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[2021] ZALMPPHC 67
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Morakaladi and Others v Bakone ba Masha Mokopole Communal Property Association and Others (2854/2020) [2021] ZALMPPHC 67 (4 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 2854/2020
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In
the matter between:
TSHEHLA
TSHUPAJA MORAKALADI
FIRST
APPLICANT
PETA
MORGAN
SECOND
APPLICANT
MTD
8 GROUP (PTY) LTD
THIRD
APPLICANT
MINISTER
OF POLICE
FOURTH
APPLICANT
And
BAKONE
BA MASHA MAKOPOLE COMMUNAL
PROPERTY
ASSOCIATION
FIRST
RESPONDENT
MASHA
MAKILOPE TRIBAL AUTHORITY
SECOND
RESPONDENT
KGOSHI
MASHA LEGWAI ARON
THIRD
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The respondents are the applicants in the main application, whilst
the applicants are the respondents
in the main application. In the
main application, the respondents have instituted an interdict
application against the applicants.
On 6
th
August 2020 the
applicants served and filed their notice to oppose the applicants
main application. On 11
th
August 2020 the applicants
served and filed their Rule 35(12) notice on the respondents seeking
certain specified documents to
enable them to prepare their answering
affidavit. On 21
st
August 2020 the respondents’
served and filed their reply to the applicants’ Rule 35(12)
notice.
[2]
On 24
th
August 2020 the applicants’ attorneys wrote
a letter to the respondents’ attorneys notifying them to
reconsider their
refusal to discover certain documents failing which
they will launch an application to compel in terms of Rule 30A. On
27
th
August 2020 the applicants served the respondents
with their Rule 30A notice. On 28
th
August 2020 the
applicants served and filed their answering affidavit together with a
counter application to the respondents application.
On 16
th
September 2020 the respondents served and filed their replying
affidavit.
[3]
On 19
th
October 2020 the applicants launched their notice
to compel application seeking orders that the respondents be
compelled to file
their reply to the applicants Rule 35(12) notices;
that in the event the respondents fail to file their reply to the
applicants’
Rule 35(12) notices, the applicants be allowed to
approach the court on supplemented papers for an order striking out
the respondents
main application; and that should the applicants
succeed with an order compelling the respondents to discover, the
applicants be
given leave to file a supplementary affidavit. In the
founding affidavit for the notice to compel, the applicants
have stated
that when they served the respondents with their Rule
35(12) notices, they deemed the requested documents necessary to
prepare
their answering affidavit. However, in their conclusion the
applicants have stated that they are seeking the documents requested
as per their Rule 35(12) to prepare their case in the main
application. The documents that the applicants have requested the
respondents
to discover are the Deeds Registry records; notices,
minutes and resolutions of annual and general meetings of the first
respondent;
a complete constitution of the first respondent; and list
of beneficiaries of the first respondent.
[4]
The respondents are opposing the applicants’ application. The
respondents in their answering
affidavit have submitted that what the
applicants are seeking, it appears that they are calling upon this
court to re-open the
land claim, dissolve the CPA and to install the
applicants as the leadership of the CPA. It is the respondents’
contention
that they have furnished the applicants with all documents
relevant for the determination of the main application, and that the
documents that the applicants are now seeking are irrelevant.
[5]
The applicants have argued that the wording of Rule 35(12) does not
expressly note requirements
that must be satisfied for the documents
required in terms of this rule to be discoverable, however, the
wording of Rule 35(12)
only suggests that the documents as required
in terms of the rule must have been referred to in the founding
papers of the respondents.
The respondents have submitted that
whereas the purpose of discovery and inspection is to limit issues
between the parties, the
relevance and privilege remain the key
consideration for discovery. The respondents have further submitted
that the applicants
have filed their answering affidavit and thus the
horse had bolted. The respondents further submitted that Rule 35(12)
may be used
in cases where the horse has not yet bolted.
[6]
Rule 35(12) read 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 affidavits
reference is made to any document or tape recording
for his
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 document or tape recording in such
proceeding provided that any other party may
use such documents or
tape recording.”
[7]
In
Penta
Communication Services (Pty) LTD v King and Another
[1]
Bozalek J said:
“
The question of
how the provisions of Rule 35(12) are to be applied was considered in
Gorfinkel (supra), where Friedman J (as he
then was) found that the
Rule should be interpreted as providing for a prima facie obligation
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). That obligation is
however, subject to certain limitations;
for example, if the document is not in his possession and he cannot
produce it, or the
document is privileged or is irrelevant, the Court
will not compel him to produce such document. It was further held
that since
it would not necessary be within the knowledge of
the person serving the notice whether the document is one which falls
within
the limitations mentioned, the onus would be on the recipient
of the notice to set up the facts relieving him of the obligation
to
produce the document.”
[8]
Rule 35(12) applies to both applications and action proceedings. Any
party to any proceedings
is entitled to use this rule any time before
the hearing of the matter. The applicants in the case at hand has
delivered their
Rule 35(12) notices immediately after filing their
notice to oppose. When the applicants delivered their Rule 35(12)
notices, they
wanted the respondents to discover the specified
documents to enable them to prepare their answering affidavit.
