About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 316
|
|
Tecmed (Pty) Ltd and Another v Minister of Health and Others (16980/2011) [2014] ZAGPPHC 316 (28 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION.PRETORIA
CASE NO:
16980/2011
DATE: 28 MAY 2014
In the matter
between
TECMED
(PTY)
LTD
..............................................................................................
First
Plaintiff
/
Respondent
TECMED AFRICA (PTY)
LTD
..........................................................................
Second
Plaintiff / Respondent
and
MINISTER OF
HEALTH
..........................................................................................
First
Defendant/Applicant
DEPARTMENT OF
HEALTH
..............................................................................
Second
Defendant/Applicant
DIRECTOR-GENERAL
OF
NATIONAL
HEALTH
.......................................................................................
Third
Defendant/Applicant
MR KAREL EL.JO
SMIT
.......................................................................................
Fourth
Defendant/Applicant
JUDGMENT
Ismail J:
[1] The applicants
in this application are the defendants in the main action and the
respondents in this application are the plaintiffs
in the main
action. The parties will be referred to as the applicants and
respondents in the course of this judgment. The applicants
seek an
order as follows:
1. Striking out the
respondent’s claim;
2.Directing the
respondents to pay the costs of this application and the main action.
[2] The applicant
served a notice in terms of Rule 35 (12) and 35 (14) of the Uniform
Rules wherein they require the respondents
to:
1. The first
respondent (plaintiff) to produce for the inspection the following
documents referred to in their particulars of claim
and/or for
purposes of pleading:
1.1 The licences to
import refurbished or sell electro medical equipment issued to it
from 1992 until the present;
1.2 The application
forms for the aforesaid licences issued to it from 1992 until the
present;
1.3 A copy of the
contract to supply an electro-medical machine to Klerksdorp Oncology;
1.4
Copies of agreements concluded between the first respondent/plaintiff
and Cancare (Proprietary) Limited for the sale and delivery
of
‘‘
certain electro-medical devices”
1.5 Invoice (s) for
the procurement of a new machine for the Durban Oncology;
1.6 Invoice(s) for
the transport, airfreight and installation costs of a new machine for
the Durban Oncology;
1.7 Proof of payment
of the sum of R4 500 00.00 (four million five hundred thousand)
allegedly paid to Durban Oncology by the respondents/
plaintiffs; and
1.8 Document(s)
emanating from Durban Oncology threatening respondents with
litigation to recover damages allegedly suffered by
it.
2. The second
respondent / plaintiff to produce for the inspection the following
documents referred to in the particulars of claim
and/or for purposes
of pleading:-
2.1 The licences to
import refurbished or sell electro medical equipment issued to it
from 1992 until the present;
2.2 The application
forms for the aforesaid licences issued to It from 1992 until the
present;
2.3 A copy of the
contract to supply an electro-medical machine to Klerksdorp Oncology;
2.4 Copies of
agreements concluded between the second plaintiff and Cancare
(Proprietary) Limited for the sale and delivery of “certain
electro-medical devices”;
2.5 Invoice(s) for
the procurement of a new machine for the Durban Oncology;
2.6 Invoice(s) for
the transport, airfreight and installation costs of a new machine for
the Durban Oncology;
2.7 Proof payment of
the sum of R4 500 000.00 (four million five hundred thousand)
allegedly paid to Durban Oncology by the plaintiff;
and
2.8 Document(s)
emanating from Durban Oncology threatening respondents / plaintiffs
with litigation to recover damages allegedly
suffered by it.
[3] This application
concerns the provisions of Rule 35(12) and Rule 35(14). It would be
prudent to mention what these rules stipulate.
Rule 35(12):
Any party to any
proceeding may at any time before the hearing thereof deliver a
notice as near as may be in accordance with Form
15 in the First
Schedule to any other party in whose pleadings or affidavits
reference is made to any document or tape recording
to produce such
document or tape recording for his inspection and to permit him to
make a copy or transcription thereof. Any party
failing to comply
with such notice shall not, save with the leave of the court, use
such document or tape recording in such proceeding
provided that any
other party may use such document or tape recording.
