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[2015] ZAGPPHC 234
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Pypers an Others v Odendaal & Summerton Ingelyf and Another (A336/14) [2015] ZAGPPHC 234 (10 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: A336/14
DATE:
10 March 2015
CORNELIUS
GREGORIUS
PYPERS
............................................................................
First
Appellant
VRYHEIDSFRONT
PLUS
...........................................................................................
Second
Appellant
JACOBUS
JOHANNES
HOFFMAN
.............................................................................
Third
Appellant
V
ODENDAAL
& SUMMERTON
INGELYF
.................................................................
First
Respondent
ADRIAAN
IZAK
ODENDAAL
................................................................................
Second
Respondent
JUDGMENT
MABUSE
J
:
[1]
This is an appeal by the Appellants, the Defendants in the court
a
quo
, against the orders of Magistrate K. Naidoo of Magistrate
Court Vereeniging in which he:
1.1 dismissed an
application by the Appellants, then the Defendants, to rescind an
order to provide Further Particulars for the
purpose of trial;
1.2 struck out the
Appellants’ then Defendants’ defence due to
non-compliance with the order in paragraph 1.1 supra;
and,
1.3
determining the Respondent’s quantum of damages in the
Respondents’, then the Plaintiffs’, defamation action.
[2]
For purposes of ease I shall refer to the parties by the names they
called themselves in the court
a quo
where the Appellants were the Defendants and the Respondents the
Plaintiffs.
[3]
The battlefield of the parties in
casu
are whether the
aforementioned magistrate erred in finding or determining:
3.1 that the
Defendants had not provided the Plaintiffs with the required
particulars as ordered;
3.2 that the
Defendants had not shown good cause in their application to rescind
the order compelling them to furnish Further Particulars
for purposes
of trial;
3.3 that the
Defendants’ defence should be struck out owing to their
perceived failure to furnish the Plaintiffs with Further
Particulars
or put otherwise due to their non-compliance with the order to
provide Further Particulars;
3.4 in the light of
the fact that their defence had been struck out, that the Defendants
had no right under such circumstances to
be present while evidence
regarding quantum of damages was heard or that their further
participation in the trial had come to an
end finally;
3.5
in the determination of quantum.
[4]
The Plaintiffs opposed the appeal. Their opposition of the
appeal is founded on the following grounds that:
(a) the Defendants
did not oppose the initial application at the end of which an order
compelling them to provide the Plaintiffs
with Further Particulars
for trial was made;
(b) that even after
they were ordered to provide Further Particulars the Defendants did
not provide the Further Particulars;
(c)
that the Defendants’ application for rescission did not show
good cause for the rescission of the order to compel in that
in it
the Defendants failed to set forth their reasons for failing to
furnish the Further Particulars and in addition for failing
to oppose
the application to compel them to furnish Further Particulars, and
thirdly and finally why they failed to attend Court
on the appointed
date for the application to compel. Finally the Plaintiffs
support the Magistrate’s findings in respect
of quantum and
contend that it was done in terms of the law.
[5]
It needs to be pointed that the point raised in paragraphs 3.1 supra
is decisive and that if this Court should find that the
magistrate
erred in finding that the Defendants had not provided the Plaintiffs
with Further Particulars the need to deal with
points raised in 3.2 -
3.5 will fall away. This is so because what followed subsequent
to 16 March 2012 had its provenance
in the order of 16 March 2012.
[6] It is only
apposite at this stage to set out the salient facts of this matter.
6.1 By summons
issued by the Clerk of the Civil Court Meyerton on 11 March 2011 the
Plaintiffs claimed from the Defendants payment
of a sum of R50 000.00
from each one of the three Defendants in respect of each of the five
claims instituted against them
and further ancillary relief.
6.2 On 6 May 2011
the three Defendants delivered their notices of intention to defend
and their pleas to the Plaintiffs’ summons.
6.3 On 27 October
2011 the Plaintiffs delivered their replication in respect of the
first and third Defendants’ pleas.
6.4 On 28 October
2011 the Plaintiffs delivered on the Defendants their request for
Further Particulars for the purpose of trial.
