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[2012] ZAGPPHC 98
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Visser and Others v Vardakos Attorneys and Others (14355/2010) [2012] ZAGPPHC 98 (8 June 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
No. 14355/2010
DATE:08/06/2012
In
the matters between:-
FRITS
STEFANUS
VISSER
....................................................................................
First Plaintiff
FREDERICK
BARNARD
.....................................................................................
Second
Plaintiff
SAIDEX
MARKETING (PTY)
LTD
..........................................................................
Third Plaintiff
and
VARDAKOS
ATTORNEYS
..................................................................................
First
Defendant
VASILIOS
BASIL
VARDAKOS
.......................................................................
Second
Defendant
NIC
JAGGA
.....................................................................................................
Third
Respondent
JUDGMENT
Van
der Byl. AJ:-
[1
] This is an interlocutory application by the Plaintiffs seeking an
order in terms of which -
(a)
the First, Second and Third Defendants are directed to make available
for inspection and copying the documents listed in paragraphs
1 to 16
of the Plaintiffs' notice in terms of Rule 35(3) dated 1 June 2011.
(b)
the First, Second and Third Defendants are directed to pay the costs
of this application, such costs to include the costs consequent
upon
the employment of senior counsel.
[2]
It is common cause -
(a)
that on or about 1 June 2011 the Plaintiffs' attorneys of record
caused a notice in terms of Rule 35(3) to be served on the
Defendants' attorneys of record in which the First, Second and Third
Defendants are called upon to make available certain documents,
specified in paragraphs 1 to 15 of that notice, for inspection,
alternatively, to state under oath that such documents are not
in
their possession in which case they were required to state, if known
to any of them, the whereabouts of such documentation;
and
(b)
that the Defendants have to date failed to respond to that Notice.
[3]
The Plaintiffs in their founding affidavit merely referred to the
fact that the Defendants were in terms of a notice served
in terms of
Rule 35(3) called upon to make the documents so specified available
for inspection and that the Defendants failed to
respond to their
notice.
[4]
The Defendants, thereupon, in their opposing affidavit raised the
following issues, namely -
(a)
that, bearing in mind that the cause of action in the pending
litigation relates to an oral agreement between the parties in
respect of an application for Bingo licences in the Limpopo Province,
the documents in respect of which the Plaintiffs seek discovery
are
unrelated to the action between the parties in so far as the
documents so sought relate to applications for Bingo licences
in the
North West Province;
(b)
that the Plaintiffs seek discovery of documentation which goes to the
core of the dispute between the parties and to which they
would only
be entitled only when the Court makes an adverse finding on what
constitutes an agreed fee and, more importantly, whether
the
Plaintiffs prematurely cancelled the agreement;
(c)
that the Plaintiffs did not set out in their founding affidavit any
basis why they require discovery in respect of the unrelated
documents.
[5]
In response to the contentions raised in the opposing affidavit, the
Plaintiffs in their replying affidavit pointed out -
(a)
that the Defendants have until now made discovery of 8 items, but the
trial bundle prepared by the Plaintiffs consists of no
less than 48
items, amongst which are correspondence exchanged between the parties
which have not been discovered by the Defendants,
which seemingly
shows the inadequate discovery made by the Defendants;
(b)
that being the reason why further and better discovery was requested
by the Plaintiffs in the notice served on 1 June 2011;
(c)
that the matter was enrolled for hearing on 18 July 2011 on the
occasion of which the Defendants handed up an opposing affidavit,
whereupon, the presiding Judge was not prepared to hear the matter;
(d)
that the application was then set to be argued at the commencement of
the trial, but a day or two before the allocated date
it was agreed
that the matter be postponed and the Defendants be ordered to pay the
Defendants' costs;
(e)
that at the time the Defendants' legal representative indicated that
the Defendants were reconsidering the Rule 35(3) notice
and that they
are likely to file a supplementary affidavit in which they would be
disclosing a number of the further documents,
but to date no further
discovery has been effected;
(f)
that the action has now been enrolled for hearing on 6 August 2012
and that in order to ensure timeous and full discovery it
is now
necessary to pursue this application;
(g)
that the fact that the Plaintiffs' Particulars of Claim only relate
to the application for Bingo licences for the Limpopo Province
does
not necessarily mean that the applications for Bingo licences to the
North West Province are irrelevant.
