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[2022] ZANCHC 18
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Derks v Du Plessis and Others (1876/2019) [2022] ZANCHC 18 (23 February 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: 1876/2019
Heard: 04/02/2022
Delivered: 23/02/2022
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In the matter between:
PAULUS
RETIEF
DERKS
Applicant
and
WILLEM
VAN WYK DU PLESSIS
First Respondent
BRUCE
EDWARD
HUNT
Second Respondent
DEWLIN
BK
Third Respondent
LYNDON
DE MEILLON
N.O.
Fourth Respondent
ELRI
DE MEILLON
N.O.
Fifth Respondent
In re:
WILLEM
VAN WYK DU PLESSIS
First Plaintiff
BRUCE
EDWARD
HUNT
Second Plaintiff
DEWLIN
BK
Third Plaintiff
LYNDON
DE MEILLON
N.O.
Fourth Plaintiff
ELRI
DE MEILLON
N.O.
Fifth Plaintiff
and
PAULUS
RETIEF
DERKS
Defendant
JUDGMENT
Mamosebo J
[1]
This is an interlocutory application by Mr Paulus Retief Derks, the
defendant in the
main action for damages, seeking relief in terms of
Rule 35(7) of the Uniform Rules of Court for an order compelling the
respondents
to reply to his notice in terms of Rule 35(3). The
application is opposed. For convenience, the parties
will
be referred to
as they are cited in the main action.
[2]
The defendant was the plaintiffs’ attorney instructed to
institute action on
their behalf against SANRAL for damages
occasioned by a veld fire on 10 December 2015. The defendant
allegedly
negligently
allowed the claim
to prescribe.
T
he plaintiffs
have
now
brought an action for damages against the defendant
arising from his alleged professional negligence in the context of an
attorney
and client relationship. As stated in their particulars of
claim all the plaintiffs farm in livestock and the damages claimed
emanate
from damages to their natural grazing and fencing.
[3]
The defendant first served an electronic copy of the notice in terms
of Rule 35(3)
on the plaintiffs’ erstwhile attorney on 05 May
2021, followed by
the
service of a hard
copy on 12 May 2021 calling on the plaintiffs to produce the
following documentation for inspection by the defendant
within ten
(10) court days:
3.1 The
trust deed in respect of the Lyndon de Meillon Family Trust,
registration number IT113/2002;
3.2 The
letters of authority certifying that the fourth and fifth plaintiffs
are authorised to act as trustees
of the Lyndon de Meillon Family
Trust:
3.3 The
resolution authorising the fourth and fifth plaintiffs to institute a
claim against the defendant on behalf
of the Lyndon de Meillon Family
Trust;
3.4 The
resolution taken by the members of the third plaintiff authorising
the Close Corporation to institute
a claim against the defendant;
3.5 The
title deed pertaining to the transfer of portion 7 of the farm
Leeuwpoort No. 18, Division Kimberley,
from its former owner to the
third plaintiff;
3.6 The
annual financial statements of the plaintiffs for the period 1
January 2014 to 31 December 2014, as well
as the annual financial
statements for the period 1 January 2015 to 31 December 2015;
3.7 The
annual financial statements of the plaintiffs for the period 1
January 2016 to 31 December 2016, as well
as the annual financial
statements for the period 1 January 2017 to 31 December 2017;
3.8 All
documentation indicating the alleged damages suffered by the
plaintiffs, including any and/or all photographs
in their possession
evidencing the alleged damages sustained for their natural grazing
and fencing;
3.9 All
documentation indicating the number of livestock owned by the
respective plaintiffs, both as at 10 December
2015 as well as for the
financial year thereafter;
3.10 All financial
documentation of all entities undertaking farming operations on all
the plaintiffs’ farms for the
period 1 January 2014 to 31
December 2015, as well as for the period 1 January 2016 to 31
December 2017.
[4]
Despite numerous telephone calls
,
exchange of correspondence
and
undertakings by the erstwhile attorney that the required documents
will be availed
they
were not honoured
nor was
the
requested discovery made. The defendant enrolled the application to
compel on the unopposed motion roll on 13 August 2021. The
plaintiffs
delivered a reply to the defendant’s Rule 35(3) notice on 12
August 2021
.