Rule 35(14)
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] Mr Nothshe SC,
acting on behalf of the applicants, in his address in court submitted
that the provisions of Rule 35 (14) empowered
a pleader who is not
permitted to request further particulars to ask for a specific
document in order to allow him to plead. The
opposite party must show
that the document is either available or not available to it. The
document sought must relate to an anticipated
issue. The party from
whom such a document is sought cannot be heard to say that the
document is irrelevant and that it should
not be given.
[5]
Regarding the issue concerning para 1.1 of the request
“
the
licences to import refurbished or sell electro medical equipment
issued to it from 1992 until the present”,
the
respondents stated “the first plaintiff and/or.. ”
referred to collectively and singularly as the plaintiff.
[6] He submitted as
far as the request in para 1.1 is concerned the respondent (first
plaintiff) was obliged to answer this. The
deponent on behalf of the
plaintiff stated that “the licences contemplated in this
paragraph are not relevant to the reasonably
anticipated issues in
dispute in this action. The relevant licence, issued to the first
respondent / plaintiff, dated 11 October
2005, is however available
for inspection and copying. To the extent that the respondents/
plaintiffs are still in possession of
certain of the other licences
herein, referred to, same are available for inspection at the offices
of the plaintiffs’ attorney
of record.
[7] From the
response mentioned above, it is clear that the respondent/ plaintiff
informed the applicant that the 2005 licence was
available for
inspection and copying. Since the response the applicants /
defendants failed to accept the invitation to examine
the documents
or to make copies thereof.
[8] Mr Nowits on
behalf of the respondents in his response submitted that the only
relevant licence was the 2005 licence and that
the request seeking
licences preceding 2005 was therefore irrelevant and illogical to the
dispute between the parties.
[9] The same
question was asked in respect of the second respondent by the
applicant in its request at para 2.1. A similar response
was given at
para [13]. I will not for the purposes of this judgment repeat it as
it is similar to the request in para 1.1.
The
request in terms of para 1.4 being
“
Copies of
agreements concluded between the first plaintiff and Cancare
(Proprietary) Limited for the sale and delivery of ‘‘certain
electro-medical devices”.
Mr Novits in his
response to the request referred the court to para [15] of the
pleadings at page 10.
[10] Mr M L Ledwaba
deposed to the affidavit as follows at para 12.1 and 12.2
“
12.1
In paragraph 15 of the particulars of claim, the respondents avers
that they sold a machine to CanCare (Pty) Limited to be
used for the
treatment of cancer patients.
12.2 There must be
copies somewhere in the agreement concluded between the first
plaintiff and Chemcare (Pty) Limited for such sale.”
[11]
Herbstein and Van Winsen
5
th
edition at page 209 mention that Rule 35 (12) applies to and that it
can be exercised at any time even
before the pleadings
are closed. The authors are of the view that there is some conflict
in the reported judgments regarding whether
a party who received a
notice in terms of Rule 35 (12) may object to them as not being
relevant.
In Magnum
Aviation Operations v Chairman, National Transport Commission, and
Another
1984 (2) SA 398
(Vermooten, J expressed the view that Rule 35 (12) is not qualified
by a requirement of the relevance and that once the document
has been
referred to it must be produced.
In
Universal City Studios v Movie Time
1983
(4) 736 (D) at 747 A to 747D where Booysen J stated the following:
“
Mr
Gordon
submitted that
the literal meaning of Rule 35 (12) was that a party who has referred
to a document in his pleadings or affidavits
is obliged to produce
such document in compliance with the notice; that there cannot exist
any grounds which may justify him refusing
to produce it. It seems to
me though that it must be implied that the document should be
relevant to the issues between the parties
and therefore reasonably
required by the opposing party before it can be said to be hit by the
provisions of this Rule. So, for
example, if a wife seeking an
interdict to prevent her husband from assaulting her were to allege
that he assaulted her shortly
after she had read the evening
newspaper, there being no relevance alleged of the paper, one could
hardly imagine that her husband,
the respondent, would be entitled to
production of that newspaper.
