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[2012] ZAFSHC 109
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Monethi v Min of Safety and Security (3600/2010) [2012] ZAFSHC 109 (5 June 2012)
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FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Case No. 3600/2010
In the matter between:
TAKANE JEANETT MONETHI
….....................................
Applicant/Plaintiff
and
MINISTER OF SAFETY & SECURITY
…................
Respondent/Defendant
HEARD ON
:
17 MAY 2012
CORAM:
MURRAY, AJ
JUDGEMENT BY:
MURRAY, AJ
DELIVERED ON:
5 JUNE 2012
_______________________________________________________
[1] This is an application to compel the Respondent to
reply to the Applicant’s request for further particulars for
purposes
of trial, as well as to its notice in terms of Rule 35(3)
read with 35(6). Both were filed when the trial was already partly
heard
and had been postponed to a later date.
[2] The Respondent did make general discovery in terms
of Rule 35(2) before the trial started on 24 January 2012 without the
Applicant
having requested further particulars or further discovery.
The Court heard evidence on 24, 25 and 27 January, when the trial was
postponed to 25, 26 and 27 June 2012.
[3] Two months into the postponement, on 30 March 2012,
Applicant filed a request for further particulars as well as a Rule
35(3)
notice read with Rule 35(6). In response, on 16 April 2012, the
Respondent merely filed two notices in terms of Rule 30 in which
it
objected to the requests as being irregular proceedings because the
Applicant had failed to bring them during the pre-trial
period.
[4] The Applicant refused to withdraw its requests
pursuant to the Rule 30 notices and when the Respondent failed to
institute Rule
30 applications, the Applicant on 7 May 2012 brought
this application to compel the Respondent to reply to its requests.
[5] In issue, therefore, is the Applicant’s right
to file the said notice and request after commencement of the trial.
Since,
strictly speaking, both Rule 21 and Rule 35(3) are indeed
pre-trial tools, the question now before the Court is whether they
could
validly have been filed after the trial had already commenced
and evidence had already been led and whether the Court has a
discretion
to enforce compliance at this stage of the proceedings.
[6] To answer this question the Court needs to examine,
inter alia
the nature of the relief sought as well as the
purpose and the wording of the relevant rules in the context of this
case.
[7] Mr Reynders appeared for the Applicant and Mr
Williams for the Respondent.
THE REQUEST FOR FURTHER PARTICULARS:
[8] As correctly stated in Respondent’s Rule 30
Notice further particulars may only be requested in terms of Rule
21(2) to
(4) of the Uniform Rules of Court.
[9] Rule 21(2) expressly stipulates that such further
particulars may only be requested after the close of pleadings and no
later
than 20 days before commencement of a trial. The wording makes
it clear, therefore, that the rule is intended for use before the
trial.
[10] The reason for restricting its application to the
pre-trial proceedings lies in its function which is defined in
SWISSBOROUGH DIAMOND MINES v GOVERNMENT OF THE RSA
,
1999 (2) SA 279
(TPD) at 317C – D as “
to prevent
surprise, to inform the other party what is going to be proved to
enable the other party to prepare his case.”
It has been
found that the request “
would therefore relate to the
pleaded issues and would not ‘raise further or new issues
between the parties’.”
[11] It is clear, then, that Rule 21 is applied in order
to determine with greater precision what the other party is going to
prove
at the trial. Its purpose, in other words, is to clarify issues
already defined in the pleadings in order to facilitate better
preparation.
[12] Applicant failed to comply with Rule 21 by not
filing its request for further particulars at the time when the
parties were
still defining the issues to be adjudicated during the
trial and has advanced no cogent reason why it should be allowed to
file
such a request now.
[13] In fact, Mr Reynders conceded, in my view correctly
so given the explicit wording and accepted purpose of Rule 21, that
the
Applicant’s request for further particulars in the middle
of the trial, when evidence has already been led on the agreed
issues, is not consistent with Rule 21(2) and that the Respondent
cannot be compelled to reply thereto at this stage of the
proceedings.
