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[2021] ZAGPPHC 431
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Tung-Cheng Wu v Spence (8184/2018) [2021] ZAGPPHC 431 (18 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 8184/2018
NOT
REPORTABLE
In
the matter between:
SIMON
TUNG-CHENG WU
Applicant
And
ADRIAN
GORDON SPENCE
Respondent
In
re:
ADRIAN
GORDON
SPENCE
Plaintiff
And
SIMON
TUNG-CHENG
WU
Defendant
JUDGMENT
JANSE
VAN
NIEUWENHUIZEN
J
[1]
The applicant
(hereinafter
referred to as the defendant)
seeks an order compelling the
respondent
(hereinafter
referred
to
as
the
plaintiff)
to
discover
the
following documents:
[1.1]
in
terms
of a rule 35(3) notice dated 18
August
2020:
[1.1
.
1]
all
emails
sent
and
received
by
the
plaintiff
under
the
email
domain of denimhq.co.za and /or
denimhq.com for the period 1 August 2016 to date
;
[1.2]
in
terms
of a rule 35(3) notice dated 24 August 2020:
[1.2.1]
all written
recordals
including
notes and
memorandum
of the plaintiff
in respect
of the consultancy
work
carried
out
by the plaintiff with third parties for
and on behalf Denim HQ (Pty) Ltd
,
Registration
number:
2017/112869/07;
[1.2.2]
all written communications
including
emails sent and received by the plaintiff
,
his agents or assigns to and from the
directors,
officials,
employees
and
agents
of
Denim
HQ
(Pty)
Ltd, Registration
number:
2017/112869/07
relating
to
the consultancy work carried out by the
plaintiff.
[1.2.3]
all bank statements,
ledgers or other financial
documentation of the plaintiff which
reflect or record what amounts have been paid to the
plaintiff,
his agents
or
assigns
in
respect
of consultancy work done by the
plaintiff for Denim HQ (Pty) Ltd
,
Registration
number
:
2017/112869/07
;
and
[1.2.4]
the
consultancy
agreement concluded between
the
plaintiff and/or
his
agents
or
assigns
and
Denim
HQ
(Pty)
Ltd, Registration number:
2017/112869/07.
Background
[2]
The
plaintiff
issued
summons
against
the
defendant
for
payment
of an
amount
of
R 3 000 000
,
00
and
ancillary
relief.
The
amount
represents
the
outstanding
purchase
price for shares the defendant
purchased from
the plaintiff
in
two companies
,
namely
Soviet
Group
(Pty)
Ltd
("Soviet")
and
Erf
395
Freesia
Street Investments (Pty) Ltd for a
total purchase consideration of R
20 000 000, 00.
[3]
The defendant admits that he has not paid the outstanding R 3 000
000, 00 and pleads that, due to the plaintiff's breach of
contract,
he is not liable to pay the claimed amount.
[4]
According to the defendant's
plea, the plaintiff breached the
agreement
by
inter alia
competing
with the defendant's company Soviet through the Lee Cooper brand
.
As
a
result,
the
defendant terminated the agreement.
[5]
The defendant instituted a counterclaim
in terms of which
he claims restitution from the
plaintiff.
Point
i
n
l
i
m
i
ne-.
Application
is
barred
[6]
The
plaintiff firstly,
raises the point that the
application
is barred. The point emanates from a
case management conference that was held on 17
July 2020
.
[7]
The following was noted in paragraph 5 of
the minutes of the meeting:
"
1
.
The defendant
undertook to file its objection
,
1f any
,
to the
plaintiff's amendment
,
and
simultaneously
file its R 35(3) notice
,
if any, by
31 July 2020
.
2.
If the defendant
fails to deliver an o
b
jection
,
or Rule 35(3) notice on or before 31
July
2020
,
the plaintiff
will effect the amendment
and all
procedural
issues
will be deemed
to be finalised.
"
[8]
The defendant did not file a rule 35(5) notice on or before 31 July
2020 and only filed the two notices in terms of rule 35(3)
on
respectively 18 and 24 August 2020, after the agreed cut-off date.
The notices are therefore barred.
