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[2018] ZAFSHC 119
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Coetzer v Vermaak & Dennis and Others (1099/2012) [2018] ZAFSHC 119 (21 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
1099/2012
In
the matter between:
RUDOLF
ANTONIE
COETZER
Second
Plaintiff
and
VERMAAK &
DENNIS
First
Defendant
LEON
VERMAAK
Second
Defendant
JACO
ELS
Third
Defendant
and
AB
OPPERMAN
First
Third Party
ABRAHAM JACOBUS DU
PLESSIS
Second
Third Party
PAUL DE
LANGE
Third
Third Party
MINETTE DU PREEZ
Fourth
Third Party
ADRI WIESNER
HECHTER
Fifth
Third Party
HEARD
ON:
7 JUNE 2018
JUDGMENT
BY:
EDELING, AJ
DELIVERED
ON:
21 JUNE 2018
A.
INTRODUCTION
[1]
This is an application to obtain an order to compel the First and
Second Defendants for discovery of documents sought by the
Fourth
Third Party (as Applicant) from the First and Second Defendant (as
Respondents), to file their reply to the Fourth Third
Party
(Applicant) in terms of and under Uniform Rule of Court 35 (14),
within 5 (five) days of an order calling upon the First
and Second
Defendants (Respondents) to make available for inspection five (5)
types or groups of documents.
[2]
In his replying affidavit the attorney of Fourth Third Party
(Applicant) indicated that the Rule 35 (14) Notice was in fact
provided to the Fourth Third Party (Applicant) by the attorney of the
Second Plaintiff, but that given the circumstances the Fourth
Third
Party (Applicant) persisted with prayer 3 of the Notice of Motion,
the First and Second Defendants (Respondents) to pay the
costs of
this application.
[3]
In this judgment I will refer to the Fourth Third Party as “the
Applicant” and to the First and more specifically,
the Second
Defendant as “the Respondent”.
[4]
Respondent opposes the application and I am called upon to only rule
on prayer 3 of the Notice of Motion.
B.
FACTUAL BACKGROUND
[5]
The Applicant launched the application on 10 April 2018 to compel the
Respondent to comply with the Notice in terms of Uniform
Rule 35 (14)
dated the 9th of February 2018.
[6]
The Respondent’s attorney, Mr van Schalkwyk from Lovius Block
Attorneys, indicated in a letter dated 22 February 2018
to the
Applicant’s attorney, (“Annexure A” of the opposing
affidavit) that
“
Mr
Buchner (from Honey Attorneys) is acting on behalf of the 2nd
plaintiff” and that “The liquidators of the first
defendant are Functus Officio and for all practical reasons they are
no longer involved in this matter.” He further
indicated
that he”already” requested “Mr Buchner to provide
us with the information as requested in terms of
your client’s
Rule 35 (14) Notice.”
[7]
On 10 April 2018 a further letter, Annexure “B” of the
opposing affidavit, was written by Mr van Schalkwyk to the
Applicant’s attorney indicating that although he had “already”
requested Mr Buchner on 19 February 2018 on behalf
of the Plaintiff
to provide them with the information and documents requested in terms
of Rule 35 (14) notice, but unfortunately
could not get any
co-operation from Mr Buchner. He further confirmed:
“
The
documents / information required in terms of the Rule 35 (14) notice
are not at our disposal and we will once again request
Mr Buchner to
provide us with that information.”
[8]
The Application was launched on the same day and issued by the
Registrar on 11 April 2018. In his Heads of Argument, Mr
Green
the Applicants attorney, indicated that the Respondent did initially
indicate in his letters, that they were not in possession
of the
required documents as listed in the Notice and that same were in fact
with the offices of Messrs Honey Attorneys, and specifically
Mr H L
Buckner, the attorney of record for the Second Plaintiff in the main
action. He argued that it was evidently so, due
to the fact
that the contents of the Defendants (Respondent) entire case file
had, according to the Defendants (Respondent) been
handed to Mr
Buchner.
[9]
On 17 April 2018 the Respondent filed the intention to oppose the
application and was postponed to the opposed roll for the
7th of June
2018.
[10]
A letter of Mr Buchner dated 26 April 2018 on behalf of Second
Plaintiff, Annexure “C” of the opposing affidavit,
was
received by Mr Green on 2 May 2018 including documentation to the
satisfaction of the Notice. He requested that the application
be
removed from the roll which was not acceptable to Mr Green. He
indicated that
“
that the
Applicant would only agree to remove the Application against a tender
for the payment of her wasted costs that she was
forced to incur in
having to bring the Application.”
C.
THE ISSUES
[11]
The issues to be determined are therefore the following:
11.1 Was the Defendant
obliged to deliver the documents as set out in the Notice in terms of
Rule 35 (14) of the Applicant and therefore
in control of the file in
possession of the attorney of the Second Plaintiff?