[6]
In particular the Plaintiffs deal with the relevancy of each of the
documents called for in each of the 15 items specified in
the Notice
to which I will return below.
[7]
I can now turn to deal with the three disputes raised in the opposing
affidavit.
[8]
I find it convenient and necessary to first deal with the contention
that the Plaintiffs failed to set out in their founding
affidavit the
basis on which they require discovery of the documents referred to in
the Rule 35(3) notice.
[9]
The argument seems to be that in terms of Rule 35(3) the
documentation called for must be relevant and the fact that the
Defendants
failed to respond to the Rule 35(3) notice (which they
were, so it was contended, not obliged to do) does not detract from
the
Plaintiffs' duty to have shown in their founding papers that the
documentation called for are relevant to the issues between the
parties. This is in my view an unnecessary technical and obstructive
approach to the issues involved in this application. The whole
object
of discovery is to ensure that before trial both parties are made
aware of all the documentary evidence that is available
so that the
issues by the parties are narrowed and the debate of points which are
incontrovertible is eliminated (Durbach v Fairway
Hotel Ltd
1949 (3)
SA 1081
(SR) at 1083) In terms of Rule 35(3) a party is in effect
called upon to state in response to a notice in terms of that Rule
under
oath that the documents referred to in the notice are
irrelevant to the issues in the action or that they are privileged
from disclosure.
The Defendants for some undisclosed reason failed to
do so. In having filed the notice in question under the Rule, it
follows in
my view that the Plaintiffs believe, in the words of the
Rule, "that there are, in addition to the documents....
disclosed....,
other documents.... which maybe relevant to any matter
in question in possession of ant party thereto" It was,
thereupon,
for the Defendants to show, as they attempted to do in
their answering affidavit, that the documents called for are not
relevant
to the issues involved in the litigation between the
parties. In the absence of any response from the Defendants in
response to
the Rule 35(3) notice, the Plaintiffs were obviously
unable to deal with any ground on which the Defendants may object
against
discovery of the documents called for, be that relevance,
privilege, vagueness of the notice and so forth. In any event the
issue
of relevance has now been raised and duly ventilated by the
parties in the papers and I can see no reason why the application
should
now be dismissed merely on the alleged lack of particularity
in the founding affidavit.
[10]
This brings me to the following area of dispute, namely, whether the
Plaintiffs are entitled to seek discovery of documentation
to which
they will only be entitled once the Court has in the action made an
adverse finding against the Defendants on what constitutes
an agreed
fee and whether the Plaintiffs prematurely cancelled the agreement.
It
is not clear to me to what documents this submission relates. I have
in any event been referred to the decision in Continental
Ore Corp v
Highveld Steel and Vanadium Corp Ltd
1971 (4) SA 589
(W) in which
Margo J was faced with an application in terms of Rule 35(3) for the
discovery an inspection of documents relating
to the price of
vanadium-bearing slag which was dependent on the existence of an oral
agreement allgedly concluded between the
parties. The conclusion of
such an agreement was in dispute.
In
this regard Margo J held at 593G as follows;
"The
documents are prima facie directly related to one aspect of the case,
namely, the price of slag sold by the defendant
on the North American
continent in 1970, but that aspect will only be reached if the
plaintiff first succeeds on the main issue
by establishing the
alleged oral agreement at Luxembourg. Does relevance to this ultimate
aspect of the case suffice to entitle
the plaintiff to discovery of
these documents at this stage, or must the plaintiff show relevance
in relation to the main issues
if it wishes to have discovery of such
documents now?
Surprisingly,
there appears to be little direct authority on this point in South
Africa.
In
England this question has been regulated by Rule of Court. Halsbury
3rd ed., vol. 12, p. 22, para. 28, refers to R.S.C. Ord.
31. Rule 20
(1), whereby, if the right to discovery or inspection depends on the
determination of any issue or question in the
matter, or if for any
other reason it is desirable that any issue or question should be
determined before deciding on the right
to discovery or inspection,
the Court may order that the issue or question be determined first
and may reserve the question as
to that discovery or inspection.
