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[2009] ZAGPPHC 117
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De Beer v SA Taxi Securitisation (Pty) Ltd In re: SA Taxi Securitisation (Pty) Ltd v De Beer (31769/2008) [2009] ZAGPPHC 117 (22 September 2009)
IN THE
NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH AFRICA]
In the
matter between:
DE BEER,
HENDRICK JOHANNES
Applicant
and
S A TAXI SECURITISATION
(PTY) LTD Respondent
(Registration Number:
2005/021851/07)
In re:
S A TAXI SECURITISATION
(PTY) LTD Plaintiff
(Registration Number:
2005/021851/07)
and
DE BEER, HENDRICK JOHANNES
Defendant
JUDGMENT
MOTHLE A J
1. This is
an interlocutory application in which the Applicant seeks relief to
have set aside, alternatively uplift the Respondent's
notice of bar,
delivered on 17 September 2008, ordering and directing that the
Respondent comply with the Applicant/Defendant's
notice in terms of
Rule 35(14) delivered on 15 September 2008 within 5 days from date of
service of the order and the cost order.
2. On the
3rd July 2008 the Respondent as Plaintiff issued summons against the
Applicant as Defendant in this Court for alleged
damages in trade
reputation and a loss of profits based on defamation allegedly
committed by the Applicant. The Applicant, in the
main case,
delivered a notice of intention to defend and on the eve of the last
day to file a plea, issued a notice in terms of
Rule 35(14) wherein
he demanded inspection of certain documents in order to plead to the
summons.
3. The
Respondent declined to make available those documents and issued a
notice of bar. The Applicant then brought this application
before
this Court, seeking the relief referred to in paragraph 1 above.
4. The
Applicant, in terms of Rule 35(14), requires the Respondent to make
available for inspection, within 5 days, the following
documents:
"1 All finance
transactions entered into between a customer and either the
Plaintiff or S A Taxi Finance
(Pty) Ltd "S A Taxi
Finance" between 1 June 2006 and 8 June 2008.
2. In respect of each
finance transaction:
2.1 The invoice from the
motor dealer to either the Plaintiff or S A Taxi Finance;
2.2 All invoices from S A
Taxi Finance to the Plaintiff;
2.3 The insurance proposal
form presented to the customer; and
2.4 Any quotation
reflecting the breakdown of the rates applicable to the calculation
of the insurance premium in respect of the
motor vehicle.
3. In respect of each
vehicle repossessed by the Plaintiff between 1 June 2006 and 8 June
2008;
3.1 The credit application
of the customer to the Plaintiff or S A Taxi Finance;
3.2 The documentation
setting forth the personal details of the customer accompanying or
supporting the credit application;
3.3 The relevant Court
order permitting the repossession of the motor vehicle or agreement
by the customer to surrender possession
of the motor vehicle, where
applicable;
3.4 Where applicable, any
valuation given in terms of Section 127 (2)(b) of the National Credit
Act; and
3.5 The invoice or other
documentation reflecting the sale of the motor vehicle in
satisfaction, whether partial or otherwise, of
the customers
liability to the Plaintiff or S A Taxi Finance.
4. For purposes of
this request:
4.1 "Customer"
means any purchaser, lessee or debtor undertaking an obligation to
the Plaintiff or S A Taxi Finance; and
4.2 "Finance
Transaction" means any instalment sale agreement, lease
agreement or rental agreement between a customer
and either the
Plaintiff or S A Taxi Finance for the financing of the acquisition of
a motor vehicle"
5. The
reasons advanced by the Applicant in requesting these documents is
that:
"7.7 The Plaintiff
has made allegations relevant as to the manner in which it conducts
business and alleged defamatory allegations
in connection therewith;
7.2 The documents requested
have a direct bearing on these issues and are relevant to any debate
and defence that could be pleaded
in relation thereto - by way of
example, if I were to plead truth and public benefit in relation to
the National Credit Act, ("the
Act") as raised in paragraph
10.1 of the particular of claim, particulars would be required to be
given with reference to
the Plaintiff's agreements and whether or not
same comply with the Act and if not. in what respects: and
7.3 Without inspection of
these documents, I will not be able to properly plead to the
particulars."
6. On the
other hand the Respondent contends that the statements complained of,
which are attributed to the Applicant, relate to
the Respondent's
conduct subsequent to it repossessing a leased vehicle from one of
its customers and the Applicant's allegation
that the Respondent had
breached the provisions of the National Credit Act by not having
these vehicles "parked at a secure
place for 30 days before it
is auctioned".
