Barnard v Barnard (EL 538/2019) [2021] ZAECELLC 14 (20 April 2021)

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[2021] ZAECELLC 14
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Barnard v Barnard (EL 538/2019) [2021] ZAECELLC 14 (20 April 2021)

NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
In
the matter
between:
Case No: EL 538/2019
MELINDI
BARNARD (previously KRIEL, born BESTER)
Applicant
and
RIAAN
BARNARD

Respondent
JUDGMENT
Govindjee
AJ:
Background
[1]
The parties are embroiled in divorce proceedings. They were
officially married on 18 October 2018, but lived together since 2017
and enjoyed an elaborate ‘wedding ceremony’ (seemingly without
registering a marriage) on 4 October 2017. The marriage is out of
community of property, with the accrual system being applicable.
It
is common cause that the respondent is an affluent businessman with
interests in various companies, and that the nett value of
his estate
at the commencement of the marriage is the sum of R24,8 million.
[2]
The applicant approached the Court in terms of Rule 35(7) of
the
Rules of Court to compel the respondent to comply with the
applicant’s second notice in terms of Rule 35(3) and 35(6).
[3]
The
respondent has already replied to the applicant’s initial notice in
terms of Rule 35(3) (disclosing an initial 24 items, and
an
additional 86 items by way of supplementary affidavit),
[1]
but contends,
inter
alia,
that ‘The description of the further documents called for by the
Plaintiff is so wide and all-inclusive that it is not possible
for me
to determine the relevance of these further documents and precisely
what documents are or are not included in the request,
as opposed to
the first request.’ The respondent appears to be overwhelmed by the
vastness of the documentation sought and claims
to have no further
documentation available that is relevant to a maintenance claim.
[4]
The applicant’s request is based on the information sought
by its
appointed expert. This is ostensibly in order for that individual to
consider historical documentation pertaining to the respondent’s
interests in five juristic entities (including contracts entered into
and profit-sharing arrangements) in order to calculate the
value of
the respondent’s estate properly. The respondent contends,
essentially, that documentation prior to October 2018 is irrelevant
and that the documentation sought is irrelevant to any issue that
will arise at trial, and the request is too broad, vague and
unspecified.
[5]
The issue to be decided is whether the applicant has made out
a case
to compel the respondent to discover the documents contained in the
applicant’s second notice in terms of Rule 35(3) and
35(6). The
respondent frames the key question as follows: ‘Whether the
Applicant has set out sufficient information to enable the
Court to
consider whether or not to exercise its discretion in her favour to
compel the production of every document (unlimited)
in the
Applicant’s second Notice.’
[6]
The applicant’s particulars of claim go beyond a claim for
maintenance, and includes the execution of the terms of the
antenuptial contract entered into between the parties. It contends
that
the documentation requested is relevant for the following
reasons:
a.
The applicant’s claim is for the accrual as well as maintenance and
should the plaintiff have a significant
accrual claim this will
impact on the possible maintenance award. The respondent’s means
and earning capacity must be assessed
to determine the applicant’s
claim for maintenance;
b.
A forfeiture can only be awarded if the defendant’s estate has
shown the larger accrual, which must first
be established;
c.
The award of costs is dependent on the means of the parties and can
only be properly assessed through the
disclosure of the requested
documentation.
Applicable
law
[7]
The discovery process is intended to assist in ensuring that
the
action is determined following a fair trial and due process. Rule
35(1) and (2) require a party to any action who has been requested
thereto, to make discovery of all documents and tape recordings
‘relating to any matter in question in such action’. The
discovery
is done on affidavit ‘as near as may be in accordance
with Form 11 of the First Schedule…’
[8]
Rule 35(3) provides:
‘
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
on oath within
ten days that such documents are not in his possession, in which
event he shall state their whereabouts, if known
to him.’
[9]
The
test as to whether or not a document should be discovered is one of
relevance, having regard to the issues defined in the pleadings:
[2]
‘
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 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.”’
[10]
Courts
are nonetheless reluctant to question a discovery affidavit, which is
prima
facie
taken
to be conclusive, unless a probability is shown to exist that the
deponent is either mistaken or false in his assertion.
[3]
The Court, in determining whether to go behind the discovery
affidavit, will only have regard to the following:
i.
The discovery affidavit itself;
ii.
The documents referred to in the discovery affidavit;
iii.
The pleadings in the action;
iv.
Any admissions made by the party making the discovery affidavit;
v.
The nature of the case or the documents in issue.
