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[2015] ZAGPPHC 603
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Gert Bothma Vervoer & Grondwerke (Pty) Ltd v Active Power Trading 67 CC (24301/14) [2015] ZAGPPHC 603 (21 August 2015)
REPUBLIC
OF
SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 24301/14
In
the matter between:
GERT
BOTHMA VERVOER & GRONDWERKE (PTY)
LTD
Applicant
and
ACTIVE
POWER TRADING 67
CC
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
LEGODI,
J
[1]
This is an application for leave to appeal against the judgment and
order made by this court on the 9 June 2015 in terms of
which an
application to compel in terms of Rule 30A was dismissed with costs.
[2]
The first issue raised is whether the order by this court is final
and therefore appealable. I do not think it is.
Even if I
was to be wrong in this regard, I do not think that there are
reasonable prospects of success on appeal.
[3]
Subrule 13 of Rule 35 provides that the provisions of this rule
relating to discovery shall
mutatis
mutandis
apply, insofar as the court may direct, to applications.
Subrule (3) of the rule, provides that if there are in addition
to
documents or tape recordings disclosed as aforesaid, other documents
(including copies thereof) or tape recordings which may
be relevant
to any matter in question in possession of any party thereto, the
former may give notice to the latter requiring him
to make same
available for inspection in accordance with subrule (6) or to state
on oath within ten days that such documents are
not in his
possession, in which event, he shall state their whereabouts, if
known to him.
[4]
The parties will be referred to as in the main application. The
application to compel discovery in terms of Rule 30A was
brought by a
respondent in an application for the provisional liquidation launched
against it. On 1 October 2014, the respondent
delivered a
notice in terms of Rule 35(12) in that application. On 6
February 2015 the applicant delivered its reply to the
notice in
terms of Rule 35(12).
[5]
The notice in terms of Rule 30A was delivered on the 6 March 2015 and
coached as if there was no reply at all to the notice
in terms of
Rule 35(12). The prayers in the notice in terms of Rule 30A are
quoted in paragraph 9 of the main judgment and
I do not find it
necessary to repeat them herein.
[6]
If the respondent was not satisfied that the applicant had fully
disclosed and supplied documents referred to in paragraph 14.2
and
14.3 of the applicant’s replying affidavit, it was at liberty
to invoke the provisions of subrule (13) referred to in
paragraph 3
of this judgment. It did not, instead, it contended that it was
not necessary to do so.
[7]
The essence of this court’s judgment and order was that the
applicant did not fail to comply with notice in terms of Rule
35(12). It did comply on the 6 February 2015. If the
respondent felt that there were documents in addition to those
disclosed and provided on the 6 February 2015, it could have
approached the court in terms of subrule (13) to invoke the
provisions
of subrule (3) read with subrule (6). For this
reason, it cannot be said that the ruling by this court is final and
that
it left the respondent with no other remedy.
[8]
As correctly pointed out by counsel on behalf of the applicant, the
respondent could also have approached this court on the
basis that it
has inherent jurisdiction to deal with the alleged non-compliance
with the provisions of Rule 35(12). The court
has an inherent
power to order a party to produce for inspection of documents not
referred to in that party’s pleadings or
affidavits, and also
to order a party to produce for inspection items of machinery, i.e.
objects which are not documents (see
Moulded
Components and Rotomoulding SA (PTY) Ltd v Concourakis
1979
(2) SA 457
(W) at 461 F-H). Such inherent power will not,
however, be exercised as a matter of course, and only when the court
can be
satisfied that justice cannot otherwise be properly done.
(see
Moulded
Components and Rotomoulding
supra
at 462 H-463 B).
[9]
Therefore the suggestion that the order or decision by this court has
final effect and not susceptible to alteration by the
court of the
first instance, that is definitive of the rights of the parties and
that it has the effect of disposing at least a
substantial portion of
the relief claimed in the main proceedings, should be seen in
context. The context is that the applicant
has in terms of Rule
35(12) demanded production of the documents to which reference is
made in paragraph 14.2 and 14.3 of the applicant’s
replying
affidavit in the main application and that such documents were
provided or produced on 6 February 2015. However,
if the
respondent so believed that there were other documents in addition to
those produced, he should have resorted to invoke
the provisions of
Rule 35(13) or relied on the inherent powers of the court instead of
resorting to Rule 30A. Simply put, for his
relief, he followed the
wrong procedure and therefore the dismissal of his application cannot
make the decision and or order final.
[10]
Even if was to be wrong in this regard, there are just no reasonable
prospects of success. I dealt with this aspect in
the main
judgment and I do not find it necessary to repeat myself. The
applicant complied with notice in terms of Rule 35(12)
by providing
documents to which reference is made in paragraphs 14.2 and 14.3 of
the applicant’s replying affidavit. However,
and I do this at
the risk of repeating myself, if the respondent was of the view that
other documents have not been disclosed or
produced and are relevant
to its counterclaim, Rule 30A is not in the circumstances, the
mechanism to employ in getting those documents
if they are there.
[11]
Consequently, the application for leave to appeal is hereby dismissed
with costs.
M
F LEGODI
JUDGE
OF THE HIGH COURT
HEARD
ON:
06 AUGUST 2015
For
the applicant: ADV. A R VAN
DER MERWE
Instructed
by:
JP VAN SCHALKWYK ATTORNEYS
c/o
LE ROUX ATTORNEYS
321
Alphine Way, Lynwood
Pretoria
Ref:
JVS/mdk/G0027/0004
Tel:
011 869 6000
For
the respondent: ADV. N C HARTMAN
Instructed
by:
MATHYS KROG ATTORNEYS
1213
Cobham Road
Queenswood,
Pretoria
Ref:
M Krog/WE//A 1070
Tel;
012 333 5610