6.5
On 9 November 2011 the Defendants delivered their responses to the
Plaintiffs’ request for Further Particulars.
[7]
These Further Particulars were required, as I already have indicated
somewhere supra, by the Plaintiffs to enable them to prepare
for
trial.
7.1 In respect of
the second defendant the Plaintiffs had pleaded as follows in their
third claim:
“
8.
Op of omtrent 13 November 2009 het die Tweede Verweerder op sy
openbare webwerf ‘n document gepubliseer met die opskrif:
“VF PLUS” VRA INGRYPING IN MIDVAAL.”
“
19.
Bogenoemde dokumente was op datum hiervan nog op die webwerf
beskikbaar vir enige lid van die publiek, insluitend inwoners
van die
distrik van Vereeniging.
20. ‘n
Uitdruk van bogenoemde dokument word hierby aangeheg gemerk
aanhangsel C.
21. Bogenoemde
dokument, soos op die openbare webwerf gepubliseer, bevat die
volgende bewerings of innuendo aangaande die Tweede
Eiser:
21.1.1 dat die
Tweede Eiser, met die hulp van sekere ander persone, onregmatig of
onbehoorlik opgetree het met grond wat aan Midvaal
geskenk is.
21.1.2 dat die
Eerste en/of Tweede Eisers nie behoorlik rekenskap van trustgelde
gegee het nie.
22.
Bogenoemde bewerings was onregmatig en lasterlik van die Eisers
deurdat dit bedoel was en verstaan is om te beteken of insinueer
dat
Eerste en/of Tweede Eiser oneerlik is of was in hulle optrede as
Prokureurs van Midvaal, en/of as afslaers van Midvaal en/of
dat hulle
in die algemeen in korrupte sake transaksies betrokke was en/of
onbehoorlik met trustgeld opgetree het.”
7.2 To the
allegations contained in paragraph 22 of the summons as set out
above, the Second Defendant had pleaded as follows:
“
6
AD
Paragraaf 22
Die
Tweede Verweerder ontken dat die beweringe onregmatig en lasterlik is
en pleit dat die bewerings nie wesenlik waar is nie, maar
ook in die
belang van die algemene publiek is alternatiewelik dat die bewerings
ook gepreveliveerd is.”
7.3 The Plaintiffs
had set out their request for Further Particulars for purposes of
trial as follows:
“
AD
Derde Eis
4.
AD
Paragraaf 6 van die Tweede Verweerder se pleit
Beweerde
onreëlmatige grond transaksies.
4.2 Gaan die
Tweede Verweerder tydens die verhoor poog om te bewys dat die
bewerings in paragraaf 21.1.1 van die Besonderhede van
Vordering
genoem, gelees met aanhangsel ‘C’ daarvan waar is?
4.3 Indien wel
ter voorbereiding vir verhoor, benodig die eisers
volledige
besonderhede
van die getuienis en/of dokumente waarop gesteun sal
word om die waarheid van die bewerings te bewys, insluitend:
4.3.1 volledige
beskrywings van die grond of vaste eiendom betrokke by die beweerde
(irregular dealings);
4.3.2 volledige
besonderhede van die aard van die “irregular dealings” en
waarom dit na bewering onreëlmatig was,
met verwysing na
wetgewing of regsbeginsel;
4.3.3 volledige
besonderhede, met verwysing na spesifieke blootgelegde dokumente, van
getuienis wat aangebied sal word om die waarheid
van die bewerings te
bewys.
4.4 Het die
Tweede Verweerder voor publikasie van die bewerings enige getuienis
ingesamel of ondersoek ingestel na die waarheid
aldan nie van die
bewerings in paragraaf 21.1.1 van die besonderhede van vordering
genoem? Indien wel, word die besonderhede
van die uitslag van
die sodanige ondersoek en bevindinge verlang.
Beweerde
onbehoorlike rekenskap van trustgeld.
4.5 Gaan die
Tweede Verweerder tydens die verhoof poog om te bewys dat die
bewerings in paragraaf 21.1.2 van die besonderhede van
vordering
genoem, gelees met Aanhangsel C daarvan waar is?
