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[2022] ZAFSHC 100
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Ingerop South Africa (PTY) Ltd v Sedibeng Water and Others (4343/2021) [2022] ZAFSHC 100 (2 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 4343/2021
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
INGEROP
SOUTH AFRICA (PTY) LTD
Applicant
and
SEDIBENG
WATER
First Respondent
THE
MINISTER OF WATER AND
SANITATION
Second Respondent
BEFORE:
CHESIWE, J
HEARD
ON:
24 FEBRUARY 2022
DELIVERED
ON:
02 JUNE 2022
[1]
The First Respondent (Sedibeng) brought an interlocutory application
against
the Applicant (Ingerop) in terms of rule 35(12)(b) of the
Uniform Rules of Court, read together with Rule 30A. The application
was opposed. The Parties will be cited as in the main application.
[2]
The First Respondent seeks the following relief:
“
1.
That the Applicant be ordered to comply with the First Respondent’s
Rule 35 (12) Notice, dated 04 November 2021 (‘
the notice’
);
2.
That should the Applicant fail to comply with the Court’s
order
in accordance with paragraph 1 above, within ten (10) days from the
date of the service thereof, the Applicant shall be barred
from
utilizing the documents specified in the Notice in these proceedings;
3. That the
Applicant pay the costs (sic) this application.”
THE
PARTIES
[3]
The Applicant (Ingerop) is a company duly incorporated in accordance
with
the company laws of the Republic of South Africa, with
registration number 1995/002049/07, with registered business address
at
2
nd
Floor, 138 West Street, Sandton, Johannesburg.
[4]
The First Respondent (Sedibeng) is a state-owned entity under
section
28
of the
Water Services Act 108 of 1997
and it is a national
government entity as listed in schedule 3 of the
Public Finance
Management Act 1 of 1999
.
[5]
The Second Respondent (the Minister of Water and Sanitation) cited in
his official capacity as a member of the National Executive
responsible for the Department of Water and Sanitation (
the DWS
)
with its registered address at 185 Frances Baard Street, Pretoria.
BACKGROUND
[6]
On 20 September 2021, the Applicant issued an application against the
First Respondent (Sedibeng) for payment in the amount of R35 102 773,
17 and interest thereon at the rate of 10,5% per
annum
a tempore
morae.
[7]
On consideration of the claim and the averments made in the founding
affidavit
of the Applicant, the First Respondent issued a notice in
terms of
Rule 35(12)
on 4 November 2021. The Applicant failed to
comply with the notice, but instead filed a response to
Rule 35(12)
notice which contained a drop box link to all the documents sought by
the First Respondent. According to the First Respondent,
the drop box
link did not reflect all the documents as stated in the Applicant’s
founding affidavit in the main application.
[8]
The First Respondent on receipt of the information that documents
must
be accessed in the drop box, wrote a letter to the Applicant,
annexure “
SW3”
on its failure to comply with the
notice and that the documents in the drop box link were incomplete.
On the 3 December 2021, the
First Respondent proceeded with launching
an application to compel.
[9]
The Applicant raised three points in
limine
namely, the
application should have been prefaced with a
Rule 30A
notice, that
the application to compel is an abuse of court processes and First
Respondent is not entitled to the relief sought.
NON-COMPLIANCE
WITH
RULE 30A
[10]
Rule 30A
provides as follows:
“
1.
Where a party fails to comply with these rules or with a request made
or notice
given, pursuant thereto, or with an order or discretion
made in a judicial case management process… any other party
may
notify the defaulting party that he/she intends after the lapse
of 10 days, from the date of delivery of such notification, to apply
for an order;
(a)
that such rule, notice, request order or discretion be complied with
or;
(b) that the claim or
defence be struck out;
2.
Where a party fails to comply within the period of 10 days
contemplated
in sub-rule (1), application may on notice be made to
the court and the court may make such order thereon as it deems fit.”
[11]
The First Respondent’s contention is that
Rule 30A
provides for
general remedy for non-compliance with the rules and that it is not
only confined to the relief provided in
Rule 35(12)
, and that the
First Respondent is entitled to invoke the provisions of Rule35(12)
or
Rule 30A.
