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[2012] ZAFSHC 161
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Smith v Pretorious NO and Others (4479/09) [2012] ZAFSHC 161 (26 July 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
(REPUBLIC OF SOUTH
AFRICA)
Case No.:
4479/09
In the matter between:
SYBRAND PETRUS
NICHOLAS SMITH
.................................
Plaintiff/Applicant
and
WILLEM LODEWYK
PRETORIUS N.O.
............
First
Defendant/Respondent
MASTER OF THE HIGH
COURT,
BLOEMFONTEIN
...................................................
Second
Defendant/Respondent
GENE UNDERAY
.......................................................
Third
Defendant/Respondent
SHARON DUTLY
.....................................................
Fourth
Defendant/Respondent
CHARMAINE WATERSON
......................................
Fifth
Defendant/Respondent
SURIANA THOMPSON
N.O.
.................................
Sixth
Defendant/Respondent
DELIVERED BY:
SNELLENBURG, AJ
HEARD:
21
JUNE 2012
DELIVERED:
26 JULY 2012
[1] This is an
application for an order that
(a) the first
defendant/respondent be compelled to deliver to the
plaintiff/applicant the documents requested in terms of the notice
delivered in terms of Uniform Rule 35(3) and (6), dated 7 March 2012,
within ten days from date of service of the order on first
defendant/
respondent’s attorney, by hand;
(b) leave be granted to
the plaintiff/applicant to apply to Court, on the same papers, duly
amplified, for an order striking out
the first defendant/respondent’s
defence, in the event of first defendant/respondent failing to comply
with the terms of
the order; and
(c) directing the first
defendant/respondent to pay the costs of the application.
[2] The
plaintiff/applicant,
Sybrand Petrus Nicholas Smith
, issued
summons, amongst others, against the first defendant/respondent in
his capacity as duly appointed executor in the estate
of the late
Raymond Henry Gleimius
(the deceased).
[3] I will henceforth
refer to the applicant as the plaintiff and likewise to the
respective respondents as they have been cited
in the main
proceedings [the action], for example to the first
defendant/respondent as the first defendant.
[4] The action was
preceded by the following events and circumstances:
4.1. On 10 October 2006
the deceased and his mother
Christina Yvonne Smith
(the
deceased’s mother) passed away in an aircraft accident as a
result of the injuries sustained by them;
4.2. The second
defendant, the Master of the High Court, ruled the deaths of the
deceased and the deceased’s mother to have
taken place
simultaneously;
4.3. In terms of the
deceased’s last will, dated 13 October 1999, his mother was
nominated by him to inherit certain specified
items, as well as the
residue of his estate;
4.4. In terms of the last
will of the deceased’s mother, the plaintiff is nominated as
her heir;
4.5. It is the
plaintiff’s case, in the action, that as a matter of medical
fact, the deceased passed away before the deceased’s
mother;
4.6. In such event, by
reason of the provisions of the deceased’s will, read with the
provisions of the last will of the deceased’s
mother, the
specified items that was to dissolve to the deceased mother in terms
of his will, as well as the residue of his estate,
is to dissolve to
the plaintiff through the last will of the deceased’s mother in
the event that the deceased passed away
prior to his mother passing
away;
4.7. As a result of the
second defendant’s ruling, however, the part of the deceased’s
will that made provision for
the portion of the estate dissolving on
the deceased’s mother is to be dealt with as intestate and the
third, fourth and
fifth defendants stand to inherit that portion of
the deceased’s estate.
4.8. The issues in the
pleadings, as they stand in the main action, involve the
determination of the afore-mentioned.
[5] The notice in terms
of Uniform Rule 35(3) and (6) is, according to the plaintiff’s
case, premised on the following facts
and circumstances:
5.1. There is no duty on
first defendant to actively oppose the relief sought by the plaintiff
in the main proceedings and it is,
indeed, not desirable and to the
benefit of the deceased’s estate and its potential heirs for
the first defendant to become
so involved and to incur expenses in
the estate in this regard;
5.2. That,
notwithstanding, first defendant chose, out of own volition, to
become actively involved in the main proceedings and
to appoint the
same attorney that represents the third, fourth and fifth defendants
in the main proceedings, as well as the employment
of the same
counsel that are employed by the last mentioned defendants;
5.3. It is, as a result
of the aforementioned, impossible to distinguish between the portion
of legal costs that are incurred by
First defendant (if any) and the
portion of legal costs that are incurred by third, fourth and fifth
defendants (if any) in the
main proceedings;
5.4. It is of pertinent
importance to the plaintiff, with regards to the issue of costs
against the first defendant, to ascertain
whether the first defendant
pays all the legal expenses and costs from the estate (with or
without separate agreement with third,
fourth and fifth defendants to
recover the same) and by so doing whether he assists and enables the
third, fourth and fifth defendants,
by making use of the estate’s
resources, to defend the main proceedings; and (or) whether the first
defendant pays only a
portion of the expenses and legal costs (with
or without a separate agreement with the third, fourth and fifth
defendants to recover
such portion) and by doing so, whether he, in
part, assists or enables the third, fourth and fifth defendants, by
making use of
the estate’s resources, to defend the main
proceedings;
5.5. Should the Plaintiff
ascertain that the first defendant, as a fact, pays all the legal
costs and expenses in the main proceedings,
or a portion thereof
(with or without a separate agreement with third, fourth and fifth
defendant to recover the same, whether
it be all or a portion) the
plaintiff will rely, amongst other facts, on that fact in seeking an
order that the first defendant
be ordered to pay the costs of the
main proceedings in his personal capacity on a punitive scale.
