About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2018
>>
[2018] ZAECELLC 10
|
|
Rabie v Cotterell N.O and Others (EL813/2017) [2018] ZAECELLC 10 (1 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EAST LONDON
CIRCUIT LOCAL DIVISION
CASE
NO. EL813/2017
In the matter
between:
PANTELLIS
YIANNIS
RABIE
Applicant
and
ANTONY CHARLES PATRICK COTTERELL
N.O
First Respondent
ANITA BHIKA
N.O Second
Respondent
BRIDGET MARY NAUDE
N.O Third
Respondent
JUDGMENT
Bloem
J.
[1]
This is an application to compel the defendants to make certain
documents available for inspection in accordance with rule 35
(6) of
the Uniform Rules of Court. The applicant is an adult male
while the respondents are cited in their capacity as duly
appointed
trustees of the Kempston Motor Group Trust (the trust). I shall
refer to the applicant as the plaintiff and the
respondents either as
the defendants or the trustees.
[2]
The plaintiff issued summons against the defendants wherein he claims
damages arising from the trust’s alleged breach
of contract.
The trust instituted two counterclaims for damages arising from the
plaintiff’s alleged breach of contract
and dishonest
alternatively fraudulent conduct. It is common cause that from
about October 2012 the plaintiff was employed
by the trust as a brand
manager at its Isando Commercial Centre. The plaintiff claims
that during December 2014 the trust,
represented by Edward Cotterell,
promoted him to the position of general manager from December 2014,
subject to a probation period
of three months. He furthermore
claims that he and Mr Cotterell agreed that, after the probation
period, he would receive
a basic salary of R35 000.00 per month as
well as commission calculated at 10% of the branch’s nett
operating profit.
The plaintiff claims that for the period
between March 2015 to March 2017 he performed his duties as general
manager but that the
trust breached the above agreement by paying him
only R20 000.00 per month plus commission during that period.
The plaintiff
accordingly claims the difference of R15 000.00 for 27
months. The defendants deny that the trust promoted the
plaintiff
to general manager pleading that Mr Cotterell had no
authority to promote the plaintiff to that position on behalf of the
trust.
[3]
In their first counterclaim the defendants allege that, in terms of
the contract of employment as a brand manager, the plaintiff
was
entitled to receive the use of a company vehicle from the trust and
that the plaintiff breached that contract in that he, knowing
that he
was not entitled to do so, appropriated to himself the use and
enjoyment of a brand new Peugeot motor vehicle which formed
part of
the stock of the branch. They alleged that he used the Peugeot
for eight months as a result of which it depreciated
in value by
approximately R62 000.00, being the damage allegedly suffered by
the trust and which the defendants claim from
the plaintiff. In
the second counterclaim the defendants allege that the plaintiff
dishonestly alternatively fraudulently
sold one of the trust’s
vehicles, a Mercedes Benz, to RCS Auto for R530 291.84 and
purchased two vehicles from RCS Auto
for the aggregate of
R530 291.84. However one of the vehicles had to be
repaired to render it saleable. Both vehicles
were thereafter
sold by the trust for less than the price that was paid when they
were purchased. The defendants claim that
the trust suffered
damages in the sum of approximately R330 300.00, being the
difference between the purchase price and the
amount achieved on
resale as well as the amount expended on repairs in respect of the
one vehicle. The plaintiff’s
plea in both counterclaims
was that he was authorised by Mr Cotterell to use the Peugeot and
that Mr Cotterell instructed him to
sell the Mercedes Benz and
purchase the two vehicles.
[4]
The central issue in the claim and counterclaims is whether Mr
Cotterell had the authority, on behalf of the trust, firstly,
to
promote the plaintiff to general manager at a salary of R35 000.00
per month plus commission; secondly, to authorise the
plaintiff to
use the Peugeot; and thirdly, to instruct the plaintiff to conclude
the above transaction with RCS Auto.
[5]
After the defendants had served their discovery affidavits, the
plaintiff served a notice in terms of rule 35 (3) wherein he
required
them to make documents, which the plaintiff listed in that notice,
available for inspection. The defendants delivered
a reply to
the plaintiff notice in terms of rule 35 (3) after they had been
ordered by this court to do so. This application
relates only
to documents which the defendants have not discovered or failed to
make available for inspection.
[6]
Rule 35 (3) reads as follows:
“
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
.”
[7]
Rule 35 (3) provides that the party who requires another party to
make additional documents or tape recordings available for
inspection
must believe, not know, that those additional documents or tape
recordings are in possession of the other party and
that the
documents or tape recordings may be, not are, relevant to any matter
in question. The belief must be based on reasonable
grounds as
the mere subjective belief is, by itself, insufficient to require the
other party to make available for inspection such
of those documents
as are in his or her possession.
[1]
A party who gives notice in terms of rule 35 (3) may only obtain
inspection of additional documents or tape recordings which
are
relevant to the issues on the pleadings.