[9]
Without showing good
cause
for
its
delay,
the application should
for
this
reason alone
be
dismissed
.
[10]
The defendant
does
not
agree
.
Firstly,
the
defendant
submits
that
a
party cannot
in
law
be
barred
from
bringing
an
interlocutory application
.
Secondly
,
the defendant points out that
the
rule
35(3)
notice
referred to
in paragraph
5 refers specifically
to a notice
pursuant to the
plaint
i
ff
'
s
notice of amendment.
[11]
Furthermore
and
in
paragraph
4
of
the
minutes
,
the
parties
reached
the
following
agreement
in
respect
of
i
nterlocutory
applications:
"
The
parties
agreed that if any interlocutory
applications
were anticipate
d,
the parties
were
to launch
the application
by
uploadi
n
g
same
on the
C
aselines
platform
and
thereafter transmit
an email to Judge
Makhubele's
registrar
informing
him
of same
.
In the
e
v
ent
that an
interlocutory
application
is
launched,
Judge
Makhubele will
determine
the
date
fo
r
hearing
and impose any time lim
1
1
s
and/or directions which the
parties must adhere to
.
"
[
1
2]
The defendant
states that the
documents
sought
in
terms
of
the
rule
35(3)
notices
emanate
from
the
plaintiff's
amended plea
to
the
defendant's
counterclaim and
do not fall
under the
paragraph
5
agreement.
[13]
I
agree
with
the
defendant's view and
will proceed
to
deal
with
the
merits
of
the application.
Documents
sought
Legal
framework
[14]
Rule 35(3)
may only
be
utilised to obtain
documents
"
which
m
a
y
be relevant
to
a
n
y
matter in question
''.
[15]
The
relevance
of documents
for
purposes
of
rule 35(3)
was
formulated
in
Re/lams
(Pty) ltd
v
James Brown
&
Hamer
ltd
1983 (1) SA 556
N at 564 A as
follows
:
"
It
seems to me that every document relates to the matter in question in
the act
i
on
which, it is reasonable
to
suppose
,
contains information
which m
a
y
-
not
which must
-
either
d
irectly
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 informat
i
on
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
.
"
Merits
[16]
In
support
of
the
application,
the
defendant referred
to
the
pla
i
ntiff
'
s
plea
to
his
counterclaim in
which
the
plaintiff
"
admits
that
he
consults
a party
which
sells
and distributes
'
'Lee
Cooper
"
branded
apparel'
;
but
denies
that he
has
breached
the
agreement by
competing
with Soviet.
[17]
According
to
the
defendant,
it
remains
incumbent
on
him,
for
purposes
of his counterclaim
to
prove that:
[17.1]
the
parties
agreed
that
the plaintiff
would not
in
any
capacity
compete
with Soviet,
or
do
or
cause
anything
that
would
adversely
affect
the
value
of
the business
of Soviet; and
[17.2]
the
plaintiff did
in
fact
breach
this term
of
the agreement.
[18]
In order to
prove
the above the documents
are
according
to
the defendant:
'
'29.
1
...
relevant
to the pleaded
issues
and in pat1icular
will either prove
or disprove
the
relationship between the
plaintiff and the third
party Denim HQ (Pty) Ltd
,
and whether
it
was
a term of the agreement
that the plaintiff
was prohibited
from competing
with Soviet
,-
29.2
may contain information
which will either directly or
indirectly enable the defendant to
advance his own case or damage
the
plaintiffs
case
.
"
[19]
The plaintiff opposes the application on
two grounds, namely:
[19.1]
the documents
sought
relate to common
cause facts;
[19.2]
the documents are not in his possession.
Common
cause facts
[20]
The
plaintiff
submits that
he
admitted
in
his plea to the defendant's
counterclaim
that he
competed with Soviet
,
as
a result
,
this issue is
no
longer
in
dispute
and
the
defendant
is
not
ent
i
tled to
the
requested
documents
.