[6] The issue of costs in
the pleadings, as they stand, embraces nothing more than that the
plaintiff seeks an order that costs
of the main proceedings be paid
out of the estate or, in the alternative thereto, that such of the
defendants that opposes the
relief sought, be ordered to pay the
costs, jointly and severally. The first defendant, together with the
third, fourth and fifth
defendants pray that the action must be
dismissed with costs.
[7] On 20 October 2011
the plaintiff’s attorneys of record addressed a letter to the
first plaintiff’s attorneys of
record, in which was sought the
following documents and information:
The most current and up
to date copy of the liquidation and distribution account;
Confirmation that the
estate does not pay any legal fees and/or disbursements in the
pending litigation under case number 4479/2009
on behalf of
Gene
Underay
(third defendant),
Sharon Dudly
(fourth
defendant) and
Charmain Waterston
(fifth defendant) and that
each of the defendants are paying their own legal costs;
In the event that the
confirmation sought in (b) cannot be given, full particularity of
all legal fees and disbursements paid
by the estate on behalf of the
defendants,
Underay, Dudly
and
Waterston
, is
requested;
Full particularity of
any oral agreement or copy of any written agreement between the
executor and the three defendants with regard
to the payment of
legal fees and disbursements in the pending litigation.
[8] On 25 October 2011
the first defendant’s attorneys of record replied that the
estate does not pay any legal fees for any
third party except for the
executor. The plaintiff submits that this reply does not constitute
an answer to the matters set out
in par [5.4], above.
[9] In terms of the
notice in terms of Rule 35(3) and (6) the Applicant requires the
following:
9.1 All source
documentation (inclusive of, but not limited to, invoices and/or
receipts (in respect of the income accrued from
6 November 2006 to
date in the estate of the late
HR Gleimius
– estate no.
12031/2006);
9.2 All source
documentation (inclusive of, but not limited to, invoices and/or
receipts and/or cheques issued and/or documentary
proof of electronic
funds transfers (“EFT’s”)) in respect of the
expenditure expended and/or incurred from
6 November 2006
to
date in the estate of the late
RH Gleimius
– estate no.
12031/2006;
9.3 All bank statements,
to include current account bank statements and investment account
bank statements in the estate of the
late
RH Gleimius
–
estate no. 12031/2006 from 6 November 2006 to date;
9.4 All vouchers numbered
1 to 88 as reflected in the liquidation and distribution account
dated 10 March 2009;
9.5 Documents evidencing
any loans or advances made to any party or entity from the estate of
the late
RH Gleimius
– estate no. 12031/2006.
[10] The first defendant
refused to make discovery on the basis that the documents requested
are not relevant to the issues in dispute
on the pleadings.
[11] The plaintiff does
not contend that the documents requested in terms of the said notice
are documents that are or may be relevant
to the aforesaid dispute,
namely whether the deceased passed away before the deceased’s
mother did. This is not contended
directly or indirectly.
[12] The plaintiff
contends that the documents requested may be relevant to the issue of
costs. The plaintiff postulates that, to
be able to assess whether
valid grounds exists to hold the first defendant liable for costs in
personal capacity (as opposed to
in his representative capacity), it
is required that he be placed in possession of the documents
requested in the notice in terms
of Uniform Rule 35(3) and (6).
[13] The plaintiff relies
on the first defendant’s conduct pursuant to the commencement
of the main proceedings. The main
thrust of the plaintiff’s
argument is premised on the principle that, where an executor is
properly a party to legal proceedings
in his/her representative
capacity, the executor will be held personally liable for costs if
he/she acted
mala fide
or unreasonably or improperly in
bringing or defending the proceedings. This is undoubtedly correct.
The same principles apply
to an executor in such instance as would
apply to a trustee in this regard. The case law regarding the
position with trustees is
therefore equally applicable to an
executor. Regarding trustees see
STANDER AND OTHERS v SCHWULST
AND OTHERS
2008 (1) SA 81
(C) at 94B - D; Regarding executors
see
VAN NIEKERK v VAN NIEKERK AND ANOTHER
2011 (2) SA
145
(KZP) at 149G - 150G, paras [10], [11] and [12].
[14] The first defendant
opposes the application on the basis that only documents, relevant to
an issue between the parties, as
appear from the pleadings, may be
requested in terms of Uniform Rule 35(3) and (6), therefore that the
fundamental starting point
should be the pleadings. See
COPALCOR
MANUFACTURING (PTY) LTD AND ANOTHER v GDC HAULIERS (PTY) LTD
(formerly GDC HAULIERS CC)
2000 (3) SA 181
(WLD) at 193 par
[24] and [25]. First defendant submits that the plaintiff’s
request amounts to nothing more than a so-called
fishing expedition.