[2]
The
documents in paragraphs 43 and 44 of the plaintiff’s notice in
terms of rule 35 (3)
[8]
The plaintiff requires the attendance register and minutes of the
meetings of the executive committee of the trust which were
held on
13 and 14 March 2017 as well as the trust’s quarterly meeting
which was held on 22 June 2016. The requested
attendance
registers and the minutes relate to the defendants’
counterclaims. The defendants refused to make those
documents
available on the basis that they are allegedly irrelevant to the
issues in dispute. The defendants do not claim
that those
meetings did not take place or that the documents do not exist.
The plaintiff believes that those documents are
or may be relevant
because the attendance registers will show who attended those
meetings, the plaintiff believing that Mr Cotterell
and the first
defendant attended those meetings. He furthermore believes that
the minutes of those meetings will reflect
whether any discussion
took place about his use of the Peugeot and whether there was any
discussion about the transaction with
RCS Auto, and, if so, whether
there was a complaint in respect thereof or whether there was a
defence of his use of the Peugeot
and the transaction with RCS Auto.
The defendants contend that the plaintiff is on a fishing expedition,
that he has not
set out any grounds to establish that the documents
that he requires to be made available for inspection will or may be
relevant
to Mr Cotterell’s authority.
[9]
In my view if the attendance registers and minutes reveal that the
plaintiff’s use of the Peugeot and the transaction
with RCS
Auto were discussed, such discussion may have covered Mr Cotterell’s
authority, or absence thereof, to allow the
plaintiff to use the
Peugeot and whether the transaction with RCS Auto took place on Mr
Cotterell’s instruction. If
so, it might give credence to
the defendants’ defence that Mr Cotterell did not have
authority firstly, to allow the plaintiff
to use the Peugeot and
secondly, to instruct him to transact with RCS Auto. On the
other hand, if those items were not discussed,
it might assist the
plaintiff to establish that Mr Cotterell had ostensible authority to
allow him to use the Peugeot and to instruct
him to transact with RCS
Auto. In the circumstances, the attendance register and minutes
may be relevant to the issue of
Mr Cotterell’s above
authority. The defendants should accordingly make them
available for inspection.
The
documents in paragraphs 16 and 17 of the plaintiff’s notice in
terms of rule 35 (3)
[10]
In those paragraphs the plaintiff requires the defendants to make
available for inspection a copy of all the correspondence,
including
emails, letters, sms’s and WhatsApp messages, in terms of which
the trust, alternatively its trustees, informed
the plaintiff that Mr
Cotterell did not have the authority to promote him, to negotiate his
salary and that his promotion was null
and void alternatively that
the trust, alternatively its trustees, informed Mr Cotterell that he
did not have the authority to
promote the plaintiff, to negotiate the
plaintiff’s salary and that the plaintiff’s promotion was
null and void.
The defendants claim that, because the nature of
the correspondence sought to be made available for inspection is
extremely wide
and unlimited, they have not been in a position to
identify, source and determine the relevancy of those documents.
In my
view, the plaintiff’s request is in respect of specified
documents to establish that the plaintiff and Mr Cotterell had been
informed, and therefore had knowledge, that Mr Cotterell had no
authority to promote the plaintiff and offer him an increased
salary.
[3]
[11]
The plaintiff claims that his requirement that the documents be made
available for inspection is sourced in the defendants’
plea
that the plaintiff was aware that his salary and remuneration package
could only be authorised by the first defendant and
that the
plaintiff was aware that the first defendant did not authorise his
promotion and increased salary. In my view the
documents sought
to be made available for inspection in this regard are not relevant
to the issue of Mr Cotterell’s authority
or lack thereof.
The plaintiff’s requirement is founded on the premise that the
trust or the trustees informed him
and/or Mr Cotterell about Mr
Cotterell’s lack of authority. That is not what the
defendants pleaded. They pleaded
that the plaintiff was aware
of Mr Cotterell’s lack of authority to promote him and offer
him an increased salary.
The documents which the plaintiff
seeks to be made available for inspection are sought on a wrong
premise, irrelevant to the issue
of Mr Cotterell’s authority.
I agree with Mr Kotze, counsel for the defendants, that the
information sought by the
plaintiff in this regard would best be
dealt with by a request by the plaintiff for further particulars to
prepare for trial.
In the circumstances, the plaintiff is not
entitled to an order that the defendants make the documents listed in
paragraphs 16
and 17 of the plaintiff’s notice in terms of rule
35 (3) available for inspection.
The
documents in paragraphs 3, 4 and 7 of the plaintiff’s notice in
terms of rule 35 (3)
[12]
The plaintiff also requires the defendants to make available for
inspection the contracts of all employees appointed by the
trust in
Gauteng and its George dealership during the period between 1 January
2014 and May 2017 as well as all the correspondence
between the trust
and the above employees relating to their promotion or demotion and
the increase of their remuneration packages.
The plaintiff
believes that the above documents are relevant to Mr Cotterell’s
disputed authority to promote him and offer
him an increased income.