[11]
In
Rellams (supra)
, the court held as follows:
‘
Rule
35(1) contemplates the discovery of all relevant documents, specific
or otherwise, and indeed provides that a document shall
be deemed to
be sufficiently specified if it is described as being one of a bundle
of documents of a specific nature which have been
initialled and
consecutively numbered by the deponent. If such a bundle of documents
existed but was not discovered there could be
no valid reason why it
should not be permissible to obtain its production under Rule 35(3)
which is certainly couched widely enough
to allow the production of
“a vast number of documents covering a long period”.’
[12]
For an
order in terms of Rule 35(7), the documents required for inspection
must be identifiable. The Rule 35(3) notice may require
production of
any number of documents. A document need not be described
specifically within the notice, but must be described with
sufficient
accuracy to enable it to be identified. It suffices if the document
is described within a
genus
enabling it to be identified.
[4]
It was not suggested that the documents under request were not
described with sufficient accuracy for purposes of identification
in
this instance. Instead, the focus was on the ‘wide and
all-inclusive’ nature of the request, linked to relevance.
[13]
Discovery
is a matter for the Court to decide, having regard to the pleadings,
and does not depend upon the parties’ own views on
the matter.
[5]
It is also particularly significant that the rule refers specifically
to documents which
may
be relevant to the action, and that relevance is determined having
regard to the issues taken at face value as defined in the
pleadings.
[6]
Analysis
[14]
The
respondent’s reply to the applicant’s second notice in terms of
Rule 35(3) and 35(6)
[7]
reflects
the misconception that the discovery request is linked only to the
respondent’s ability to pay maintenance. The pleadings
demonstrate
that the issues at hand clearly go beyond maintenance and costs and
include a claim for ‘Execution of the Antenuptial
contract’ and
possible forfeiture. This application must be considered in this
light, bearing in mind that a party may only be
called upon to
discover documents ‘relating to any matter in question’ (which
emanates from a consideration of the pleadings)
and that this phrase
is given a wide interpretation.
[8]
[15]
Discovery
is intended to ensure that available documentary evidence is
considered in order for a proper ventilation of issues to occur
at
trial.
[9]
The scope of discovery
is wide and extends to documents having only a minor or peripheral
bearing on the issues, and to documents
which may not constitute
evidence but which may fairly lead to an enquiry relevant to the
issues.
[10]
In
Quintessence
Co-ordinators (Pty) Ltd v Government of the Republic of Transkei
,
[11]
the court held that if documents are
prima
facie
relevant to the issue before the court, and hence discoverable, it is
not appropriate to decide on the weight of those documents
at the
time of an application to compel discovery. Consequently, discovery
may not be refused only on the ground that no weight can
be attached
to the documents.
[16]
In
Gering
v Gering and Another
,
[12]
the court adopted the following approach to discovery, in the context
of the defendant conducting business through three companies:
‘
But
the plaintiff’s entitlement to maintenance, and the quantum of
maintenance to which she might be entitled, are aspects which
have
been left open, and it may well be relevant, at least on the quantum,
to determine the relative financial positions of the parties,
and the
extent of the first defendant’s resources…It is true that, in the
case of these companies, their records are not
stricto sensu
in
the possession, custody or control of the first defendant in his
personal capacity. However, on the facts, those companies are
his
creatures and his instruments. He is conducting business through
them, or holding assets through them and, though they are separate
juristic personalities, they are in substance merely part of the
machinery by which he alone conducts his business affairs.’
[17]
It is
inappropriate to cite the volume of documents requested over a long
period of time, and allude to associated practical difficulties.
If
the documents are in the defendant’s possession and relevant, they
must be made available for inspection.
[13]
The arguments advanced on behalf of the respondent reflect the
approach of the court
a
quo
in
Rellams
to the effect that a vast number of documents had been requested ‘no
doubt in the hope that something useful may be revealed’.
On
appeal, it was confirmed that Rule 35(3) entitles a party who
believes that there are documents which
may
be relevant to give notice that these may be made available for
inspection.
[14]
[18]
Perusal
of that judgment also puts paid to any suggestion that this is an
‘all or nothing’ situation and that it was somehow inappropriate
for counsel for the applicant to have made certain concessions from
the bar based on the breadth of the request or irrelevancy.
[15]
Extending that principle, there is no reason why the court cannot
exercise its discretion in refusing access to documents which have
been requested but are considered to be irrelevant or beyond the
scope of what could reasonably be required.
[19]
Barring
the limited exceptions indicated below, the respondent’s sworn
response that all the documentation requested is irrelevant
must, in
the circumstances, be rejected given the probability that has been
shown to exist that the respondent Is either mistaken
or false in
that assertion.
[16]
I am
satisfied that the overall denial of relevancy is incorrect and that
the court should exercise its discretion accordingly.
