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[2012] ZAECELLC 15
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Biermann v Eastern Cape Development Corporation (EL 1051/10, ECD 2151/10) [2012] ZAECELLC 15 (4 September 2012)
9
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE
DIVISION – EAST LONDON
EL Case No: 1051/10
ECD Case no: 2151/10
Date Heard: 21/08/12
Date Delivered:
04/09/12
In the matter between:
PETRUS CHRISTIAN
BIERMANN
......................................
APPLICANT
And
EASTERN CAPE
DEVELOPMENT CORPORATION
.............
RESPONDENT
JUDGMENT
SMITH J
[1] On 15 May 2012 I
granted an order compelling the Respondent to reply to the
Applicant’s notice in terms of Rule 35(3),
and allowing the
Applicant, in the event of the Respondent failing to comply, to
approach court on the same papers (suitably amplified)
for an order
dismissing the Respondent’s defence, and for judgment against
it.
[2] The Applicant
contends that the Respondent’s purported reply to the notice,
filed on 21 May 2012, is inadequate, and in
“token compliance”
with the court order. He has now applied for the Respondent’s
defence to be struck out, and
for default judgment to be granted in
terms of his summons.
[3] The Applicant has
instituted action proceedings against the Respondent for various
amounts allegedly due to him, and arising
out the terms and
conditions of his employment contract with the Respondent. These
claims relate,
inter alia
, to: outstanding settling
allowances; costs relating to the purchase of immovable property; and
performance bonuses.
[4] Applicant’s
notice in terms of Rule 35(3) required the Respondent to discover,
inter alia:
all documents submitted by it to its external
auditors, and relating to the calculation of Applicant’s
performance bonuses;
all documents relating to, and utilised by the
Respondent’s Remuneration Committee in the calculation, or
assessment of Applicant’s
bonuses; and Applicant’s
performance assessments for various periods stated in the notice.
[5] In its reply the
Respondent has in essence contended that: first, the Applicant’s
notice did not specify precisely what
documents were required, and it
was therefore not possible to comply with it; and second, the
Respondent had in any event discovered
all documents relevant to the
calculation of the Applicant’s bonuses. The Respondent had at
the same time also filed a further
discovery affidavit in terms of
which it had discovered 21 other documents.
[6] Mr
Benningfield,
who appeared for the Respondent, argued that the Applicant’s
notice was couched in unacceptably wide terms, did not adequately
specify the documents which the Respondent was required to discover,
and it was therefore not possible for the Respondent to reply
thereto
in any greater detail than it did. He submitted that in the event,
the Respondent had filed a further discovery affidavit
in terms of
which it discovered further documents, and had stated in its reply
that it was not in possession of any documents other
than those that
had already been discovered in terms of the original and further
discovery affidavits.
[7] I however agree
with Mr
Brooks
, who appeared for the Applicant, that the
Respondent should have argued the lack of specificity at the hearing
on 15 May 2012.
When the matter was argued on that occasion, Mr
Benningfield
, who also on that occasion appeared for the
Respondent, did not challenge the substance of the notice, but merely
argued the question
of costs. In the event I am satisfied that the
notice had been couched in sufficiently clear terms to enable the
Respondent to
know exactly what documents it was required to
discover. Apart from generally stating the
genus
of the
documents required, the Applicant was also at pains to describe
particular categories of documents, both in terms of their
nature and
time periods when they would have been submitted to the auditors or
Remuneration Committee. The Respondent was therefore
compelled to
comprehensively reply to the notice, point by point and under oath,
and stating in detail which of the requested documents
it had in its
possession, or their whereabouts, if known.
[8] It does appear that
at some stage after this application was brought, the Respondents’
attorneys had realised that the
reply was inadequate. They wrote to
the Applicants’ attorneys on the 10
th
August 2012
and, while feebly asserting its stance that the notice did not
adequately specify the documents which the Respondent
was required to
produce, they did offer to file an amended notice before 17 August
2012, in order to avoid the “
time, expense and inconvenience
of arguing an opposed interlocutory application.”
[9] I agree with Mr
Brooks
that the Respondent’s reply is wholly inadequate
and amounted to token compliance with the court order. Instead of
replying
to each and every paragraph, and stating under oath which of
these documents it had in its possession (and in the event that it
did not, state their whereabouts, if known), the Respondent has
chosen instead to provide, in a rather lackadaisical manner, general
and broad-sweeping replies.
[10] The purpose of
discovery is to ensure that parties are made aware of documentary
evidence before the trial commences. It also
ensures that issues are
narrowed, and debates on incontrovertible issues are eliminated.
(
Durbach v Fairway
Hotel Ltd
1949 (3) SA 1081
(SR)
at 1083)
[11] Parties are
therefore under a duty to discover all documents which may “
either
directly or indirectly enable the party requiring the affidavit
either to advance his own case or to damage the case of his
adversary
.”
(
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and others
1999 (2) SA 279
(T)
at 316-317)
.
[12] Mr
Benningfield
has submitted that the Respondent’s further discovery affidavit
is conclusive, both as to the possession of documents mentioned
therein, and the relevance of its contents. He argued that the onus
was therefore on the Applicant to establish facts which raise
the
possibility that there are other relevant documents which the
Respondent has not discovered. He submitted that it has failed
to do
so, and the application must therefore fail for this reason alone.
