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[2015] ZAGPPHC 398
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Onsite Waste Management v Wasteserve Waste Management and Another (19322/2012) [2015] ZAGPPHC 398 (18 March 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO. 19322/2012
DATE: 18 MARCH 2015
In the matter between:
ONSITE WASTE
MANAGEMENT
...........................................................................................
Plaintiff
And
WASTESERVE WASTE
MANAGEMENT
.....................................................................
1st
Defendant
NTUMELENI PAULUS
MOYANA
..........…..................................................................
2nd
Defendant
JUDGEMENT
DE VOS J:
[1] This is an application to compel
the first and second defendants to make better and adequate
discovery. On 14 March 2014 the
plaintiff served upon the defendants
a notice calling for better and adequate discovery as provided for in
terms of rules 35(3)
and 35(12). The defendants have the documents
called for in their possession and object to their discovery on the
grounds of relevance.
The court is asked to consider the principles
applicable to both rules 35(3) and 35(12) and to decide whether the
defendants are
obliged to make the documents asked for in the
plaintiff’s notice of motion available for the inspection and
copying thereof.
[2] It is common cause that at all
relevant times to the action the second defendant was a member of the
plaintiff and owed a fiduciary
duty to the plaintiff. The second
defendant, on behalf of the plaintiff, was responsible for dealing
with the first defendant
and the company known as Helberg Guss. The
plaintiff and the first defendant concluded an agreement. This
agreement, as well
as its terms, and the plaintiff’s compliance
with the agreement is common cause between the parties and was made
in the following
terms:
2.1 The plaintiff would collect and
dispose of the waste of Helberg Guss at designated disposal and
landfill sites;
2.2 The plaintiff will transport and
dispose of the waste using its large skip truck and smaller tipper
truck;
2.3 The first defendant would pay the
plaintiff R6 600, 00 for each trip of waste collected and disposed of
by its large skip truck
and R220,00 per ton for each ton of waste
collected and disposed of by the smaller tipper truck.
[3] The case of the plaintiff as set
out in the pleadings is as follows:
3.1 The plaintiff was not paid for the
work done by its large skip truck and its smaller tipper truck;
3.2 The second defendant used the
vehicles of the first defendant to defraud the plaintiff;
3.3 The second defendant manipulated
invoices by issuing incorrect invoices and/or not issuing invoices
and in doing so earned secret
commissions.
[4] The party upon whom the notice in
terms of rule 35(3) is served may object to making the documents
asked for available for inspection
on the basis that the documents
are not relevant. The defendants aver that none of the documents,
being the agreement entered
into between the first defendant and
Helberg Guss, the bank statements, correspondence and invoices,
requested in this application
are relevant to any dispute or
anticipated dispute between the parties.
[5] The defendants submit that the
plaintiff’s claim is, firstly, based on a failure by the first
defendant to make payment
to the plaintiff in respect of invoices
issued by the plaintiff to the first defendant. Secondly, the
defendants submit that the
plaintiff’s claim is based on the
fact that the second defendant should be liable for the aforesaid
payment as a result of
the fact that the second defendant used the
first defendant as his alter ego. The defendants further submit that
the plaintiff’s
claim is also based on the fact that the second
defendant made a secret profit due to the fact that he did not
disclose to the
plaintiff that he was a member of the first
defendant.
[6] It is contended by the defendants
that on a proper reconciliation of the invoices and statements in
Claim A, being the invoices
delivered to the first defendant, it
appears that all the said invoices had been paid by the first
defendant. As a result of the
aforesaid, the debt which is claimed
in the first claim of the plaintiff’s particulars of claim is
extinguished and, as a
result thereof it follows that the second
claim should also be extinguished. Therefore, the only remaining
claim, according to
the defendants, is the third claim that the
second defendant has made a secret profit by not disclosing the fact
that he was a
member of the first defendant. It is contended that
the second defendant has, throughout, stated that the remaining
members of
the plaintiff had been informed thereof that he was a
member of the first defendant. Furthermore, the plaintiff has chosen
to make
serious allegations against the second defendant and as a
result thereof it has to prove that the second defendant has indeed
made
a secret profit. The defendants hold that if one has regard to
the context of the notice in terms of rule 35(3), it is clear that
the plaintiff is on a fishing expedition in order to obtain some form
of proof that that the second defendant has made a secret
profit. If
this is the case, the plaintiff chose to institute the action on this
basis without there being any proof of the allegations
made against
the second defendant. It is therefore contended that if this Court
is to find that the plaintiff is indeed on a fishing
expedition for
information, the said request is irrelevant for purposes of this
action and should be refused.
[7] The test for relevance, as laid
down by BRED LJ in Compagnie Financiere et Commerciale du Picifique v
Peruvian Guano Co
(1882) 11 QBD 55
, has often been accepted and
applied. In Rellams (Pty) Ltd v James Brown and Hammer Ltd 1983(1)
SA 556 (N) at 564 A it was held
as follows:
‘After remarking that it was
desirable to give a wide interpretation to the words of a document
relating to any matter in
question in the action, BRED LJ stated the
principle as follows:
“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”’.
It is obvious that the Court will go
beyond the discovery affidavit if it is satisfied that from the
nature of the case or the documents
in issue it is necessary to order
that all and proper discovery is made.
[8] I have no doubt in my mind that
this is one of those matters, similar to liquidation proceedings,
where the corporate veil should
be pierced in order to determine
exactly what the financial positions of the parties were at the time
when the agreement was executed.
The second defendant cannot be
allowed to refuse to disclose information in his sole possession.
Neither can the first defendant
do so. It is clear that all the
paperwork was in the possession of either the first or second
defendants. The plaintiffs are
totally unaware of what transpired
behind their backs, especially between the two defendants. The
applicant is entitled to scrutinise
all the documents pertaining to
the business done with the first and second defendants in order to
enable him to formulate his
claim in order to strengthen it and/or to
confirm the correctness thereof and/or to damage the opposition to
his claim.
[23] I am therefore satisfied that on a
balance of probabilities the plaintiff made out a proper case and it
is entitled to an order
as set out in the notice of motion. I
accordingly make the following order:
a) Prayers 1(including 1.1, 1.2, 1.3,
1.4, 1.5, 1.6 and 1.7) and 2 of the notice motion are granted;
b) The first and second defendants are
ordered to pay the cost of this application.
DE VOS J
JUDGE OF THE GAUTENG DIVISION OF THE
HIGH COURT