About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 329
|
|
Waterkloof Holdings (Pty) Ltd and Others v Van Tonder N.O. and Others (4975/2020) [2022] ZAFSHC 329 (24 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4975/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
WATERKLOOF
HOLDINGS (PTY) LTD
1
st
Applicant
FG
JANSE VAN RENSBURG
2
nd
Applicant
D
F
PRINSLOO
3
rd
Applicant
and
DANIEL
FRANCOIS VAN TONDER N.O.
1
st
Respondent
JOHAN
DIEDRICK VAN WYK N.O.
2
nd
Respondent
PAULINE
VAN TONDER N.O.
3
rd
Respondent
KALINKA
JANSE VAN VUUREN N.O.
4
th
Respondent
DANIEL
FRANCOIS VAN TONDER
5
th
Respondent
CORAM:
KHOOE, AJ
JUDGMENT
BY:
KHOOE, AJ
HEARD
ON:
25 AUGUST 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII.
The
date and time for
the
hand-down are
deemed
to
be 09:00 on
24
November 2022.
[1]
The Parties are entangled in litigation
following a cancelled deed of sale that came into existence on 26
January 2018. Waterkloof
Holdings (Pty) Ltd (“the Company”)
who are the plaintiffs in the main claim, bought five (5) immovable
properties and
movable property from Waterkloof trust (“the
trust”) defendants in the main claim. On or around February
2020, the
trust cancelled the deed of sale and around October 2020
the immovable property was transferred back to the name of Trust.
[2]
The parties exchanged their respective
discovery affidavits, then the applicants delivered a Rule 35(3)
notice. The applicants,
dissatisfied with the answer thereto,
approached the court to compel the respondents to comply with their
Rule 35(3) with specific
reference to paragraphs 2 to 8 and 13 to 15
of the Rule 35(3) notice.
[3]
The respondents contend that the applicants
failed to provide the court with facts that make it plain or raise a
strong possibility,
that further documents requested are relevant and
necessary for fairly disposing of the main matter and that the
applicants are
merely on a fishing expedition.
[4]
The applicants’ request is based on
allegations in the respondent’s plea and their counterclaim
that there was a Joint
Venture and that some of the movable property
which is material to the main claim had been sold to a company called
Barren Energy.
[5]
The issue to be decided by this court as
the respondents framed it is as follows
:
“
Is
there a basis to go behind the defendants’ discovery affidavit
and/or the Rule 35(3)? The answer must surely be no.”
[6]
The applicants contend that the
documentation in paragraphs 2 to 8 is relevant because the
respondents denied that the sale agreement
between the Joint Venture
and Barren Energy came into existence and further that the
respondents did not submit that the documents
are irrelevant to the
dispute, averring instead that the information is subject to the
Personal Information Act 2013 (“POPI
Act”).
[7]
The applicants further requested WhatsApp
messages of the 5
th
respondent on the Prickly Pear Association WhatsApp group. According
to the applicants, the WhatsApp messages are relevant insofar
as
proving that the 5
th
respondent informed the Prickly Pear Association that the immovable
properties which are the subject in the main claim were sold
to
Barren Energy.
[8]
The applicants also requested a resolution
of the trust authorizing the 5
th
respondent to enter into the alleged joint venture, bank statements
of the trust and the income and expenditure of the trust as
well as
that of the 5
th
respondent.
APPLICABLE
LAW
[9]
The main objective of the discovery process
is to ensure that all parties are aware of any documentary evidence
that is available,
to narrow down issues, and to eliminate the
element of surprise or as some may say, to guard against trial by
ambush.
[10]
Rule 35 (3) provides:
‘
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
ten days that such documents are not in his possession, in which
event he shall state their whereabouts
if known to him.’
[11]
Courts
are reluctant to go behind a discovery affidavit, which is prima
facie taken to be conclusive unless a probability is shown
to exist
that the deponent is either mistaken or false in his assertion.
[1]
The Court, in determining whether to go behind the discovery
affidavit, will only have regard to the following: the pleadings in
the action, the discovery affidavit itself, the documents referred to
in such affidavit as well as admissions of the party evidenced
elsewhere.
