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[2019] ZANCHC 14
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Discovery Health (Pty) Ltd and Another v Pillay (1743/2015) [2019] ZANCHC 14 (29 March 2019)
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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
Case number: 1743/2015
Date heard: 15.03.2019
Date
delivered: 29.03.2019
In
the matter between
:-
DISCOVERY
HEALTH (PTY) LTD
First Applicant/ First Defendant
J.
E CHATZKELOWITZ
Second Applicant/ Second Defendant
and
RAJAENTHERAN
PILLAY
Respondent/ Plaintiff
JUDGMENT
Tlaletsi
JP
1.
The
applicants who are the defendants in a claim for damages instituted
by the respondent, brought an application to be heard on
urgent basis
on 15 March 2019. They seek orders,
inter
alia,
in the following terms:
"1.
…..
2.
It
is directed that the plaintiff is to make available for inspection
all the documents listed and/or described in the defendant's
notice
under rule 35(3), a copy of which is attached to the founding
affidavit as 'A' (excluding items 83-91 in the index to the
trial
bundle dated 19 February 2019), within five days of the date of this
order or within such time
as
this
court may deem fit;
3.
It
is directed that, if the plaintiff fails to comply with the order in
prayer 2 above, defendants are granted leave to apply for
an order
for the plaintiffs claim to be dismissed, with costs."
2.
The
application, which is opposed by the respondent, is predicated on the
following facts deposed to by the applicants' attorney,
Mr Mahmood
Mia.
On
15 January 2019 the respondents served a notice under Rule 35(3)
[1]
on the respondent's attorneys of record in which he was required to
make available for inspection in terms of Rule 35(6) the documents
listed in annexure 'A' to the notice. On 18 January 2019 the
respondent's attorneys wrote to the deponent acknowledging receipt
of
the notice but failed to comply as required within the
dies
provided for in Rule 35(6)
[2]
.
3.
It
was only on 5 February 2019, that the respondent's attorneys sent an
email message to the applicant's attorneys in which they,
inter
alia,
mentioned that they had
prepared a supplementary discovery affidavit which contains some of
the documents which have been requested
which they hoped to serve in
due course; that they were busy preparing the trial bundle which will
consist of the documents listed
in both the respondent's first
discovery affidavit and the supplementary discovery affidavit which
they hoped to finalise in due
course; that taking into account that
some of the documents requested in the Rule 35(3) notice are included
in the supplementary
discovery affidavit and would also be paginated
in the trial bundle to be served in due course, they propose that
they should not
separately reply to the Rule 35(3) notice at this
stage since some of the requested documents would be furnished to the
applicants
in the trial bundle and; that the applicants should
confirm via return e-mail that they are agreeable to the proposal.
4.
On
6 February 2019 the applicant's attorney responded by e-mail as
requested, indicating
,inter alia,
that if in their response there is
"proper clarity regarding your
reply to our client's
Rule 35(3)
notice then we will have no objection
thereto";
that
"we
simply do not wish for the matters to become convoluted and cause
unnecessary complication",
and
that
"Accordingly in so far
as
your response to our Rule 35(3)
notice is clear we will have no objection to receiving part of the
documents as part of your bundle."
The
letter concluded by stating that they will revert shortly regarding
the request for the items in the applicants' discovery affidavits.
5.
On
27 February 2019 the respondent's trial bundle was served on the
applicants as promised. It consisted of ten volumes. Upon perusal
of
the documents in the bundle the applicants' attorney was not
satisfied that the respondent had fully complied with its Rule
35(3)
notice in that
inter alia;
not
all VAT returns had been furnished and that there is no explanation
under oath about the missing ones; and the annual financial
statements for the years ended February 2017/2018 had not been
provided. According to the applicants' attorney the missing documents
are necessary to enable the applicants to quantify the plaintiff's
claim and to effectively prepare for the trial which is set
down for
23 April 2019.
6.
The
applicants further allege that the respondent's conduct is dilatory,
obstructive and prejudicial to the applicants in their
preparation
for trial; that the documents requested are those that, in the
ordinary course, a medical practice like that of the
respondent would
have on record and obliged to retain. For these reasons, the
applicants contended, they urgently prepared this
application with
the assistance of counsel and served it on the respondent's attorney
on 5 March 2019 to be heard, as indicated,
on 15 March 2019.
7.
It
is common cause that the· respondent served its formal reply
to the Rule 35(3) notice on 7 March 2019. In the affidavit
replying
of 15 January 2019, the respondent addressed the queries raised by
the applicants' in annexure "A" to the Rule
35 Notice. He
mentioned among others, that some of the specified documents had
already been made available as part of the trial
bundle; some were in
the process of being prepared by his accountant; that the whereabouts
of some were unknown and that some were
irrelevant to the applicant's
pleaded claim.
