedback
that I have received thus far, it appears that it has been impossible
to prosecute the Applicant’s complaints due to lack
of
sufficient evidence.”
[8]
The Applicant’s rule 35(12) notice
reads as follows:
“
TAKE
NOTICE THAT the Applicant requires Ninth and Tenth Respondents to
produce for inspection, and to allow the Applicant to make
copies of
the following documents referred to in the Ninth and Tenth
Respondents’ Answering Affidavit deposed to by Adv Rodney
de
Kock dated 5 June 2023:
1.
The “
enquiries
into the status of the Applicant’s complaints”
made by Adv de Kock, as referenced in
paragraph 66; and
2.
the “
feedback
……… received
”
by Advocate de Kock in response to the
enquiries he made into the status of the Applicant’s
complaints, as referenced in paragraphs
67 and 69”
.
[9]
The Respondents did not comply with rule
35(12) notice. This compelled the Applicant to deliver notice
in
terms of rule 30A to the 9
th
and 10
th
Respondents, requesting them produce or make available for inspection
the documents referred to in rule 35(12).
[10]
After the respondents were served with rule 30A notice, they
delivered reply to the Applicant’s rule
35(12) notice and the
reply reads as follows:
“
1.
AD PARAGRAPHS 1 AND 2
The information
requested is of a confidential nature and may contained sensitive
information.
2.
In the circumstances, document
requested cannot be made available to the Applicant.”
APPLICABLE
LEGAL PRESCRIPTS
[11]
The applicable rules forming the subject matter of this application
are
inter alia
premised on rule 35(12) of the Uniform Rules of
Court. The Applicant approached the court in terms of 30A(2) of the
Uniform Rules
of Court to compel the discovery.
[12]
Rule 35(12) provides as follows:
(a)
Any
party to
any proceeding at any time before the hearing thereof deliver a
notice in accordance with Form 15 in the First Schedule
to any other
party in whose pleadings or affidavits reference is made to any
document or tape recording to –
(i)
produce such document or tape
recording for inspection at to permit the party requesting inductions
to make a copy or transcription
thereof; or
(ii)
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
(iii)
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.
(b)
Any party failing to comply with notice
referred to in paragraph (a) shall not, save with leave of the court,
use such document
or tape recording in such proceeding provided that
any other party may use such document or tape recording”.
[13]
In
Erasmus
v Slomowitz
[1]
,
it
was held that rule 35(12) authorizes the production of documents
which are referred to general terms in parties’ pleadings
of
affidavits and further that the terms of sub-rule do not require a
detailed or descriptive reference to such documents
.
[14]
In
Protea
Assurance Co Ltd v Waverley Agencies CC
[2]
the court held that the entitlement to see a document or tape
recording arises as soon as reference is made here to in pleading
or
affidavit and that a party cannot ordinary be told to draft and file
his own pleadings or affidavits before he will be given
an
opportunity to inspect and copy, or transcribed, document or tape
recording referred to in his adversary’s pleadings or
affidavits.
[15]
In
Unilever
vs Polagrics (Pty) Ltd
[3]
, it was held that the rights under sub-rule maybe exercised before
the respondent or defendant has disclosed his defense or even
before
knowing what his defense, if any, is going to be. Further that he is
entitled to have the documents or recordings produced
for the
specific purpose of considering his position.
[16]
In
Protea
Assurance Co Ltd v Waverly Agencies
[4]
, the court held that rule 35(12) plainly entitles a party to see the
whole of a document or tape recording and not just the portion
of it
upon which his adversary in the litigation has chosen to rely.
[17]
In
Gorfinkel
v
Gross, Hendler & Frank
[5]
the Court held that
prima
facia
there is an obligation on a party who refers to a document in a
pleading or affidavit to produce it for inspection called upon
to do
so in terms or rule 35(12).
[18]
In
Democratic
Alliance v Mkhwebane
[6]
the Supreme Court of Appeal held that documents in respect of which
there is a direct or indirect reference in affidavit, or its
annexures are relevant, and which are no privileged, and are in
position of that party, it must be produced. The Court went on
to
state that the wording of rule 35(12) is clear in relation to its
application. Where there has been reference to a document
within the
meaning of that expression in an affidavit, and it is relevant, it
must be produced.