Mr
Gordon
submitted
further that, if relevance were to be a requirement, the
onus
of justifying non-production must be
on the recipient of the notice. In support of this proposition he
relied on
Quilter v Heatley
[1883]
23 ChD 42
at 51. That case was concerned with the provisions of Order
XXXI Rule 15, which read as follows:
"Every party to
a cause or matter shall be entitled at any time, by notice in
writing, to give notice to any other party, in
whose pleadings or
affidavits reference is made to any document, to produce such
document for the inspection of the party giving
such notice, or of
his solicitor, and to permit him or them to take copies thereof; and
any party not complying with such notice
shall not afterwards be at
liberty to put any such document in evidence on his behalf in such
cause or matter, unless he shall
satisfy the Court or a Judge that
such document relates only to his own title, he being a defendant to
the cause or matter, or
that he had some other cause or excuse which
the Court or Judge shall deem sufficient for not complying with such
notice, in which
case the Court or Judge may allow the same to be put
in evidence on such terms as to costs and otherwise as the Court or
Judge
shall think fit."
F At 51 BOWEN LJ
stated that:
"Order
XXXI, Rule 4, provides for immediate production of any documents
which a party has referred to in his pleadings or affidavits.
The
party against whom application is made must produce them unless he
can show good cause why he should not. If he refuses, the
party
applying can go to the Judge, who may refuse the application if he
sees good reason for so doing. What is the case here?
I not only see
no reason why it should be refused, but every reason why it should be
granted. In my opinion the
onus
is
on the refusing party, but if the
onus
were
on the applicant, I think he has discharged himself from it."
[12]
Mr Nowits on the other hand submitted during his address in court
that the ambits of Rule 35(12) and 35 (14) were limited.
He referred
to
Gorfinkel v Gross, Hendler & Frank
1987
(3) SA 766
Friedman J dealt with the limitations of Rule 35(12) and
specifically dealt with the aspect of privilege and relevance and
said
the following:
“
With
regard to relevance there must also, in my view, be some limitation
read into Rule 35(12). To construe the Rule as having no
limitation
with regard to relevance could lead to absurdity. It would be absurd
to suggest that the Rule should be so construed
that reference to a
document would compel its production despite the fact that the
document has no relevance to any of the issues
in the case. It is not
difficult to conceive of examples of documents which are totally
irrelevant. Booysen J in the
Universal City Studios
case gave one such example. What is
more difficult to decide is where the line should be drawn. A
document which has no relevance
whatsoever to the issues between the
parties would obviously, by necessary implication, be excluded from
the operation of the Rule.
But would the fact that a document is not
subject to discovery under Rules 35(1), 35(3) or 35(11) render it
immune from production
in terms of Rule 35(12)?
In my view the
parameters governing discovery under Rules 35(1), 35(3) and 35(11)
are not the same as those applicable to the question
whether a
document is irrelevant for the purposes of compliance with Rule
35(12). A party served with a notice in terms of Rule
35(1) is
obliged to make discovery of documents which may directly or
indirectly enable the party requiring discovery either to
advance his
own case or to damage that of his opponent or which may fairly lead
him to a train of enquiry which may have either
of these
consequences. Documents which tend merely to advance the case of the
party making discovery need not be disclosed. As
Rule 35(12) can be
applied at any time, ie before the close of pleadings or before
affidavits in a motion have been finalised,
it is not difficult to
conceive of instances where the test for determining relevance for
the purposes of Rule 35(1) cannot be
applied to documents which a
party is called upon to produce under Rule 35(12), as for example
where the issues have not yet become
crystallised
Further on the
learned Judge stated:
“
Having
regard to the wide terms in which Rule 35(12) is framed, the manifest
difference in wording between this subrule and the
other subrules, ie
subrules (1), (3) and (11) and the fact that a notice under Rule
35(12) may be served at any time, ie not necessarily
only after the
close of pleadings or the filing of affidavits by both sides, the
Rule should, to my mind, be interpreted as follows:
prima
facie
there is an obligation on
a party who refers to a document in a pleading or affidavit to
produce it for inspection if called upon
to do so in terms of Rule
35(12). That obligation is, however, subject to certain limitations,
for example, if the document is
not in his possession and he cannot
produce it, the Court will not compel him to do so. (See the
Moulded
Components
case
supra
at 461D - E.) Similarly, a
privileged document will not be subject to production. A document
which is irrelevant will also not be
subject to production. As it
would not necessarily be within the knowledge of the person serving
the notice whether the document
is one which falls within the
limitations which I have mentioned, the
onus
would
be on the recipient of the notice to set up facts relieving him of
the obligation to produce the document. Cf
Quilterv Heatly
(
1883) 23 ChD 42
at 51.