[15] The parties are not
at odds regarding the principles applicable to discovery and
supplementary discovery. The crux of the dispute
revolves around
whether the costs, as it presently appears from the pleadings,
constitutes an issue between the parties.
[16] As point of
departure the provisions of the Uniform Rule 35(3) must be evaluated.
The Rule provides:
“
If
any party believes that there are, in addition to documents or tape
recordings disclosed as aforesaid, other documents (including
copies
thereof) or tape recordings that may be relevant to any matter in
question in the possession of any party thereto, the former
may give
notice to the latter requiring him to make the 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.”
[17] Uniform Rule 35(6)
provides for production of documents and/or tape recordings so
disclosed. Uniform Rule 35(3) provides for
a procedure for a party
dissatisfied with discovery of the other party. See
SWISSBOROUGH
DIAMOND MINES (PTY) LTD AND OTHERS v GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA AND OTHERS
1999
(2) SA 279
(T)
at
321F -
G.
It is undeniably a procedure to supplement discovery which has
already taken place, but which is alleged to be inadequate. It
does not afford a
litigant a licence to fish in the hope of catching something useful.
See
THE
MV
URGUP
OWNERS
OF THE MV
URGUP
v WESTERN BULK
CARRIERS (AUSTRALIA) (PTY) LTD AND OTHERS
1999
(3) SA 500
(C)
at
515D.
[18] It is not the
plaintiff’s case that the first defendant has or had documents
in his possession or power that was not
discovered in terms of Rule
35(1) when called upon. On the contrary, it is quite clear that the
plaintiff seeks additional discovery
based on the first defendant’s
perceived conduct since commencement of the proceedings, by,
inter
alia
,
choosing to defend the matter. This is the crux of the matter to my
mind. The issues are exactly the same as they were when discovery
was
called for and made. If the plaintiff concedes that the first
defendant did not fail to discover documents in his possession
or
under his control, when discovery was made and the issues that appear
from the pleadings are still the same, then clearly the
plaintiff has
not made out a case that he is entitled to the order sought.
[19] Clearly the rule on
supplementary discovery does not envisage what the plaintiff, by its
own admission, is employing it for.
[20] Furthermore, and
notwithstanding the concession during argument regarding the fact
that the notice is much too wide, that does
not address the reason
why the notice was served in its present form. It was clearly
intended to elicit information not relevant
to the issues in the
pleadings. The first defendant would have been justified to refuse to
comply with the notice, regardless of
the finding regarding whether
the plaintiff may, or may not be entitled to further discovery
regarding the issue of costs.
[21] The plaintiff
submits that it may seek a cost order in personal capacity against
the first defendant, amongst others, on the
grounds set out in par
[5] above. By implication the plaintiff submits that other grounds
exist or may exist in future, which would
entitle it to seek costs
against the executor in personal capacity, notwithstanding or
regardless of the grounds on which it relies
in this application. As
the matter stands, it seeks a cost order against the first defendant
in his representative capacity and
only as an alternative to the main
order that the estate pay the costs. The plaintiff is therefore, on
his version, not debarred
from seeking such cost order eventually,
should he be able to make out a case that the executor has acted in
bad faith.
[22] I do not agree with
the plaintiff’s submission that any inferences can be made, at
this stage, by the mere fact that
the first defendant is actively
defending the action. It would be inappropriate to make any such
finding. The Trial Court would
be in a much better position to
evaluate the
bona fides
of absence of
bona fides
in the
defence of the action. Suffice to say that the first defendant was
cited as a defendant and he has the rights that any other
litigant
has, save that his conduct may be measured at the end of the trial.
These facts do not entitle the plaintiff to the relief
sought.
[23] In so far as
necessary, I also disagree that the first defendant’s reply did
not address the issue adequately. The plaintiff
will not be without
remedy if it succeeds and it appears that the first defendant has in
any manner acted to his prejudice in the
conduct of this case.
[24] The question is
simply whether the first defendant must be compelled to comply with
the notice for supplementary discovery.
To my mind the plaintiff has
failed to make out a proper case for the relief.
[25] On behalf of the
plaintiff it was conceded during argument that in the event of a cost
order being granted in favour of the
first defendant, that such order
may include the costs occasioned by the employment of two counsel.
[26] In the result I make
the following order:
The application is
dismissed with costs, such costs to include the costs occasioned by
the employment of two counsel.
_________________
SNELLENBURG, AJ
APPEARANCES:
On
behalf of the applicant:
Adv PG Cilliers SC
Instructed by:
Eugene Attorneys,
Bloemfontein
On behalf of first
respondent:
Adv JY Claasen SC
,
assisted by
Adv CD
Pienaar
Instructed by:
Hugo
& Bruwer Attorneys,
Bloemfontein
NS/sp