8.
Despite
the respondent's endeavour to show that it discovered the documents
the applicants persist with their application to compel.
The basis of
respondent's opposition is that the application is not urgent and
that any urgency if it exists, is self-created.
He further argues the
applicants have other alternative remedies if dissatisfied with the
respondent's reply to their Rule 35(3)
notice.
9.
On
11 March 2019 the applicants served and filed "Supplementary
Founding Affidavit", also disposed to by their attorney
Mr
Mahmood Mia. They seek leave for the admission of this affidavit in
order
"to update the application
on the most recent developments and to bring to the court's attention
new facts that have emerged."
In
the affidavit an attempt is made to address the issues raised in the
respondent's affidavit in response to the Rule 35(3) notice
as well
as the letter written by the respondent's attorney to the applicants'
attorney in which it is suggested,
inter
alia,
that the urgent application to
compel not be proceeded with on the 15th March 2019 and that costs be
reserved. In the said letter
it is contended that the respondent has
fully complied with the Rule 35(3) notice and there is no need to
persist with the application
to compel compliance.
10.
In my view, there is merit in the
contention that the application is not urgent and that the urgency,
if established, is self-created.
The following uncontroverted facts
which have been disclosed by the respondent in the answering
affidavit are fundamental as they
cast some light on the conduct of
the parties in processing the main action.
11.
The respondent instituted an action
against the application on 26 August 2015. The action is premised ·on
the second defendant's
alleged fraudulent conduct which allegedly
caused the respondent financial loss and
iniuria.
On 14 November 2016 the respondent
amended particulars of claim were filed. On 30 November 2016 the
applicants filed their plea
which according to the respondent
consisted of a bare denial.
12.
On or about 24 August 2017, after the
close of pleadings, the respondent served and filed his discovery
affidavit. On 6 November
2017 the applicants filed their respective
discovery affidavits. This step was preceded by a pre trial
conference. At the
conference a proposal was made on behalf of the
respondent that the merits and quantum be separated. The applicants
undertook to
revert to the respondent within two weeks to convey
their response to the proposal. The pre-trial minute was signed on 30
October
2017 by the defendants' legal representatives. On 6 November
2017 the applicants served and filed their respective discovery
affidavit.
10.
In my view, there is merit in the
contention that the application is not urgent and that the urgency,
if established, is self-created.
The following uncontroverted facts
which have been disclosed by the respondent in the answering
affidavit are fundamental as they
cast some light on the conduct of
the parties in processing the main action.
11.
The respondent instituted an action
against the application on 26 August 2015. The action is premised on
the second defendant's
alleged fraudulent conduct which allegedly
caused the respondent financial loss and iniuria. On 14 November 2016
the respondent
amended particulars of claim were filed. On 30
November 2016 the applicants filed their plea which according to the
respondent
consisted of a bare denial.
12.
On
or about 24 August 2017, after the close of pleadings, the respondent
served and filed his discovery affidavit. On 6 November
2017 the
applicants filed their respective discovery affidavits. This step was
preceded by a pre trial conference. At the
conference a proposal
was made on behalf of the respondent that the merits and quantum be
separated. The applicants undertook to
revert to the respondent
within two weeks to convey their response to the proposal. The
pre-trial minute was signed on 30 October
2017 by the defendants'
legal representatives. On 6 November 2017 the applicants served and
filed their respective discovery affidavit.
13.
On
24 January 2019, about two years after pleadings had closed, the
applicants amended their plea which had the effect of replacing
the
original
plea in toto. In this plea the
applicants admit that the second applicant acted on behalf of the
first applicant in undertaking
forensic investigative work into
allegations of fraudulent conduct on the part of medical
practitioners lodging medical aid claims
against the first applicant.
It is further admitted that named persons were sent to the
respondent's medical practice as undercover
agents to investigate any
alleged fraudulent conduct on the part of the respondent.
14.
On
29 May 2018 the applicants' attorney wrote a letter to the
respondent's attorney indicating
inter
alia,
that they were canvasing the
issues whether there should be a separation between the merits and
quantum with their clients and that
they will revert to them within a
week. It is worth noting that this undertaking was made about seven
months after the initial
undertaking and in response to an enquiry by
the respondent's attorney. The applicant's attorney reverted on the
issue of the separation
on 21 June 2018 by refusing to accede to the
request. In view of the applicant's objection to the request for
separation of the
issues, the matter is to be decided by the Judge
either on the day of the trial or any other day to be determined by
the Registrar,
should such an arrangement be made, by the parties.
15.
