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[2011] ZAFSHC 120
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Bruwer v Stols (5571/2010) [2011] ZAFSHC 120 (4 August 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 5571/2010
In
the matter between:-
ALETTA
JOHANNA BRUWER
….............................................
Applicant
and
LODEWYK
STEPHANUS JACOBUS STOLS
…..................
Respondent
_____________________________________________________
HEARD ON:
23 JUNE 2011
_____________________________________________________
DELIVERED ON:
4 AUGUST 2011
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M. MUSI, JP
[1]
The application herein was argued on 23 June 2011 and I granted an
order in terms of prayers 1, 2 and 3 of the Notice of Motion,
as well
as awarding the costs of the previous appearance on 9 June 2011 to
the applicant. I indicated that reasons for the order
would be
provided upon request in terms of the Rules. The respondent has now
requested such reasons in terms of Rule 49(1)(c).
This judgment is in
response to such request.
[2]
At the outset I wish to correct an error in paragraph 1 of the order
which reads as follows:
“
Respondent
antwoord op Applikant se Kennisgewing in terme van Reël 35(14)
en wel binne vyf dae vanaf datum van verlening van
hierdie bevel,
alternatiewelik binne die tydperk bepaal deur die Agbare Hof.”
[3]
The phrase starting with “alternatiewelik” should be
deleted from the order and the registrar will be directed to
issue an
amended order to reflect this.
[4]
Rule 35(14) stipulates that after a notice of intention to defend has
been filed, any party to an action may, for purposes of
pleading,
require the other party to the action
“
to
make available for inspection within five days a clearly specified
document or tape-recording in his possession which is relevant
to a
reasonably anticipated issue in the action and to allow a copy or
transcription to be made thereof”.
[5]
Commenting on this Rule, Erasmus in
Superior Court Practice
says at B1-262A:
“
The
sub-rule was designed for the situation where a party to an action
requires, for purposes of pleading, the production of a specific
document of which he has knowledge and which he or she can describe
precisely. The sub-rule does not provide a mechanism whereby
a party,
by making use of generic terms, can cast a net with which to fish for
vaguely known documents.”
[6]
In my view, it cannot be said in this case that the applicant has
cast a wide net with which to fish for vaguely known documents.
The
documents that the applicant requires to inspect are alluded to in
the respondent’s counterclaim and the applicant wishes
to
inspect them for purposes of pleading to the counterclaim. The
respondent does not dispute the existence of the requested documents
nor does it say that it does not know which documents are requested.
There is simply no dispute about which documents are requested.
[7]
The respondent’s objection to the Rule 35(14) notice is
contained in the letter annexed to its opposing affidavit and
marked
“LS”. The letter states
inter alia
that the
documents are in the possession of the respondent’s auditors
and that the auditors say it will take about three
months to sort
them and that this would cost between R30 000,00 and R40 000,00 and
that the applicant must carry such costs. Paragraph
3 thereof reads:
“
U
moet onthou dat die dokumente en kwitansies ensovoorts sedert 2007
bestaan, so die sistematisering daarvan gaan ‘n tydjie
neem.”
[8]
In my view, the objections raised by the respondent are not valid.
The applicant does not require to be furnished with copies
of the
documents. Its request is that the documents be made available to it
to inspect and for it to be allowed to make copies
thereof. It stands
to reason that the applicant will make copies at its own expense.
[9]
In my view, the applicant needs to have sight of these documents if
it is to file a plea that complies with the requirements
of Rule 22.
The counterclaim is for a substantial amount of money which far
exceeds the claim in convention and massive expenditure
is detailed
in the counterclaim which can only be based on documents. The
respondent’s argument that the applicant does not
require the
documents for purposes of pleading is tantamount to saying that the
applicant must file a plea amounting to a bare
denial, which is
untenable.
[10]
For those reasons I gave the order compelling the respondent to
comply with the request in terms of Rule 35(14) and it speaks
for
itself that the costs should follow the cause.
____________
H.M. MUSI, JP
On
behalf of applicant: Adv. G.F. Ackermann
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv. J. Blignaut
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
/sp