11.2 Was the Applicant
obliged to bring the application against the Respondent for the
relief as set out in the Notice of Motion
and therefore had to incur
the costs to proceed with the application?
11.3 Did the Applicant
have the necessary locus standi to bring the application?
D.
THE APPLICABLE LEGAL
POSITION
[12]
Rule 35(14) of the Uniform Rules of Court:
“
After appearance
to defend has been entered, any party to any action may, for purposes
of pleading, require any other party to make
available for inspection
within five days a clearly specified document or tape recording in
his possession which is relevant to
a reasonably anticipated issue in
the action and to allow a copy or transcription to be made thereof.”
[Subrule
(14) substituted by GN R2164 of 2 October 1987 and by GN R2642 of 27
November 1987.]
[13]
Rule 35 of the Uniform Rules governs discovery procedure in High
Court actions which allows a party after appearance to defend
and for
purposes of pleading, to require the other party to produce a
specific document or recording in its possession that is
relevant to
an anticipated issue “in the action”. Although discovery
is rarely ordered in applications, Rule 35 (13)
provides that Rule 35
shall apply to applications insofar as the court may direct.
Rule 35 (14) was added to the Rules sometime
after Rule 35 (13) and
the question in the present case was whether an order under Rule 35
(14) could be made in this application.
[14]
Mr Green argued that it was not disputed that his Notice in terms of
Rule 35 (14) was not complied with by the Respondent.
He had
given various notices in his correspondence to the Respondent to
comply with his initial notice, who failed to comply within
five days
thereof but, however, did indicate that he was not in possession of
same.
Mr
Green then referred to a United Kingdom - reported matter of AIR
CANADA v SECRETARY OF STATE FOR TRADE
[1983] 2 AC 394
at 445-446:
Coram: Lord Wilberforce,
Lord Scarman, Lord Fraser of Tullybelton
Ratio: The court
considered the test to be applied before a document could be ordered
to be discovered.
Held: (Majority)
Discovery is an exception to the adversarial character of the legal
process. It assists both the parties and the
court to discover the
truth. By so doing, it not only helps towards a just determination;
it also saves costs. A party who discovers
timeously a document fatal
to his case is assisted as effectively, although less to his liking,
as one who discovers the winning
card; for he can save himself and
others the heavy costs of litigation.
The House was divided on
the question whether, before inspection is ordered, the documents
should appear likely to support the case
of the party seeking
discovery, or whether it is enough that they should appear likely to
assist any of the parties to the proceedings;
the majority favoured
the first view. The purpose of discovery is to assist the parties as
well as the Court in determining the
truth and by doing so, not only
help to discover the truth and make a just determination of the case,
but also save costs. When
considering the ordering of discovery for
which immunity is claimed, there must be something beyond
speculation, some concrete
ground for belief which takes the case
beyond a mere fishing expedition.
Lord Fraser of
Tullybelton discussed the circumstances in which a judge should
inspect documents in order to decide whether or not
public interest
immunity is made out, and said: ‘The test is intended to be
fairly strict. It ought to be so in any case
where a valid claim for
public interest immunity has been made. Public interest immunity is
not a privilege which may be waived
by the Crown or by any other
party.’
Lord Scarman said that
the Crown, when it puts forward a public interest immunity objection,
‘is not claiming a privilege
but discharging a duty’.
It is not for the Crown
but for the Court to determine whether the document should be
produced, and ‘In my judgment documents
are necessary for
fairly disposing of a cause or for the due administration of justice
if they give substantial assistance to the
court in determining the
facts on
which the decision in
the cause will depend.’
Jurisdiction: England and
Wales”
[15]
Although the Court is not bound by that matter, I agree with the
principles set out therein especially with reference to the
saving of
costs.
[16]
Mr. Green argued that the Respondent was in possession of the
documents and although he may not have been in physical possession
the Rule also intended that the possession included “control”
thereof. He argued that it would be absurd that
a party could
hand documents so requested to any other party and allege that he was
not in possession when so requested.
His control of those
documents handing it to someone else would be a good example of still
being in possession thereof although
not physically. He argued
that the Respondent handed his file to the Second Plaintiff’s
attorney and was therefore
still in control of the file and had to
comply with the Rule 35 (14) Notice served upon him.