He refers to an email of 23 December 2013 from the Chief Executive
Officer of the Kempston Motor
Group informing certain people in the
group, including Mr Cotterell and the first respondent, that with
effect from 1 January 2014
Mr Cotterell had been promoted to the
position of the trust’s “
Gauteng Director, for all
franchises represented in the area, including the George dealerships
based in the Western Cape
”. The plaintiff alleges
that to the best of his knowledge, for the period between 1 January
2014 and May 2017, Mr Cotterell,
as Director for all franchises in
Gauteng and in George, appointed and concluded contracts with new
employees, promoted employees
and communicated the above appointments
and promotions to those employees in Gauteng and George. He
believes that the employment
contracts and the communications
addressed to the new and promoted employees will assist to
demonstrate Mr Cotterell’s authority
to, on behalf of the
trust, promote him and to enter into the agreement upon which his
claim is based. The defendants allege
that the contracts of
employment in respect of other employees are irrelevant to the issue
of Mr Cotterell’s authority.
They concede that in some
cases Mr Cotterell signed contracts of employment but that he did so,
not as Director of the trust, but
because he was expressly authorised
by the first defendant to do so on behalf of the trust.
[13]
Those documents, or even some of them, might show that Mr Cotterell
signed those letters or contracts of appointment and promotion
and in
what capacity he signed them. Where they show that he signed
them in his capacity as Director of the trust it might
assist the
plaintiff to demonstrate that Mr Cotterell had ostensible authority
to also promote him. The plaintiff acknowledged
that some of
the information contained in other employees’ contracts of
employment or letters of promotion might be private
or confidential.
He is not interested in such information and agreed that the
documents may be redacted accordingly.
In the circumstances,
the defendants should make available for inspection the documents
listed in paragraphs 3,4 and 7 of the plaintiff’s
notice in
terms of rule 35 (3). The defendants would be entitled to
delete personal or confidential information on those
documents
relating to other employees.
The
documents in paragraphs 5 and 6 of the plaintiffs notice in terms of
rule 35 (3)
[14]
In those paragraphs the plaintiff requires the defendants to make
available for inspection the employment contract between
the trust
and Gary Bakos in respect of his position as Dealer Principal/General
Manager at the Isando branch. He also seeks
the letter of
appointment that was given to Mr Bakos relevant to his appointment to
the above position. It is undisputed
that the trust appointed
Mr Bakos to the above position during or about January 2014 and he
held that position until about November
2014. That was
the position to which the plaintiff claims he was promoted. The
defendants admit that Mr Cotterell
signed Mr Bakos’ contract of
employment but claim that he did so on the basis that he had
delegated authority to sign that
document on behalf of the trust.
For the same reasons that the defendants should make the documents
listed in paragraphs
3,4 and 7 of the plaintiff’s notice in
terms of rule 35 (3) available for inspection, they should also make
the documents
in paragraphs 5 and 6 of that notice available for
inspection. Once again, private and confidential information
relevant
to Mr Bakos should be deleted from those documents.
Costs
[15]
Mr Kotze submitted that the costs of this application should be
reserved for determination by the trial court which will determine
whether the documents that the defendants were ordered to make
available for inspection were in fact relevant to the issue of Mr
Cotterell’s authority. I do not agree. The present
enquiry is whether or not the plaintiff is entitled to an
order that
the defendants make the documents available for inspection. One
of the factors that this court had to take into
account was whether
the documents may be relevant to the issue of Mr Cotterell’s
authority. The documents which the
defendant will be ordered to
make available for inspection may be relevant to Mr Cotterell’s
authority, hence the order that
the defendants make them available to
the plaintiff for inspection. In the circumstances, because the
plaintiff was substantially
successful, he is entitled to the costs
of the application.
[16]
In the result, it is ordered:
16.1.
the defendants make available for inspection by the plaintiff, within
fifteen days from the date of service of this order
by the
plaintiff’s attorney on the defendants’ attorney, the
documents listed in paragraphs 3, 4, 5, 6, 7, 43 and 44
of the
plaintiff’s notice in terms of rule 35 (3) served on the
defendants on 15 March 2018;
16.2.
the defendants may delete private and confidential information
contained in the documents listed in paragraphs 3, 4, 5, 6,
and 7 of
the plaintiff’s aforesaid notice;
16.3.
the defendants, in their representative capacities, pay the
plaintiff’s costs of this application jointly and severally
the
one paying the other to be absolved.
G H BLOEM
Judge of the High
Court
For the
plaintiff/applicant: Dr
G Ebersöhn of Gerrie Ebersöhn Attorneys,
Johannesburg
and Bate Chubb & Dickson Inc, East London
For the
defendants/respondents: Adv
C D Kotze, instructed by Kirchmanns Inc, East London
Date of
hearing: 8
October 2018
Date of delivery
of the judgment: 1 November 2018
[1]
Continental Ore Construction v Highveld Steel and Vanadium
Corporation Ltd
1971 (4) SA 589
(W) at 598F-G.
[2]
Swissborough Diamond Mines (Pty) Ltd and others v Government of
the Republic of South Africa and others
1999 (2) SA 279
(T) at
311A.
[3]
Rellams (Pty) Ltd v James Brown and Hamer Ltd
1983 (1) SA 556
(N) at 560A-564D.