These provisions have since been re-enacted in Ord. 24, Rule 4 (1),
and, furthermore, under the
present Ord. 24, Rule 8, it is provided,
inter alia, that, on the hearing of an application for an order to
make discovery, the
Court, if satisfied that discovery is not
necessary, or not necessary at that stage of the cause or matter, may
dismiss or, as
the case may be, adjourn the application. Halsbury,
supra loc. cit, has called examples from the cases and from
illustrations given
in the cases decided under the earlier Rules. For
instance, says Halsbury, an action by a principal against an agent
where agency
is denied, the parties would not be put to the trouble
and expense of producing accounts which, unless the agency is
established,
will never be necessary at all. So, also, discovery
bearing only on the question of damages or accounts, and not on the
question
of the defendant's liability, where it is possible to deal
separately with the questions of liability and of the amount of
damages,
will sometimes be postponed until the question of liability
is determined".
The
learned Judge then, having indicated that there is no Rule here
corresponding with the English Rules and having held that the
Court
in any event has a discretion to refuse
In
my view, once it is accepted that under Rule 35 (7) the Court has a
discretion whether or not to enforce discovery or inspection,
then
there is good reason for applying, in a proper case, the same
considerations of logic and of justice as are illustrated in
the
English cases of deferment of discovery of documents relative to a
contingent issue. In those cases the justification for deferment
has
been recognised in an order for which the English Rules specifically
provide. In our Courts justification for deferment may,
in a proper
case, be recognised in an order permitted by the discretion conferred
by Rule 35 (7).
Obviously
deferment will only be justified in the exceptional case, where the
Court will not oblige the defendant to contest the
issue on which the
discovery is claimed until the plaintiff has succeeded on the primary
issue".
that
this letter is a letter in the possession of the Defendants, it is a
letter that has indeed been discovered by the Plaintiffs.
There,
furthermore, appears no basis on which it can be contended that items
5, 7, 8, 15 and 16 refer to documents that are irrelevant
to the
issues between the parties.
In
relation to items 1, 2, 6, 9, 10, 11, 12, 13 and 14 the objection is
that they call for documents relating partially or wholly
to Bingo
licences in respect of the North West Province. Save for submitting
that these documents so relate to Bingo licences in
the North West
Province, no further substantiation is contained in the opposing
papers to show that such documents are irrelevant
for purposes of the
issues involved in the action.
On
the other hand, the Plaintiffs have shown (paras 12.1 to 12.8) the
respects in which the documents referred to therein may be
so
relevant.
I
have no reason to reject the Plaintiffs' contentions in this regard.
In any event the relevancy of the documents can more efficiently
be
addressed at the hearing of the trial and more particularly when the
documents are sought to be introduced into the evidence.
There is,
relevancy being the only issue, no reason why the Plaintiffs are not
entitled to inspect the documents in order to satisfy
themselves
whether or not the documents are indeed relevant.
In
the result I make the following order:-
1.
THAT the First, Second and Third Defendants be directed to make
available for inspection and copying the documents listed in
paragraphs 1 to 16 of the Plaintiffs' notice in terms of Rule 35(3)
dated 1 June 2011.
2.
THAT the First, Second and Third Defendants be directed to pay,
jointly and severally, the one paying the other to be absolved,
the
costs of this application, such costs to include the costs consequent
upon the employment of senior counsel.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF PLAINTIFFS ADV. R STOCKWELL SC
On
the instructions of:JAN ELLIS ATTORNEYS
c/o
LOUBSER VAN DER WALT INC 375
Charles
Street PRETORIA Ref: N J Loubser/N1213
Tel:
(012) 460 1915/6
ON
BEHALF OF DEFENDANTS ADV L KELLERMAN
On
the instructions of: HARRISONS ATTORNEYS
c/o
DYASON ATTORNEYS 134
Muckleneuk
Street West New Muckleneuk
PRETORIA
Ref:
J Gous/CW/D10247
Tel:
016 454 0499
DATE
OF HEARING:4 June 2012
JUDGMENT
DELIVERED:7 June 2012