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[2018] ZAFSHC 11
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Omega Civils (Proprietary) Limited v C Max Civil Construction & General Trading (Pty) Ltd (3123/2016) [2018] ZAFSHC 11 (22 February 2018)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case number:
3123/2016
In
the matter between:
OMEGA CIVILS (PROPRIETARY)
LIMITED
Plaintiff/Applicant
and
C
MAX CIVIL CONSTRUCTION & GENERAL
TRADING
Defendant/Respondent
TRADING
(PTY) LTD
HEARD
ON:
25
JANUARY 2017
JUDGMENT
BY:
BOKWA,AJ
DELIVERED
ON:
22
FEBRUARY 2018
A.
INTRODUCTION:
[1]
This
is an Opposed Application by Notice of Motion in terms of Rule 35(7)
of the Rules of Court. The Applicant, is the Plaintiff
in an action
instituted against the Defendant who is the Respondent in this
application.
[2]
On
3rd May 2017 Applicant delivered a Notice in terms of Rule 35(3)
requesting the Respondent to make available for inspection certain
documents in accordance with Rule 35(6) or to state under oath if it
did not have such documents in its possession, in which case
the
Respondent had to state it's whereabout.
[3]
On
15th June 2016 the Respondent filed a response to the Rule 35(3)
Notice by delivering a Notice in terms of Rule 35(6). In the
present
Application the Applicant contends that the Respondent's responses to
Rule 35(3) Notice, do not constitute compliance with
the provisions
of Rule 35(3). In the circumstances the Applicant request better
discovery.
B.
BACKGROUND FACTS:
[4]
The
chronology of the relevant facts appears from the papers. During July
2016 the Applicant as Plaintiff issued summons against
the Respondent
as Defendant for payment of the amount of R5 628 405.76, which claim
·
was based on payments due to the
Applicant on attaining several, specified milestones in terms of the
agreement between the Applicant
and the Respondent.
[5]
The
Respondent was awarded a contract by the Free State Department of
Human Settlement to build low cost housing. In furtherance
of the
said contract, Applicant and Respondent concluded agreements in terms
whereof Applicant undertook to perform certain construction
works for
the Respondent on two sites at Heidedal and Phelindaba. The agreement
made specific provision that Applicant would be
paid by the
Respondent upon reaching certain construction milestones, specific
amounts inclusive of both material and labour. The
parties were of
the same mind that the Applicant would be paid once the Respondent
received payment from the Department and in
respect of the milestones
attended by the Applicant, for which milestones the Respondent would
lodge claims to the Department of
Human Settlement, Free State, as
the main contractor.
[6]
The
pleadings have closed in the main action. The Applicant wants to
compel the Respondent to provide better discovery, in this
interlocutory proceeding.
C.
ISSUES FOR
DETERMINATION:
[7]
This
Court must among others, determine the nature of the relief sought by
the Applicant, by scrutinizing the wording of Rule 35(3)
with the
background facts to the case. In so doing, to determine if the
Respondent has complied with the Rule in its response to
Applicant's
request.
[8]
More
specifically, whether the Rule 35(3) Notice of Applicant describes
the requested documents with sufficient accuracy for proper
identification and whether the documents requested are relevant to
the issues, in the main action.
D.
LEGAL
PRINCIPLES:
[9]
Rule
35(1) and (2) requires from a party to an action that has been
requested thereto, to make discovery on oath of all documents
and
tape recordings relating to any matter in question in such action
which are, or have at any time been in the possession or
control of
such party.
[10]
If a party is not satisfied with the other party's discovery, it may
make use of the procedure provided
for in Rule 35(3) to obtain
inspection of documents which that party believes are in the
possession of the other party and which
are relevant to any matter in
question. Rule 35(3) provides that:
"(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
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."
[11]
The
object of discovery was stated in
Durbach
v Fairway Hotel Ltd
[1]
to
be, to ensure that before the trial, both parties are made aware of
all the documentary evidence that is available. Discovery
of such
documents are intended to assist the parties and the court to
discover the truth and, in doing so, to contribute to a just
determination of the case.
[12]
In
Herbstein
& van Winsen
it
was stated
[2]
that
"Our
law recognises that proper mutual discovery in litigation of
contemporary documentary material which is often
more
valuable than the
oral testimony."
And,
furthermore, 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 but
which may fairly lead to an enquiry relevant to the issues."
[13]
In applications under 35(7), the court
has a discretion whether or not to compel discovery or inspection.