[17]
As Revelas J held in
J[…]
A[…] M[…] (born C[…]) v G[…] S[…] M[…] and 27 Others
,
[18]
it can hardly be disputed that the applicant would be prejudiced in
her preparation for trial and in presenting the evidence allowing
the
just determination of the issues in dispute, if she were denied
access to much of the documentation requested:
‘
It
may very well be that the applicant has indeed cast the net very wide
but that is a natural consequence of the nature of her claim
against
the first respondent. It has always been foreseen that the
applicant’s case would involve a quest for financial details,
information and documents pertaining to the various trusts linked to
the first respondent…’
[20]
It is so that some of the information sought is overbroad and
seemingly irrelevant
and must be excluded from consideration.
Applicant’s counsel indicated at the hearing of the matter that the
information requested
in paragraphs 5, 11 and 12 of the applicant’s
second notice in terms of Rule 35(3) and (6) was to be struck from
consideration.
Many of the other requests relate specifically to
information from 1 March 2017, but this is not always the case. The
requests in
the following paragraphs should be read to relate to
information from 1 March 2017:
·
3.6.5;
·
3.6.6;
·
3.6.16;
·
3.6.20;
The
request for information in the following paragraphs is considered
irrelevant and need not be provided:
·
3.6.13;
·
3.6.21;
·
6.3;
·
13.
[21]
Even though 1 March 2017 predates the signing of the antenuptial
contract, I am satisfied
that information from that date is
potentially relevant for calculating financial aspects of the accrual
and associated matters emanating
from the pleadings.
Order
[22]
The following order shall issue:
1.
The respondent is ordered to comply with the applicant’s notice in
terms of Rule 35(3) dated 25 May 2020
by –
a.
making available for inspection in accordance within Rule 35 (6) all
the books and documents enumerated
in the said notice except for
items 3.6.13; 3.6.21; 5; 6.3; 11; 12 and 13 and with the exception of
information prior to 1 March
2017 in paragraphs 3.6.5; 3.6.6; 3.6.16
and 3.6.20; or
b.
stating on oath within 21 days from date hereof that such books or
documents are not in his possession
in which event he shall, if known
to him, state their whereabouts, failing which the applicant shall be
entitled to apply on the
same papers duly amplified for an order
dismissing the respondent’s defence with costs;
2.
The respondent is directed to pay the costs of this application.
________________________
A.
GOVINDJEE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo
the Applicant
:
Adv K
Watt
Instructed
by
:           Difford
Underwood Attorneys, 14 Bonza Bay Road,

Beacon Bay, East London
Ref: Mrs C
Difford
Obo
the Respondent:
:
Adv S
Cole
Instructed
by
:
Burmeister Vickers Attorneys, 16 Cecil Lloyd
Street, Stirling,
East London
Ref: Mrs Z
Burmeister
Heard
:           25
March 2021
Delivered
:           20
April 2021
[1]
The respondent discovered various documentation in his supplementary
affidavit, including bank statements from 2015, 2016 and 2017;
documentation from Basfour 3538 (Pty) Ltd, including an annual
financial statement for the period ending 30 September 2017 and
bank
statements from 2015 to 2020; SARS ITA34 for 2014, 2016 and 2017;
and EB5 Investment (offshore) dated in 2019.
[2]
Rellams
(Pty) Ltd v James Brown & Hamer Ltd
1983
(1) SA 556
(N) at 564A.
[3]
Marais
v Lombard
1958
(4) SA 224
(E) at 227G.
[4]
Swissborough
Diamond Mines (Pty) Ltd v Government of the RSA
1999 (2) SA 279
(T) at 323B-C.
[5]
Haupt
t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd
2005
(1) SA 398
(C) at 404.
[6]
Swissborough
supra.
[7]
At paras 3 and 5.
[8]
SA
Neon Advertising (Pty) Ltd v Claude Neon Lights
(SA)
Ltd
1968
(3) SA 381
(W) at 385A-C.
[9]
On the purpose and benefit of proper discovery, see
Fisher
and others v Contribsystems Vertriebs GmbH and others
[2017] ZAKZPHC 52 at para 37
et
seq
.
[10]
Durbach
v Fairway Hotel Ltd
1949 (3) SA 1081
(SR) at 1083;
Swissborough
supra
at
316I.
[11]
1991 (4) SA 214
(Tk) at 216B-F, cited with approval in
Fisher
at para 58.
[12]
1974 (3) SA 358
(W) at 361B-C, 361H.
[13]
Rellams
supra
at 564C.
[14]
Rellams
supra
at 563 A.
[15]
See
Rellams
supra
at 564E
et
seq
.
[16]
Marais
v Lombard
1958 (4) SA 224
(E) at 227G.
[17]
See
Fisher
supra
at
para 31.
[18]
Unreported case 3145/2015 (ECD – Port Elizabeth) at para 41.