4.6 Indien wel,
ter voorbereiding vir verhoor, benodig die Eisers volledige
besonderhede van die getuienis en/of dokumente waarop
gesteun sal
word om die waarheid van die bewerings te bewys, insluitend
4.6.1 volledige
beskrywings van elke geval waar die eisers na bewerings nie behoorlik
rekenskap van trustgeld gegee het nie, met
verwysing na datum van
ontvangs van sodanige gelde, die bron daarvan, en die bedrag daarvan;
4.6.2 volledige
besonderhede van die aard van die beweerde versuim in elke geval, met
verwysing na wetgewing of regsbeginsels;
4.6.3
volledige besonderhede, met verwysing na spesifieke blootgelegte
dokumente, van getuienis wat aangebied sal word om die waarheid
van
die bewerings te bewys.”
7.4 With regards to
the first and third Defendants the Plaintiffs had made a request for
Further Particulars as follows:
“
4.3
Gaan die verweerders tydens die verhoor poog om te bewys dat die
bewerings in paragraaf 21.1.1 van die besonderhede van bogenoemde,
gelees met aanhangsel C daarvan waar is?
4.4 Indien wel,
ter voorbereiding vir verhoor benodig die eisers volledige
besonderhede van die getuienis en/of dokumente waarop
gesteun sal
word om die waarheid van die bewerings te bewys insluitend;
4.4.1 volledige
beskrywings van die grond of vaste eiendom betrokke by die beweerde
“irregular dealings”;
4.4.2 volledige
besonderhede van die aard van die “irregular dealings” en
waarom dit na bewering onreëlmatig was
met verwysing na
wetgewing of regsbeginsels;
4.4.3
volledige besonderhede met verwysing na spesifieke blootgelegde
dokumente, van getuienis wat aangebied sal word om die waarheid
van
die bewerings te bewys.
Beweerde
Onbehoorlike Rekenskap van Trustgeld
4.5 Gaan die
verweerders tydens die verhoor poog om te bewys dat die bewerings in
paragraaf 21.1.2 van die besonderhede van vordering
genoem, gelees
met aanhangsel C daarvan waar is?
4.6 Indien wel,
ter voorbereiding vir verhoor, benodig die Eisers
volledige
besonderhede
van die getuienis en/of dokumente waarop gesteun sal
word om die waarheid van die bewerings te bewys, insluitend;
4.6.1 volledige
beskrywings van
elke
geval waar die Eisers na bewering nie
behoorlik rekenskap van trustgeld gegee het nie, met verwysing na
datum van ontvangs van
sodanige gelde, die bron daarvan, en die
bedrag
daarvan;
4.6.2 volledige
besonderhede van die aard van die beweerde versuim in elk geval, met
verwysing na wetgewing of regsbeginsels;
4.6.3
volledige besonderhede, met verwysing na spesifieke blootgelegde
dokumente, van getuienis wat aangebied sal word om die waarheid
van
die bewerings te bewys.”
[8]
The first and third Defendants responded as follows to the
abovementioned request for Further Particulars by the Plaintiff:
“
4
AD
Paragraaf 9 van die Verweerders se pleit
4.1
Ja;
4.2
Nee;
4.3 Ongetwyfeld
ja, slegs nadat en indien Eisers kan slaag om te bewys dat daar
hoegenaamd ‘n onus op Verweerders is om te
antwoord en te
getuig.
4.4.1
Sien paragraaf 2.1 hierbo;
4.4.2
Sien paragraaf 2.1 hierbo;
4.4.3
Sien paragraaf 2.1 hierbo;
4.5 Ja, slegs
nadat en indien Eisers kan slaag om te bewys dat daar hoegenaamd ‘n
onus op Verweerders is om te antwoord ten
te getuig.
4.6.1
– 4.6.3 Sien paragraaf 2.1 hierbo.”
[9] The second
defendant had replied as follows to the Plaintiffs’ request for
Further Particulars:
“
4
AD
Paragraaf 6 van die Tweede Verweerder se pleit
4.1 Ja, slegs
nadat Eisers kan slaag om te bewys dat daar hoegenaamd ‘n onus
op Verweerders is om te antwoord op en te getuig.