This discretion is clear
from the wording of the subrule, which
provides that:
"If
any party fails to give discovery as aforesaid or, having been seNed
with a notice under subrule (6), omits to give notice
of
a
time for
inspection and aforesaid or fails to give inspection as required by
that subrule, the party desiring discovery or inspection
may apply to
a
court,
which may
order
compliance
with this rule and, failing such compliance, may dismiss
a
claim or strike
out the defence
.
"
(See
Venmop
275 (Pty) Ltd v Cleverland Proiects (Pty) Ltd
2016
(1) SA 78
(GJ) at par [29]
[3]
;
Continental
Ore Construction v Highveld Steal and Vanadium Ltd
at
594 - 595.)
[4]
E.
CONTENTS OF
THE RELEVANT PLEADINGS
:
[14]
The
Applicant's Notice in terms of Rule 35(3) is marked
annexure
"CDE3"
on page 154 of the
paginated bundle. The Respondent is requested to provide
documentation for inspection by the Applicant and the
following were
stated:
"1.
In terms of the rule 35(3) notice, the applicant requested the
respondent to make the following
documents available for inspection
in accordance with rule 35(6) or to state on oath that such documents
are not in its possession,
in which event the respondent shall, if
known to him, state their whereabouts."
"2.
Proof of all payments received by the Defendant from the Free State
Department of Human Settlements
as payment for invoices delivered to
it by the Defendant in the furtherance of the Departments
reconstruction and development programme
pertaining to RDP houses
constructed at Heidedal, such proof to include all payments made by
the Department in respect
of
the project thus
far.
3.
Proof
of all payments received by the Defendant from the Free State
Department of Human Settlements as payment for invoices delivered
to
it by the Defendant in the furtherance of the Department's
reconstruction and development programme pertaining to RDP houses
constructed at Phelindaba, such proof to include all payments made by
the Department in respect of the project thus far.
4.
The
Defendant is requested to supply the Plaintiff with all quotations
and proof
of
payment
for rectifying the deficient work pleaded by the Defendant in its
plea dated the 9th of December 2016.
5.
The
Defendant is requested to the (sic) supply the Plaintiff with all
photographs in its possession reflecting the deficiencies
in the
Plaintiff's work
as
pleaded
n the Defendant's plea dated the 9th December 2016."
[15]
The
Respondent's responses to the Notice of Applicant is captured on page
157 of the paginated bundle as
annexure
"CDE4".
In it's Notice in
terms of Rule 35(6) dated 15 June 2017 the Respondent states as
follows:
"KINDLY
TAKE NOTICE
that
in response to the Plaintiff's notice in terms of Rule 35(3) dated
the
3
rd
of May 2017, the
Defendant attaches hereto copies of all quotations and proof of
payments
as
requested. In
regard to the payments received from the Free State Department
of
Human
Settlements, the Defendant's affidavit in regard thereto will be
served shortly."
F:
CONTENTIONS
ON BEHALF OF THE PLAINTIFF (APPLICANT)
[16]
Mr Pienaar represented the applicants.
During argument he repeated the legal arguments already advanced in
the Plaintiff's affidavit.
I shall not repeat all his arguments here
safe for what is relevant in his submissions for the conclusion I
have reached. In his
submissions he summarized the Respondent's
opposition to the Applicant's application as follows:
"5.
1 The
ambit of the dispute between the applicant and the respondent in the
main action is, if indeed the invoices
were rendered to the
respondent, whether the respondent had received payment for the
specified invoices from the Department3
[5]
;
5.2
The
issues in the matter and all documents discovered can therefore only
be related to the specified invoices and payment claims
contained in
the summons
[6]
.
5.3
The
documents requested in terms of the applicant's rule 35(3) notice,
inasmuch as it
do
not
only relate to the said invoices and payments thereof, are not
relevant to the issues in question
[7]
•
5.4
The
rule 35(3) notice does not clearly specify which documents the
application requires
[8]
;
5.5
The
applicant cannot, by means of an application
to
compel,
seek photographs of the work, being also something which the
respondent stated in its affidavit is not in the respondent's
possession.
[9]
"
[17]
Mr
Pienaar made the submission that the Respondent's responses do not
comply with the provisions of Rule 35(3) and 35(6) and furthermore
that the applicant is entitled to a proper response as contemplated
in Rule 35(3). He wants the court to hold the Respondent responsible
for the costs incurred in respect of this application.
