Bosman and Others Van Wyk and Others (1124/06) [2007] ZANCHC 17 (2 March 2007)

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[2007] ZANCHC 17
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Bosman and Others Van Wyk and Others (1124/06) [2007] ZANCHC 17 (2 March 2007)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case
No: 1124/06
Delivered:
02/03/2007
GERALD
LESLIE PATRICK BOSMAN FIRST APPLICANT
VERNON DIAMONDS (PTY)
LTD SECOND APPLICANT
TRIFECT DIAMONDS (PTY)
LTD THIRD APPLICANT
versus
MELLVILLE
MITCHELL VAN WYK FIRST RESPONDENT
MICHAEL VICTOR
DAVIS SECOND RESPONDENT
VAUGH-LEIGH
KEVIN JACOBS THIRD RESPONDENT
MINISTER
OF MINERALS &
ENERGY FOURTH
RESPONDENT
REGIONAL
MANAGER,
NORTHERN
CAPE REGION,
DEPARTMENT
OF MINERALS &
ENERGY FIFTH
RESPONDENT
JUDGMENT
MOKGOHLOA AJ
The
first applicant Gerald Leslie Patrick Bosman, is a businessman in
Warrenton and the only shareholder and director of Vernon
Diamonds
(Pty) Ltd (Second Applicant). Trifect Diamonds (Pty) Ltd (Third
Applicant) is a company with its principal place of business
at
Brooklyn Gauteng, which is in the process of acquiring shares in the
second applicant.
The first, second
and third respondents are businessmen who entered into a
shareholders agreement with the first applicant to purchase
certain
shares in the second applicant on condition that the second
applicant obtain a mining right from the Minister of Minerals
and
Energy (Fourth Respondent) on the recommendation of the Regional
Manager of the Department of Minerals and Energy, Northern
Cape
Region (Fifth Respondent). This agreement was, according to the
first applicant, subsequently cancelled by the first, second
and
third respondents.
The first, second
and third respondents brought an application on 26 January 2007 for
an order to compel the applicants and the
fourth and fifth
respondents to make certain documents available in terms of Rule 35
of the Uniform Rules of Court. On 9 February
2007 I granted the
application and ordered that the costs be reserved for determination
by the Court hearing the main application.
I reserved the reasons
for my decision. This judgment serves to convey to the parties such
reasons.
On
14 September 2006 the applicants instituted proceedings by way of
motion (main application) wherein they asked the Court to grant
an
order
inter
alia
declaring:
“
1.3
that the second applicant has duly complied with the conditions under
which the mining rights in terms of section 23 of Act 28
of 2002 was
granted to it and that the second applicant is entitled to execution
of the mining right,
alternatively
that the second applicant shall be so entitled upon the submission of
the shareholders’ agreement between the first and the third
applicant, as well as submission of the CV’s of the second
applicant’s management team
.
”
On
16 October 2006 the first, second and third respondents delivered a
notice of intention to oppose the application. On 27 October
2006
the three respondents delivered a notice in terms of Rule 35(14)
requesting the applicants as well as the fourth and fifth
respondents to make the following documents available: the entire
application by second applicant for a mining right lodged with
the
fifth respondent; the recommendations and submissions by the fifth
respondent to the fourth respondent; the power of attorney
by the
fourth respondent to execute the mining right; and the commentary by
the employees of the fifth respondent in the process
of considering
and recommending the application.
The
fourth and fifth respondents did not respond to this notice. The
applicants responded and refused to make available the requested
documents. The first, second and third respondents then brought
this interlocutory application before me seeking an order directing
the applicants as well as the fourth and fifth respondents to make
those documents available for inspection.
Counsel for the
applicants argued that Rule 35 is not applicable in motion
proceedings. He submitted that there exist no exceptional
circumstances that will persuade me to grant discovery in motion
proceedings. He submitted further that the requested documents
are
not necessary for the purpose of pleading; they are not clearly
specified; not all requested documents are in possession of
the
applicants; and that those documents are not relevant to any
reasonably anticipated issue in the proceedings.
Rule 35(14)
provides as follows:
“
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.
”
Rule
35(13) on the other hand provides that the provisions of the rule
relating to discovery can only apply to applications if ordered
by
the Court and only in exceptional circumstances. See
Saunders
Value Co Ltd v Insamcor (Pty) Ltd 1985(1) SA 146(T)
.
The
provisions of Rule 35(14) have been considered in
Cullinan
Holdings Ltd v Mamelodi Stadsraad 1992(1) SA 645 (T)
and
Quayside
Fish Suppliers
CC v
Irvin & Johnson Ltd 2000(2) SA 529 (C) 532 I
.
