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[2013] ZAFSHC 72
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Andrade v Road Accident Fund (1566/2013) [2013] ZAFSHC 72 (16 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 1566/2013
In
the matter between:
MARIA
GABRIëL ANDRADE
..................................................
Applicant
versus
ROAD
ACCIDENT FUND
.....................................................
Respondent
_____________________________________________________
HEARD ON:
9
MAY 2013
_____________________________________________________
JUDGMENT BY:
LEKALE, J
DELIVERED ON:
16 MAY 2013
_____________________________________________________
INTRODUCTION AND
BACKGROUND:
[1] The applicant is the
plaintiff in a defended action instituted against the respondent, as
the defendant, under case number 5391/2011
which is set down for
trial on 11, 12 and 14 June 2013 in this Court.
[2] On 19 November 2012
the parties held a pre-trial conference at which they,
inter alia
,
agreed that the respondent shall file its discovery affidavit as well
as a reply to the applicant’s agenda in terms of Rule
37(4) of
the Uniform Rules of Court (the Rules) on or before 28 January 2013.
The respondent, however, failed to oblige and, on
2 April 2013 the
applicant, out of desperation, eventually caused a letter to be
directed to the respondent’s attorneys of
record placing them
on terms in this regard by demanding compliance on or before 8 April
2013. The letter, however, elicited no
response whatsoever from the
respondent’s side.
[3] The applicant now
approaches this Court by way of an unopposed motion filed on 22 April
2013 for an injunction. After hearing
argument for the applicant, I
reserved judgment on the said motion for an order in the following
terms:
“
1. Dat
die respondent gelas word om binne ‘n periode van vyf (5) dae
na betekening van hierdie bevel aan die applikante beskikbaar
te stel
antwoorde tot die eiseres se Reël 37(4)-vraelys asook verweerder
se blootleggingsverklaring soos aangevra in die Reël
37-notule
gedateer 12 Maart 2013;
2. Dat verlof verleen word aan die
applikante om op dieselfde stukke behoorlik aangevul by die
nie-verskaffing van die blootleggingsverklaring
en die antwoorde op
die eiseres se Reël 37(4)-vraelys, die hof te nader vir die
deurhaling van verweerder se verweerskrif
en teeneis onder saaknommer
5391/2011;
3. Die koste van hierdie aansoek
deur die respondent betaal word;
”
ISSUE TO BE
DETERMINED:
[4] In his submissions
for the applicant, Mr Coetzer correctly and laudably draws the
attention of the court to the decision in
Kriel v Bowels
2012(2) SA 45 (ECP) and points out that, recently an application for
an order similar to the one sought in the instant matter on
similar
grounds was dismissed in this court on the basis of that decision and
on the ground that no compulsion is competent because
Rule 37(4) does
not prescribe time limits for compliance therewith. The issue is,
therefore, whether or not, on the facts of the
present application,
an order compelling a party to respond to a Rule 37(4) questionnaire
is competent.
APPLICANT’S
CONTENTIONS:
[5] Mr Coetzer submits
that the facts in the instant matter are distinguishable from the
facts in
Kriel v Bowels
,
supra
, insofar as the
applicant
in casu
relies on a pre-trial minute to compel the
respondent. She, in effect, seeks to enforce the terms of a Rule 37
minute.
[6] It is, further,
submitted that the option of requesting a conference before a judge
is not available to the applicant because
a conference has already
been held and a minute been filed.
APPLICABLE LEGAL
PRINCIPLES:
[7] Rule 37(4) of the
Rules facilitates a smooth and effective conference so as to enable
parties to reach agreement on as many
issues as possible so as to
promote expeditious resolution of disputes.
(See
Paterson NO v
Kelvin Park Properties CC
1998 (2) SA 89
(E) at 104C –
D.)
[8] A pre-trial minute is
effectively an agreement between litigants aimed primarily at
identifying issues for determination by
the court and is binding
between parties thereto.
(See
MEC for
Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga
and Another
2010 (4) SA 122
(SCA) at 126E – G.)
APPLICATION OF
LEGAL PRINCIPLES AND FINDINGS:
[9] As correctly
submitted by Mr Coetzer, the applicant relies on the terms of a
pre-trial minute to compel the respondent as opposed
to the
provisions of Rule 37(4) of the Rules. The instant matter is, thus,
distinguishable from the facts in
Kriel v Bowels
,
supra
, insofar as no conference had been held in that matter
and the relief available to the applicant in that case lay in
invoking the
provisions of Rule 37(8) of the Rules by requesting the
conference to be convened before a judge in chambers.
[10] The applicant, in
the instant matter, effectively moves the court to give effect to the
terms of the Rule 37 agreement while
in the
Kriel v Bowels
matter the court specifically found that it was not a case where a
party was seeking to renege on an agreement reached during the
course
of pre-trial proceedings.
ORDER:
[11] In the result an
order is granted in terms of prayers 1, 2 and 3 of the Notice of
Motion.
______________
L.J. LEKALE, J
On behalf of applicant:
AdvCoetzer
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of respondent:
N/A
/spieterse