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[2021] ZAGPJHC 110
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Think Holdings Limited v Wesbank, a Division of Firstrand Bank Limited and Another (36661/2015) [2021] ZAGPJHC 110 (23 July 2021)
REPUBLIC OF
SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
36661/2015
DATE
:
23
rd
July 2021
In
the matter between:
THINK HOLDINGS
LIMITED
Plaintiff
and
WESBANK,
a Division of FIRSTRAND BANK
LIMITED
First Defendant
EXECUJET
AVIATION (PTY)
LIMITED
Third Party
Coram:
Adams
J
Heard
:
20
July 2021 – The ‘virtual hearing’ of the
application was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
23
July 2021 – This judgment was handed down electronically by
circulation to the parties' representatives by email, being
uploaded
to the
CaseLines
system of the GLD and by release to SAFLII.
The date and time for hand-down is deemed to be 14:00 on 23 July
2020.
Summary:
Practice and Procedure – application to
compel better discover – rule 35(3) discussed –
application to compel
better discovery granted –
ORDER
(1)
The
plaintiff shall within ten days from the date of this order comply
with the defendant’s notice in terms of rule 35(3)
dated the
2
nd
of
March 2020 by discovering and making available for inspection in
accordance with rule 35(6) the documents referred to in paragraphs
1,
2, 3, 4 and 7 of the defendant’s aforementioned rule 35(3)
notice.
(2)
In
the event of the plaintiff’s non-compliance with the order in
paragraph (1) above, the defendant is hereby granted leave
to apply
on the papers in this application, duly supplemented, to have the
plaintiff’s claim dismissed.
(3)
The plaintiff shall pay the defendant’s
costs of this application in terms of rule 35(7) to compel further
and better discovery.
JUDGMENT
Adams J:
[1].
I
shall refer to the parties as referred to in the main action.
[2].
Before me is an
application by the defendant in terms of Uniform Rule of Court 35(7)
for an order compelling the plaintiff to make
further and better
discovery. The defendant in particular requires the plaintiff to
discover and to make available for inspection
the following
documentation: (1) The offer to purchase the
Saab
340B
aircraft registered as ZS-DPD (‘the Aircraft’), which
offer was made by the entity or person who bought the Aircraft
from
the plaintiff (‘the Buyer’); (2) The Sale Agreement or
Terms of Sale in respect of the Aircraft entered into between
the
plaintiff and the Buyer; (3) The proof of payment of the purchase
price for the Aircraft paid to the plaintiff by the Buyer;
(4) All
documentation in respect of the negotiations for the sale of the
Aircraft as exchanged between the plaintiff and the Buyer;
and (5)
All offers to purchase the Aircraft received by the plaintiff.
[3].
The defendant
accordingly seeks an order compelling the plaintiff to properly reply
to the defendant’s notice in terms of
Uniform Rule 35(3) which
required the plaintiff to discover these documents. The plaintiff
opposes this application to compel further
and better discovery and
has instituted a counter-application for an order that the plaintiff
is to make limited disclosure of
these documents.
[4].
The basis on which
the plaintiff opposes the application is that the documents and the
information contained therein are confidential
as evidenced by the
fact that, at the relevant time, there was in existence between the
parties a re-marketing agreement, which
contain certain
confidentiality clauses, which prohibited the defendant from using
information acquired by it from the plaintiff
during the
implementation of the agreement. In a way, the defendant, so the
plaintiff avers, is its competitor and discovering
the documents
would enable the defendant to compete unlawfully with it.
[5].
The defendant seems
to accept that the documentation required to be discovered are
relevant to the issues in the main action, but
believes that because
of the confidential nature of the documentation, discovery and
disclosure thereof should be limited and the
manner thereof
specifically defined. The further point is made by the plaintiff that
the defendant has already breached the agreement,
hence the main
action. And this breach in fact forms the basis of the main action
and the plaintiff’s claim for damages.
