About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2012
>>
[2012] ZAECELLC 4
|
|
Dowling v Dowling and Others (EL 305/2010, ECD 705/2010) [2012] ZAECELLC 4 (27 March 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL
DIVISION)
CASE NO: EL 305/2010
ECD 705/2010
In the matter between:
DAVID JOHN ALEXANDER DOWLING
…..........
Plaintiff/First
Defendant in Reconvention
and
THERESA
JANE DOWLING (born McMULLAN)
…...
Defendant/Plaintiff in Reconvention
PETER ALEXANDER GEORGE DOWLING N.O.
….........
2
nd
Defendant in Reconvention
PATRICIA MARGARET DOWLING N.O.
….......................
3
rd
Defendant in Reconvention
DAVID JOHN ALEXANDER DOWLING N.O.
….................
4
th
Defendant in Reconvention
ANGELA LEIGH WILD N.O.
…............................................
5
th
Defendant in Reconvention
DAVID JOHN ALEXANDER DOWLING N.O.
….................
6
th
Defendant in Reconvention
PETER ALEXANDER GEORGE DOWLING N.O.
…..........
7
th
Defendant in Reconvention
STEVEN HAYNES N.O.
…..................................................
8
th
Defendant in Reconvention
______________________________________________________________________________
JUDGMENT
Y EBRAHIM J:
In this application the Defendant
(Plaintiff in Reconvention) seeks an order directing the Plaintiff
(First Defendant in Reconvention)
and the Second to Eighth
Defendants in Reconvention to comply with the provisions of
Rule 35(1), (2), (4) and (6) in regard
to the notice in terms
of Rule 35(3) and (6) dated 14 September 2011 served on them. The
applicant also seeks a postponement
of the matter and an order for
costs. For convenience I shall refer to the applicant as the
defendant and to the respondent as
the plaintiff and to the second
to eighth defendants in reconvention as they have been cited herein.
The issue for determination is
whether the plaintiff and the second to eighth defendants in
reconvention have complied with the
Rule 35(3) and (6) notice. The
relevant provisions of Rule 35 of the Uniform Rules of Court read as
follows:
‘
(1)
Any party to any action may require any other party thereto, by
notice in writing, to make discovery on oath within twenty days
of
all documents and tape recordings relating to any matter in question
in such action (whether such matter is one arising between
the party
requiring discovery and the party required to make discovery or not)
which are or have at any time been in the possession
or control of
such other party. Such notice shall not, save with the leave of a
judge, be given before the close of pleadings.
(2) The party required to
make discovery shall within twenty days or within the time stated in
any order of a judge make discovery
of such documents on affidavit as
near as may be in accordance with Form 11 of the First Schedule,
specifying separately –
(a) such documents and
tape recordings in his possession or that of his agent other than the
documents and tape recordings mentioned
in paragraph (
b
);
(b) such documents and
tape recordings in respect of which he has a valid objection to
produce;
(c) such documents and
tape recordings which he or his agent had but no longer has in his
possession at the date of the affidavit.
A document shall be deemed
to be sufficiently specified if it is described as being one of a
bundle of documents of a specified
nature, which have been initialled
and consecutively numbered by the deponent. ………
.
(3) 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 which 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.
(4) A document or tape
recording not disclosed as aforesaid may not, save with the leave of
the court granted on such terms as to
it may seem meet, be used for
any purpose at the trial by the party who was obliged but failed to
disclose it, provided that any
other party may use such document or
tape recording.
(5) (a) …
(b) …
(c) …
(d) …
(4) …… .
(5) …… .
(6) Any party may at any
time by notice as near as may be in accordance with Form 13 of the
First Schedule require any party who
has made discovery to make
available for inspection any documents or tape recordings disclosed
in terms of subrules (2) and (3).
Such notice shall require the party
to whom notice is given to deliver to him within five days a notice
as near as may be in accordance
with Form 14 of the First Schedule,
stating a time within five days from the delivery of such latter
notice when documents or tape
recordings may be inspected at the
office of his attorney or, if he is not represented by an attorney,
at some convenient place
mentioned in the notice, or in the case of
bankers’ books or other books of account or books in constant
use for the purpose
of any trade, business or undertaking, at their
usual place of custody. The party receiving such last named
notice shall be
entitled at the time therein stated, and for a period
of five days thereafter, during normal business hours and on any one
or more
of such days, to inspect such documents or tape recordings
and to take copies or transcriptions thereof. A party’s failure
to produce any such document or tape for inspection shall preclude
him from using it at a trial, save where the court in good cause
allows otherwise.
