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[2021] ZAGPPHC 261
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Zulu v Red Ant Security Relocation and Eviction Services (Pty) Ltd (10953/18) [2021] ZAGPPHC 261 (23 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: 10953/18
DATE:
23 April 2021
THULANI
ZULU
Applicant
V
RED ANT SECURITY
RELOCATION AND
EVICTION
SERVICES (PTY) LTD
Respondent
JUDGMENT
MABUSE
J
[1]
This is an opposed interlocutory application to compel further
discovery of specified
documents. The Applicant, Thulani Zulu,
seeks, against the Respondent, Red Ant Security Relocation and
Eviction Services
(Pty) Ltd, by notice dated 7 August 2019 an order
compelling the Respondent to reply to the Applicant’s notice in
terms of
Rule 35(3) of the Uniform Rules of Court (the Rule 35(3)
notice) within 10 (ten) days of service of the court order on the
Respondent.
The Applicant also seeks costs order for the
application.
[2]
For purposes of convenience, I shall refer to the Applicant as the
Plaintiff and the
Respondent as the Defendant.
THE
BACKGROUND
[3]
On or about 13 August 2018 the Plaintiff’s attorneys caused a
notice in terms
of Rule 35(3) to be served on the Defendant’s
attorneys. The pleadings had, at that stage, reached
litis
contestatio
. In the said notice,
the Plaintiff had required the Defendant to make available, for the
inspection of the Plaintiff in terms
of Rule 35(6), certain
documents, in addition to the documents the Defendant had disclosed
in the Defendant’s discovery affidavit
dated 21 June 2018 and
served on the Plaintiff’s attorneys on 25 June 2018. In
the event that the Defendant did not
have such documents in its
possession, the Defendant was required, to state under oath, that
such documents were not in its possession
and to specify where such
documents were, if known to the Defendant.
[4]
Rule 35(3) notice specified such documents as being:
“
4.1
All instructions received from the Sheriff
Westonaria for the months of April 2017 and May 2017;
4.2
all invoices delivered to the Sheriff Westonaria for the months of
May 2017 and June 2017.”
[5]
Jan Petrus Allen (“Mr Allen”) prepared a reply by way of
an affidavit
on behalf of the Defendant to the said application to
compel. He stated in his founding affidavit that in his notice
in terms
of Rule 35(3) the Plaintiff required the documents set out
in paragraph 4 supra. He then pointed out that in his
Particulars
of Claim (“POC”), in particular in paragraph
4.1 the Plaintiff had pleaded that:
“
On
or about the 3
rd
of May 2017 and at or near Lenasia, Gauteng, the Plaintiff was …
assaulted by members and/or employees of the Defendant
….”
On
this basis the Defendant objected to the documentation requested in
the Plaintiff’s notice in terms of Rule 35(3) on the
basis that
the requested documentation was inconsistent with the Plaintiff’s
pleaded case, on the following grounds:
“
5.1
the Sheriff Westonaria is situated outside of the jurisdictional area
of Lenasia;
5.2
the period for which the information is sought is not limited to the
date of 3 May 2017;
5.3
no basis is laid in the Particulars of Claim to infer or involve the
Sheriff Westonaria
and/or any nexus between the Defendant and the
Sheriff Westonaria;
5.4
in addition, the reference to an area being “at or near
Lenasia” is inconsistent
with the request for documentation
related to the Sheriff Westsonaria.”
The
Defendant then refused to provide the Plaintiff with the requested
information simply on the basis that the documentation requested
was
not relevant to the matters in question.
[6]
On 28 August 2018 the Plaintiff’s attorneys wrote a letter to
the Defendant’s
attorneys in which they observed that the only
issue that the Defendant’s attorneys had raised in their reply
was the relevance
of the documents requested. In their said
letter they referred the Defendant’s attorneys to a paragraph
in the unreported
judgment of Acting Judge Van der Byl in
Visser
and Others v Vardakos Attorneys and Others (14355/2010) [2012]
JAGPPHC 98 (8June 2012)
where the said Judge had stated that:
“
There
is, relevancy being the only issue, no reason why the Plaintiffs are
not entitled to inspect the documents in order to satisfy
themselves
whether or not the documents are indeed relevant.”
[7]
The purpose of referring the Defendant’s attorneys to the said
paragraph was
to persuade them to comply with the Plaintiff’s
Rule 35(3) notice and to show them what the authorities state on
relevance
even if they objected to producing the documents,
notwithstanding the Defendant’s view that such documents were
not relevant.
