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[2016] ZAGPPHC 267
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Prawde and Others v Williams NO and Another (39808/2013) [2016] ZAGPPHC 267 (3 May 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPUBLIC OF SOUTH
AFRICA
3/5/2016
CASE NUMBER:
39808/2013
Not reportable
Of interest to other
judges
Revised
In the matter between:
BRETT LEIGH PRAWDE AND
3 OTHERS
First
to Fourth Applicants
and
SHAWN WILLIAMS N.O.
AND ANOTHER
First
and Second Respondents
JUDGMENT
BRENNER AJ
1.
This is an application
to compel further discovery in terms of rule 35 (3) of the Uniform
Rules of Court, following a notice served
on 10 September 2014. ("the
rule 35 (3) notice").
2.
The applicants are the
first to fourth defendants in the main action, while the respondents
are the first and second plaintiffs.
The fans et origo of the
respondents' claims against the applicants is an alleged pyramid
scheme operated by the late Dorothy Teale
during her lifetime. It
appears that the respondents were appointed as joint trustees to her
insolvent deceased estate post her
death.
3.
When the rule 35 (3)
notice was first served, the respondents failed to serve an affidavit
to address whether the documents in question
were in their possession
and failing this, whether their whereabouts were known to them. It is
also established practice to serve
an affidavit where the relevancy
of the documents sought is challenged. The respondents failed to do
this, resorting instead to
correspondence.
4.
The applicants brought
a compelling application on 6 March 2015, enrolled for
20 April 2015. The
application was opposed, but culminated in the respondents serving an
affidavit replying to the notice, on 4
August 2015. In the interim,
the trial, enrolled for 1 June 2015, was postponed.
5.
The application was
removed from the roll, with costs reserved. In a letter dated 11
September 2015, from the applicants' attorneys
to the respondents'
attorneys, the former intimated that the applicants would not proceed
as the respondents had provided the answers
sought. In the same
letter, however, confirmation is requested as to whether the
respondents possessed the documents and refused
to provide them. In a
reply dated 15 September 2015, the respondents' attorneys refer the
applicants to the answering and supplementary
affidavits in the first
application to compel.
6.
It merits mention that
the first applicant, qua plaintiff, had sued the respondents, qua
defendants, in the South Gauteng High Court,
sometime in 2015. On 30
October 2015, the same Court granted leave to transfer this case to
the North Gauteng High Court, so as
to consolidate same with the
action in casu. In the result, therefore, there were claims and
counterclaims amongst the parties.
7.
The respondents having
persisted in their refusal to provide the documents called for, the
applicants launched a second compelling
application by notice served
on 24 November 2015, and this was likewise opposed. It is this
application which is before the Court.
8.
The rule 35 (3) notice
calls for production of the following documents, namely:-
a.
List of each and every debtor and creditor of the
estate of Dorothy Teale;
b.
Status report in respect of collections relating
to the estate of Dorothy Teale;
c.
List of all parties against whom the estate of
Dorothy Teale has instituted legal action and the status of such
litigation;
d.
Detailed statements of accounts rendered by the
plaintiffs' attorneys to the estate of Dorothy Teale, and
reconcilement of payments
with regard to such invoices;
e.
Copies of all and any correspondence between the
offices of the Plaintiffs and the office of the Master, and;
f.
Copies of the estate bank account since same was
opened by the Plaintiffs until the most recent date.
9.
In essence, the
respondents contended that the documents were not relevant to the
issues in the action. In a rather bizarre move,
however, they
confirmed that the documents were in their possession, but said that
the applicants were only entitled to them "in
their capacity as
creditors of the insolvent estate with approved claims". They
invited the applicants to approach them, qua
trustees of the estate,
to this end. In argument before Court, it was stated that the fourth
applicant had proved a claim, but
had never approached the
respondents directly for the documents.
10.
The focal issue in
this application was whether the documents described in the rule 35
(3) notice were relevant to the issues raised
in the action.