7.
Therefore, in light of that which is alleged of and concerning the
Applicant in the Respondent's particulars of claim, none of
the
documents reflected in the Applicant's notice in terms of Rule 35(14)
are necessary for the purpose of the Applicant pleading.
8. The
Respondent further contends that the documents required are not
relevant to the issues raised in the particulars of claim
and none of
them relate to the allegations made of and concerning the Applicant
therein. It is further contended, that the said
documents have no
bearing upon the Respondent's conduct after dispossession by it of
any vehicle and its alleged breaches of the
provisions of the
National Credit Act. Further, if one of the defences to be raised by
the Applicant is truth and public interest,
the Applicant must have
had a belief in that truth and public interest at the time that the
statements as recorded in the Respondent's
particulars of claim, were
made by him. The documents sought would therefore in any event
constitute evidence in support of what
the Applicant might plead. The
Applicant is not required to plead evidence.
9. Rule
35(14) of the Rules of Court states thus:
"(14) After appearance
to defend has been entered, any party to any action may, for purposes
of pleading, require any other
party to make available for inspection
within 5 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."
10. The
Applicant advances as his reasons for requesting the documents, that
it does so in order to plead to the particulars of
claim of the
Respondent. In response thereof, as pointed out above, the Respondent
claims that the allegation of defamation purportedly
made by the
Applicant refers to repossessed vehicles. In this regard, the
Respondent quotes the article containing the allegations
by the
Applicant as published in the City Press of 7 June 2008 and 8 June
2008, under paragraph 8 of the particulars of claim.
Due to their
importance in determining the dispute between the Applicant the
Respondent, I take liberty to quote the words as they
stand in
paragraph 8 of the particulars of claim and they read thus:
"Hennie De Beer
general manager for taxi financing at ABSA said that according to the
Act a repossessed vehicle should be parked
at a secure place for 30
days before it is auctioned, giving the customer time to settle their
debt. De Beer said "This is
how the law works, every commercial
bank does this. But SATF has found a loop-hole in the system and are
cheating these taxi operators."
"What they are doing
may not be illegal, as they put it, but its criminal".
11. The
Respondent goes on to state in paragraph 10 of the particulars of
claim, the following:
"11. The
information conveyed by the defendant to Mapiloko as reflected in the
aforementioned passages is wrongful and defamatory
of the plaintiff
in that these statements were intended by the defendant and
understood by readers of the City Press Newspaper
to mean that the
plaintiff conducted and conducts its business referred to in
paragraph 3.2 above in a manner which is:
11.1 In conflict with
the provisions and requirements of the
National Credit Act, No. 34 of
2005
, and/or
11.2 Illegal and/or
11.3 Unscrupulous and/or
11.4 Criminal and/or
11.5 Misleading to
purchasers and lessees of taxis, and/or
11.6 Unfair and which
deliberately and unlawfully has caused and causes hardship to
receivers; and
that taxi operators
intending to purchase or lease taxis ought to avoid, or be
circumspect about, concluding transactions with the
plaintiff."
12.
Paragraph 3.2 referred to in the above quote describes the plaintiff
as "at all material times, and to the knowledge of
the
defendant, conducted and continues to conduct the business of
providing financial assistance to purchasers and lessees of taxis,
in
the form of credit agreements concluded with regard to such taxis
between the plaintiff and licensed taxi operators in accordance
with
the provisions of the NCA".
13. It
seems to me that by comparing what the Respondent alleges were words
attributed to the Applicant in the article published
in the City
Press to paragraph 10 read with paragraph 3.2 of the particulars of
claim by the Respondent, there is an apparent difference.
While it
can be said as the Respondent submits that the Applicant was
referring to conduct of the Respondent in regard to repossessed
vehicles, the Respondent in paragraph 10 read with paragraph 3.2 of
the particulars of claim, it seems, in interpreting the ipssissima
verba, took a wide or expansive interpretation and included an
allegation covering the conduct of his whole business and not only
the part on repossession.
14. The
party delivering a notice in terms of
Rule 35(14)
must discharge the
onus of proving that the required documents are necessary for the
purposes of pleading. In this regard I refer
to Cullinan Holdings Ltd
v Mamelodi Stadsraad
1992 (1) SA 645
(T).
