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[2009] ZAGPJHC 38
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Inviticus Holdings (Pty) Ltd (formerly Meridian Investment Holdings (Pty) Ltd) and Others v Advtech Limited and Others (Application for Leave to Appeal) (03/21585) [2009] ZAGPJHC 38 (21 August 2009)
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IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO 03/21585
In
the matter between
INVICTUS
HOLDINGS (PTY) LTD (formerly
MERIDIAN
INVESTMENT HOLDINGS (PTY)
LTD)
FIRST APPLICANT
MARINA
WELIHOCKYJ
SECOND APPLICANT
ANDRY
WELIHOCKYJ
THIRD APPLICANT
and
ADvTECH LIMITED FIRST
RESPONDENT
ADvTECH RESOURCE HOLDINGS (PTY)
LTD
SECOND RESPONDENT
ADvTECH RESOURCING THIRD
RESPONDENT
J U D G M E N T
(APPLICATION FOR LEAVE TO
APPEAL)
VAN OOSTEN J
:
[1]
This
is an application for leave to appeal against the whole of the
judgment and the orders made by Snyders J (as she then was)
who,
having since been elevated to the Supreme Court of Appeal Bench, is
no longer available to hear this application. For the
sake of
convenience and consistence I will refer to the parties by the
designations used in the judgment of Snyders J,
viz
to the applicants as ‘the Welihockyjs’ and the
respondents as ‘AdvTech’.
[2] Two
interlocutory applications in a pending action
1
between the parties were heard by Snyders J, firstly, an application
by AdvTech in terms of Rule 35(7) to compel compliance with
a Rule
35(3) and 36(6) notice, where only the costs of the application
remained in dispute, and secondly, a counter application
by the
Welihockyjs to compel ‘further and better’ discovery in
terms of Rule 35(7). The learned Judge on the first
application
ordered the Welihockyjs to pay the costs thereof and further
dismissed the counter application with costs.
[3] It is firstly
necessary to consider the appealability of the orders made by Snyders
J which was challenged by counsel for AdvTech.
In support of the
contention that the orders are not appealable counsel for Advtech
relied on the recent judgment of the Supreme
Court of Appeal in
Van
Niekerk and Another v Van Niekerk and Another
2008
(1) SA 76
(SCA) which he submitted on a parity of reasoning applies
with equal force to the present matter. In
Van
Niekerk
the
order refusing to set aside an
Anton
Piller
order was held not appealable on the basis that the granting of an
Anton
Piller
order was akin to the grant of an interim interdict
2
and moreover “largely procedural aimed at the preservation of
evidence so as to ensure the greater effectiveness of other
proceedings in which substantive relief is or will be claimed, and
for the substantiation of which such evidence will be vital”.
3
More directly in point in my view, is an earlier judgment of the
Supreme Court of Appeal in
Hassim
v Commissioner, South African Revenue Service
2003
(2) SA 246
(SCA)
[2003] All SA 10
(SCA) in which it was held that the
decision by the court
a
quo
(the Income Tax Special Court) to dismiss the respondent’s
application to compel discovery was not appealable. Concerning
the
appealability of the decision Streicher JA held as follows:
[15]
The main dispute between the parties concerns the validity of the
assessments made by the respondent. The decision by the court
a
quo
regarding
discovery is incidental to the main dispute between the parties. It
regulates the procedure to be followed in order to
determine that
dispute. It is not a decision that disposes of any issue or any
portion of the issue in the main proceedings between
the parties or,
put differently, it does not preclude any of the relief, which may be
given at the hearing of the main dispute.
It is, therefore, a purely
interlocutory decision which may be corrected, altered or set aside
by the court
a
quo
at
any time before final judgment (see
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977
(3) SA 534
(A) at 549F – 551A;
Globe
and Phoenix Gold Mining Co Ltd v Rhodesian Corporation Ltd
1932
AD 146
at 163). It follows that the decision by the court
a
quo
in
regard to discovery is not appealable.