The Plaintiff was keen to receive the said
documents and to verify whether or not they were relevant. In
addition, and in
an effort to persuade the Defendant’s
attorneys to comply with the Plaintiff’s Rule 35(3) notice, the
Plaintiff’s
attorneys forwarded to the Defendant’s
attorneys a copy of an article in the Daily Sun newspaper of 5 March
2017. In
the light of the said article, the Plaintiff’s
attorneys implored the Defendant’s attorneys to furnish them
with a
proper reply on or before Thursday 11 September 2018 failing
which the Plaintiff’s attorneys threatened that they would
bring
an application to compel and for an order of costs on attorney
and client scale. The Defendant’s attorneys again failed
to respond to the said letter. Even if the Defedant’s
attorneys refused to produce the said documents on the basis
of lack
of relevance, they were still obliged to provide the Plaintiff’s
attorneys with the said documents.
[8]
On 25 October 2018 the Plaintiff served his notice of intention to
amend his POC on
the Defendant’s attorneys. The purpose
of the amendment was to delete the whole of paragraph 4.1 of the
Plaintiff’s
POC and to replace it with the following paragraph:
“
On
or about the 3
rd
of May 2017 and at or near Protea Industrial Park within the
jurisdictional area of sheriff Westonaria, the Plaintiff was
unlawfully
and intentionally assaulted by the members and/or
employees of the Defendant, whose names and further particulars are
unknown to
the Plaintiff by shooting the Plaintiff numerous times
with rubber bullets.”
The
amendment on behalf of the Plaintiff was merely to introduce
specificity in the pleading apropos the place of the incident.
That amendment neither changed nor amended the Plaintiff’s
cause of action.
The
other purpose of the amendment was to tackle the objection of
relevance that the Defendant had raised in Mr Allen’s affidavit
regarding the information requested in the notice of motion was
inconsistent with the pleaded case, particularly that:
“
8.1
the sheriff Westonaria is situated outside the jurisdictional area of
Lenasia;
8.2
the period for which information is sought is not limited to the date
of 3 May 2017;
8.3
no basis is laid in the Particulars of claim to infer or involve the
sheriff Westonaria
and/or any nexus between the Defendant and the
sheriff Westonaria;
8.4
in addition, the reference to an area being “at or near
Lenasia” is inconsistent
with the request for documentation
relating to the sheriff Westonaria.”
As there was no objection
to the contemplated amendment it was effected accordingly.
Of
course, service of a notice of intention to amend has the effect of
reopening the pleadings. The pleadings were therefore
re-opened
on 25 October 2018. On 3 December 2018 the Plaintiff delivered an
application to compel compliance with Rule 35(3) notice.
Mr
Holmner concedes in the replying affidavit that it was an oversight
from the Plaintiff’s side to do so, because firstly,
the
pleadings had just reopened on 25 October 2018 by the Plaintiff’s
delivery of the notice of intention to amend and secondly,
the
parties were still engaged in the amendment of pleadings process.
[9]
As a result the Plaintiff had no choice but to withdraw “the
first application”
and to tender costs. By “the
first application” Mr Holmner referred to the notice to compel
delivered on 3 December
2018. Subsequent to the said
withdrawal, the Defendant served its notice of intention to amend its
pleadings on the Plaintiff’s
attorneys on 4 December 2018.
Its amended pages of its plea were delivered on 18 January 2019.
After being served with
the amended pages of the Defendant’s
plea on 18 January 2019, the Plaintiff was convinced that the parties
had reached
litis contestatio
.
So, on 5 April 2019 the Plaintiff’s attorneys sent
correspondence to the Defendant’s attorneys and informed
them
that since the pleadings had again become closed, the Plaintiff
requested the Defendant to comply with the Rule 35(3) notice
which
the Defendant had neglected. This correspondence went
unanswered.
[10]
On 15 August 2019 the Plaintiff’s attorneys delivered the
application to compel.
The Plaintiff’s would seek an
order in terms of which the Defendant would be compelled to reply to
the Plaintiff’s
notice in terms of Rule 35(3) within 10 court
days of service of the court order on the Defendant. This
notice to compel
was dated 7 March 2019.
[11]
In support of this application to compel compliance was an affidavit
dated 12 August 2019 by
Barend Jacobus Steyn Holmner (“Mr
Holmner”).
