Agritrans CC and Others v Mafube Local Municipality and Others (4338/2006) [2006] ZAFSHC 55 (7 December 2006)

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[2006] ZAFSHC 55
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Agritrans CC and Others v Mafube Local Municipality and Others (4338/2006) [2006] ZAFSHC 55 (7 December 2006)

(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 4338/2006
In
the case between:
AGRITRANS CC
1
st
Applicant
ANDRIES SWART
2
nd
Applicant
WILLEM
ROBERTS
3
rd
Applicant
and
MAFUBE LOCAL
MUNICIPALITY
1
st
Respondent
W
K MAHLANGU
2
nd
Respondent
MEC
FOR HEALTH, FREE STATE N.O.
3
rd
Respondent
MEC FOR LOCAL
GOVERNMENT AND
4
th
Respondent
HOUSING, FREE STATE
N.O.
JUDGEMENT:
MOLEMELA, AJ
_______________________________________________________
HEARD ON:
9 NOVEMBER 2006
_______________________________________________________
DELIVERED ON:
7 DECEMBER 2006
_______________________________________________________
[1] The applicants had
approached this Court for a mandatory interdict compelling the first
and second respondents (hereinafter jointly
referred to as “the
respondents”) to take certain steps. The respondents had then
filed an opposing affidavit. The applicants
had subsequently filed a
“Notice in terms of Rule 35(11) read with Rule 13”. The
respondents did not respond to this notice.
The applicants have now
approached this Court in terms of Rule 30A of the Uniform Rules of
Court and are seeking an order in the
following terms:
“
1. The
First and Second Respondents be compelled to respond to the
Applicant’s Notice in terms of Rule 35(11) read together with
Rule
35(13) dated the 27
th
of February 2006 under Case Number 5349/2005 within FIVE (5) days
from date of service of this Court Order;
2. The
Applicants be granted leave to approach this Honourable Court on the
same papers, duly amended where necessary, for an Order
in terms
whereof the First and Second Respondents’ Opposing papers be struck
out and Judgment be granted in favour of the Applicants
under Case No
5349/2005 with costs as claimed in the Applicants’ Notice of
Motion, should First and Second Respondents fail to
comply with the
provisions as contained in paragraph 1 hereof;
3. The
First and Second Respondents be ordered to pay the costs occasioned
by this Application;
4. That
such further and/or alternative relief be granted to the Applicant as
the above Honourable Court may deem fit.”
[2] As
the interpretation of some of the sub-rules to Rule 35 are central to
this application it is apposite to, at this stage, refer
to the
relevant sub-rules. Rule 35(1) provides as follows:
“
35
(1) Any party to any action may require any other party thereto, by
notice in writing, to make
discovery
on oath within 20 days of all documents and tape recordings relating
to any matter in question
in
such action
(whether such matter is one arising between the party requiring
discovery or not)
which
are or have at any time
been
in the possession or control of such other party. Such notice shall
not,
save
with the leave of a judge
,
be given
before
the close of pleadings
”
(my emphasis).
Rule
35(11) provides as follows:
“
35
(11)
The
court may, during the course of
any
proceeding
,
order the
production
by any party thereto under oath of such documents or tape recordings
in
his power or control
relating to any matter in question in such proceeding as the court
may think meet, and the court may deal with such documents or
tape
recordings, when produced, as it thinks meet.”
Rule
35(12) provides as follows:
“
35(12) Any
party to any proceeding may at any time before the hearing thereof
deliver a notice as near as may be in accordance with
Form 15 in the
First Schedule to any other party
i
n
whose pleadings or affidavits reference is made
to
any document or tape recording to produce such document or tape
recording
for
his inspection and to permit him to make a copy or transcription
thereof
.
Any party failing to comply with such notice shall not, save with
the leave of the court, use such document or tape recording in
such
proceeding, provided that any other party may use such document or
tape recording” (my emphasis).
Rule
35(13) provides as follows:
“
35(13) The
provisions of this rule relating to discovery shall
mutatis
mutandis
apply,
in
so far as the court may direct
,
to applications” (my emphasis).
[3] The
applicants’ counsel has contended that reference to Rule 35(13) in
the applicant’s Notice was a typographical error. She
applied from
the bar that the number 13 be replaced with the number 12 in the
Notice, such that the heading of the applicant’s
notice should
become “Notice in terms of Rule 35(11) read together with Rule
35(12)”. Counsel for the applicants further applied
for the words
“paragraph 16(c)” in the body of the notice to be substituted
with the words “paragraph 116(c)”. Counsel for
the respondents
argued that the proposed amendments were not in accordance with the
rules and would prejudice the respondents.