T
he
application was
then
removed from the roll on 13 August 2021. This reply, however,
partially complied with what was sought. The plaintiffs refused to
furnish information
set out
at paras 3.6
to
3.10 at para 3 (above) which they
describe as quantum documents. In their answering affidavit deposed
to by their instructing attorney,
Ms Riana Gagiano, the plaintiffs
contend that the outstanding requested information is irrelevant and
that
relevance
is determined from the pleadings.
[5]
For the plaintiffs’ claim to succeed against the defendant they
must,
inter alia
, prove that they suffered damages as a result
of the alleged professional negligence of the defendant. This means
that they must
demonstrate that they had an actionable claim against
SANRAL that would have been successfully prosecuted by the defendant.
Each
plaintiff’s
claim against the
defendant comprise two heads of damages, namely, (i) the loss of
natural grazing and (ii) the replacement costs
of
the
damaged and/or destroyed fencing. The plaintiffs’
expert, Mr Pieter JJPC Swanepoel of Agri Assessors, has filed a
report dated
25 October 2017, which was attached to their amended
particulars of claim, which they rely on to prove quantum.
[6]
Mr Van Niekerk SC, for the plaintiffs, argued that they are not
claiming for loss
of income
because
had
that been the case, the plaintiffs’ financial statements would
have been relevant. Counsel invoked this Court’s
judgment in
Vermeulen
and Others v Minister of Defence
[1]
where
the plaintiffs’ claims were divided into three main groups, (i)
the infrastructure claims relating to fencing, pipes,
dams and the
like; (ii) production claims structured according to a formula used
by the defendant’s expert, Prof Dube; and
(iii) claims for
general damages. The loss of production claims were based on the
three-year withdrawal period of the livestock
from the areas affected
or
devastated
by the fire. The formula used in
Vermeulen
was
reckoned
by
the
affected area in hectares divided by the hectares per large livestock
unit, which would give the number of cows having been
kept on the
affected areas. The number of cows are multiplied by the percentage
calving rate to give the projected number of calves.
The number of
calves for a particular year would then be multiplied by the average
selling weight of a particular plaintiff multiplied
by the average
price obtained per kilogram for a particular year.
[7]
The formula applied by the plaintiffs’ expert in calculating
the plaintiffs’
claims as gleaned from the report is the
following:
7.1 the
loss of natural grazing:
(a)
it is calculated in terms of large livestock units;
(b)
determined the surface area that the respective plaintiffs were
unable to exploit as a result of the
veld fire;
(c)
determined the carrying capacity of the veld in the plaintiffs’
farms;
(d)
calculated that a
single
large livestock
unit
will consume 11kg of grazing per
day;
(e)
determined the nutritional value per kilogram of the natural grazing;
(f)
determined the minimum number of large livestock units that the
unusable surface area would have
been able to accommodate;
(g)
estimated that the veld would take about 3 years, or 1080 days, to
recover; and
(h)
the plaintiffs’ expert then took the minimum number of large
livestock units, multiplied by the
consumption of grazing per day,
multiplied by the nutritional value of grazing, multiplied by the
period needed for recovery of
the veld, to arrive at the monetary
value of the loss of natural grazing suffered by the plaintiffs.
7.2 the
replacement costs of damaged and/or destroyed fencing. The
plaintiffs’ expert ascertained the types
of fencing that were
damaged by the veld fire, the extent to which the fencing was
damaged, the length of the fencing that needed
to be replaced, the
actual cost of fencing and the cost of labour to replace the fencing.
[8]
Referring me to the defendant’s heads of argument to make a
point that the premise
from which the defendant is attempting to
motivate the provision of the financial statements because they
relate to income before
and after the event, Mr Van Niekerk
highlighted the averments argued on behalf of the defendant and I
quote only some of them:
8.1
They
are required to prove the financial impact which the alleged damages
to their natural grazing had on their operations and income.
This,
inter alia, includes an analysis and comparison of their respective
financial statements in respect of the farming operations
conducted
by them before as well as after the damage causing event in question.
It also requires proof of the number of livestock
owned by the
plaintiffs at the respective periods.
[2]
8.2
The financial statements and documents in support of livestock
numbers are thus directly relevant to the damages
suffered by the
plaintiffs and ought to be discovered.
[3]
8.3
But it is not evident from his report what impact the alleged damages
to the plaintiffs’ natural grazing
had on the plaintiffs’
actual income and farming operations….”