11.1 He
relied on the Rule 35(3) notice that the Plaintiff’s attorneys
had served on the Defendant’s
attorneys on 13 August 2018.
He states that:
“
On
or about the 13
th
of August 2018 I caused a Notice in terms of Rule 35(3) to be served
on the Respondent/Defendant’s attorneys, at which stage
the
pleadings were duly closed, requiring the Respondent/Defendant to
make available certain documentation, in addition to the
document’s
disclosed in the discovery affidavit for inspection in accordance
with the Rule 35(6);”
11.2 Mr
Holmner explains further that on 27 August 2018, the Defendant’s
attorneys delivered the Defendant’s
reply to the Plaintiff’s
Rule 35(3) notice. This is the reply referred to in paragraph
[5]
supra
.
11.3 He
states in his affidavit furthermore that on 28 August 2018 he
forwarded correspondence to the Defendant’s
attorneys in which
he informed them that their reply to the Plaintiff’s notice in
terms of Rule 35(3) did not comply with
the provisions of Rule 35(3)
in particular that the issue of relevance was not sufficient reason
not to produce the requested documents
for the Plaintiff’s
inspection. In terms of the said correspondence, the
Plaintiff’s attorneys requested the
Defendant’s attorneys
to comply properly with the Rule 35(3) notice. They granted the
Defendant’s attorneys an
indulgence until 11 September 2018 to
properly respond failing which they would launch an application to
compel.
11.4
On 5 April 2019 the Plaintiff’s attorneys sent another letter
to the Defendant’s attorneys and
requested proper compliance
within 10 calendar days of 5 April 2019 with the Plaintiff’s
Rule 35(3) notice. It is the
Plaintiff’s case that the
Defendant has failed to comply with the said Rule 35(3) notice.
[12]
The Defendant opposes the application to compel. On 21 August
2019 the Defendant’s
attorneys delivered their notice to oppose
the Plaintiff’s application to compel. The notice to
oppose was followed
on 31 January 2020 by an answering affidavit
deposed to by Mr Jan Petrus Allen (“Mr Allen”).
According to Mr
Allen, this is the second application to compel.
In paragraph 6 he states that:
“
The
Applicant persisted, forcing the Respondent to serve its answering
affidavit by 7 February 2019. The Applicant thereafter
withdrew
the application on 13 February 2019 and tendered costs. The
matter was accordingly removed from the unopposed roll.”
In the
answering affidavit Mr Allen took the view that the application he
was responding to was the second such application.
This is
correct. It will be recalled that the first such application
was the one delivered on 3 December 2018 but which was,
as pointed
out, subsequently withdrawn.
The current
application was stillborn
[13]
Furthermore he took the view that the current application was
stillborn and that the Rule 35(3)
notice, that led to the previous
application and that also served as a basis for the current
application, cannot be revived. The
notice in terms of Rule 35(3)
that Mr Allen claims cannot be revived is the one that the
Plaintiff’s attorneys served on
the Defendant’s attorneys
on 13 August 2018. Mr Allen claims furthermore that by
tendering costs, the Plaintiff conceded
that the Rule 35(3) notice
and application premised thereon were bad.
[14]
I do not have in the court file any record of the notice of
withdrawal of the Rule 35(3) notice
and the Applicant’s
application to compel, referred to by Mr Allen. Considering the
notices filed of record and the
averments contained in the
affidavits, it appears to be incorrect that the Plaintiff’s
attorneys withdrew both the 35(3)
notice and the application to
compel compliance with it, in other words, the Rule 35(3) notice that
was served on the Defendant’s
attorneys on 13 August 2018.
[15]
For the following reasons I find it extremely difficult to accept Mr
Allen’s version that
the Plaintiff’s attorneys withdrew
“
the Rule 35(3) notice and the
application premised thereon
.”
(See paragraph 7 of the answering affidavit). Firstly, it is
highly unlikely that the Plaintiff’s attorneys
could have
withdrawn the Rule 35(3) notice after they had so doggedly pursued
it. Secondly, Mr Holmner made it very clear
in his replying
affidavit that what was withdrawn was the “
first
application
” to compel. He
has furnished valid reasons why the said explanation application was
withdrawn. Nowhere does he
state that the Plaintiff’s
attorneys withdrew the notice in terms of Rule 35(3).