[19]
The first step in adjudication process is to consider whether in this
case reference is made to document
or tape recording in paragraphs
66, 67 and 69 of answering affidavit opposed by Adv de Kock. In
Penta
Communications Services (Pty) Ltd v King & Another
[7]
the court held that an essential is of course a reference by the
opponent in his pleading or affidavit to the documents were of
production is required but the terms of the rule do not require a
detailed or descriptive reference to such documents, nor is any
distinction made to documents upon which the action or other
pleadings is actually founded in documents which possess nearly
evidentially
value.
[20]
In Contango Trading SA v Central Energy Fund SOC Ltd
[8]
the Respondents contended that there was no reference to a specific
document in the Respondents answering affidavit which the court
held
was correct. The court further held that for a request to fall within
the ambit of sub-rule there must be reference to a specific
document
where not a general category of documents which is in effect what the
Applicants’ request for discovery of legal
review is.
[21]
I agree with Respondents that the Applicants application has not met
the requirements of rule 35(12). There
is clearly no reference to
specific document in paragraphs 66, 67 and 69 of the answering
affidavit of Adv de Kock. I am of the
view that the words “
enquiries
and feedbacks
are neither synonyms nor can they be construed
as meaning documents in terms of rule 35(12).
[22]
A good objection to an application to compel discovery in terms of
rule 35(12) would be that the documents
are:
(a)
Privileged; and/or
(b)
Confidential, and/or
(c)
Irrelevant.
[23]
The above objections would be relevant if I find that in paragraphs
66, 67 and 69 of the answering affidavit
of Adv de Kock reference was
made to specific documents. I repeat there is no reference made to
any document in the answering affidavit
of Adv de Kock.
[24]
The general rule which has been laid down repeatedly is that an
Applicant in motion proceedings must stand
or fall by his founding
affidavit and the facts alleged in it. This simple means that
the Applicant must make out his entire
case in the founding affidavit
cannot rely on new facts or arguments in his replying affidavit. I
can only consider the facts or
arguments that have been raised in the
founding affidavit.
[25]
Rule 35 (12) notice refers to
enquiries
into the status
of the Applicant’s complaints and
feedback……….
received
by Adv de Kock. There is no reference to a
specific document in rule 35(12) notice filed by the applicant.
[26]
The Applicant has not made out a case in compliance with rule 35(12)
of the Uniform Rules of the Court. Rule
35 (12) applies when a
reference by an opponent in pleadings or affidavit is made to a
document. In this case there is no reference
that has been made to
any document in paragraphs 66, 67 and 69 of the affidavit of Adv de
Kock.
[27]
I accordingly make the following order:
1.
the application is dismissed.
2.
the applicant is ordered to pay the costs
of the application of party and party scale such costs to include the
appointment of two
Counsel where same have been appointed.
NR
MTSHABE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Counsel
for the Applicant
Adv.
A Molver with Adv. M Somandi
Adams
& Adams Attorneys
C/o
Huxtable Attorneys
26
New Street
MAKHANDA
(Ref.
Mr. Huxtable)
Counsel
for 9
th
&10
th
Respondent:
Adv.
M. Morgan
The
State Attorneys
C/o
Whitesides Attorneys
53
African Street
MAKHANDA
(Ref.:
Mr. Barrow/C13386)
[1]
1938
TPD 242
at 44
[2]
1994
(3) SA 247
(C) AT 249 B
[3]
2001
(2) SA 329
(C ) AT 336 G-J
[4]
1994
(3) SA 247
at 249 B-D
[5]
1987
(3) SA 766
(C) at 774 G
[6]
2021
(3) SA 403
(SCA) and Caxton and CTP Publishers & Printers Ltd v
Novus Holdings Ltd [2022]ZASCA 24
[7]
2007
(3) 471 (C )
[8]
2020
(3) SA 58
(SCA)