4.1.1
Sien 2.1 hierbo;
4.1.2
Sien 2.1 hierbo;
4.1.3
Sien 2.1 hierbo;
4.3
Ja, en sien 2.1 hierbo.
4.4 Ja, slegs
nadat Eisers kan slaag om te bewys dat daar hoegenaamd ‘n onus
op Verweerders is om te antwoord en te getuig.
4.5.1
Sien 2.1 hierbo;
4.5.2
Sien 2.1 hierbo;
4.5.3
Sien 2.1 hierbo;
4.5.4
Sien 2.1 hierbo;
4.5.5
Sien 2.1 hierbo;
4.5.6
Sien 2.1 hierbo;
4.5.7
Sien 2.1 hierbo;
4.6
Ja, en sien 2.1 hierbo.”
[10]
The Defendants contend that the Plaintiffs were not entitled to the
Further Particulars requested.
[11]
On 26 January 2012 in the chambers of the aforementioned magistrate
the parties held a pre-trial conference in terms of s 54(2)
of the
Magistrates Court Act 32 of 1944 (“the Act”).
Firstly during the aforementioned pre-trial conference the
Plaintiffs
indicated that they were of the opinion that the Defendants had not
pleaded the defence of relative privilege properly
and sufficiently.
The Defendants in turn indicated that they had elected to deliver an
amendment on the question of relative
privilege. With regard to
the furnishing of Further Particulars this is what was recorded
during the aforementioned pre-trial
conference:
“
4
Request for Further Particulars
The
Defendants will provide Further Particulars to the Defendants’
(sic) request for the purpose of preparing for trial.
The reply
is limited to the request for Further Particulars to the Defendants’
plea on the Plaintiffs allegations set out
in paragraphs 21.1.1 and
21.1.2 of the Further Particulars.”
It
was contended by counsel for the Plaintiffs that according to the
abovementioned entry the Defendants had undertaken to provide
the
Plaintiffs with the required particulars as set out in the minutes.
[12]
On 27 February 2014 the Plaintiffs delivered on the Defendants’
attorneys a notice of motion in which they sought an
order compelling
the Defendants to deliver the required Further Particulars.
This notice of motion was brought in terms of
Rule 16(4) of the
Magistrate Court Rules. In the said notice of motion the First
and Third Defendants were required to deliver
the particulars
contained in paragraphs 4.4 to 4.6 of the Plaintiffs’ request
for Further Particulars and the Second Defendant
was required to
deliver the particulars referred to in paragraphs 4.2 to 4.6 of the
Plaintiffs’ request for Further Particulars.
The
application to compel the Defendants to furnish Further Particulars
was founded on the affidavit of one Adriaan Izak Odendaal
(“Odendaal”). The Defendants contended that it was
this affidavit that was of great concern to them because it
contained
untruths. The notice of the application to compel the
Defendants to furnish Further Particulars was set down for
hearing on
16 March 2012. The Defendants contended that after they had
received the said application they delivered Further
Particulars on
the Plaintiffs on 15 March 2012. On the same date, the
Plaintiffs wrote a letter to their attorneys in which
they
acknowledged that they had received the Further Particulars. In
the same letter they indicated though that the particulars
they had
been furnished with were not sufficient and that they would proceed
with the application to compel on 16 March 2012.
Despite the
fact that the Defendants had been notified that the application to
compel them to furnish Further Particulars was set
down for 16 March
2012, despite furthermore the fact that the Defendants’
attorneys had been informed in a letter dated 15
March 2012 by the
Plaintiffs’ attorneys that the Further Particulars that the
Defendants had furnished on the aforementioned
date were not
sufficient and despite thirdly furthermore the fact that in a letter
of the same date of 15 March 2012 from the Plaintiffs’
attorneys to the Defendants’ attorneys the Defendants were
informed that the Plaintiffs would go ahead with the application
to
compel them to furnish Further Particulars, there was no appearance
for the Defendants when the application came before court
for hearing
on 16 March 2012. The Court accordingly granted the order that
the Plaintiffs sought. The Defendants were
then at an
obligation to furnish the required particulars within 10 days of 16
March 2012.