[16]
It would appear that the Defendant’s attorneys have completely
misconstrued or misunderstood
what was withdrawn on 13 February
2019. In his replying affidavit, Mr Holmner made it very clear
that on 3 December 2018
he served an application to compel on the
Defendant’s attorneys. It is this application to compel
that he calls the
“
first
application
”. It is this
application to compel that the Plaintiff’s attorneys served on
the Defendant’s attorneys while
the parties were involved in
the amendment process. Now, more importantly, it is this
application to compel that the Plaintiff’s
attorneys withdrew
because it was mistakenly served during the stage in which the
parties were engaged in the process of amending
the pleadings.
[17]
It is important to point out and emphasize that the fact that when
the Plaintiff’s attorneys
withdrew the first application or the
application to compel that was served on 3 December 2018, they did
not thereby withdraw the
notice in terms of Rule 35(3) that was
served on 13 August 2018. It remained in place and active.
Consequently, it
is wrong to think that a withdrawal of the
application to compel served on 3 December 2018 amounted to a
withdrawal of the notice
in terms of Rule 35(3) and a subsequent
application to compel.
[18]
In the circumstances, because the Plaintiff’s attorneys have
not withdrawn the notice in
terms of Rule 35(3) but the first
application, which is the application to compel that they had served
on 3 December 2018. It was
not necessary for the Plaintiff’s
attorneys to serve a fresh Rule 35(3) notice as contended by the
Defendant’s attorneys
and argued by Advocate DH Wijnbeek,
counsel for the Defendant. The Plaintiff was at large to
proceed with the next step in
the procedure.
THE
APPLICANT CONCEDED THAT THE RULE 35(3) WAS BAD
(See
paragraph 9 of the answering affidavit).
[19]
Mr Allen makes an allegation that the Plaintiff’s attorneys
have conceded that the Rule
35(3) was bad. Having scanned both the
founding affidavit, the replying affidavit and the correspondence
exchanged between the
attorneys, I have been left with a view that no
such a concession exists. In the absence of any reference to a
document in
which such a confession is contained, I find it extremely
difficult to accept the existence of such a concession. On the
contrary, Mr Holmner has denied, in the replying affidavit, that
there was any such concession. In the result, this Court
finds
that nowhere in the papers before it did the Plaintiff’s
attorneys concede that the Rule 35(3) notice was bad. Consequently,
the allegation by Mr Allen that the Plaintiff’s attorneys have
conceded that the Rule 35(3) was bad lacks merit.
THERE WAS DUE
COMPLIANCE WITH RULE 35(3) NOTICE.
[20]
It is the Plaintiff’s counsel’s case
that the discovery made by the Defendant was incomplete.
According to him, the Defendant was selective in respect of the
documents it chose to discover. The Defendant objects to
furnishing the documents set out in the Plaintiff’s notice in
terms of Rule 35(3) merely on the grounds of relevancy.
[21]
While it is the Defendant’s counsel’s case that the
Defendant has duly complied with
the Plaintiff’s Rule 35(3)
notice it is at the same time the Plaintiff’s counsel’s
case that the Defendant has
failed to respond to the Rule 35(3)
notice as required by the Uniform Rules of Court. In terms of Rule
35(3) a party is required
to either make the said documents available
for inspection in terms of sub-rule (6), if such a party has the
relevant documents
in his possession or if he does not have the
documents in his possession but knows where they are to state under
oath within ten
days that such documents are not in its possession,
in which he or it must state their whereabouts, if known. Rule
35(3)
provides that:
“
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 sub-rule (6) or
to state under oath,
within ten days, that such documents are not in his possession, in
which event he shall state their whereabouts,
if known to him.”
The
Defendant has not complied with Rule 35(3). I have formed the view
that the Defendant’s affidavit as referred to in paragraph
[5]
supra does not constitute proper compliance with Rule 35(3).
[22]
This sub-rule provides the procedure for a party dissatisfied with
the discovery of another party
to ask for a better discovery.
In
Swissborough Diamond Mines v Government of the Republic of
South Africa,
1999 (2) SA 279
TPD at 321 F
the Court had the
following to say:
“
As
indicated above, Rule 35(3) provides the procedure for a party
dissatisfied with the discovery of another party. He requires
the former party to give notice to the latter party to make the
documents or tape recordings available for inspection in accordance
with Rule 35(6). Rule 35(6) requires the notice to be, as near
as may be, in accordance with Form 13 of the First Schedule.
Form 30 requires the production for inspection of “the
following documents referred to in your affidavits.” It
is obviously designed for inspection of discovered documents.