It
is significant to note that the dispute regarding the documents to be
discovered started as far back as January 2018 initiated
by the first
Rule 35(3) notice served by the applicants on 22 November 2017. In
the letter dated 18 January 2018 the applicants
complained that the
respondent's reply did not adequately address their request and
placed the respondent on terms to address their
further enquiries by
12 pm on Friday 19 January 2018 failing which they would proceed with
an application to compel compliance.
16.
On
19 January 2018 the respondent replied by stating that in his view he
has dealt with the applicant's Rule 35(3) notice in full
and had
furnished them with the documents they were entitled to. It was
further indicated that the applicants were free to act
in
"the
manner they contemplates should they not content with our client's
reply."
17.
The
applicants were therefore aware from 19 January 2018 that their
request was not acceded to and that they could proceed to launch
their application to compel compliance, and did not do so. They have
not provided any reason why this application could not have
been
launched earlier. The certificate of trial readiness was issued on 2
May 2018. On 31 July 2018 the Registrar provided the
parties with
tentative dates to choose for the trial of the matter. They preferred
the 23rd to 26th of April 2019. Despite their
preference, there is no
indication that any of the parties set the matter for trial on the
dates specified, which puts to doubt
whether the matter is enrolled
for that week to warrant the launching of an urgent application.
18.
As
already alluded to, the relief sought in the application is to compel
the respondent to make available for inspection the documents
referred to in annexure "A" to the founding affidavit. The
applicants agreed to the proposal by the respondent not to
formally
respond to the Rule 33(5) notice but thatthe documents will be
provided as part of the trial bundle. On 5 March 2019 the
applicants
attorneys communicated their dissatisfaction with the documents
provided and the respondent undertook to file a formal
notice on
Wednesday. However, the applicants did not even wait for the formal
notice to be served, but instead issued this application
on the same
day. By this time there had been, on the applicants' version, at
least partial compliance with their request.
19.
The
circumstances were further changed when the respondent served and
filed his formal response to the Rule 33(5) notice on 7 March
2019.
The relief sought by the applicants in this application required an
amendment as there had been compliance. The applicants
must have been
aware of this fact and that explains why a Supplementary Founding
Affidavit was filed with a request that it be
admitted as part of the
application.
20.
For the reasons set out above the
urgency that the applicants are claiming is self-created, and the
matter falls to be struck off
the roll. However, such an order will
not resolve the current dispute between the parties in respect of the
discovery of certain
documents. On the respondent's version there are
documents which are still being prepared by his accountant which have
not been
provided. It has not been indicated when these documents
will be discovered. The amendment of the applicants' (defendant in
the
action) plea to the action also intervened and it is not clear
whether some of the documents in dispute may have only came to light
after the amendment.
21.
It
is necessary that these issues be resolved first before the trial.
This includes the dispute regarding the separation of the
merits form
quantum. Having said this, it is clear that his matter is not ripe
for trial. An appropriate solution is, in my view,
to direct that the
parties attend a pre-trial conference before a Judge. Costs of this
application should be costs in the action
of the matter since none of
the parties is without blame.
22.
In the result the following order
is made:
1.
The
application is struck off the roll.
2.
The
parties are directed to attend at the Registrar's Office to arrange a
pre-trial conference before a Judge.
3.
Costs of this application are to be
costs in the course of action.
LP
TLALETSI
JUDGE
PRESIDENT
Northern Cape Division, Kimberley
On
behalf of the Applicants/Defendants:
Adv . T Tyuthuza
(Roux
Weigemoed and Du Plooy)
On
behalf of the Respondent/Plaintiff:
Adv Fisher
(Justin
Pillay and Associates)
[1]
35 Discovery, Inspection and Production of Documents:
(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 an oath
within ten days that such documents are not in his possession, in
which event he shall state
their whereabouts, if known to him.
[2]
(6) Any party may at any time by notice as near as may be in
accordance with Form 13 of the First Schedule require any party
who
has made discovery to make available for inspection any documents or
tape recordings disclosed in terms of subrules (2) and
(3). Such
notice shall require the party to whom notice is given to deliver to
him within five days a notice as near as may be
in accordance with
Form 14 of the First Schedule, stating a time within five days from
the delivery of such latter notice when
documents or tape recordings
may be inspected at the office of his attorney or, if he is not
represented by an attorney, at some
convenient place mentioned in
the notice, or in the case of bankers' books or other books of
account or books in constant use
for the purposes of any trade,
business or undertaking, at their usual place of custody. The party
receiving such last named
notice shall be entitled at the time
therein stated, and for a period of five days thereafter, during
normal business hours and
on any one or more of such days, to
inspect such documents or tape recordings and to take copies or
transcriptions thereof. A
party's failure to produce any such
document or tape recording for inspection shall preclude him from
using it at the trial,
save where the court on good cause shown
allows otherwise.