[13] Regarding Rule
35 (14), referred to above, Mr Notshe SC submitted that the plaintiff
had failed to deliver the document and
therefore made it difficult
for the applicants to plead. In view of the plaintiff’s refusal
to provide these documents the
plaintiff’s particulars of claim
should be struck off with costs.
[14] I do not
subscribe to counsel’s submission that the plaintiff refused to
produce the document, as the plaintiff in several
instances, more
particularly in respect of para 1.1; 1.3; 1.5; 1.6 and 1.7 stated
that the documents were available for inspection
at their offices. To
date of the hearing this application, the applicants have not
inspected the documents which were available.
In respect of the first
plaintiff the only documents which were not acceded to was in respect
of para 1.2 and 1.4.
In respect of para
1.2 the plaintiff stated that the documents sought by the defendant
were not referred to in the particulars of
claim and therefore the
defendant was not entitled to same.
Regarding para 1.4
the plaintiff stated that the request is couched in such a manner
that it is unable to respond thereto... (unable
to properly respond
thereof) ****
Mr
Nowits did not address the court in terms of para 2.1 to 2.8 and the
defendant’s counsel submitted that they were entitled
to the
documents, Mr Nowits submitted that the argument relating to the
first plaintiff was identical to the request in respect
of the second
plaintiff. The request in 2.1 to 2.8 will be a mere duplication .He
referred the court to two cases regarding Rule
35 (14) namely the
Cullinan Holdings v Mamelodi
1992
(1) SA 645
(T) at 645I. The head note reads as follows:-
“
Rule
35 (14) of the Uniform Rules of Court does not create a method
whereby a litigant, by making use of a generic description can
cast a
net with which to fish for semi-known documents. It is a remedy which
has been created for particular circumstances. It
requires the
calling fora specific document of which the applicant has knowledge
and which he can describe precisely. On then can
he, by utilising
rule 35(14), anticipate the normal discovery provided by Rule 35 (1)”
[15] From Mr
Ledwaba’s affidavits, paragraph [10] supra, referred to above,
he seemed to be of the view that there must be
a document. This is
sheer speculation on his part. The documents
[16] Having heard
both counsel and inparticular the arguments advanced by the parties,
I am of the view that the documents that
are available for inspection
should have been inspected and therefore the order sought by the
defendant cannot be sustained.
[17] Mr Nowits
submitted that the court should make an order on attorney and own
client scale in view of the fact that the defendant,
has adopted a
dilatory approach which is frustrating the proceedings. That an
exception was previously taken which was dismissed,
and further that
summons was issued in this matter on 15 March 2011 and to date the
defendant has not pleaded.
[18] I do not agree
with Mr Nowits submissions regarding making an order for costs on a
punitive scale. I am not convinced that
the applicant should be
mulcted with cost on punitive scale.
[19] Accordingly I
make the following order:
The application is
dismissed with costs.
APPEARANCES:
For the applicants /
defendants : Adv Notshe SC assisted Adv Adv
instructed by Mponya
Ledwaba Inc,
Pretoria
For the
respondents/plaintiff: Adv M Nowitz instructed by Schindler
Attorneys c/o
Friedman Hart Solomon &
Nicolson , Pretoria.
Date of Hearing: 3
March 2014.
Judgment delivered
on: April 2014