[14] The application to compel the Respondent to reply
to the Applicant’s request for further particulars must
therefore fail.
THE REQUEST FOR FURTHER DISCOVERY:
[15] On 30 March 2012, Applicant also delivered a notice
in terms of Rule 35(3), read with 35(6) in which it required from
Respondent:
15.1 “
to produce within five (5)
days
for Applicant’s inspection ... documents which allegedly exist
but which were not discovered by the Respondent and ‘which
are
relevant to the dispute between the parties’; and
15.2 ‘to deliver within five (5) days a notice
‘stating the time within five (5) days from delivery of the
notice when
the documents may be inspected at the office of the
Plaintiff’s attorney’; and, furthermore,
15.3 ‘to state on oath within ten (10)
days
which documents were not in his possession, and if so, to disclose
their whereabouts’.”
[16] It is this notice that the Applicant now seeks to
have enforced in the face of Respondent’s Rule 30 objection to
the
request for further and better discovery as a pre-trial
mechanism, which cannot be applied after commencement of the trial.
[17] During argument Mr Reynders, in my view wisely so,
abandoned the Rule 35(6) request for the production of the documents
and
stated that, at this stage, the Applicant only wants the
Respondent to be compelled to reply to the Rule 35(3) Notice.
[18] In such reply the Respondent would have to state
under oath which, of the requested documents are not in its
possession and
to disclose their whereabouts. However, as stated in
COPALCOR MANUFACTURING (PTY) LTD v GDC HAULIERS (PTY) LTD
,
2000 (3) SA 181
at 193H – J the same principles of
discovery that apply to Rule35(1) and the same proper method of
discovery of documents
that applies to Rule 35(2) replies are
mutatis
mutandis
applicable to discovery pursuant to a Rule 35(3) Notice.
The Respondent will therefore by implication also be obliged to
indicate
which of the documents that are in its possession, it
objects to producing, either because they are irrelevant or because
they
are privileged since the Rule 35(3) Notice is a request for
further discovery, and since a party is obliged to give access to the
documents that it does discover free of any lawful objection.
[19] The Applicant offers no explanation in its founding
affidavit for its failure to request further and better discovery in
terms
of Rule 35(3) during the pre-trial period as is the normal
procedure.
[20] Mr Reynders submitted, however, that no party
should be precluded from asking for further and better discovery
merely because
the request was filed after the trial had already
started. He pointed out that the Rule 35(3) procedure was one which
could only
be used after initial discovery had already been made in
terms of Rule 35(1) and (2). He averred that the Rule 35(3) and 35(6)
mechanism to obtain further discovery could never have been intended
to benefit a party who fails to make proper discovery by virtually
guaranteeing that after the commencement of the trial nobody would
ever be able to obtain any of those documents, regardless of
their
relevancy.
[21] He also pointed out that the wording of neither of
the two sub-rules imposed explicit time constraints on their use
since neither
refers to “
before trial
” or “
during
trial”.
Rule 35(6) explicitly reads “
at any time”.
He therefore proposed that sub-rules (3) and (6) be read together
and interpreted so as not to restrict their use to the pre-trial
period.
[22] It is trite law that Rule 35(3) is indeed part of
the pre-trial discovery procedure. In my view, however, that does not
necessarily
mean that it can never be used during the trial itself.
As indicated in
HERBSTEIN & VAN WINSEN: CIVIL PRACTICE IN
THE HIGH COURTS
, 5
th
Ed, Volume
1,
at
824,
the Court does have a discretion to allow its
use even after evidence had already been given. In this respect the
authors referred
to
JACOBS v MINISTER VAN LANDBOU
,
1975 (1) 946 (TPD) where Bekker, J, at 952G found that “
there
is nothing in the Rules of Court which makes it imperative for an
application for further discovery to be made before the
commencement
of evidence.”
