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[2016] ZAGPPHC 803
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Steynol (Pty)Ltd v Obvious Choice Investments 5 (Pty)Ltd and Another (39597/2015) [2016] ZAGPPHC 803 (7 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF
SOUTH
AFRICA
Case
Number: 39597/2015
DATE:
7/9/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
STEYNOL
(PTY)
LTD Applicant
and
OBVIOUS
CHOICE INVESTMENTS 5 (PTY)
LTD
....................................
First
Respondent
EKHURHULENI
METROPOLITAN
MUNICIPALITY
................................
SecondRespondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The first respondent requests an order in terms of rule 35(14) of the
Uniform Rules of court, compelling the applicant to provide
it with
the documents listed in the application to compel.
[2]
The applicant opposes the application.
[3]
Rule 35(14) makes provision for discovery prior to the filing of a
plea and reads as follows:
"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."
[4]
The provisions of this rule applies, in terms of the provisions of
rule 35(12),
mutatis
mutandis
to applications.
[5]
In order to apply the rule to the present application, it is
necessary to have regard to the relief claimed in the main
application
and to the documents sought in terms of rule 35(14).
Main
application
[6]
The applicant claims he following substantive relief against the
first respondent:
“
That
the First Respondent be interdicted from
-
and ordered to
immediately
cease
all activities relating to the operation of
a
brickyard and I
or any
other activities contrary to the zoning of the
property of the Applicant being Portion 21 of the
farm
Groot Valy,
No. [1..],
JR."
[7]
The relief is premised on the following allegations in the founding
affidavit:
i.
the applicant is the owner of the immovable property;
ii.
the applicant has obtained a mining right in respect of the property;
iii.
Portion 22 of the property is zoned for agricultural use;
iv.
in contravention of the aforesaid zoning, the first respondent
conducts a brickyard business on portion 22;
v.
the applicant is in the process of applying for the rezoning of the
property to provide for mining activities and the first respondent's
continued unlawful conduct might adversely affect the application;
and
vi.
the applicant does not have an effective alternative remedy.
Rule
35(14) application
[8]
The first respondent requests the following documentation:
"1.
1 The applicant's application to the second respondent for the
rezoning
of
Portions [2..
&
2… of the farm Grootvaly no 1…],
Registration
Division IR,
Gauteng;
1.2
All documents relating to the applicant's application
and granting of
a
mining
right
to mine
for coal and clay on
Portions
[
2..
&
2…] of the
farm Grootvaly no [1..], Registration Division IR, Gauteng and
as
referred to in
paragraph 8.1
of the
applicant's founding affidavit;
1.3
The application for the water use license
as
referred to in
paragraph 8.
5
of the
applicant's founding
affidavit;"
[9]
I pause to mention that paragraphs 8.1 and 8.5 of the founding
affidavit deals with the irreparable harm requirement for a final
interdict and reads as follows:
"8.1
The applicant, as a result of the mining right that has been granted
to it, is in the process of compliance with the law
as it stands, in
that it applied for the rezoning of the property to provide for
mining operations to be conducted."
and
"8.
5
The applicant is ready to commence physical mining activities and
is awaiting the final approval of its zoning application and
its water use license before the mining activities can actively
commence."
[10]
In support of the relief claimed, the first respondent's attorney of
record, Ms Brosens, deposed to an affidavit. Ms Brosens,
first all,
misinterpreted the relief claimed by the applicant. Ms Brosens refer,
throughout her affidavit, to an eviction application
whereas the
applicant claims an interdict prohibiting the first respondent from
conducting unlawful activities on the property.
[11]
Be that as it may, according to the affidavit, the two directors and
shareholders of the first respondent, C A MacFarlane and
M Marion
were previously, together with a certain BC Moyle, shareholders of
the applicant. During October 2008 and in terms of
a written
shareholders agreement, MacFarlane, Marion and Moyle sold their
shares in the applicant to Umthombo Coal (Pty) Ltd.
[12]
The transfer of the shares and the payment therefore was stalled due
to a delay in obtaining a mining right licence in respect
of the
project area as defined in the shareholders agreement. As a
consequence, MacFarlane and Moyle entered into a share sale
agreement
in terms whereof they disposed of their shares for a lesser amount.
At the time, mining rights were already granted to
either Umthombo
Coal or the applicant, a fact that was not disclosed to McFarlane
which constitutes a material non-disclosure entitling
him to
institute a damages claim against the applicant.
[13]
Apparently MacFarlane has declared a dispute with the applicant in
terms of the shareholders agreement, which dispute is still
pending.
[14]
From the attached share sale agreements it appears that neither the
applicant nor the first respondent is a party to the agreements.
The
shares in the applicant are the subject matter of the sale in both
agreements.
Discussion
[15]
To my mind, rule 35(14), envisages two distinct requirements which an
applicant must satisfy in order to succeed with its application,
to
wit:
i.
a reasonably anticipated issue in the application; and
ii.
the relevance of the document sought in relation to the reasonably
anticipated issue.
[16]
In respect of the second enquiry, the document must be essential to
enable a respondent to prepare an answering affidavit.
If a document
is merely useful, the rule does not apply. [See:
Cullinan Holings
Ltd v Mamelodi Stadsraad
1992
(1)
SA 645
T at 647 F]
[17]
The first respondent's affidavit in support of its application to
compel is silent on the reasonably anticipated issue in the
application. The issues as they appear from the founding affidavit in
the main application are:
i.
a clear right, in other words, whether the applicant is the owner of
the property and whether the first respondent is conducting
unlawful
activities on the property;
ii.
irreparable harm, in other words whether the first respondent's
unlawful activities on the property places the applicant's
application for rezoning in jeopardy; and
iii.
an effective alternative remedy.
[18]
Ex facie
the clearly defined issues, the documents sought by
the first respondent are not relevant. Without being informed of the
exact further
issue the first respondent anticipates in the
application, it is not possible to find that the documents are
essential for purposes
of formulating an answer to the relief claimed
by the applicant in the main application.
[19]
It appears from the application to compel, that there are further
disputes between the applicant and parties that are not presently
before court. The applicant to the founding affidavit also alluded to
further disputes between the parties, but emphasised that
the further
disputes are not relevant for purposes of the relief sought in this
application. I agree.
[20]
In the premises, the first respondent has failed to satisfy the
requirements for an order in terms of rule 35(14) and the application
stands to be dismissed.
ORDER
In
the premises, I make the following order: The application is
dismissed with costs.
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances
Counsel
for the Applicant
..
: Advocate De Jager
Attorney
for the Applicant
…..........................
:
Van Der Merwe Van Den Berg Attorneys
Counsel
for the 1st Respondent
....................
:
Advocate Kruger SC
Attorney
for the 1st Respondent
.....................
:
Brosens Cochrane Inc