[4] Counsel
for the applicants argued that the correct approach in considering
the Notice filed by the applicants was to have regard
to its
substance and not to its form. I am inclined to agree with this
contention. I believe that rules are made for the court
and not the
court for rules. A court should therefore not be so pedantic as to
demand a formal application for an amendment if the
error that is
sought to be rectified is a minor one like a typographical error or
is what is commonly referred to as an “obvious
error”, especially
if such an amendment would not prejudice any party. Under such
circumstances, an application for an amendment
from the bar or
side-bar should suffice.
[5] In
casu
the
applicants have filed two Notices that are embodied in one document.
The first part of the applicants’ notice relates to what
the
applicants regard as a Notice in terms of rule 35(11), while the
second part of the notice relates to Rule 35(12). The respondents
have, since the service of the notice, been aware of the
incorporation of Rule 35(12) in the notice that was filed. They have
even
responded to the request in terms of Rule 35(12) in their
opposing affidavit by furnishing reasons as to why the required
documents
should not be made available for inspection or for copying.
I therefore do not see what prejudice the respondents can suffer if
the heading of the notice is amended as afore-mentioned. Neither can
the respondents suffer any prejudice if the words “paragraph
(16c)”
are substituted with “paragraph 116(c)”. I accordingly grant the
amendment.
[6] Now
that the amendment has been taken care of, I now turn to deal with
the applicant’s amended notice. As stated above, this
notice has
two parts, paragraph 1 thereof being the Notice in terms of Rule
35(11) while paragraph 2 thereof is the Notice in terms
of Rule
35(12). I will first deal with part 1 thereof.
[7] Counsel
for the respondents has argued that the applicant’s Notice in terms
of Rule 35(11) is a disguised Notice in terms of
Rule 35(1). He
further argued that since Rule 35(1) is not automatically applicable
to applications, there was no obligation on
the part of the
respondents to respond to such a notice prior to the applicants
obtaining a directive as contemplated in Rule 35(13).
I agree that
in application proceedings a party can only require discovery of
documents in terms of Rule 35(1) if a court has previously
directed
so.
[8] Given the robust
nature of this sub-rule I am inclined to agree with the contention of
the respondents’ counsel that a court
can only give such a
direction if a substantive application has been made. This means
that if I find that the first part of the
applicants’ notice in
essence relates to sub-rule 35(1) and not sub-rule 35(11), I will not
be in a position to grant the order
currently being sought by the
applicants as they have not filed a substantive application
requesting leave to be granted as envisaged
in the provisions of
sub-rule 35(13).
[9] I have scrutinized
the relevant part of the applicants’ notice that relates to rule
35(11). Whereas Rule 35(11) deals with
production
of
documents, the applicants’ notice refers to
“discovery”
of documents relating to any matter in question; whereas the notice
in terms of Rule 35(11) refers to production of documents or
tape
recording that are in a party’s power or control, the applicants
are seeking documents
“which are or have at any time been in the
possession or control of the respondents
.” When I consider the
wording used in the applicant’s notice, it is clear that this
notice is in essence a notice in terms of
Rule 35(1) even though its
heading refers to Rule 35(11). I will accordingly treat is a Notice
in terms of rule 35(1).
[10] The applicants have
not sought leave of the court for the provisions of sub-rule 35(1) to
be applied to application proceedings
as contemplated in Rule 35(13),
(see
LORETZ v MACKENZIE
1999 (2) SA 72
and
AFRICAN
BANK LTD v BUFFALO CITY MUNICIPALITY
2006 (2) SA 130
(CKH)).
They have also not acquired leave for the filing of their notice in
terms of sub-rule 35(1) before the close of pleadings,
which in this
instance would be the filing of a replying affidavit. (See
RAIL
COMMUTER ACTION GROUP TRANSNET LTD t/a METRORAIL AND OTHERS (1),
2003
(5) SA 518
(C)). This means that the applicant’s notice in terms of
Rule 35(1) is fatally defective and the respondents were justified in
ignoring it. I therefore cannot compel compliance therewith.
[11] What is then left
for me to consider is whether to compel compliance with the second
part of the applicant’s notice, which
pertains to Rule 35(12). The
wording of this sub-rule is clear as it refers to “pleadings or
affidavits”. I am therefore of
the view that sub-rule 35(12) is
automatically applicable to application proceedings and does not
warrant the granting of a directive
as contemplated in Rule 35(13).
See
KAKUVA AND ANOTHER v MINISTER VAN POLISIE & ‘N ANDER
1983(4) SA 787 (SWA) at 790 D – F and
AFRICAN BANK LTD v
BUFFALO CITY MUNICIPALITY
,
2006 (2) SA 130
(CK) and
PIETERS
v ADMINISTRATEUR SWA & ‘N ANDER
,
1972 (2) SA 220
(SWA).
