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[2016] ZAKZPHC 77
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Pillay v Dawood (AR732/14) [2016] ZAKZPHC 77 (9 September 2016)
IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR732/14
DATE:
09 SEPTEMBER 2016
In
the matter between
POOBALAN
PILLAY
...............................................................................................................
Appellant
And
FEISAL
DAWOOD
................................................................................................................
Respondent
JUDGMENT
Delivered
on: 09 September 2016
MBATHA
J:
[1]
On 5 September 2016 we made an order to the effect that the appeal is
dismissed with costs.
[2]
The appellant brought an appeal against the magistrate’s
refusal to order the respondent to discover properly and the
order
that the appellant should pay the costs occasioned by the adjournment
on 4 September 2014.
[3]
The appellant asks that those orders be set aside and be replaced by
the following order:
‘
(i)
that plaintiff is ordered to make further and better discovery of
documents in regard to which it claims privilege to;
(ii)
that the plaintiff is ordered to pay the costs occasioned by the
adjournment to include the reasonable costs of counsel on
brief. Such
costs to be taxed and to include the travelling costs from Durban to
Stanger and return.’
[3]
The appeal is opposed by the respondent only on the basis that the
ruling granted by the learned magistrate is not appealable.
The
respondent submits that it was an interlocutory application for an
adjournment and therefore not appealable. Counsel for the
appellant
has conceded that it is indeed so, as the order granted by the
learned magistrate did not have the effect of a final
judgment. The
appeal then proceeded on the basis of whether the learned magistrate
misdirected himself as to the order for costs
which he granted in
favour of the respondent and if such an order is appealable.
[4]
The appellant submits that an order for costs should have been made
in his favour. In consideration of that, the appeal court
has to
decide whether the appellant ought to have been the successful party
in the court
a
quo,
hence the merits of the dispute have to be investigated.
[1]
[2]
[5]
According to the appellant, the respondent had relevant
correspondence in his possession which he did not adequately disclose
or reveal until 19 June 2014. The appellant had no reason to suspect
that the respondent was withholding a discoverable document.
The
appellant had to compel the respondent to discover that document.
Therefore the proximate cause of the adjournment was due
to the
withholding of that document until 2 September 2014. As a result the
appellant could not proceed with the trial on 4 September
2014.
[6]
It is common cause that the respondent had withheld the discovery of
the document on the basis that it was a privileged document
between
attorney and client. On 1 September 2014, the court ruled that
although it was correspondence between attorney and client
it must be
made available to the appellant as it was relevant to the action.
[7]
On 2 September 2014 the respondent delivered the document, which is
an email between the respondent and Mr Weissinger, his
attorney. On 3
September 2014 the appellant sent a letter to the respondent stating
that due to their defective discovery and lack
of understanding of
relevance and privilege, they were not willing to proceed with the
trial tomorrow. As a result thereof they
are preparing an affidavit
in support of an application on these grounds for an order adjourning
the matter the following day,
with the respondent paying the costs
occasioned by the adjournment. It was proposed to the respondent that
if they consent to the
adjournment, they will agree to costs to be
costs in the cause, but should they be forced to argue the matter
they will seek an
order for costs occasioned by the adjournment.
[8]
The respondent’s response was to that effect that they were to
proceed with the trial and that should the appellant require
a
postponement, wasted costs, including counsel’s actual fees,
must be tendered with a written request for such a postponement,
which request must not be made later than 10h30 on 2 September 2016.
[9]
On 3 September 2016 the appellant responded by stating that they were
preparing an affidavit in support of an application for
an
adjournment along the grounds stated in their letter, with the
respondent to pay the wasted costs occasioned by the adjournment.
[10]
On 4 September 2014,
Mr Southwood
SC,
representing the appellant, handed over an affidavit deposed on 4
September 2014 to the learned magistrate, which he intended
to use
for the purposes of the application for an adjournment. The
magistrate stated that he would not entertain any issue relating
to
discovery of documents save for the application for an adjournment
that is before him. Counsel for the appellant embarked on
the history
of the discovered documents, namely, that a document was discovered
on 19 January 2014 when the respondent gave evidence
in the trial,
which led to an application which was heard on 1 September 2014. The
basis for the application for an adjournment
is that the discovery
was defective and should be fixed, and that they still needed to do a
proper investigation for purposes of
trial, as the discovery was
late.
[11]
In closing his argument he submitted that there should be on order
directing the respondent to file a supplementary discovery
affidavit
and wasted costs occasioned by the adjournment.
[12]
The respondent opposed this application on the basis that there is a
procedure in terms of the rules for further and better
discovery ,
which the appellant had not followed and that as the appellant sought
an indulgence it should pay the costs occasioned
by the adjournment.