[12]
The Applicant’s contention is that
Rule 30A
was not complied
with and that the First Respondent is delaying the main application
in that the First Respondent did not file
the replying affidavit on
time nor is there a condonation application for the replying
affidavit, nor for the late filing of the
heads of argument. Counsel
for the Applicant submitted that the application is flawed with
irregularities and that the First Respondent
has shown a pattern of
delay to frustrate the claim of the Applicant to the extent that the
Applicant had attended to the indexing
and pagination of the court
file, even though the First Respondent is
dominus litus.
Counsel
submitted that the First Respondent’s interlocutory application
be dismissed with punitive costs.
[13]
The
question whether there has been compliance as contemplated in
Rule
30A
does not give rise to the exercise of a discretion by the court.
The court has to determine the objective question of law or fact,
or
whether there has been non-compliance.
(See
Helen
Susman Foundation v JSC
[1]
)
[14]
If the
court grants the Applicant the relief sought, the consequence thereof
would deny the First Respondent the opportunity to
obtain the
documents requested from the Applicant. The court has to take into
consideration the reasons for non-compliance with
the rules, whether
the defaulting party’s case appears to be hopeless and whether
the defaulting party does not intend to
proceed.
(Ford
v South African Mine Workers Union)
[2]
[15]
It is clear that failure to comply with
Rule 30A
, a party is entitled
to provoke the provisions of
Rule 35(12)(b)
, which provides as
follows:
“
Any party to any
proceedings may at any time before the hearing thereof deliver a
notice as near as may be in accordance with form
15 in the First
Schedule to any other party in whose pleadings or affidavit reference
is made to any document or tape recording
to produce such document or
tape recording for inspection and to permit him to make a copy or
transcription thereof. Any party
failing to comply with such notice
shall not save with the leave of the court, use such documents or
tape recording in such proceeding
provided that any other party may
use such documents or tape recording.”
[16]
Rule 30A
is
far less stringent and provide a general remedy for non-compliance
with the rules. In
ABSA
Bank Ltd v The Farm Klippan
[3]
,
the court made it clear that:
“
If a provision in
the rules provide a specific remedy for non-compliance with the rule,
a party may only follow the specific rule
and need not give notice in
terms of or follow
Rule 30A.
”
[17]
Harms Civil Procedure in the Superior Courts: LexisNexis provides
that:
“
Under
Rule 30A
, a
party making a request, or giving a notice, to which there is no
respondent by the other party, may through a further notice
to the
other party warn that after 10 days, application will be made for an
order that the notice or request be complied with,
or that the claim
or defence be struck out, as the case may be. Failing compliance
within 10 days mentioned, application may then
be made to court and
the court may make an appropriate order.”
[18]
The First Respondent requested the documents from the Applicant via
its legal representative
on 26 November 2021. According to the First
Respondent, the drop box link sent by the Applicant did not reflect
all the documents
as this resulted in the application to compel the
Applicant to furnish the requested documents. The Applicant in the
founding affidavit
makes mention of these documents. As correctly
stated by the First Respondent, that the Applicant in its opposing
papers did not
mention whether the documents are not relevant,
privileged or not in its possession.
[19]
The averment by the Applicant that the application to compel is an
abuse of court processes,
cannot stand. The Applicant was employed by
the First Respondent. There is nothing wrong to request documents
from a party who
listed such documents in its founding affidavit. The
First Respondent being a state entity that appointed the Applicant,
is entitled
to request documents for work done and claim for by the
requesting the said documents from the Applicant. For obvious reasons
if
Applicant failed to provide the documents, the First Respondent
has no other remedy or alternative than to approach the court. That
cannot be regarded as abuse of court process
[20]
The Applicant’s contention that it has not failed to comply
with the notice cannot
stand. The Applicant listed the documents in
its founding affidavit in the main action and the First Respondent is
requesting those
listed documents. During oral arguments in court,
Counsel for the First Respondent took me through these documents as
listed in
the founding affidavit of the Applicant and showed that the
same documents are reflected in the application to compel. The First
Respondent having informed the Applicant that the drop box link has
incomplete documents, would not approached the court unnecessarily
if
the documents were reflected in the drop box link and are complete.