[13]
There are a few disconcerting factors about the Defendants’
conduct. I pointed it out in paragraph 10 supra that
the
attitude of the Defendants was that the Plaintiffs were not entitled
to the Further Particulars they requested in respect of
which they
had approached the Court to compel the Defendants to furnish them.
Furthermore the Defendants complained that
in a letter dated 15 March
2012 the Plaintiffs’ attorneys indicated to their attorneys
that the particulars that they had
furnished were not sufficient for
the purposes they were required. The Defendants contend that it
was not for the Plaintiffs
to determine whether or not the required
particulars furnished were sufficient but that that was the duty of
the Court. When
the Plaintiffs approached the Court with an
application to compel them to furnish the very same particulars they
complained but
they failed to attend Court. By failing to
attend Court on 16 March 2012 the Defendants forfeited the
opportunity to raise
the sufficiency of the Further Particulars they
had furnished the Plaintiffs with. On one hand they complained
that it was
not for the Plaintiffs to determine whether or not the
particulars requested were sufficient, while on the other hand they
complained
that the Court would determine whether or not the
particulars were relevant. The Plaintiffs have furnished no
reason whatsoever
why they failed to attend Court on 16 March 2012 in
order to challenge the application to compel them to furnish Further
Particulars.
[14]
Instead of complying with the Court order of 16 March 2012, on 3
April 2012 the Defendants brought an application to rescind
the order
of Court of 16 March 2012. The founding affidavit of the first
defendant was used in support of the First and Second
Defendants’
applications to rescind the order of 16 March 2012 while the Third
Defendant’s affidavit was used in support
of its application.
Suffice to mention that the application for rescission was
dismissed. I wish to point out, at this
stage, that on 16 April
2012 the Plaintiffs delivered their affidavit in which they firstly
opposed the Defendants’ application
to rescind the order of 16
March 2012 and secondly brought an application to strike out the
Defendants’ defence due to non-compliance
with the order of the
Court and in particular with Rule 16(4) of the Rules of Court.
[15]
According to the Defendants, the application for rescission of the
order of the Court of 16 March 2012 was predicated on three
grounds.
In the first ground the Defendants contended that they had on 8 or 9
November 2011 furnished the Plaintiffs with
the requested Further
Particulars and that such Further Particulars were delivered
accordingly. Secondly they contended that
contrary to paragraph
3(a) of the affidavit of Odendaal in the Plaintiffs’
application to compel, the magistrate, when making
an order at the
pre-trial conference that the Defendants should furnish the
Plaintiffs with the Further Particulars requested in
paragraphs 4.4
to 4.6 of the Plaintiffs’ Request for Further Particulars in
respect of the First and Third Defendants and
paragraphs 4.2 to 4.6
of the Request for Further Particulars in respect of the Second
Defendant, did not specify the date on or
before which such Further
Particulars were to be furnished. Thirdly they contended that
contrary to the contents of paragraph
3(b) of the same affidavit of
Odendaal, the magistrate had not ordered, at the pre-trial
conference, that the particulars so requested
should be furnished
within 15 days of the order. On these bases they contended that
when on 16 March 2012 the Court made
an order compelling them to
furnish Further Particulars it did not have the correct facts before
it as the Plaintiff had misstated
the facts. They contended
furthermore that although they had been served with the Further
Particulars on 9 November 2011
and 15 March 2012 the Plaintiffs wrote
a letter to their attorneys on 15 March 2012 in which firstly they
acknowledged receipt
of the Further Particulars on 15 March 2012 but
in which secondly they indicated that such Further Particulars were
insufficient.
In their view the order of March 2012 was
erroneously granted.
[16]
In the application for rescission of the order of 16 March 2012 which
was granted in their absence the Defendants failed to
set out in
their application their reasons for failing to attend Court on 16
March 2012. At the hearing of the application
for rescission
this point was raised by the Plaintiffs that the Defendants had, in
their application for rescission of the said
order, failed to tender
an explanation as required by the Rules of Court why they failed to
appear at Court on 16 March 2012.
It was further contended that
the Defendants had not gone into the merits of the matter.