[21]
The
following allegations in
the
defendant's
counterclaim
i
s
germane
to
the
requested
documents
:
"
2.2
The
material
express alternatively implied
further
alternatively tacit
terms of
the
agreement were the following
:
2.2.5
the plaintiff would not compete in any
capacity whatsoever
with
Soviet
,
either
directly or indirectly for at
least the duration of the agreement
;
and
2.2.6
The
plaint
i
ff
would not
do
anything
or
cause anything
to
be done that
would
ad
v
ersely
affect the value or business of Soviet
.
"
4.
4.1
During
or about
July
2017 the
defendant
discovered
that
the plaintiff
had breached
the terms of the agreement in or
more or all of the following w
a
ys
:
4
.
1
.
1 the
plaintiff
c
ompeted,
and still competes
,
with Soviet through the Lee
Cooper
brand
;
4.
1
.
2
the plaintiff interfered with the contractual relationship between
Sov
i
et
and its
employees and
/
or
agents.
"
[22]
The plaintiff pleaded as follows to the allegations contained in
paragraph 4
.
1:
"
1
1
.
The plaintiff admits that
:
1
1
.
1
for the
period between 1
st
February
2017
and
30
th
July 2
0
20
he consulted to Denim HQ (Pty) Ltd (in liquidation) ('Denim HQ
"
)
;
1
1
.
2
until Denim
HQ ceased doing business
on 30
th
July 2020
,
Denim
HQ manufactured and
sold
"
Lee
Cooper
"
branded apparel
and
by doing
so
,
Denim HQ competed with So
v
iet
"
[23]
The
admission is
not
directed
at
the
allegation
that
'
the
plaintiff'
competed
with
Soviet
through the Lee Cooper brand, but
that
Denim HQ
to
which he consulted did
.
[24]
In
view
of
the
plaintiff
'
s
pleaded
case,
that
he
only
consulted
to
Denim
HQ, the requested documents do pertain
to an issue in dispute
,
in that it might shed light on
the plaintiff
'
s
true relationship with Denim HQ
,
which might in
turn leads credence to
the defendant's allegation that the
plaintiff competed with Soviet.
[25]
In the premises, I am of the view that the requested documents do
pertain to an issue in dispute and should be discovered in
terms of
rule 35(3).
Documents
not in plaintiffs possession
[26]
The plaintiff submits that the requested
documents, particularly those relating to the domain
name Denimhq
.
com,
pertains to the private and confidential
information of
Denim HQ and does not belong to him nor
is it in his possession.
[27]
The
defendant, however,
in
the
rule 35(3) notice
dated
18
August
2020 requests emails sent and received
by
the plaintiff.
It
is d
i
fficult
to contemplate that the
plaintiff
will
not
have emails
sent
and
received
by
him in
his
possession.
[28]
The
same
applies
for
the
documents requested
by
the
defendant in
the
rule
35(3) notice dated 24 August
2020.
The
plaintiff
may
in any event
in
answer to the rule 35(3) notice
declare
with reference
to
each
and
every
document,
which document
is not
in
his
possession
and state the whereabouts
of the
specified document.
[29]
The same pertains to documents that are,
in the plaintiff's view, privileged. Form 11 of
the Uniform Rules
of Court makes
provision
for
such
documents to be identified and
discovered
in
the second part
of
the
schedule attached to
the discovery
affidavit.
[30]
In the premises, there is no merit in this ground of opposition.
COSTS
[31]
There exists no reason why costs should
not follow
suit.
O
RDER
[32]
In the
premises,
I grant the following
order
:
1.
The
respondent
is ordered to
comply
within
ten
(10)
days
from
date
of this
order
with
the
applicant's
rule 35(3)
notices
respectively
dated
18
August
2020
and
24
August
2020
.
2.
The respondent
i
s
ordered
t
o
pay
the
costs o
f
the application
.
N.
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
3
MAY 2021
(Virtual
hearing
.
)
DATE
DELIVERED PER
COVID19
DIRECTIVES:
18 JUNE 2021
APPEARANCES
Counsel
for
the
Plaintiff/Respondent:
Advocate
H.A. van
der
Merwe
and
Advocate
A. Pillay
Instructed
by
: Senekal
Simmonds
Incorporated
Counsel
for
the
Defendan
t
/
Applicant:
Advocate
R. S. Shepstone
Instructed
by
: Errol Goss Attorneys