[23] The courts have a general discretion to condone
irregularities and imperfections in procedural steps taken by
litigants. I
respectfully agree with what Schreiner, J said in
TRANS-AFRICAN INSURANCE CO LTD v MALULEKA
1956 (2) SA
273
at 278F – G, namely that “
technical objections to
less than perfect procedural steps should not be permitted, in the
absence of prejudice, to interfere with
the expeditious and, if
possible, inexpensive decision of cases on their real merits.”
[24] Of course such a discretion needs to be exercised
sparingly and only in appropriate circumstances, in the absence of
prejudice
to the other party, where it would help to curtail costs
and to expedite proceedings.
[25] That the time periods for the application of the
Rules of Discovery are not iron-clad is also apparent from the
explicit discretion
granted to the Court in Rule 35(1) to allow
discovery before the close of pleadings and the equally explicit
discretion granted
to the Court in Rule 35(10) to order production of
the originals of discovered documents during the trial, even though
the wording
of these two sub-rules makes it clear that they were
actually designed for pre-trial application.
[26] Mr Williams relied on
KAKUWA v MINISTER VAN
POLISIE,
1983 (4) SA 787
(TPD) in which Rule 35(11) was
described as “
supplementary to other provisions of Rule 35”
and in which the Court referred to “
the pre-trial
discovery proceedings created by Rule 35(3) and (7)”
as
authority for his contention that Rule 35(3) read with Rule 35(6)
cannot be used once the trial has commenced.
[27] As Mr Reynders correctly pointed out, however, the
KAKUWA
-case is distinguishable from the instant matter
in that in the former case no discovery whatsoever was made or
requested prior
to the trial, either in terms of Rules 35(1) and (2),
or in terms of Rule 35(3). An application for the production of
certain documents
in terms of Rule 35(11) was then lodged on the
second day of the trial and as the Court stated “
a great
deal of the 2
nd
and 3
rd
day of the trial was then used to argue the Rule 35(11)
application regarding documents which could have been obtained with a
Rule
35(3) application”
if discovery had been made earlier,
or as the Court called it “
in good time”.
[28] The difference between Rule 35(6) and Rule 35(11)
appears to be that the former can be used to obtain production of
previously
discovered documents “
at any time”,
in
other words before or after further and better discovery had been
made
,
whereas Rule 35(11) appears to have been explicitly
designed to enable the Court “
during any proceeding”,
in other words during the trial, to order a party to produce
under oath such documents “
in his power or control ‘relating
to any matter in question in such proceeding as the court may think
meet’”,
and presumably therefore also to such issues
as may have arisen during the trial and such documents as may
consequently have become
relevant from the evidence led and the
arguments raised.
[29] As stated in
FEDERAL WINE & BRANDY CO.
LTD v KANTOR
,
1958 (4) SA 735
(ECD) at 745A – C “
A
discovery or disclosure order is a very different matter from the
order of a court during trial to a witness or to a party to
produce
documents upon which there is cross-examination. “
[30] I agree with Mr Reynders that the
KAKUWA
-case
does not provide authority for a contention that the Court has no
discretion to allow the use of a Rule 35(3) request, in
limited
appropriate circumstances, after the commencement of a trial. In
fact, as remarked and done in
KAKUWA
,
supra,
at
790A a Court should in appropriate circumstances be willing to help
those who had failed to exercise their procedural rights
to obtain
all relevant documentation timeously.
[31] In
JACOBS
,
supra,
the
Court referred to
CONTINENTAL ORE CONSTRUCTION v HIGHVELD STEEL
& VALADIUM CORPORATION LTD
1971(4) SA 589 (W) in which
Margo, J, stated
inter alia
that a Court would only go behind
a discovery affidavit “
if it is satisfied: (1) from the
discovery affidavit itself; or (2) “from the documents referred
to in the discovery affidavit;
or (3) from the pleadings; or (4) from
an admission made by the party making the discovery affidavit; or (5)
from the nature of
the case or the documents in issue that there is a
probability that the party making the affidavit has or had relevant
documents
in his possession”.