[4]
[9]
Counsel for the defendant, Mr JG Van der Merwe, on the other hand,
maintained that
the financial statements and proof of the number of
livestock owned by the plaintiffs during the affected period is an
alternative
method to be used by the defendant’s expert, an
agricultural economist, to analyse and compare the documents in order
to
quantify the damages suffered. Mr Van der Merwe emphasised the
phrase in Rule 35(3) “
which
may be relevant
to any matter in question….”
[10]
Mr Van der Merwe relied on
Rellams
(Pty) Ltd v James Brown & Hamer Ltd
[5]
where Van Heerden J made the following pronouncements:
“
The
question remains whether the documents called to be produced are
relevant to any matter in the action. The test for determining
this,
as laid down in Compagnie Financiére et Commerciale du
Pacifique v Pervian Guano Co
(1882) 11 QBD 55
, has often been
accepted and applied in our Courts. 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 to 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 the adversary, if it is a
document which may fairly lead him to a train
of enquiry which may
have either of these two consequences.
’”
[11]
Relevance is determined by the pleadings. The plaintiffs are not
claiming for loss of income
and it therefore remains inexplicable how
the financial statements will assist the defendant to calculate the
damage to the fence
or the loss of natural grazing. Mr Van der Merwe
submitted that natural grazing is a consumable type of asset which
can occur,
disappear and re-occur, affecting its value. The financial
statements and the number of plaintiffs’ livestock will assist
in determining loss in value or increase in the necessary expenses.
This argument does not find merit for present purposes.
[12]
I align with the remarks by Greenberg J in
Schlesinger
v Donaldson and Another
[6]
that:
“
In
order to decide the question of relevancy, the issues raised by the
pleadings must be considered….”
[13]
It is trite that our Courts are reluctant to go behind a discovery
affidavit, which is
prima
facie
regarded as conclusive.
[7]
In my
view, the defendant has not made out a case on the relevance of the
documents
sought
to be discovered.
[14]
The defendant’s expert can apply his method of quantification
and should not be forced
nor
the perception
should not be created of being
forced to accept the
methodology followed by the plaintiffs’ expert. At the risk of
repetition, the claim relates to damages
relating to the plaintiffs’
natural grazing and fencing and has nothing to do with their income.
There is no substance
to
this
application because the defendant has not informed the court on the
method his expert
proposes
to apply and
how the financial statements bear relevance
to
the grazing and the fence. There is nothing in the plaintiffs’
expert report addressing loss of production and loss of income
because those are unrelated to the plaintiffs’ claim for
purposes of trial. It therefore follows that the defendant’s
application must fail in as far as the production for inspection of
financial statements
set out in
paras
3.6, 3.7 and 3.10 above.
[15]
Having applied my mind carefully to whether there may be some merit
in the request for documentation
indicating the number of livestock
owned by the respective plaintiffs as at 10 December 2015, and regard
being had to the plaintiffs’
Amended Particulars of Claim and
the plaintiffs’ expert report (Annexure “E”)
attached to the amended particulars
of claim, against the backdrop of
calculating the patrimony before and after the occurrence of the veld
fire, I am not persuaded
by the application to compel discovery in
this regard. In my view, it is the grazing and the fencing that has
diminished in value
as a result of the veld fire that forms the
subject of the action proceedings.
It therefore follows that
this part of the application also stands to be dismissed.
[16]
On
the question of costs
.
In
Kruger
Bros & Wasserman v Ruskin
[8]
Innes
CJ held:
“
The
rule of our law is that all costs – unless expressly otherwise
enacted – are in the discretion of the Judge. His
discretion
must be judicially exercised, but it cannot be challenged, taken
alone and apart from the main order, without his permission.”
There is therefore no
reason why costs should not follow the result.
[17]
In the result, the following order is made:
The application is
dismissed with costs.
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant/defendant:
Adv. J.G van der Merwe
Instructed
by:
Elliot Maris Inc
For
the respondents/plaintiffs
Adv. J.G van Niekerk SC
Instructed
by:
PGMO Attorneys
[1]
[2018] JOL 39561
(NCK)
[2]
Para 25 of heads
[3]
Para 26 of heads
[4]
Para 32 of heads
[5]
1983 (1) SA 556
(NPD) at 563H - 564B
[6]
1929 WLD 54
at 57
[7]
Swissborough Diamond Mines (Pty) Ltd and Others v Government of the
Republic of South Africa and Others 1999 (2) SA 279 (TPD)
[8]
1918 AD 63