The words “at any time before the hearing” have also led me to
believe that the rights under this sub-rule can be exercised
at any
stage of the proceedings and thus even before the filing of a
replying affidavit. See
UNILEVER v POLAGRIC (PTY) LTD,
2001 (2) SA 329
(C).
[12] In
casu
the
documents that the respondents are required to produce for inspection
and copying are the following:
12.1 Copies of the test results as
detailed in paragraph 55 of the answering affidavit.
12.2 Test results in respect of tests
conducted by the CSIR as detailed in paragraph 109 of the answering
affidavit.
12.3 Test results as detailed in
paragraph 116C of the answering
affidavit.
12.4 Business plans as referred to in
paragraph 7 of the affidavit
deposed
to by Nel for the years 2006, 2005, 2004, 2003 and
2002.
[13] The respondents’
response with regards to the inspection and copying of test results
has been a general one stating that the
respondents have, in their
opposing affidavit filed in the main application, only made reference
to tests that were done and not
to test results. They have pointed
out that no such results are in their power or control. They have
suggested that the applicants
should obtain the results from the
organisations that were referred to in their afore-mentioned opposing
affidavit.
[14] The
context of paragraph 55 suggests that the test-results were
documented. I am not persuaded to think that paragraph 55 of
such
context allows for any other interpretation. The same applies to the
contexts of paragraph 109 and 116C of the said opposing
affidavit.
As far as business plans are concerned, it is clear from the relevant
paragraph of the opposing affidavit that reference
is being made to
written documents.
[15] I now have to
exercise the discretion whether or not to order production of the
aforesaid documents for inspection or copying.
In exercising this
discretion, there are factors that a court is expected to take into
consideration. See
PREMIER FREIGHT
(supra) and
AFRICAN
BANK LTD
(supra). The applicant’s founding affidavit filed
in the application under consideration has not canvassed these
factors in any
way. They were raised for the first time in the heads
of argument and were elaborated upon during the hearing of the
application.
The respondents’ counsel has argued that these
aspects ought to have been raised as evidence and not as arguments.
Having considered
the affidavits filed in the main application, I am
persuaded that this is indeed a public interest matter and the
documents required
by the applicants for inspection and copying are
indeed important for its consideration. Despite the respondents’
averments pertaining
to the acquisition of the test results, it is
clear that it would be relatively easier for them rather than for the
applicants to
obtain the said results as they are the ones that know
the details of the different organisations or institutions that
performed
the tests. As for the business plans, it should be an easy
task for the respondents to produce these documents. Under these
circumstances,
it is only fair that the respondents be ordered to
produce the aforesaid documents for inspection and for copying.
[16] However,
in all fairness to the respondents, they should be granted a
reasonable time to enable them to obtain the results from
the
respective organizations / institutions prior to making them
available for inspection. The five days suggested by the applicants
is therefore too short. I am of the opinion that twenty days
suffices as a reasonable time under the circumstances.
[17] With
regards to costs, the applicants’ application is successful only in
respect of the second part of its notice, the first
part having been
found to be fatally defective. I am satisfied that under the present
circumstances, it will not be fair to order
the respondents to pay
the costs of this application.
[18] I
therefore make the following order:
18.1 The respondents are
hereby compelled to, within 20 (twenty) days from date of this order,
produce the following documents for
the applicants’ inspection and
copying:
18.1.1 Test results
referred to in paragraph 55 of the answering affidavit filed under
case number 5349/2005.
18.1.2 Test
results referred to in paragraph 109 of the answering affidavits
filed under case number 5349/2005.
18.1.3 Test
results referred to in paragraph 116(c) of the answering affidavits
filed under case number 5349/2005.
18.1.4 Business
plans referred to in paragraph 7 of the affidavit deposed to by Nel
under case number 5349/2005, for the period 2002
– 2006.
18.2. The applicants are
granted leave to approach this honourable court on the same papers,
duly amended where necessary, for an
order in terms whereof the
respondents’ opposing papers are struck out and that judgment be
granted in favour of the applicants’
Notice of Motion, should the
respondents fail to comply with the provisions as contained in
paragraph 18.1 above.
18.3 No
order is made as to costs.
___________________

M. B. MOLEMELA, AJ
On
behalf of the applicants: Adv. H. Murray
Instructed
by:
Israel
Sackstein Matsepe Inc.
BLOEMFONTEIN
On
behalf of the respondents: Adv. N. Snellenburg
Instructed
by
Honey
& Partners
BLOEMFONTEIN
/em