[17]
I cannot agree with him in this regard. Mr van Schalkwyk
clearly indicated that he was not in possession of the requested
documents before this application was launched. He responded to
Mr Green that he could not get any co-operation from Mr Buchner
and
once again requested him to provide him with the required information
or documents in terms of the Rule 35 Notice on the day
the
application was launched. Although Mr Green may have a good
argument that possession does incorporate “control”,
the
facts of this matter cannot accommodate his argument. The
Respondent’s attorney indicated that he was not in possession
of the documents since Mr Buchner was not co-operating to supply him
with the requested documents. He therefore did not have any
control
over the file at that stage and cannot be read into having
“possession”
[18]
Rule 35 (14) clearly refers to “...require any other party to
make available…”
[19]
The Second Plaintiff is a party in the action and therefore makes
Rule 35 (14) applicable upon him as a party who may be required
to
produce documents as indicated in Rule 35 (14) “...require any
other party to make available…” Mr Green,
prior to
the launch of the Application, knew that the documents were not in
the possession of the Respondent’s attorney but
with another
party in the main action.
[20]
I therefore cannot find that the Respondent was in control of the
requested documents at the time when the Application was
launched.
[21]
It was therefore not correct to launch the Application against the
Respondent with the knowledge the Applicant had on 10 February
2018.
His remedy was clearly against the Second Plaintiff as a “party”
in the litigation process.
[22]
The last and final issue was argued by Mr Snyman on behalf of the
Respondent that the Mr Green had no locus standi to launch
the
Application. He referred to the matter of LEGAL EXPENSES INSURANCE
SOUTHERN AFRICA LTD V DU RANDT & LOUW ING
2001 (1) SA 667
(O) and
the unreported judgement of Rampai AJP in PROFESSOR INGRID DENNIS v
DIE UNIVERSITEIT VAN DIE VRYSTAAT (Case number 451/2013).
[23]
Mr. Snyman submitted that “it is trite law that the authority
of an attorney of record to launch and/or oppose applications
for and
on behalf of his client solely based on such status or his
appointment as such, is not unfettered and for an attorney to
launch
an application and/or oppose an application on his client’s
behalf, requires explicit and direct instruction and/or
authorisation
from his client to do so, authority and authorisation which are,
considering the founding affidavit herein, lacking
in the present
interlocutory application. No general authority and/or blank
authorisation can be given to a representative such
as an attorney
for and of behalf of a party to launch and/or oppose applications on
his client’s behalf.”
[24]
I could nowhere in the papers determine that the authority or the
locus standi of Mr Green was in dispute. This issue
was only
raised in his Heads of Argument. If the authority and locus standi of
Mr Green was in dispute it ought to have been raised
in terms of Rule
7 of the Uniform Rules and raised in an opposing affidavit and not
only during argument.
See
CREATIVE CAR SOUND AND ANOTHER v AUTOMOBILE RADIO DEALERS ASSOCIATION
1989 (PTY) LTD 2007 (4) SA 546 (D) at 553 F – J,
and at 551 A –
H: “In Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk
1957 (2) SA 347
( C ), … where Watermeyer J said the
following:
“
Where a notice of
motion which is issued in the name of an individual is complete and
regular on the face of it and purports to
be signed by an attorney
acting for the applicant, then, in the absence of anything to show
that the applicant has not in fact
authorised the attorney to issue
the notice of motion on his behalf, the Court will presume that the
attorney was duly authorised
to do so. An attorney is an officer of
the Court and it must be presumed in the absence of any evidence to
the contrary that he
has satisfied himself that he has authority from
the applicant to commence proceedings before doing so. By appending
his signature
to the notice of motion he in effect certifies that he
has authority to act on behalf of the applicant. I say that the Court
will
presume the attorney's authority in the absence of evidence to
the contrary, for it is of course always open to a respondent, if
he
has reason to believe that the proceedings have not been properly
authorised by the applicant, to file an opposing affidavit
setting
out the grounds of his belief, in which case a triable issue of fact
arises. I do not think that, in the case of notice
of motion
proceedings brought by an individual, the mere failure to file a
power of attorney or a statement under oath showing
that the
applicant has conferred authority upon the attorney renders the
proceedings open to objection.”
[25]
See also GANES AND ANOTHER v TELKOM NAMIBIA LTD
2004 (3) SA 615
(SCA)
[26]
I therefore cannot agree with Mr Snyman’s submissions that
attorney Green had no authority to launch the present application
for
and on behalf of the Fourth Third Party (Applicant), in the absence
of anything indicating that the Applicant has not in fact
authorised
Mr Green to issue the Notice of motion on her behalf. I therefore
find that Mr Green was duly authorised to do so.
E.
APPLICATION
[27]
In the light of the above, I am of the view that the Applicant has
failed to establish circumstances justifying the granting
of prayer 3
in the Notice of Motion for an order as to costs only. There is no
basis that he had to bring the application against
the Respondent to
comply with the Rule 35 (14) Notice of the Uniform Rules.
F.
ORDER
[28]
In the result the following order is made:
1. The application is
dismissed with costs.
________________
W
J EDELING, AJ
For
the Applicant: Mr R G Green
Instructed
by: Stander & Green Attorneys, Bloemfontein
For
the Respondent: Advocate C Snyman
Instructed
by: Lovius Block Attorneys, Bloemfontein