The requirements therefore can be summed up as follows:
9.1
Exceptional
circumstances must exist before the rule can be applied in motion
proceedings;
9.2
the
documents must be necessary for the purposes of pleading;
9.3
the
documents must be clearly specified;
9.4
the
documents must be in possession of the party who is required to
discover;
9.5
the
documents must be relevant to a reasonably anticipated issue in the
proceedings.
It
is clear that there must be good reasons to justify the application
of Rule 35 in motion proceedings. In
Saunders
Value Co Ltd v Insamcor (Pty) Ltd (supra) at 149 B-H
,
Goldstone
J
stated as follows:
“
The
presence of exceptional circumstances arises by reason of the fact
that an interdict of a permanent nature is being sought in
these
proceedings on motion. That itself is unusual, especially in
relation to a copyright matter where drawings are relied upon
which
go back over almost half a century of time. In motion proceedings
the
affidavits
constitute both the pleadings and the evidence. If this matter had
proceeded by action, pleadings would have been filed
and the
applicant would have had to have alleged, in those pleadings, both
originality in respect of the drawings upon which it relies
for its
claims of infringement and also ownership of the copyright in
question. It would have been open to the respondent (which
would have
been a
defendant in
such proceedings) to have joined issue on those two matters and,
after the close of pleadings, the present application
would be
required to make discovery. At that stage the respondent would have
been entitled to have its experts investigate the question
of
originality and ownership and so prepare for trial. On the basis of
those investigations it would have decided what evidence
should be
led in answer to the applicant’s claims.
Because
of the fact that motion proceedings have been instituted, the
respondent is called upon now, not only to plead to the claim
as set
out in the founding affidavits and the notice of motion, but also to
place before the Court its evidence. In my opinion,
having regard to
the circumstances to which I have referred, the respondent would be
prejudiced if discovery were not to be made
at this stage and so give
the respondent the opportunity of deciding what evidence should be
placed before the Court in answer to
the matters upon which the
onus
will ultimately rest upon the applicant. It follows too, in my
judgment, that it would be unfairly prejudicial to the respondent
if
it were called upon to file answering affidavits prior to such
discovery having been made by the applicant. I would add too that
this is obviously a matter where technical evidence may well be
vital. The evidence which the respondent wishes to obtain will,
no
doubt, include matters of a technical nature which will of necessity
relate to documents which should properly be discovered by
the
applicant.
”
Applying the
principles as set out in the three cases above, I am of the view
that this is a case where the rules of discovery should
apply. My
conclusion is based on the following factors:
11.1
I do not regard the fact that the applicants are seeking a final
order as the only factor that renders exceptional circumstances
to
exist in this case, but also that it would be fair and equitable for
the applicants to be open and transparent towards the respondents.
11.2
The
documents requested are not of a general nature they are clearly
defined and specified.
11.3
These
documents are relevant in that the dispute can be resolved by the
production thereof.
11.4
For
the Court to grant a declaratory order in the main application it
must certainly be proved that the applicants have complied with
the
conditions under which the mining right was granted. In particular,
conditions as they appear in annexure “
M
”
of the main application.
I
now turn to the issue of costs. I am of the view that the Court
which ultimately deals with the merits of the main application
will
be in a better position to deal with the question of costs. In
particular whether the first, second and third respondents
reasonably required the discovery of those documents before filing
answering affidavits, in that case then, the Court hearing the
application would be moved to grant those costs against the
applicants and/or against the fourth and fifth respondents or
whatever
costs order it deems just.
The
following order is made:
ORDER
It
is directed that the provisions of Rule 35(13) of the Uniform Rules
apply to this matter.
The
first, second and third respondents are granted extension of time to
file their answering affidavit/s, such affidavit/s to be
filed
within 15 days after compliance by the first, second and third
applicants and fourth and fifth respondents with the terms
of
paragraph 3 hereof.
That
the first, second and third applicants as well as fourth and fifth
respondents are directed to make discovery of all documents
in their
possession requested by the first, second and third respondents in
their notice of motion dated 19 December 2006 in terms
of Rule 35
and within 5 days of the date of this order.
The
costs of this application are reserved for determination by the
Court hearing the main application.
____________________________
FE MOKGOHLOA
ACTING
JUDGE
NORTHERN CAPE DIVISION
For
the 1
st,
2
nd
+ 3
rd
Applicants: Adv J.G. van Niekerk Instructed by: Duncan & Rothman
For
the 1
st
,
2
nd
and 3
rd
Respondents: Adv. Danzfuss Instructed by: Elliott, Maris, Wilmans &
Hay Attorneys
For
the 4
th
and 5
th
Respondents: State Attorney