It must be adapted to deal with the situation envisaged in
Rule
35(3). In particular, the degree of specificity of the
documents that the party dissatisfied with, the discovery must
comply
with the notice must be determined. The importance of this
requirement cannot be understated. A party can clearly
be
severely prejudiced by a notice which does not exhibit the necessary
degree of specificity. Failure to comply with the
notice can
result in an order compelling compliance, and failure to comply
thereafter can result in the claim being dismissed or
defence being
struck out in terms of Rule 36(7).”
[23]
The intention of the sub-rule is to provide for a procedure to
supplement discovery which has
already taken place but which is
alleged to be inadequate. In
MV Urgup; Owners of the MV
Urgup v Western Bulk Carriers (AUST)
1999 (3) SA 500
CPD at 515 B-C
the Court had the following to say:
“
As
to the alternative relief claimed by the Respondents which, as I have
said, would in effect be an order in terms of uniform rules
35(3) or
14 compelling the Applicants to make available for inspection and
copying the documents listed in Annexure A to the notice
of motion,
this may be dealt with fairly shortly. These sub-rules are both
intended to cater for the situation where a party
knows or, at the
very least, believes that there are documents (or tape recordings) in
his opponent’s possession or under
his control which may be
relevant to the issues and which he is able to specify with some
degree of precision. In the case
of Rule 35(3) the intention is
a supplement discovery which has already taken place but which is
alleged to be inadequate.”
THE DOCUMENTS
REQUESTED ARE IRRELEVANT
[24]
Rule 35(2) provides that:
“
The
party required to make discovery shall within twenty days or within
the time stated in any order of a Judge make discovery of
such
documents on affidavit as near as may be in accordance with Form 11
of the first schedule, specifying separately –
(a)
such documents and tape recordings in his possession or that of his
agent other than the
documents or tape recordings mentioned in
paragraph (b);
(b)
such documents and tape recordings in respect of which he has a valid
objection to produce;
(c)
such documents and tape recordings which he or his agent had but no
longer has in
its possession at the date of the affidavit.
A document shall be
deemed to be sufficiently specified if it is described as being one
of a bundle of documents of a specified
nature, which have been
initialled and consecutively numbered by the deponent.
Statements of witnesses taken for purposes
of the proceedings,
communications between attorney and client and between attorney and
advocate, pleadings, affidavits and notices
shall be omitted from
this schedule.”
The provisions of this
sub-rule are peremptory. In this regard see
Van Vuuren v
Agricura Laboratoria (Edms) Bpk 1974(2) SA 324 NC at 327H.
In this matter this is what the Court has to say about discovery
affidavits:
“
Blootleggingsverklarings
is belangrike dokumente en die voorlegger moet bewustelik die nodige
inligting verstrek welwetende dat
hy met ‘n plegtige verleiding
van ‘n belangrike dokument te make het wanneer die
eedsverklaring gedoen word.”
(Discovery
affidavits are important documents and the deponent must consciously
supply the necessary information well knowing that
when he takes the
oath he is dealing with a solemn execution of an important document).
[25]
Now I wish to quote copiously from Uniform Rules of Court by Nathan
Barnard and Brink 3
rd
Edition, at page 218:
“
The
affidavit of discovery must be in accordance with Form 11 of the
First Schedule to the rules. This requires the documents
to be
listed in two schedules, the first being in respect of documents
still in the possession or power of the deponent, and the
second
being in respect of documents no longer in his possession or power.
The first of these schedules is again to be divided
into two parts:
the first part being in respect of which no claim for privilege or
other objection to produce is made, and
the second being in respect
of documents to which such an objection attaches.”
[26]
Now the documents referred to in Rule 35(2)(b) are such documents
which are privileged for instance.
Now it is not the
Defendant’s case that in its discovery affidavit it raised any
valid objection on the basis of relevance
against the documents which
are the subject of this application to compel. Nowhere in its
discovery affidavit did the Defendant
raise any objection based on
relevance against the documents requested by the Plaintiff. If
a litigant objects to producing
a document, he must do so in a
discovery affidavit and must also set out valid reasons for such
refusal. If such a litigant
holds a view that the documents are
not relevant, it must be stated so in the discovery affidavit.