[32] Bekker, J, referred, furthermore, to a remark by
Buckley, LJ, in
SEABROOKE v BRITISH TRANSPORT COMMISSION
(1959) 2 All E.R. 15
at 26: “
An affidavit of
documents is sworn testimony which stands in a position which in
certain respects is unique. The opposite party
cannot cross-examine
upon it and cannot read a contentious affidavit to contradict it. He
is entitled to ask the Court to look
at the affidavit and all the
documents produced under the affidavit and from those materials to
reach the conclusion that the affidavit
does not disclose all that it
ought to disclose.”
[33] In order to determine whether it would be
appropriate to exercise my discretion to allow the Rule 35(3) request
at this stage
of the proceedings, I need to consider the purpose of
discovery and the nature of the issues between the instant parties as
appears
from the pleadings in the context of the specific
circumstances of this case.
[34] Discovery was called in
STT SALES (PTY) LTD v
FOURIE
,
2010 (6) SA 272
(GSJ) at 276C – D “
a
tool used to identify factual issues once legal issues are
established.”
In
FEDERAL WINE
,
supra,
it was stated that the “
discovery order …. is
part of the preparation and not part of the trial of the case.“
[35] The purpose of discovery therefore is to assist the
parties as well as the Court in determining the truth and by doing
so,
not only helps to discover the truth and make a just
determination of the case, but also saves costs as stated in
AIR
CANADA v SECRETARY OF STATE FOR TRADE
,
[1983] 2 AC 394
at 445
– 446 and
SANTAM LTD v SEGAL
,
2010 (2) SA 160
(N)
at 162I – F.
[36] In
REPLICATION TECHNOLOGY GROUP v GALLO
AFRICA LTD
,
2009 (5) SA 531
(GSJ) at 535C – I and in
DURBACH v FAIRWAY HOTEL LTD
1949(3) SA 1081 (SR) at
1083 it was stated that the object of discovery was “
to
ensure that before trial both parties are made aware of all the
documentary evidence that is available. By this means the issues
are
narrowed and the debate of points which are incontrovertible is
eliminated.’
[37] Though in
COPALCOR MANUFACTURING (PTY) LTD v
GDC HAULIERS (PTY) LTD
,
2000 (3) SA 181
(W) at 194i, it was
made clear that the party in possession or custody of relevant
documents carries the duty to make those documents
available for both
the benefit of his adversary and the Court “
in anticipation
of the trial action”,
in my view a party’s failure to
discover all of those documents prior to the trial and his opponent’s
failure to request
them before commencement of the trial, does not
per se
deprive the Court of its discretion to allow such a
request after the trial had started provided that neither party is
prejudiced
by such an order. Even at such a late stage, discovery
could conceivably serve to further narrow the issues.
[38 ] In
INDEPENDENT NEWSPAPERS (PTY) LTD v
MINISTER FOR INTELLIGENCE SERVICES: In re MASETHLA v PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA
,
2008 (5) SA 31
(CC) at 41J –
42B it was stated that “
ordinarily Courts would look
favourably on a claim of a litigant to gain access to documents ...
reasonably required to ... advance
a cause of action. This is so
because Courts take seriously the valid interest of a litigant to be
placed in a position to present
its case fully during the course of
litigation. Whilst weighing meticulously where the interests of
justice lie, Courts strive
to afford a party a reasonable opportunity
to achieve its purpose in advancing its case. After all, an adequate
opportunity to
prepare and present one’s case is a
time-honoured part of a litigating party’s right to a fair
trial.”
[39] In
MLAMLA v MARINE & TRADE INSURANCE
COMPANY
1978(1) SA 401 (E) at 402 it was found that “
the
right of a party to an action to resist discovery is a limited right
existing only in certain well-defined circumstances”
for
instance, where the document “
is covered by legal
professional privilege”
or “
if it would disclose
the party’s evidence”
or “
if it would be
injurious to the public interest if it were to be disclosed.”