[17]
The magistrate pointed out that by its nature the application by the
Defendants to rescind the court order of 16 June 2012
should have
been brought in terms of Rule 49(7) of the Rules of Court. This
Rule provides that:
“
All
applications for rescission or variation of judgments other than
default judgments must be brought on notice to all the parties,
supported by an affidavit setting out the grounds on which the
applicants seek rescission or variation and the Court may rescind
or
vary such judgment if it is satisfied that there is good reason to do
so.”
[18]
It would appear that the Defendants might still have brought this
application in terms of Rule 49(1) because firstly the word
“judgment” also refers to “an order”.
Secondly the order of 16 March 2012 was made in their absence.
Rule 49(7) relates to the rescission of judgment or orders set out in
s 36 of the Act which the magistrates may set out
suo
moto
. Be that as it may it
behoves the applicant who invokes the provisions of Rule 49(7) to
furnish the Court with “
good
reasons”
why the Court should set
aside the impugned judgment.
[19]
Whether acting in terms of Rule 49(1) or 49(7) the duty is on the
applicant to explain his or her failure to appear at the
hearing of
the application that led to the order it wants to rescind. In
other words it is not enough for the applicant to
say “
I
have good reasons to have such-and-such an order set aside”
.
The applicant still has to furnish satisfactory reasons why he was
not present at Court. The Defendants were obliged
at least to
furnish the Court with an explanation of their default sufficiently
full to enable the Court to understand how it came
about that they
failed to be at Court on 16 March 2012, and assess their conduct and
motives. See
Silber vs Ozen Wholesalers (Pty) Ltd 1954(2) SA
345 A
. In the absence of such explanation the requirements
of “
good reason”
has not been satisfied.
[20]
The Defendants’ contention that they had already served the
Plaintiffs with the required particulars on 9 November 2011
and 15
March 2012 has, in my view, some merits and needs to be
investigated. It is not for the Plaintiff to decide whether
or
not the particulars furnished were insufficient for purposes of trial
nor is it for the Defendants to decide whether the particulars
furnished were sufficient. That duty falls within the domain of
the Court. In
Hardy v Hardy
1961(1) SA 643(2)
, Munnik AJ had this
to say at p. 643 H – 646 A:
“
That
the court has inherent power to order particulars for the preparing
for trial is a wide established principle which has been
laid down in
numerous cases.”
See
Barnett v Cameron
1930 WLD 7
.
[21]
The duty was on the Defendants to appear before the Court and to
challenge the Plaintiffs’ entitlement to the Further
Particulars requested. There was clearly a dispute between the
parties with regard to the sufficiency or insufficiency of
the
particulars provided and that dispute could only be resolved by
intervention of the Court where the parties were entitled to
ventilate the issues.
[22]
We need to pause here and consider what the Court should have had
before it when on 16 March 2012 it considered the application
to
compel. We know that on the said date only the Plaintiffs’
legal team was present at Court. A recording of
the proceedings
of 16 March 2012 was not in the file before us. We are
therefore unable to establish from the appeal record
the nature of
the documents before the Court. As far as we are concerned on
16 March 2012 when the Plaintiffs’ application
in terms of
Rule16(4) came before the Court, the Court file should have
contained, among others:
(a) the Defendants’
Further Particulars served on the Plaintiffs on 9 November 2011 and
were filed with the clerk of the Court
on the same date;
(b) the pre-trial
minutes of 26 January 2012 in which paragraph 4 thereof is of
relevance and;
(c)
the Defendants’ Further Particulars served on the Plaintiffs on
15 March 2012 and delivered at the clerk of the Court
on the same
date.
[23]
According to the Magistrate Court’s file the Further
Particulars that the Defendants delivered on 15 March 2012 should
have been placed before the magistrate. If they were not before
the magistrate, the Plaintiffs’ legal representatives
should
have informed the Court that the Defendants had served them with such
Further Particulars on 9 November 2011 and 15 March
2012. The
magistrate would then have stood the matter down and requested the
clerk of the Civil Court to hand over to him
the Defendants’
Further Particulars, alternatively the magistrate might have decided
to deal with the matter on the basis
of a copy of the Further
Particulars which have been served on the Plaintiffs. It is
clear that these documents were not
in the Court file on 16 March
2012 for in his judgment dated 13 June 2012 the Magistrate remarked
as follows at paragraph 7:
“
The
reply to further particulars which the Defendants allege to have
supplied are still not before court.”