However, the applicants
have delivered their answering affidavit
before the respondents could adequately reply to their Rule 35(12)
notices. The applicants’
application to compel was filed after
they have filed their answering affidavit and the respondents have
also filed their replying
affidavit. Under normal circumstances
pleadings are closed and the matter is ripe to be heard.
[9]
The first question which this court must determine is whether the
applicants’ application
to compel has still some relevancy or
is moot since they were able to formulate their defence without the
required documents and
have also filed a proper answering affidavit.
Rule 35(12) does not suspend the time period within which the
applicants were required
to file their answering affidavit. (See
Potpale
Investment (Pty) Ltd v Mkize
[2]
).
When the time period
within which to file an answering affidavit is about to expire, the
affected party had an election to file
an answering affidavit with
the little facts he/she might be having, or to launch the application
to compel. However, even if he/she
launches an application to compel,
that does not bar the other party from proceeding to obtain a default
order on unopposed basis.
[10]
A party who had filed an answering affidavit before the other party
adequately replied to its Rule
35(12) is not bared from pursuing
his/her Rule 35(12) notice by compelling the other party to discover
the specified documents,
and thereafter apply to court to file a
supplementary affidavit should he/she find a need to supplement on
receipt of the required
documents. That is the route that the
applicants have followed in the case at hand and there is nothing
wrong with that procedure.
[11]
Rule 35(12) may be used to authorize production of documents referred
to in the founding affidavit
or answering affidavit. Generally a
party who made reference to documents in his/her founding affidavit
or answering affidavit
is obliged to discover them when called upon
to do so. As held in
Penta Communication Servic
es case, above,
the limitation to the obligation to discover are if the document is
not in his/her possession and he/she cannot
discover it, the document
is privileged or irrelevant.
[12]
The respondents in their answering affidavit have stated that the
grounds upon which they are opposing
the applicants’
application is that it is clear that the applicants miscomprehended
the respondents’ case against them,
and further that it ought
to be clear that if the applicants are mistaken about the gravamen of
the application, they ought to
be mistaken about the evidence
required to resolve the issues. The respondents concluded their
answering affidavit by stating
that they have furnished all documents
relevant for the determination of the dispute in the main application
and that documents
required by the applicants are irrelevant.
[13]
In
Centre
for Child Law v Hoerskoel Fochville
[3]
Ponnan JA said:
“
In general terms,
the rules exist to regulate the practice and procedure of courts.
Their object is to secure the “inexpensive
and expeditious
completion of litigation before the courts” and they are not an
end in and of themselves. Ordinarily, strong
grounds would have to be
advanced to persuade a court to act outside the powers provided for
specifically in the rules.”
[12]
The applicants in their founding affidavit have stated that they have
filed their Rule 35(12) notice
requesting certain documents which
they deem necessary to prepare their answering affidavit. The
respondents in answering to this
submission by the applicants have
stated that the applicants have filed an answering affidavit which is
comprehensive and voluminous,
and that the issue in their main
application for interdict is the entitlement of the respondents to
issue residential and business
sites on the farm. It is not for the
respondents to determine to the applicants whether their answering
affidavit is comprehensive.
The applicants are the ones who are going
to argue their case and they cannot be dictated how to prepare for
their case and which
document to use in advancing their defence.
[13]
What the respondents were supposed to show the court in justifying
their refusal to discover was to
show that the required documents
were not in their possession, or that they are irrelevant or
privileged. They only reason that
was furnished by the respondents is
that the documents as requested by the applicants are irrelevant. By
merely stating that the
documents required are irrelevant is not
sufficient. Strong grounds substantiating that must be advanced, of
which the respondents
have failed to do. Under the circumstances, the
applicants are entitled to the documents they are requesting.
However, at this
stage it is premature to deal with prayer 3 of the
applicants’ notice of motion wherein they are seeking an order
granting
them leave to file a supplementary affidavit. The applicants
in their papers have also not made out a case for such an order.
After
receipt of the specified documents, should they find a need to
supplement their papers, they will bring a proper application for
that.
[14]
In the result I make the following order
14.1 The respondents are
ordered to file their reply to the applicants’ notices in terms
of Rule 35(12) of the Uniform Rules
of Court within 10 days of date
of this order.
14.2 In the event that
the respondents should fail to file their reply to the notices as
envisaged herein, the first and second
applicants are allowed to
approach this Court on supplemented papers for an order striking out
the respondents main application.
14.3 The respondents to
pay the costs of this application on party and party scale
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the applicants
:
Masipa N
Instructed
by
:
Mphahlele & Makhumbila attorneys
Counsel
for the respondents
:
Adv Monene
Instructed
by
:
MT Ramabala attorneys
Date
heard
:
15
th
September 2021
Electronically
delivered on
:4
th
October 2021
[1]
2007 (3) SA 471
(C) at 479G-I
[2]
2016 (5) SA 96
(KZP) at para 23
[3]
2016 (2) SA 121
(SCA) at para 17