[12]
In
Swissborough Diamond Mines (Pty) Ltd and Others v Government of the
Republic of South Africa,
[2]
it was said it is also particularly significant that the rule refers
specifically to documents which may be relevant to the action,
and
that relevance is determined having regard to the issues taken at
face value as defined in the pleadings.
SUBMISSIONS
AND ANALYSIS
[13]
The Respondents’ reply to the
Applicants’ Rule 35(3) notice regarding the documents in
question, in particular the documents
referred to in paragraphs 2 to
7 thereof, revolved around the documents being subject to the POPI
Act. Before counsel for the respondents
could make a submission,
counsel for the applicants informed the court that the respondents
would no longer be pursuing that in
argument, and counsel for
respondents confirmed that as correct.
[14]
Counsel for the respondents submitted that
the documents requested should not have been sought through the Rule
35(3) procedure
as it is not in contention on the pleadings that an
offer to purchase and sale agreement was entered into with Barren
energy. Even
though this may be so, it does not take away from the
fact that the sought documents may be relevant in the litigation
which is
the whole reason why the applicants requested them. Had the
respondent discovered them, it would not have been necessary for the
applicants to have delivered the Rule 35(3) notice.
[15]
As far as the bank statements sought in
paragraph 8 are concerned, Counsel for the respondents argued that
the bank statements from
1 December 2019 to 18 December 2020 are not
relevant as payment had already been made and that that is not in
contention therefore
the applicants were not entitled to them.
Counsel for the Applicants conceded part of the submission and
contended that they only
seek statements until the date of issue of
summons. This request will be read to relate to statements from 1
December 2018 until
12 December 2020.
[16]
Counsel
for the applicants further conceded that the audited financial
statements of the 5
th
respondent as requested in paragraph 9 were not relevant to the
action, therefore the respondents did not have to discover them.
As
far as the audited financial statements of the trust are concerned,
the respondents’ counsel submitted that these would
be
discovered when they are available. This is the correct approach as a
party cannot be compelled to discover that which he does
not have.
[3]
[17]
As far as the WhatsApp messages are
concerned, counsel for the applicants conceded that the request was
too wide and all-inclusive
and suggested that the messages be
confined to the messages on the group by the 5
th
respondent on the sale regarding Baren Energy/Ensight Pty Ltd.
[18]
Regarding the audio-visual recording of the
Prickly Pear Association meeting requested in paragraph 12 of the
Rule 35(3) notice,
counsel for the applicants conceded that the
respondents do not have to provide that as it does not exist.
[19]
Counsel for the respondents submitted that
the resolution sought by the applicants in paragraph 14 of the Rule
35(3) notice was
non-existent. The only resolution in existence had
been made available for inspection and the applicants never took the
opportunity
to inspect it, therefore the respondents should not be
compelled to provide the resolution as they already provided what
they have
in their possession.
[20]
I am satisfied that the items referred to
in this order are relevant and necessary for the fair disposal of the
main matter.
ORDER
[21]
WHEREFORE, the following order shall issue;
1)
The respondents are ordered to comply with
the applicants’ Rule 35(3) dated 30 September 2021 by –
a)
Making available for inspection in
accordance with Rule 35(6) all the documents listed in paragraphs 2,
3, 4, 5, 6, and 7. Documents
in paragraph 8 only statements on the
date of sale until the date of issue of summons.
b)
make available for inspection documents in
paragraphs 9 and 10 when they are available.
c)
make available for inspection 5
th
respondent’s WhatsApp messages on the Prickly Pear Association
WhatsApp group regarding the sale of Baren Energy.
2)
Costs to be costs in the action.
NJ
KHOOE, AJ
On
behalf of the Applicant: Adv. Lubbe SC
Instructed
by: J
G Kriek & Cloete
Sowden
Street 9(B)3 Waverly,
BLOEMFONTEIN
Ref:
Van Biljon/ Hanlie
On
behalf of the respondent: Adv. WA van Aswegen
Instructed
by: Hill
McHardy & Herbst INC
7
Collins Road, Arboretum
BLOEMFONTEIN
Ref:
P Schuurman/cg//G27165
[1]
Marais v Lombard
1958 (4) SA 224
at 227 G.
[2]
1999 (2) SA T at 323 B-C.
[3]
Dube v Member of the Executive Council for Health, Gauteng Province
6279/17 (Unreported).