[6].
These claims are
denied by the defendant, who contends that there is nothing
confidential about the documents. It is the case of
the defendant
that in this interlocutory application, the plaintiff should
demonstrate that the documents are confidential. It
cannot be
accepted as fact on the basis of the
ipse
dixit
of
the plaintiff in its answering affidavit.
[7].
Rule 35(3) provides
as follows:
‘
(3)
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
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.’
[8].
In
Crown
Cork & Seal Co Inc & Another v Rheem South Africa (Pty) Ltd &
Others
[1]
,
Schutz AJ stated, in relation to confidentiality issues in the
context of discovery of documents, at as follows:
‘
In
my view it is open to a South African Court to adopt the English
practice. Nothing has been pointed out that persuades me that
the
English practice is based upon any provision in the English Rules
that is not contained in ours. Then, our Courts have a discretion
in
enforcing Rule 35 (7). The crux of the matter is the reasons which
underlie the practice. No less in South Africa than in England
does
the conflict arise between the need to protect a man's property from
misuse by others, in this case the property being confidential
information, and the need to ensure that a litigant is entitled to
present his case without unfair halters. And, although the approach
of a Court will ordinarily be that there is a full right of
inspection and copying, I am of the view that our Courts have a
discretion
to impose appropriate limits when satisfied that there is
a real danger that if this is not done an unlawful appropriation of
property
will be made possible merely because there is litigation in
progress and because the litigants are entitled to see documents to
which they would not otherwise have lawful access. But it is to be
stressed that care must be taken not to place undue or unnecessary
limits on a litigant's right to a fair trial, of which the discovery
procedures often form an important part’.
[9].
The above passage was
cited with approval by the Constitutional Court in
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services: In Re
Masetlha v President of the Republic of South Africa
and Another
[2]
.
[10].
Also, in
Cape
Town City v South African National Roads Authority and Others
[3]
the SCA stated as
follows:
‘
Discovery
impinges upon the right to privacy of the party required to make
discovery. According to Lord Denning MR (in
Riddick
v Thames Board Mills Ltd
1977, 3 All ER 677
(CA) at 678) “compulsion is an invasion of a
private right to keep one's documents private". But while there
is an interest
in protecting privacy there is also the public
interest in discovering the truth. .... Litigants must accordingly be
encouraged
to make full discovery on the assurance that their
information will only be used for the purpose of the litigation and
not for
any other purpose. In that sense ... the interests of the
proper administration of justice require that there should be no
disincentive
to full and frank discovery’.
[11].
In
Governing
Body of Hoërskool Fochville and Another v Centre for Child Law;
In re: Governing Body of Hoërskool Fochville
and others
[4]
,
this court held that in the context of Rule 35(12) a party is excused
from disclosing a document if that party shows that the
document
sought is irrelevant to the issues in the matter, or is privileged,
but that party cannot refuse to discover a document
on the grounds of
confidentiality.
[12].
In sum, the point
about these authorities is firstly that discovery in litigation
trumps confidentiality and that there is an evidentiary
burden on a
litigant claiming confidentiality to prove same.
[13].
On appeal to the
Supreme Court of Appeal, Sutherland J’s judgment in this case
was overturned, and importantly the SCA in
Centre
for Child Law v Hoërskool Fochville and Another
[5]
had this to say
regarding onus:
‘
For
my part, I entertain serious reservations as to whether an
application such as this should be approached on the basis of an
onus. Approaching the matter on the basis of an onus may well be to
misconceive the nature of the enquiry. I thus deem it unnecessary
to
attempt to resolve the disharmony on the point. That notwithstanding,
it is important to point out that the term onus is not
to be confused
with the burden to adduce evidence (for example, that a document is
privileged or irrelevant or does not exist).
In my view the court has
a general discretion in terms of which it is required to try to
strike a balance between the conflicting
interests of the parties to
the case. Implicit in that is that it should not fetter its own
discretion in any manner and particularly
not by adopting a
predisposition either in favour of or against granting production.