[40] In
DURBACH
,
supra,
it
was stated, furthermore, that “
a party is required to
discover every document relating to the matters in question, and that
means relevant to any aspect of the
case. This obligation to discover
is in very wide terms. Even if a party may lawfully object to
producing a document, he must still
discover it.”
[41] The discovery of relevant documents is after all,
obligatory in all trials, even though the production thereof is in
the discretion
of the Court and as repeated in
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS v KING
,
2010 (2) SA CR 146
(SCA) at 160, it is trite that if documents are admittedly relevant
they have to be discovered unless the refusal to discover can
be
justified.
[42] In the instant matter, however, the Respondent did
not attempt to object to the relevancy of the requested documents or
to
justify its refusal to discover such documents with anything but a
technical objection to the filing of the request for further
discovery after the commencement of the trial.
[43] It is trite that formalism in the application of
the rules is not encouraged by the courts as stated in
FEDERATED
TRUST LTD v BOTHA,
1978(3) SA 645 (A) at 654.
[44] The object of the Uniform Rules of Court was held
in
DIE BESTUURSRAAD van SEBOKENG v TLELIMA
1968(1) SA
680 (A) to be to secure the inexpensive and expeditious completion of
litigation before the courts and are not an end
in themselves. In
NCOWENI v BEZUIDENHOUT
1927 CPD 130
it was held that
the Rules should be therefore be interpreted and applied in a spirit
which will facilitate the work of the courts
and enable litigants to
resolve their dispute in as speedy and inexpensive a manner as
possible.
[45] In the instant matter, the issues in dispute on the
pleadings were defined at the Rule 37 proceedings on 9 January 2012
as:
45.1 whether or not the Plaintiff was assaulted by a
member of the Defendant on 13 June 2009 as alleged; and if Plaintiff
succeeds
in proving the above
45.2 whether there were any circumstances which absolves
the Defendant from liability stemming from the assault.
[46] From the Rule 35(3) Notice it appears that the
documents requested are,
inter alia
, ballistic reports,
reports regarding weapons fired by the Police and weapons confiscated
from civilians at the scene. And in its
Rule 30 Notice the Respondent
itself stated that the requested documents “
emanate from
documents already discovered”
by the Respondent.
[47] It appears from the pleadings, furthermore, that
the Applicant is an unemployed individual living in either a township
or an
informal settlement who has instituted a delictual claim
against the State for injuries allegedly inflicted by the Police. She
carries the onus of proving her case against the State in an instance
where the Respondent
prima facie
appears to be in possession
of all the necessary documents to assist the Applicant in either
discharging her onus or in realising
that she has no claim.
[48] The Respondent did not deny that the requested
documents were in its possession. If they are indeed in its
possession, the
Respondent had an obligation to discover them and
should have done so when first making discovery in terms of Rule
35(2).
[49] It is trite that, as set out in
FEDERAL WINE
& BRANDY CO LTD v KANTOR
,
1958 (4) SA 735
(ECD) at 745A –
C and in
RELLAMS (PTY) LTD v JAMES BROWN & HAMER LTD
1983(1) SA 556 (N) at 560F – H, after examination of the
recognized sources as well as the pleadings and the nature of the
case, a court might come to the conclusion that the party requested
to make discovery in all probability has other relevant disclosable
documents in its possession or power and may then order further and
better discovery.
[50] In view of the Respondent’s averment in its
Rule 30 Notice that “
the documents requested emanate from
documentation which was discovered prior to trial”
and
having had regard to the issues as defined in the Rule 37 Minutes and
the pleadings and to the type of documents for which discovery
is
requested in the Rule 35(3) Notice, my
prima facie
impression
is that at least some of the requested documents may conceivably
assist the Applicant’s case and should therefore
have been
discovered by the Respondent in the absence of a lawful objection to
their discovery.