The First Respondent seemingly needs these documents to
properly
answer and consider the main application.
[21]
Rule 35(12)
dearly states that if reference is made to a document, it must be
produced. (
Penta
Communication Service (Pty) Ltd v King and Another
)
[4]
[22]
In
Gorfinkel
v Gross, Hendler and Frank
[5]
,
the Court found that the sub-rule should be interpreted as providing
prima
facie
obligation
(my emphasis) on a party who refers to a document in a pleading or an
affidavit to produce it for inspection if called upon to
do so in
terms of
Rule 35(12).
[23]
Though the obligation is subject to limitation of whether the
document is not in a party’s
possession cannot be produced, or
privilege or irrelevant. The Applicant did not plead any of the
above. The documents requested
are clearly listed in the founding
affidavit of this application, as well as in the founding affidavit
of the main application,
annexures “
C1”
to “
C12”
on pages 58 to 70. The First Respondent informed the Applicant that
the link did not show all the required documents. The Applicant
in
its own papers, having listed the documents, have no reason to refuse
to hand these over. In any event, the Applicant through
a Service
Level Agreement (SLA), is obliged to provide the First Respondent
with reports, invoices of the various months’
minutes of
meetings and other documents.
[24]
The Applicant’s founding affidavit clearly sets out the
invoices and documents as
annexures to the affidavit. The amounts on
the invoices are quite substantial as well as the total amount of
R35 102 773,
17. It is in the interests of fairness that
the Applicant must provide proof of the job done. The First
Respondent is indeed dealing
with public funds and to make payment to
a service provider, proof of invoices, reports and any work done in
terms of the SAL should
be provided. The First Respondent would not
request these documents if these were available on the drop box link.
As already stated
above, the Applicant was in a contractual agreement
with the First Respondent and thus is expected to provide the
necessary documents
for work done. None of these documents were
pleaded as confidential, irrelevant or not in the Applicant’s
possession. The
Applicant has indeed failed to produce the documents
as requested by the First Respondent. I see no reason not to grant
the First
Respondent the relief sought.
[25]
In my view the
points
in limine
raised by the Applicant
ought to be dismissed and the relief sought by the First Respondent
ought to be granted.
COSTS
[26]
The general rule is that costs follow the successful party. In my
view, the First Respondent
did not approach the court unnecessarily
or vexatiously. Had the Applicant provided the First Respondent
with the documents,
this matter would not have been before court. It
was therefore unnecessary for the Applicant to even oppose the matter
[27]
In this instance, costs will follow the successful party.
[28]
I accordingly order as follows:
1.
The Applicant (in the main action) is ordered to comply with
the
First Respondent’s Rule 35 (12) notice dated 04 November 2021;
2.
Should the Applicant fail to comply with the court’s order
in
accordance with paragraph 1 above, within 10 days from date of
service therefore, the Applicant shall be barred from utilizing
the
documents specified in the Notice in these proceedings;
3.
The Applicant to pay the costs of this application.
4.
The Applicant’s point in
limine
are dismissed with no
order as to costs.
CHESIWE,
J
On
behalf of the Applicant:
Adv. MC Makgato
Instructed
by:
Honey Attorneys
Bloemfontein
On
behalf of the First Respondent:
Adv. W Pocock
Instructed
by:
Symington & De Kok Attorneys
Bloemfontein
[1]
(CCT289/16)
[2018] ZACC 8
;
2018 (4) SA 1
(CC);
2018 (7) BCLR 763
(CC) (24 April 2018) at para 31
[2]
1925 TPD 405
at 406
[3]
490 (CC)
2000 (2) SA 211
(W) at 215 A-B
[4]
2007 (3) SA 471 (C)
[5]
1987 (3) SA 766
(C)