[13] It is so that our
courts will usually regard discovery affidavits as conclusive, unless
there are reasons to suspect that a
party has not made full and
proper discovery. In
Federal Wine & Brandy Co Ltd v Kantor
1958 (4) SA 735
(E) at 749G,
the court held that:
“
An
affidavit of discovery is conclusive, save where it can be shown
either (i) from the discovery affidavit itself or (ii) from
the
documents referred to in the discovery affidavit or (iii) from the
pleadings in the action or (iv) from any admissions made
by the party
making the discovery affidavit, that there are reasonable grounds
for supposing that the party has or has had
other relevant documents
in his possession or power, or has misconceived the principles upon
which the affidavit should be made.”
The facts of this case
are however distinguishable. Here the Respondent was required to
discover specified categories of documents
which had been described
in detail in the Applicant’s Rule 35(3) notice. The order of 15
May 2012 has compelled the Respondent
to reply to that notice. In
terms of Rule 35(3) the Respondent was therefore required to file a
comprehensive reply to the notice,
and either discover the documents,
or state under oath that they are not in its possession and disclose
therein their whereabouts,
if known. The Respondent was therefore not
entitled to simply file a discovery affidavit in general terms
without any reference
to the contents of the Applicants’ Rule
35(3) notice.
[14] The relief which
the Applicant seeks is however drastic in its nature. If granted, it
means that the matter will be undefended
and the Applicant will be
entitled to default judgment. In terms of Rule 35(7) the court is
empowered to dismiss a claim, or strike
out a defence, if a party
fails to give discovery in compliance with the Rules. This however
remains a drastic remedy, and the
court has a discretion which should
be exercised judicially.
[15] While contumacy -
that is wilful refusal to comply - is a good reason for ordering the
striking out of a defence, it is not
the only reason. In
The
Wanson Company of South Africa (Pty) Ltd v Establisssements Wanson
Construction De Material Thermieque Societe Anonyme
1976 (1) SA 275
(T)
) Cillie J.P. held that there may be other considerations
short of contumacy “
which may weigh so heavily as to
persuade the court to resort to such a drastic remedy”
(at
p. 280B-C). (Cf
Wilson v Die
Afrikaanse Pers Publikasies
(EDMS) BPK
1971 (3) SA 455
(T)
)
[16] The circumstances
which confronted Plasket J in
Tertuis Leask v East Cape
Forest(Pty) Ltd
(unreported case no: 1285/2007 ECD, Grahamstown;
delivered on 20 August 2008) justified such drastic relief. In that
matter the
learned judge granted an order striking out the
defendant’s defence in consequence of its failure to reply to
the plaintiff’s
request for particulars for trial.
[17] Plasket J was
justifiably scathing regarding the conduct of the defendant’s
legal representative, and described it variously
as; without
contrition; arrogantly disdainful of the plaintiff, and concluded
that the defendant was prepared “
to do anything to delay the
trial”
. He found that contumacy existed, and that, in the
event, “
the conduct of the defendant was of such an
egregious nature that the striking out of the defendant’s
defence is warranted.”
[18] In this case
however the conduct of the Respondent and its legal representatives,
in my view, do not justify such a drastic
measure. Though ill-advised
the Respondent’s reply may have been, it has at least made some
attempt to reply to the Applicant’s
Rule 35(3) notice. While
the reply was totally inadequate, and at worst evasive, the
Respondent did also file a further discovery
affidavit in terms
whereof further documents were discovered, ostensibly in compliance
with the notice. Moreover, it seems that
the Respondent’s
attorneys appeared to have realised their mistake, and had made a
half-hearted attempt to request an opportunity
to file a proper
reply. Under these circumstances I am not persuaded that there was
any contumacy on the part of the Respondent
or its attorneys, or that
there are other circumstances which could justify the striking out of
the defence. While the prejudice
to the Respondent will be huge if
its defence is struck out, I am of the view that any potential
prejudice to the Applicant can
be satisfactorily assuaged by an
appropriate costs order. Counsel have informed me that the civil
action has not yet been set down
for trial. There is therefore still
sufficient opportunity to ensure proper compliance with the court
order, and failing that,
for the Applicant to apply for the
Respondent’s defence to be struck out.
[19] In the result the
following order shall issue:
The Respondent is
hereby directed to file a further and comprehensive reply to the
Applicant’s notice in terms of Rule 35(3),
served on 24 April
2012, within a period of 10 days from the date of the granting of
this order.
That in the event of
the Respondent failing to comply with the provisions of paragraph
(a), the Applicant shall be entitled to
approach court on the same
application papers, suitable amplified where necessary, for an order
dismissing the Respondent’s’
defence to the Applicant’s
claim, and for judgment to be granted against the Respondent as
claimed in the summons and particulars
of claim.
The Respondent is
ordered to pay the costs of this application on the party and party
scale.
_______________________
J.E SMITH
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the Applicant : Advocate
Brooks
Attorneys for the Applicant : Wylde
& Runchman Inc.
Motorland Building
Cnr Oxford & Fleet Street
EAST LONDON Ref: Mr
Runchman/roenel/G11129
Counsel for the Respondent :
Advocate Benningfield
Attorneys for the Respondent :
Wesley Pretorius & Attorneys
Ground Floor, Pilot Mill House
The Quarry, Selborne
EAST LONDON
Ref: Mr W Pretorius/fc/E128
Date Heard : 21 August 2012
Date Delivered : 4 September 2012