[27]
Once a party that has been requested to produce documents has set out
the reason for so refusing,
such as the reason that the documents are
irrelevant, the requesting party may proceed with the next step. He
may follow
the judgment of Van der Byl in
Visser and Others v
Vardakos Attorneys and Others (14355/2010) [2012] JAGPPHC 98 (8 June
2012) at para [10]
where the Court took the view that the issue
of whether or not a document is relevant should not be left to the
decision of the
party that is requested to produce it alone.
The requesting litigant should be given the document so that he must
himself
decide whether the documents are indeed not relevant.
In other words, it is not enough for a party that is requested to
produce
a document just to claim that the documents are irrelevant
and refuse to produce them. The requesting party is entitled to
have access to those documents so as to enable it to decide whether
or not the documents are irrelevant. In the circumstances,
it
is compulsory for the party so requested to furnish the requesting
party with such documents so as to put that requesting party
in a
position to do their own examination. In the afore going
judgment the Court stated that:
“
There
is, relevancy being the only issue, no reason why the Plaintiffs are
not entitled to inspect the documents in order to satisfy
themselves
whether or not the documents are indeed relevant.”
[28]
A litigant who engages the other litigant as referred to in Rule 35
has the right to utilise
s 35 in order to obtain access to the
documentation in the possession of the other litigant. If he
elects to rely on s 35
and is not satisfied with the discovery made,
he must discharge the onus by proving on a balance of probabilities
that the documents
exist and are relevant.
[29]
Again, according to AJ van der Byl, if a litigant is adamant that the
documents requested are
not relevant, he should not refuse to produce
them when so requested. Relevance is, according to him, a
matter that can be
decided at trial. He had the following to
say:
“
In
any event the relevancy of the documents can more efficiently be
addressed at the hearing of the trial and more particularly
when the
documents are sought to be introduced into evidence.”
This
is the option that is available to the Defendant.
[30]
In the heads of argument prepared by Adv Rip, counsel for the
Plaintiff, referred the Court to
a judgment of
Compagnie
Financiere Et Commerciale du Pacifique v Peruvian Guano Co. (1982) 11
QPD 55
which dealt with the approach that a Court should adopt
when deciding whether a document is relevant to a matter at issue
before
it. It stated 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 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 his adversary, if it
is a document which may fairly lead him to a train
of enquiry which
may have either of these two consequences.”
Therefore,
in determining whether a document is relevant, the Court will
accordingly have regard to whether the document requested
may
directly or indirectly enable the parties seeking the document to
advance his own case or damage the case of the adversary.
According to counsel for the Plaintiff, relevancy obviously needs to
be decided with reference to the issues as defined in the
pleadings,
the purpose of which is to advise the adversary what his case against
them is and what the case they are required to
meet is. See in
this regard
SN Neon Advertising (Pty)
Ltd v Claude Neon Lights SA Ltd
1968 (3) SA 381
(W) at 385A-C
.
Relevancy needs to be determined without being too fastidious with
reference to the issues raised in the pleadings, in this
regard see
Swissborough Diamond Mines v Government
of RSA
1999 (2) SA 279
(T) at 317A-E,
but making allowance for documents which may enable a party to
advance his case, even though not pertinently relevant to the issues
raised in the pleadings. It is the Plaintiff’s case that
the documents requested in terms of Rule 35(3) will most certainly
advance his case and damage the Defendant’s case by playing the
Defendant on the scene. In my view, there is no valid
reason
why the documents requested by the Plaintiff should not be made
available to the Plaintiff. In my view, the Defendant
has not
given any valid reason why he withholds any of the documents so
requested.
MR
ALLEN TOOK THE VIEW THAT THERE IS NOTHING TO DISCOVER
[31]
The provenance of this view is the fact that the Plaintiff has
amended his POC by alleging that
the incident that constitutes his
cause of action took place at Protea Industrial Park. The
Defendant contends that it has,
in its plea, denied any presence at
Protea Industrial Park. Its approach is therefore that, because
it has denied any presence
at Protea Industrial Park, it is for that
reason not obliged to comply with the Plaintiff’s Rule 35(3)
notice. Denying
in one’s plea the allegations made by the
Plaintiff in the POC constitutes no justification for a litigant to
refuse to produce
documents when so requested. In my view, no merits
at all subsists in this contention that there is nothing to discover.
[32]
Counsel for the Plaintiff referred the Court to
Herbstein and Van
Winsen, The Civil Practice of the Supreme Court of South Africa 4
th
Edition 1997
. The learned author state that:
“
The
scope of discovery is wide …. It extends to documents
having only a minor or peripheral bearing on the issues,
and to
documents which may not constitute evidence which may fairly lead to
an enquiry relevant to the issues.”