And, in the exercise of that discretion, it
is obvious, I think, that
a court will not make an order against a party to produce a document
that cannot be produced or is privileged
or irrelevant.’
[14].
As I indicated above,
the plaintiff in this matter refuses discovery of the documents in
question on the basis that the said documents
are confidential. These
documents are the subject of the confidentiality clauses in a
Remarketing Agreement between the plaintiff
and the defendant, which,
so the plaintiff contends, makes these documents confidential for
purposes of discovery.
[15].
I disagree. The
plaintiff, has in my view, failed to show why its interests to
protect the confidentiality of its documentation
should outweigh
those of the defendant. Tellingly, the plaintiff does not inform the
court why it claims that the required documents
are confidential
other than to say that it is the subject of confidentiality clauses
in the re-marketing agreement. I therefore
do not believe that the
plaintiff has demonstrated that the documents are confidential –
far from it.
[16].
In the circumstances,
I am satisfied that the defendant has made out a case for the relief
sought in its notice of motion.
Costs
[17].
The general rule in matters of costs is
that the successful party should be given her or his costs, and this
rule should not be
departed from except where there are good grounds
for doing so, such as misconduct on the part of the successful party
or other
exceptional circumstances. See:
Myers
v Abramson
[6]
.
[18].
In this matter, I can think of no reason
why I should deviate from the general rule and I therefore intend
ordering the plaintiff
to pay the defendant’s costs of this
application.
Order
[19].
In the result, I make the following order:
(1)
The plaintiff shall within ten days from
the date of this order comply with the defendant’s notice in
terms of rule 35(3)
dated the 2
nd
of March 2020 by discovering and making available for inspection in
accordance with rule 35(6) the documents referred to in paragraphs
1,
2, 3, 4 and 7 of the defendant’s aforementioned rule 35(3)
notice.
(2)
In the event of the plaintiff’s
non-compliance with the order in paragraph (1) above, the defendant
is hereby granted leave
to apply on the papers in this application,
duly supplemented, to have the plaintiff’s claim dismissed.
(3)
The plaintiff shall pay the defendant’s
costs of this application in terms of rule 35(7) to compel further
and better discovery.
________________________________
L R ADAMS
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
20
th
July 2021 – in a ‘virtual hearing’
during a videoconference on the
Microsoft Teams
digital
platform
JUDGMENT DATE:
23
rd
July 2021 – judgment handed down
electronically
FOR THE PLAINTIFF / RESPONDENT:
Advocate L C M Morland
INSTRUCTED BY:
Coetzee & Jansen Van Rensburg Attorneys, Randburg
FOR THE DEFENDANT / APPLICANT:
Advocate Unathi Gcilishe
INSTRUCTED BY:
Cliffe Dekker Hofmeyr Incorporated, Sandton
[1]
Crown Cork & Seal Co
Inc & Another v Rheem South Africa (Pty) Ltd & Others
[1980] 4 All SA 412
(W);
1980 (3) SA 1093
(W);
[2]
Crown Cork & Seal Co
Inc & Another v Rheem South Africa (Pty) Ltd & Others
[1980] 4 All SA 412
(W);
1980 (3) SA 1093
(W);
[3]
Crown Cork & Seal Co
Inc & Another v Rheem South Africa (Pty) Ltd & Others
[1980] 4 All SA 412
(W);
1980 (3) SA 1093
(W);
[4]
Governing Body of
Hoërskool Fochville and Another v Centre for Child Law; In re:
Governing Body of Hoërskool Fochville
and others
[2014] 4 All SA 204
(GJ) at paras [22] to [25];
[5]
Centre for Child Law V
Hoërskool Fochville and Another
2016 (2) SA 121
(SCA) at para [18];
[6]
Myers v
Abramson
,
1951(3) SA 438 (C) at 455.