’
The Rule 35(3) and (6) notice was
served in the divorce action the plaintiff instituted against the
defendant. The defendant and
the plaintiff were married to each
other after the commencement of the
Matrimonial Property Act 88 of
1984
in terms of a duly registered antenuptial contract with
community of profit and loss excluded and the accrual system
applicable.
In an annexure to the notice the defendant specified the
plaintiff had to discover thirty sets of documents. These documents,
so the defendant alleges, she requires for the purpose of
quantifying her claim for the accrual of her estate during the
subsistence
of the marriage.
The plaintiff responded to the notice
and disclosed those documents which were in his possession, and
available for inspection,
and those which were not. Thereafter, the
legal representatives of the parties engaged in correspondence in
relation to inspection
of the documents and the defendant was
informed that these were available for inspection at the offices of
Mr S Haynes, an accountant,
who is the eighth defendant in
reconvention. This the defendant accepted subject to the right to
insist on proper discovery and
compliance with the Rules of Court.
On 7 December 2011, accompanied
by a Mr L Tebbutt, the defendant inspected documents at
the offices of the eighth
defendant in reconvention for a period of
two hours before the office closed for the day. The defendant states
that a further
inspection could not take place prior to the offices
of the eighth defendant in reconvention closing for the Christmas
period.
The plaintiff asserts, on the other hand, that an inspection
could have been taken place.
This situation precipitated further
correspondence and on 11 January 2012, after the offices of the
eighth defendant in reconvention
had re opened, the defendant
and L Tebbutt carried out a further inspection. They were given
two large cardboard boxes
containing numerous documents dating back
to 2006 and were informed that those prior to 2006 had been
archived. The documents
were not in chronological order, were
insufficiently identified, and certain bank statements were not
available. The documents
were also not ‘
labelled
as a “bundle of documents” of a specified nature which
had been initialled and consecutively numbered by
either the
plaintiff or any of the other Defendants in Reconvention.
’
In view of this it was not possible to identify which documents
specified in the notice had been made available for inspection.
In
the limited time available they had to ‘
rummage
through them in order to find and identify for ourselves documents
listed in the said
Rule 35(3)
and
35
(6) Notice.
’
Mr De La Harpe submitted that
discovery was incomplete and inadequate and prejudiced the
defendant. The defendant was therefore
entitled to the relief
sought, namely that there be an order directing the plaintiff and
the second to eighth defendants in reconvention
to comply with the
provisions of
Rule 35(1)
, (2), (4) and (6) and that the matter be
postponed.
The plaintiff has not denied the
documents were presented in the manner described by the defendant.
The plaintiff nevertheless
asserts there was proper discovery and
that the defendant‘s ‘
inspection
was not hampered in any way.
’ The defendant and
L Tebbutt, the plaintiff states, were provided with ‘
a
substantial number of documents …… required for
inspection
’ and informed that ‘
should
they require any documentation or copies thereof they were to
request same
’ but ‘
[n]o
requests were made during both inspections or after their particular
visits for any additional documentation
.’
Mr Cole submitted on behalf of the
plaintiff and the second to eighth defendants in reconvention that
his clients had gone to
great lengths to facilitate inspection of
the documents but defendant had not responded positively to this.
His clients had tendered
‘
full
access to whatever information [the defendant] require[d] with
regard to the financial affairs of (all relevant parties and
Trusts)
’ but in spite of these efforts the defendant
had waited until the last moment to bring this application and seek
a postponement.
The Court should therefore reject the defendant’s
contention that offering inspection of the documents at the offices
of
the eighth defendant in reconvention did not, in the specific
circumstances of this case, constitute compliance with the notice.
Subrule 2(c) clarifies the manner in
which documents are to be made available for inspection by the other
party, namely that ‘[a]
document shall be deemed
to be sufficiently specified if it is described as being one of a
bundle of documents of a specified
nature, which have been
initialled and consecutively numbered by the deponent.’
The purpose of presenting the
documents in the prescribed manner should be apparent since lack of
identification would not enable
the defendant to call for it nor
would the Court be able to establish whether or not the document in
question has been produced.
1
In addition, in the absence of
compliance with these requirements the Court would not be in a
position to impose the sanctions
set out in
Rules 35(4)
and/or (6).