Quite
clearly what the magistrate meant here was that the Defendants’
replies to the Plaintiffs’ request for further
particulars were
not before Court. It could not be that the Defendants had
failed completely to furnish Further Particulars.
The said
remark by the magistrate also makes it clear that, despite the fact
that they had been served with a copy of the Further
Particulars on
15 March 2012 and had acknowledged receipt thereof in their letter
dated 15 March 2012, the Plaintiffs’ representatives
did not
alert the Court about that fact. The Court itself never pointed
out to the Defendants’ counsel on 11 May 2012
that the
Defendants had failed to deliver their Further Particulars.
[24]
It is not in dispute that copies of the Defendants’ Further
Particulars were served on the Plaintiffs on 9 November 2011
at 10h58
and 15 March 2012 at 12h00 respectively. This is clear from
pages 77, 82, 94 and 98 of volume 1 of the appeal record.
It is
also clear from the same pages that on the same dates the original
documents were filed at Court. This is clear from
the official
stamp of the Clerk of the Civil Court which bears the dates of 9
November 2011 and 15 March 2012.
[25]
The said Further Particulars set out what was delivered on 15 March
2012 and filed with the Clerk of the Court on the same
date. I
venture to state the following. This is in respect of the First
and Third Defendants’ Further Particulars
as requested on 27
February 2012:
“
1.
AD
Paragraaf 21.1.1 (4.4.1)
1.1 Die
blootleggingsverklaring bevat alle onvolledige besonderhede van die
vaste eiendom, betrokke by die “irregular dealings”.
2.
AD
Paragraaf 4.4.2
Die
blootleggingsverklaring van die verweerders bevat volledige
eedsverklaring wat die derde verweerder van die aard en omvang van
die “irregular dealings” omskryf. Die Openbare
Beskermer se verslag verwys oor na sekere wetgewing en regsbeginsels.
3.
AD
Paragraaf 4.4.3
Die
blootleggingsverklaring bevat alle en volledige besonderhede van die
vaste eiendomme, betrokke by die “irregular dealings”.
Spesifieke getuienis sal bo- en behalwe die dokumentêre bewyse
aangebied word, die inhoud waarop die eiser nie geregtig is
nie omdat
dit juis getuienis is.
4.
AD
Paragraaf 4.5
5.
AD
Paragraaf 4.6
Die
enigste bewys wat die verweerder tans ook oor beskik is vervat in
paragraaf 1(D) van die Staatspresident se proklamasie nommer
R22,2011
gedateer 20 Mei 2011 (vervat in blootleggingsverklaring) in die
Openbare Beskermer se verslag van 8 November 2011.
AD
Paragraaf 4.6.1
5.2 Dit is
inligting wat nie benodig word vir voorbereiding van verhoor nie en
is in elk geval getuienis binne die eisers en hulle
kliënte,
Midvaal Plaaslike Munisipaliteit, se besonderde kennis.
AD
Paragraaf 4.6.2
5.3 Die enigste
bewyse wat die verweerder tans ook oor beskik is vervat in paragraaf
1(d) van die Staatspresident se proklamasie
nommer R33,2011 gedateer
20 Mei 2011 (vervat in blootleggingsverklaring) in die Openbare
Beskermer se verslag van 8 November 2011.
AD
Paragraaf 4.6.3
Eisers
is nie geregtig op hierdie besonderhede nie en kan sekerlik self die
blootleggingsdokumente bestudeer.”
[26]
The Further Particulars furnished on behalf of the second defendant
also contained similar responses. If the magistrate
had all the
necessary documents before him, including the Further Particulars
delivered by the Defendants on 9 November 2011 and
15 March 2012 his
duty would have been to decide whether the particulars furnished were
sufficient or not and not whether or not
the Defendants complied with
the Plaintiffs’ request. There is in the file no proof
that when the magistrate made the
order of 16 March 2012 he had the
benefit of the Further Particulars that the Defendants had delivered
on the aforementioned dates.