15. The
Cape High Court expanded on the principle established in the Cullinan
Holdings Ltd v Mamelodi Stadsraad supra, by stating
in Queyside Fish
Suppliers CC v Irvin and Johnson Ltd
2000 (2) SA 529
(C) that in
seeking an order from Court authorising a party to invoke the
provisions of
Rule 35(14)
, the onus lies on that party to prove the
following:
15.1 The documents are
required for the purposes of pleading;
15.2 The documents are
clearly defined; and
15.3 The documents are
relevant to a reasonably anticipated issue in the action.
16. The
Respondent couched its cause of action in wider terms to create an
impression that the words attributed to the Respondent,
which
appeared in the article quoted in the City Press, are an attack on
the business of the Respondent as a whole and not on that
part which
has to do with dispossessed cars. Clause 10 of the particulars of
claim define the attack as being on the business of
the Respondent,
while in his answering affidavit in this application, it is contended
for the Respondent that the request for documents
by the Applicant in
terms of
Rule 35(14)
, went beyond the issue of dispossessed vehicles.
It appears that in formulating its cause of action, the Respondent
expanded from
the narrow ambit of the words used, namely in regard to
dispossessed vehicles, to interpret the words as referring to the
whole
business. It seems to me that the Respondent must make a
choice. If it wants to limit the extent of the documents as requested
by the Applicant, it would be advisable to amend clause 10 of the
particulars of claim to be consistent with the contentions now
raised
in the answering affidavit. In this event, the Applicant will
likewise have to review the scope and extent of the documents
required for purposes of pleading. This brings me to the next
question, which is whether the documents sought by the Applicants
are
necessary for the purposes of pleading.
17. The
Respondent contends, on the basis of the decision in Quayside Fish
Suppliers CC v Irvin and Johnson supra that what the
Applicant is
requesting the Court to do, is to permit it to search amongst the
documents of the Respondent to find out whether,
through that
inspection, is able to locate documents or information which justify
the statements made by him in the City Press
article and which
provides him with the defence to the action. I agree with the
Respondent that as at the time the Applicant published
the article,
if ever he did, there must have been a basis of information from
which he formulated that view. Anything beyond that,
is requesting
evidence to back-up those views which, in my opinion, falls outside
the purview of
Rule 35(14).
3>
18. The
Applicant on the other hand contends that he is constrained by the
provisions of
Rule 18(4)
,
Rule 18(5)
and Rule 22(2), all of which
require a Defendant in an action to state its plea with sufficient
peculiarity so as to have its defence
clear and ambiguous. To simply
deny the allegations on the one hand would be to come up with a bare
denial as a defence, on the
other hand in elaborating in its defence,
the Defendant will have to state this with sufficient particularity
so as to convey a
clear and unambiguous defence. The details required
in
Rule 18
for the purposes of particulars of claim and plea, is in
my view, to obviate the need for the other party to request for
further
particulars as this rule has since been abolished.
19. The
question however remains, does the Applicant need to have access to
the documents in order to formulate such a defence?
In this instance,
I am of the view that the request for access to documents is relevant
and necessary. The documents requested
however should be relevant and
necessary to formulate a response to the cause of action as outlined
in the particulars of claim.
20. The
documents requested may be voluminous, but if clearly specified, and
relevant to formulating a defence, the request thereof
would fall
within the ambit of the rule. The rule does not put a limit on the
documents which may be requested. However, the voluminous
documents
requested by the Applicant, are clearly triggered by the expansive
interpretation of the words uttered by the applicant,
in the course
of the Respondent formulating a cause of action. The Applicant, in my
view had every right to request such documents,
in response to the
allegations as they appear in paragraph 10 of the particulars of
claim.
21. I am
of the view that the application should succeed. However, I am also
of the opinion that the Respondent be given an opportunity
to amend
its particulars of claim if it so wishes.
22. Should
the Respondent not amend its particulars of claim, in particular
paragraph 10 and confine it to dispossess vehicles,
it will have to
make available for inspection, the documents required by the
Applicant. However, should Respondent choose to amend
the paragraph
10 of the particulars of claim, the Applicant will only be entitled
to the documents sought in terms of paragraph
3 of its notice in
terms of
Rule 35(14).
In the premises I make the
following order:
(i) The notice of bar
issued by the Respondent is set aside;
(ii) The Respondent is
granted 10 days within which to file a notice of intention to amend,
and amend its particulars of claim,
failing which, it is ordered
grant within 7 days thereafter, access to inspection of documents as
requested by the Applicant in
the notice in terms of
Rule 35
(14);
(iii) Respondent is ordered
to pay the costs of this application.
MOTHLE A J
8 September 2009