2
The fact that the documents were not
presented in the manner prescribed in the Rules has not been
disputed by the plaintiff and
the second to eighth defendants in
reconvention. Save for elucidating that documents were ‘
provided
for inspection in annual bundles marked, per year
’,
they in fact confirm that the documentation presented to the
defendant was voluminous in nature and not readily capable
of
identification. The eighth defendant in reconvention, in the
confirmatory affidavit he attested to in his capacity as Accountant
for the David Dowling Family Trust, underscored this was the
position. He has stated therein that he informed the defendant’s
attorney there was ‘
a
substantial amount of documentation in volume and computer data. I
believe you will have great difficulty navigating through
the sheer
volume of books and records during the court proceedings
.’
It is clear that the situation that
confronted the defendant, when she attended the offices of the
eighth defendant in reconvention
to inspect the documents, does not
support the claim of the plaintiff and the other defendants in
reconvention that they made
proper discovery.
I accept the defendant’s claim
that she was presented with a mass of documents not properly
identified, as required in terms
of subrule 2(c), and that it
was expected of her to rummage through them to locate the documents
the opposing parties were
required to discover. I accordingly agree
with Mr De La Harpe’s submission that there has
not been proper
compliance with the
Rule 35
notices on the part of
the plaintiff and the second to eighth defendants in reconvention.
Insofar as costs are concerned, Mr
Cole submitted that the defendant should be liable for the costs of
the application and postponement
of the matter as she delayed in
inspecting the documents and in bringing the application. In support
of this Mr Cole relied
on the case of
Webster
v Webster
.
3
Mr De La Harpe contended that the
facts in Webster were distinguishable and that the plaintiff and the
second to eighth defendants
in reconvention should be liable for the
costs.
In my view, it would not be correct
to determine the question of the costs of the application and those
of the postponement of
the matter as separate issues. It is obvious
that if the application succeeds the matter must be postponed to
afford the second
to eighth defendants in reconvention an
opportunity to comply with the order. A specific order postponing
the matter would in
such circumstances be superfluous. The question
is whether there are cogent reasons to deprive the successful party
of an order
for costs. I am of the view there are none. I agree with
Mr De La Harpe that the facts in this matter are distinguishable
from
those in the
Webster
case. Even though there could have
been a greater measure of urgency on the part of the defendant she
took steps to try and resolve
the failure of the other parties to
provide proper and adequate discovery. Any tardiness on the part of
the defendant in launching
this application is outweighed by the
failure of the plaintiff and the second to eighth defendants in
reconvention in properly
complying with the provisions of
Rule 35(3).
It is their conduct that necessitated the defendant
having to bring this application. In the circumstances I consider it
just
that the costs of the application are awarded in favour of the
defendant. Similarly, the wasted costs occasioned by the
postponement
are to be borne by the plaintiff and the second to
eighth defendants. In both instances they are liable for such costs
jointly
and severally.
In the result, there is an order in
the following terms:
The Plaintiff and Second to Eighth
Defendants in Reconvention are directed to comply with the
provisions of
Rule 35(1)
, (2), (4) and (6) in regard to the
Defendant’s Notice in terms of
Rule 35(3)
and
35
(6) dated 14
September 2011 within 20 days of the granting of this order and
specifically in respect of the documents referred
to in items 8 and
10 to 19 and 22 to 23 and 25 to 30 of annexure “A”
thereto.
The Plaintiff and Second to Eighth
Defendants in Reconvention shall jointly and severally, the one
paying the other to be absolved,
pay the costs of the application.
The Plaintiff and Second to Eighth
Defendants in Reconvention shall jointly and severally, the one
paying the other to be absolved,
pay the wasted costs occasioned by
the postponement.
___________________
JUDGE Y EBRAHIM 27 March 2012
Judgment delivered on: 29 March 2012
Counsel for the Defendant/ Plaintiff
in Reconvention: D H De La Harpe
Attorneys for the Defendant/ Plaintiff
in Reconvention: Bax Kaplan
EAST LONDON
Counsel for the Plaintiff and Second
to
Eighth Defendants in Reconvention: S H
Cole
Attorneys for the Plaintiff and Second
to
Eighth Defendants in Reconvention:
Cooper Conroy Bell & Richards
EAST LONDON
Dowling
v Dowling.CVJ
1
Erasmus
Superior Court Practice
at B1-254; (It bears repeating that
the Rules are made for the Courts, not the Courts for the Rules, see
Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers
Publikasies (Edms) Bpk
1972 (1) SA 773
(AD) at 783A)
2
Copalcor
Manufacturing (Pty) Ltd and Another v GDC Hauliers (Pty) Ltd
(formerly GDC Hauliers CC)
2000 (3) SA 181
(W) at paras [27] and
[28]
3
1992
(3) SA 729
(E)