[13]
The learned magistrate ruled that there are mechanisms available to a
litigant to compel discovery, likewise to the applicant,
when the
litigant believes that the discovery is defective. The appellant had
ample time to do so, and it did not use the mechanism
available to it
as provided in terms of Rule 23 of the Magistrates’ Court
Act.
[3]
[14]
In light thereof the learned magistrate refused to entertain any
issue about whether the discovery of the document was defective
or
not, when considering the application for an adjournment. His view
was also that a party that was seeking an indulgence should
tender
costs occasioned by the adjournment. Accordingly, he granted the
adjournment and ordered the appellant to pay the costs
occasioned by
the adjournment, including the reasonable costs of counsel on brief,
such costs to be taxed to include the travelling
costs from Durban to
Stanger and return.
[15]
On appeal the appellant still persisted with the prayer that the
respondent be ordered to make further and better discovery
of
documents in regard to which it claims privilege and that it should
be awarded costs.
[16]
Magistrates’ Court Rules,
Rule 55(1)(a) states as
follows:
‘
Every
application shall be brought on notice of motion, supported by an
affidavit …’
Rule
55(4)(a) provides further that interlocutory applications are to be
supported by affidavits if facts need to be placed before
the court.
Rule 55(5)(b) provides that an urgent application must be supported
by an affidavit explaining the urgency. Nowhere
is it stated that if
the application is urgent it must not be on notice.
[17]
The application in the form of an affidavit as presented by the
appellant on 4 September 2014 was not properly before the court.
It
should have been served upon the respondent. The respondent should
have been afforded an opportunity to oppose the application
before it
was set down for hearing. The procedure for a party who seeks an
order for further and better discovery is provided in
terms of Rule
23 (3). In order to ‘compel’ a party who has made
discovery, a notice in terms of Rule 23(11)(a) is necessary,
requiring the other party to produce at the hearing the original of
such document or recording provided it is not privileged. The
notice
must be given not less than five working days. Having stated the
position in law it is our view that the learned magistrate
correctly
refused to entertain the application for further and better discovery
as that application was not properly before the
court.
[18]
The appellant, with respect, failed to appreciate this, as his notice
of appeal persisted with an order directing the
respondent to
make further and better discovery. The appellant had received the
contentious document after the court
a
quo
had ruled that it was not a
privileged document. If he still was not satisfied, he could have
used the mechanisms provided in Rules.
It was only the appellant who
sought an indulgence to investigate further, which one could view as
a fishing expedition, as he
could not even give a time frame to the
learned magistrate for such an investigation. On the other hand, the
respondent was ready
to proceed with the part heard trial.
[19]
It is our view that the learned magistrate rightfully granted the
adjournment to the appellant, giving him an opportunity to
bring the
proper application for further and better discovery. As the
respondent was ready to proceed with the trial, it is our
view that
he was entitled to an order for wasted costs occasioned by the
adjournment.
[20]
In conclusion, the appeal should not have been brought by the
appellant against an interlocutory order which did not have a
final
effect on the parties. Section 83 of the Magistrates’ Court
Act
[4]
is clear on this issue. This has led to great inconvenience and
expense to all the parties. The courts are also loath in dealing
with
appeals in a piecemeal fashion.
[5]
[21]
In
Hip
Hop Clothing Manufacturing CC v Wagener NO and Another,
[6]
the court held that where a truly interlocutory order carries costs
the aggrieved party’s remedy appears to be to apply in
terms of
section 36 (d) of the Magistrates’ Courts Act to rescind the
substantive order and to appeal against the costs order.
Accordingly,
the only part of the order that was appealable before this court was
against an order for costs.
Accordingly,
for these reasons we gave the order dated 5 September 2016.
MBATHA
J
I
agree,
TOPPING
AJ
Date
of Hearing: 02 September 2016
Date
of Reasons Filed: 09 September 2016
Appearances
Counsel
for the Appellant: Adv MD Southwood SC
Instructed
by: Pretorius, Mdletshe & Partners Inc
Suite
5, Jangoor Centre
62
Hullett Street
Kwadukuza
4450
Counsel
for the Respondent: Adv S Alberts
Instructed
by:
Asmal & Asmal Attorneys
Suite
1, The Towers
69
Mahatma Gandhi Street
P.
O. Box 59
Stanger
4450
[1]
Du
Plessis v Nienaber
1948
(4) SA 293 (T)
[2]
Pretoria
Garrison Institutes v Danish Variety Products (Pty), Ltd
1948
(1) SA 839
(A)
[3]
Act
32 of 1944
[4]
Act
32 of 1944
[5]
Zweni
v Minister of Law and Order
1993
(1) SA 523 (A)
[6]
1996
(4) SA 222
(C)
at
229B