11.
The operative
provision of rule 35 (3) provides:
"If
any party believes that there are, in addition to documents
.......
disclosed
as
aforesaid, other documents (including copies
thereof)
.......
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 same available for inspection ..."
12.
The onus of proving
potential relevancy, on the probabilities, is squarely that of the
applicants.
13.
In casu, the
applicants addressed the issue as follows. The respondents had
accused the applicants of involvement in a "pyramid
scheme".
The applicants had no knowledge of this. The documents would
enlighten the applicants as to whether this allegation
was true or
not, and as to the legal and financial ramifications this would
cause. The applicants, believing the estate owed them
"huge
amounts of money", had sued the respondents. They did not know
if they were the only creditors who had sued the
respondents. The
documents would "put things in perspective". The applicants
had been told that the respondents had reached
a compromise with
certain creditors, which was impermissible in the face of a "pyramid
scheme", but which might take
the estate out of its insolvent
position and affect their stance on the pursuit of the counterclaim
against the estate.
14.
This is the sum total
of the justification given for relevancy. The pleadings in the action
were not annexed to the application.
The pleadings were not made
available to the Court in advance of the hearing. Nor was any attempt
made to analyse the issues raised
by the particulars of claim, the
plea, and the counterclaim, and to traverse the evidence required
therefor. No effort was made
to draw any nexus between the triable
issues and the documents sought.
15.
Save for mention
being made of an alleged "pyramid scheme", in bald terms,
the Court was left in the dark about the issues
raised and how the
documents would serve as important evidence in advancing the
applicants' case or damaging that of the respondents'.
16.
The starting point in
the enquiry is the reluctance of Courts to throw the net too wide in
matters involving discovery, absent compelling
grounds.
17. Reasonable grounds
for departure from this principle are adduced with reference to the
discovery affidavit, the documents contained
therein, the pleadings,
admissions made by the adversary, or the nature of the case or
documents in issue.
18.The "matter in
question" is determined from the pleadings. The test for
relevance, set out in
Compagnie Financiere et Commerciale du
Pacifique v Peruvian Guano Co
(1882) 11 QBD 55
,
has
been approved and applied by our Courts.
"It seems to me that
every document relates to the matter in question in the action which,
it is reasonable to suppose, contains
information which may
-
not
which must
-
either directly or indirectly enable the party
requiring the affidavit either to advance his own case or to damage
the case of his
adversary."
Vide
Swissborough Diamond
Mines (Pty) Ltd and others v Government of the Republic of South
Africa and others 1999(2) SA 279 (T)
,
which referred
to the above case with approval.
19.
In the final
analysis, the applicants have failed to discharge their onus of
making out a case to justify further discovery under
rule 35 (3). The
applicants were dilatory in the launch of their second application to
compel, which resulted in same being argued
a few days before the
next trial date on 9 May 2016. The applicants failed abysmally in
motivating the nexus between the triable
issues, and the documents
required by them.
20.
Relevance was the
critical issue and they were cavalier in their approach to addressing
same. This gives cause for a special order
for costs.
21.
Regarding the first
application to compel, the respondents were obliged to serve an
affidavit in reply to the rule 35 (3) notice,
in conformity with
established practice, therefore the applicants are entitled to their
costs herefor.
22.
The following order
is made:
17.1.
the application to compel further discovery by
the respondents, in reply to the applicants' rule 35 (3) notice,
served on 10 September
2014, is dismissed;
17.2.
the respondents are directed to pay the costs of
the first application to compel, launched on 6 March 2015, on the
party and party
scale;
17.3.
the applicants are directed to pay the costs of
the second application to compel, launched on 24 November, 2015, on
the attorney
and client scale.
_____________________________
BRENNER AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
3 May 2016
Appearances
Counsel for the
applicants
Advocate A J Venter
Instructed
by JNS
Attorneys
Counsel for the
respondents
Advocate K Potgieter
Instructed
by Kern
& Partners