It is accordingly our unanimous
view that the order of 16 March 2012 was granted erroneously.
It follows therefore that all
the subsequent orders that the Court
made after 16 March 2012 ought to be set aside.
[27]
Rule 16(4) provides that:
“
If
a party who has been requested in terms of this Rule to furnish any
Further Particulars fails to deliver them timeously or sufficiently,
the party requesting the same may apply to (the) Court for an order
for their delivery or for the dismissal of the action or the
striking
out of the defence, whereupon the Court may make such order as it
deems fit.”
[28]
It is accordingly incumbent on the complaining party firstly:
(a) to disclose to
the Court that he or she or it has been furnished with Further
Particulars as requested;
(b) that such
Further Particulars are not sufficient for the purposes for which
they are desired;
(c) to set out
clearly why it contends that the Further Particulars served on her or
him or it are not sufficient for the purposes
for which they are
desired.
The
purpose of doing so is twofold. Firstly it is to enable the
Court to determine whether the particulars furnished are sufficient
and, if not, whether Further Particulars required are relevant or
would be sufficient. There is at this stage a duty on the
presiding officer to painstakingly peruse the Further Particulars and
to assess whether the Further Particulars furnished are relevant,
where relevance is an issue, or sufficient, where that element is an
issue, and having done so, to make an appropriate order.
This
may involve a comparative study of the Further Particulars Requested
and the Further Particulars furnished. Secondly
it will enable
the defendant to identify the nature of the Further Particulars
required to enable him or her or it to decide whether
to refuse, on
lawful grounds, to furnish such Further Particulars and challenge
their request or to comply with the request.
[29]
As indicated already the plaintiff’s Rule 16(4) application
requires the First and Third Defendants to deliver the particulars
in
paragraphs 4.4 to 4.6 of its request for Further Particulars for
trial and the second defendant to deliver the particulars referred
to
in paragraphs 42 to 46 of the same request for Further Particulars.
The Plaintiffs were furnished with Further Particulars
on 9 November
2011 and 15 March 2012. There is no complaint in the
application in terms of Rule 16(4) about the insufficiency
or
baldness of the particulars furnished. The complaint that the
particulars were bald only appeared in the heads of argument
of the
Plaintiffs’ counsel. In my view the application that
served before the Court on 16 March 2012 was flawed in
as much as the
plaintiff failed to acknowledge in their affidavit that certain
Further Particulars had been served on them on both
9 November 2012
and 15 March 2012; secondly that the affidavit failed to set out the
respects in which the Further Particulars
were insufficient or the
respects in which they contended that the request had not been fully
complied with.
[30]
Finally it is correct, and we agree with the Defendants, that
Odendaal did not place the correct facts in his affidavit before
the
Court especially with regard to paragraphs 3(a) and 3(b) of the
supporting affidavit for the application in terms of Rule 16(4).
Firstly we could not find the order that magistrate Naidoo made that
the defendant should furnish Further Particulars referred
to in
paragraph 4 of the pre-trial minutes of 26 January 2012.
Section 54(2) of the Act requires the magistrate to make an
“order”.
Secondly even if it be shown that the Magistrate made an order on 26
or 30 January 2012 nowhere did
he stipulate the date on which such
Further Particulars as referred to in item 4 of the pre-trial minutes
should be furnished.
In other words the magistrate did not set
out the time limits within which the order relating to item 4 of the
pre-trial minutes
should be complied with by the Defendants.
This contradicts directly Odendaal’s affidavit.
[31]
In the result we make the following order:
1.
The appeal is upheld.
2. The order of the
court
a quo
in which it dismissed the appellants’
application to rescind the court order of 16 March 2012 is hereby set
aside.
3. All subsequent
orders the court
a quo
made based on its order of 16 March
2012 are hereby set aside.
4.
The cost of this appeal shall be costs in the action.
_____________________
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
I
agree
_____________________
W.
HUGHES
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Appellants: Adv. FJ van der Westhuizen
Instructed
by: Peters Attorneys
Counsel
for the Respondents: Adv. SD Maritz
Instructed
by: Odendaal & Summerton Inc.
Date
Heard: 5 September 2015
Date
of Judgment: 10 March 2015