G:
CONTENTIONS
ON BEHALF OF THE DEFENDANT
(RESPONDENT)
[18]
Mr
Grabler who appeared on behalf of the Respondent submitted that Rule
35(3) was adequately answered by the Respondent, such documents
having been furnished by the Respondent on 23rd February 2017. He
submitted that the Respondent did not have any other documents
in its
possession related to the request. He submitted that in any event the
further documents under request were not relevant
for the purpose of
a dispute and as such the Notices was defective in as far as it does
not define what "proof' the Applicant
wanted.
H:
ANALYSIS
[19]
In
this case Mr Pienaar on behalf of the Applicant contended that the
Respondent did not provide or make the necessary documents
which
constitute proof of payments as contemplated in the Rule 35(3) Notice
available to the Applicant namely bank statements reflecting
actual
payments received from the Department including audited financial
statements proving receipt of funds from the Department.
[20]
The party who is not satisfied with the discovery has the onus of
proving on the probabilities that
the documents exist or are
relevant. (See
Swissborough Diamond Mines (Pty) Ltd and Others
v Government of the Republic of South Africa
at 320C.)
[21]
An
ordinary meaning of the words used in Rule 35(3) lays the two grounds
on which such a notice may be served for it to be valid.
Firstt a
party must
believe.
Secondly the document sought must be
relevant
.
The Applicant must lay sound grounds
for its believe.
[22]
In
casu,
the Applicant rely on an oral
agreement between itself and the Respondent in respect of a tender
awarded by the Free State Department
of Human Settlement to the
Respondent. In terms of this contract, the Applicant undertook
subcontracting works with the reciprocal
obligation on the Respondent
to pay Applicant on milestones reached. Two certificates certified by
the engineer revealed an amount
of R2 604 723.82 for Heidedal and R2
446 398.51 for Phelindaba as still outstandingt and owed to the
Applicant.
[23]
In its plea, the Respondent alleges that it would remunerate the
Applicant with funds received from
work performed from the
Department. Furthermore, Respondent allege that the work rendered by
Applicant in respect of both sites
was defective. To my mind,
Applicant has objectively laid the basis for requesting these
documents. They are relevant for proving
payments including any
defective work which Respondent has pleaded. It is conceivable that
evidence in the form of photo's may
be used by the Respondent to
disproof or at best, minimize the Applicant's claim. The relevance of
the documents will inevitably
enable the Applicant to advance its own
case and to proof its damages against the Respondent.
[24]
The Respondent has not raised any valid
objections to not producing such documents.
"In
MLAMLA
v MARINE
&
TRADE
INSURANCE COMPANY
1978 (1) SA 401
(E)
at 402 it was found that "the right of
a
party to an
action to resist discovery is
a
limited right
existing only in certain we/I-defined circumstances" for
instance, where the document "is covered by legal
professional
privilege" or "if it would disclose the party's evidence"
or "if it would be injurious to the
public interest if it were
to be disclosed.
"
I:
CONCLUSION
[25]
I am satisfied that the Applicant has
described the document under request with sufficient accuracy to be
able to be identified
within a genus. In the premise I take the view
that the Applicant is entitled to a better discovery affidavit from
the Respondent.
In the absence of any allegations of possible
prejudice, I am inclined to exercise my discretion in favour of the
Applicant and
to order the Respondent to provide a better discovery
to the Applicant.
[26]
In the premises I make the following
order:
26.1
That
the Defendant be ordered to furnish a proper reply to Plaintiff's
Rule 35(3) Notice served on the Defendant's attorneys on
the 3 May
2017, and that a reply to such Notice be delivered within 1O days
from the date of the granting of this Order;
26.2
That
failing delivery of the reply as aforesaid, Plaintiff will be
entitled to apply for the dismissal of Defendant's defence, on
the
same papers duly supplemented, if needs be.
26.3
That
the Defendant be ordered to pay the costs of this Application.
I R O BOKWA, AJ
On
behalf of plaintiffs
Adv. T Pienaar
Honey Attorneys
Bloemfontein
On
behalf of defendants:
Adv. S. Grabler
Lovius Attorneys
Bloemfontein
[1]
1949(3) SA 1081(SR) at 1083
[2]
Civil Practice of the Supreme Court of South Africa 4"' Edition
(1997)
[3]
Venmop 275 (Pty) Ltd v Clerlad Projects (pty) Ltd
2016 (1) SA 78
(GJ) at par [29]
[4]
Continental Ore Construction v Highveld Steal and Vanadium ltd at
594 - 595
[5]
P. 220 to 221, par 7.1 to 7.7
[6]
P. 221, par 7, 10
[7]
P. 222, par 8.2
[8]
[8]
P. 223, par 8.2.2 to 8.2.5
[9]
225, par 8.2.1011