In the
premises the fact that it has denied an allegation will never be a
reason for refusing to discover documents, especially
in the
situation where the documents to discover had been specified.
THE
RULE 35(3) NOTICE WAS ISSUED AT A STAGE WHEN THE PLEADINGS WERE NOT
CLOSED
[33]
It is not clear as to what informed Mr Allen that the Plaintiff’s
Rule 35(3) notice was
served on the Defendant’s attorneys
before the pleadings were closed. According to Mr Holmner the
Defendant’s
plea was served on the Plaintiff’s attorneys
on 24 April 2018. According to him furthermore the pleadings
became closed
on 17 May 2018. The Plaintiff’s rule 35(3)
notice was served on the Defendant’s attorneys on 13 August
2018,
long after the pleadings had become close. It is
therefore not correct that the Plaintiff’s Rule 35(3) notice,
that
was served on 13 August 2018, was so delivered before the
pleadings were closed on 17 May 2018. No merits exist in this
contention.
I was referred to the judgment of
Natal Joint
Municipality Pension Fund v Endumeni Municipality
[2012] 2 ALL SA 262
(SCA) paras 14-15
. I wish to quote copiously from the said
paragraphs:
“
[14]
The
origin of the concept of litis contestatio is the formulary
procedure of the Roman law in which the litigants appeared
before the
praetor, who formulated the issues that the judge had to decide. Once
the issues had been formulated the stage of litis
contestatio was reached. In Government of the
Republic of South Africa v Ngubane
1972
(2) SA 601
(A) at 608 D-E
Holmes JA
said:
‘
In
modern practice
litis
contestatio
is
taken as being synonymous with close of pleadings, when the issue is
crystallised and joined … And in modern terminology,
the
effect of
litis
contestatio
is
to “freeze the plaintiff's rights as at that moment”.’
There
is no problem with this formulation when parties abide by their
pleadings and conduct the trial accordingly. Frequently,
however, they do not do so because other issues arise that they wish
to canvass and either formally, by way of an amendment to
the
pleadings, or informally, as in the present case, the scope of the
litigation is altered. Here the defendant sought to
add new
issues specifically relating to the validity of the amendment that
introduced the proviso. Up until then the parties
were at one
that the proviso was in force and available to be relied on by the
Fund, subject to the issues around its interpretation.
If the
plaintiff’s rights were frozen at the close of pleadings the
basis would have been that the proviso was in force.
It would
make a mockery of the principles of litis contestatio to
permit Endumeni to depart from its previous stance
by challenging the
validity of the proviso, but to bind the Fund to a factual situation
at the close of pleadings that had altered
by the time that Endumeni
sought to challenge the validity of the proviso.
[15]
The
answer is that when pleadings are re-opened by amendment or the
issues between the parties altered informally, the initial situation
of litis contestatio falls away and is only restored once
the issues have once more been defined in the pleadings or
in some
other less formal manner. That is consistent with the
circumstances in which the notion of litis contestatio was
conceived.”
I have
therefore formulated a view that the Plaintiff’s Rule 35(3)
notice was served on the Defendant’s attorneys at
a stage when
the pleadings were closed.
[34]
In the result, I find that the Defendant is not entitled to withhold
any documents required by
the Plaintiff. There exists on the
Defendant an obligation arising from the application of Rule 35(3)
notice to discover
and make available each of the documents listed in
the Plaintiff’s Rule 35(3) notice. The Plaintiff was not
obliged to be
content with what the Defendant’s attorneys’
affidavit as referred to in paragraph [5] supra. He is entitled to
the
disclosure of every document which directly or indirectly affects
his case.
[35]
In the result, the following order is made:
1.
The Defendant is hereby directed to make
available for inspection and copying the documents listed in the
Plaintiff’s notice
in terms of Rule 35(3) dated 10 August 2018.
2.
The Defendant is hereby directed to pay the costs of this
application.
PM MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel for the
Applicant:
Adv AA Basson
Instructed
by:
Loubser Van Wyk Inc.
Counsel for the
Respondent:
Adv DH Wijnbeek
Instructed
by:
Allen & Associates Attorneys
c/o
Weideman Attorneys
Date on the opposed roll
before Mabuse J: 9 March
2021
Date of
Judgment:
23 April 2021