[51] In the circumstances of this specific matter and in
the absence of any allegation of possible prejudice by the
Respondent,
I fail to see any such prejudice should the Respondent be
ordered to respond by way of affidavit to the Rule 35(3) Notice to
state
on oath which of the requested documents are not in its
possession and of the documents in its possession which are either
privileged
or irrelevant.
[52] The Applicant, to the contrary, might indeed be
prejudiced in the conduct of her the case if she is forced to wait
untill the
trial commences on 25 June 2012 for discovery of whatever
relevant documents the Respondent might still have in its possession.
If full discovery takes place now, the Applicant could still bring a
substantive application for the production of such relevant
documents
as she is able to prove before the Trial Court. That would certainly
serve to limit needless postponements and extra
costs.
[53] I agree with the statement in
ERASMUS,
Superior Court Practice,
Service 35, 2010,
at
B1-6,
that “
although parties and legal practitioners should
not be encouraged to become slack in the observance of the rules,
technical objections
to less than perfect procedural steps should not
be permitted, in the absence of prejudice, to interfere with the
expeditious and
if possible inexpensive decision of cases on their
merits
”.
[54] I fully realise that, as stated in
STT SALES
(PTY) LTD v FOURIE & OTHERS
,
2010 (6) SA 272
(GSJ) at par
[20], “
the inherent power I have to regulate proceedings
otherwise than in accordance with the rule should be sparingly used”.
[55] As stated in
INGLEDEW v FINANCIAL SERVICES
BOARD: In re FINANCIAL SERVICES BOARD v VAN DER MERWE & ANOTHER
,
[2003] ZACC 8
;
2003 (4) SA 584
(CC) at 594 para [30] a consideration of what is
in the interests of justice involves the evaluation of all the
circumstances of
a particular case and the weighing up of a number of
factors,
inter alia
the nature of the application, the effect
that its refusal may have on the trial proceedings, in particular
whether the Applicant
will be prejudiced in the conduct of the trial
if she does not get access to the documents sought at this stage, and
the stage
of the trial proceedings, therefore I have carefully
considered all the relevant factors in the context of this particular
case.
[56] In view of the nature of the case, namely a
delictual action against the State by an unemployed individual and in
which
prima facie
the State is in exclusive possession of the
documents with which to either prove or disprove the claim, as well
as all the other
considerations set out above, it would to my mind be
in the interests of justice to allow the late Rule 35(3) Notice and
to compel
compliance therewith.
[57] Since no evidence has been placed before this Court
to enable it to order compliance with the Rule 35(6) part of the
application,
it was, in my view, wisely abandoned on behalf of the
Applicant.
[58] In
WEBSTER v WEBSTER
1992 (3) SA 729
(E) at 733 E-H it was held that if a party seeking discovery has
failed to take timeous steps to compel it, each party may be ordered
to pay its own costs ... for it is unreasonable for a party to wait
until the last moment to stand upon his rights under the rule.
[59] Since
in casu
the Applicant failed to
timeously exercise the discovery rights extended to her in terms of
the Court Rules and has offered no explanation
whatsoever in the
founding affidavit for her tardiness in this regard, no order as to
costs in her favour will be made.
[60] Wherefore, the following order is made:
60.1 The Respondent is ordered to state under oath
within five (5) days from date of this order:
60.1.1 whether it has the documents requested in terms
of the Rule 35(3) Notice dated 30 March 2012 in its possession; and
60.1.2 if not, to indicate the whereabouts of such
documents; and
60.1.3 regarding those documents which are in its
possession to indicate whether it would object to the production of
such documents
on the basis of irrelevance or privilege.
60.2 Each party is to pay its own costs.
________________
H. MURRAY, AJ
On behalf of applicant: Adv. S Reynders Instructed by:
Honey Attorneys Inc BLOEMFONTEIN
On behalf of respondent: Adv. A Williams
Instructed by:
The State Attorney
BLOEMFONTEIN