Counsel for AdvTech
further submitted that the relief granted in the present matter was
neither definitive of the rights of the
parties nor did it have the
effect of disposing of
at least a substantial portion of the relief claimed in the main
proceedings, and therefore f
alls
short of the second and third “attributes” for
appealability set out in the leading case of
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A) 531I.
4
LTC Harms in
Civil
Procedure in the Supreme Court
having discussed the jurisdictional requirement for appealability
under s 20 of the Supreme Court Act 59 of 1959 (that the decision
appealed against must be a ‘judgment or order’ as opposed
to a ‘ruling’), lists as one of the examples
of
‘rulings’, ‘A discovery order and one refusing
discovery’. In support hereof the learned author cites
Zweni,
and
Hassim
which
I have already referred to. As will become apparent later in this
judgment the conclusion I have come to underscores the correctness
of
the listing.
[4]
In
deciding the appealability of the order all the factors impacting on
the issue must be considered.
5
The disputes between the parties in the action in essence concern a
business relationship where financial documents
6
,
as the history of the matter
7
has shown, will play a pivotal role. The objective, importance and
necessity of discovery and production of documents in preparation
for
trial are well-known. It has
inter
alia
been described as “one of the mightiest tools for the exposure
of the truth”.
8
By means of proper discovery
9
the issues between the parties become properly circumscribed and are
narrowed, if not totally eliminated with the resultant advantage
of a
more expeditious and cost effective final determination at the trial
of the main dispute between the parties.
10
In their counter application the Welihockyjs sought the following
relief:
Directing
the applicants to make discovery on oath within five days from date
of this order of all documents and tape recordings
relating to any
matter in question in the action between the parties under the above
case number.
Directing
the applicants to comply with the requirements of rule 35 in making
discovery, inter alia by properly specifying the
documents referred
to in the schedules attached to their discovery affidavit in such a
manner that the documents can be identified
by the plaintiffs.
Directing
that applicants to rectify their discovery affidavit dated 27 July
2007 to the extent that the requirements in paragraph
2 above have
not been complied with, within 10 days from the date hereof.
Directing
the applicants to pay the costs of this counter-application jointly
and severally, the one paying the other to be absolved.
It must be
remembered that discovery by AdvTech had already been made when the
counter application was launched.
The
counter application therefore was a further step incidental to
discovery already having been made, which was aimed merely at
obtaining further and better discovery. It was therefore a
preparatory step
11
in preparation of trial. The order granted by Snyders J does not have
the effect of disposing of any portion of the relief sought
in the
action. Nor does the order in any way “anticipate or preclude
or prejudice, in whole or in part”, the relief
claimed in the
action.
12
It accordingly was a pure and simple interlocutory order largely
procedural in nature concerning discovery of documents.
[5] Lastly, the
order dismissing the counter application cannot be regarded as
definitive of the rights of the parties. The main
objection raised in
the counter application was directed at an alleged inadequate
description and identification of documents numbered
450 to 12102,
listed in Schedule “A” to the AdvTech’s discovery
affidavit. It hardly demands any form of computer
literacy to
recognise that those documents are computer-generated and therefore
electronic data stored on a computer. Counsel for
AdvTech submitted
(correctly in my view) that the computer hard drive or other storage
device on which these documents are stored,
remains available and
that the Welihockyjs can still avail themselves of the further
remedies available under Rule 35 to obtain
production thereof.
13
Further militating against finality are the provisions in Rule 35
providing a number of remedies to obtain discovery to which should
be
added Rule 37(6) which specifically directs the parties at the
pre-trial conference, to deal with and reach agreement concerning
copying, preparation, and proof of documents to be used at the trial.
Finally, Rule 35(4) provides this safeguard in respect of
documents
not discovered: they may not, save with the leave of the court, be
used for any purpose at the trial by the party who
was obliged but
failed to disclose them.
[6] For these
reasons I conclude that the order of Snyders J is not a judgment or
order as contemplated in s 20 of the Supreme Court
Act and that it
accordingly is not appealable.
[7] It remains to
deal with the two costs orders made by Snyders J. It is well
established that leave to appeal in respect of an
order for costs
only is not lightly granted unless a matter of principle is involved
and the amount of costs is not insubstantial.
14
The costs thus far incurred are substantial: the claims in convention
in the action range between R6,5million and R20,3million,
while those
in reconvention amount to R138million. The papers in the applications
extend into more than 900 pages. Senior counsel
appeared on behalf of
the parties. On the other hand I have held that the order dismissing
the counter application is not appealable.
The issues between the
parties concerning discovery are therefore moot and should not be
allowed to re-enter through the back door.
Any order that may be made
on appeal will have no practical effect on either the parties or on
others.
15
Snyders J in making the costs orders exercised her discretion against
the Welihockyjs. I am not satisfied that either special circumstances
or any valid ground exists for another court to interfere with the
discretion so exercised.
[8] In the result
the application for leave to appeal is dismissed with costs.
_
________________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL FOR
THE APPLICANTS ADV
LJ
VAN DER MERWE SC
APPLICANT
S
ATTORNEYS DINO RAKITZIS ATTORNEYS
COUNSEL FOR
THE RESPONDENTS ADV CE WATT-PRINGLE SC
RESPONDENT
S
ATTORNEYS BOWMAN GILFILLAN INC
DATE OF
HEARING 12 AUGUST 2009
DATE OF
JUDGMENT 21 AUGUST 2009
1
The claims and counter claims in the action arise from an agreement
between the parties for the sale of a business.
2
See
Cronshaw and Another v
Fidelity Guards Holdings (Pty) Ltd
[1996] ZASCA 38
;
1996
(3) SA 686
(A).
3
See para
[15] of the judgment.
4
The three ‘attributes’ for a decision to qualify as a
‘judgment or order’, mentioned by Harms AJA (as
he then
was) are: “…first, the decision must be final in effect
and not susceptible of alteration by the Court of
first instance;
second, it must be definitive of the rights of the parties; and,
third, it must have the effect of disposing
of at least a
substantial portion of the relief claimed in the main
proceedings...”.
5
Beinach v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) 730D.
6
The bulk of the documents thus far discovered by both sides are
financial documents.
7
The litigation between the parties commenced when AdvTech obtained
an
Anton Piller
order against
inter alia
the
Welihockyjs,
which was subsequently set aside and substituted with an order aimed
at preserving documents attached during the
execution of the
Anton
Piller
order.
8
Per
Thring J in
The MV URGUP
Owners of the MV URGUP v Western Bulk Carriers (Australia) (Pty) Ltd
and Others
1999 (3) SA 500
(C) 513G.
9
See for example
Copalcor
Manufacturing (Pty) Ltd and Another v GDC Hauliers (Pty) Ltd
(formerly GDC Hauliers CC)
2000
(3) SA 181
(W).
10
Per
Harms AJA in
Zweni
supra
at 531J-532A.
11
See
Pretoria
Garrison Institutes v Danish Variety Products
1948 (1) SA 839
(A) 870; and
South
Cape Corporation
(cited by
Streicher JA in the passage quoted in para [3] above), at p 549 G.
12
Per
Curlewis JA
in
Globe
and Phoenix Gold Mining Co Ltd
(cited
by Streicher JA in the passage quoted in para [3] above), at p163.
13
Which immediately distinguishes this case from those cases where the
discovering party referred to a large volume of documents
without
providing sufficient identificatory details of each document forming
part thereof (see
Copalcor
supra, para [27]).
14
Harms
op cit C1.33 and s 21A of the Supreme Court Act.
15
Erasmus
Superior Court
Practice
A1-50.