Penta Communication Services (Pty) Ltd v King and Another (6580/06) [2006] ZAWCHC 61; 2007 (3) SA 471 (C) (22 December 2006)

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[2006] ZAWCHC 61
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Penta Communication Services (Pty) Ltd v King and Another (6580/06) [2006] ZAWCHC 61; 2007 (3) SA 471 (C) (22 December 2006)

REPORTABLE
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE
NO: 6580 / 2006
In
the matter between:
PENTA
COMMUNICATION SERVICES (PTY) LTD
Applicant
and
BRENDA ELEANOR KING
First Respondent
MARTIN RICHARD HUTCHINSON KING
Second Respondent
JUDGMENT : 22 DECEMBER 2006
BOZALEK,
J:
This matter concerns the limits of a
litigant’s obligation in terms of Uniform Rule 35(12) to produce
documents which it has referred
to in an application. More
specifically, it deals with the question of whether the production
of such documents can be compelled
when they are alleged not be
functional to the compelling party’s case and whether indirect
allusions to documents which may
exist trigger the provisions of the
subrule.
BACKGROUND
The parties in this matter have been
litigating against each other out of various courts for some
considerable time. The present
interlocutory application forms part
of proceedings instituted by the applicant in June 2006 to
sequestrate the estate of the first
respondent. The second
respondent, the first respondent’s husband, is cited by virtue of
the fact that he may have an interest
in the matter although no
relief is sought against him. I shall refer to this as the main
application. It was brought on the basis
that the first respondent
had committed an act of insolvency in terms of
s 8(a)
of the
Insolvency Act, 24 of 1936
or, alternatively, is factually
insolvent. The applicant’s claim against the first respondent
arises pursuant to a judgment granted
by the Witwatersrand Local
Division of the High Court against the first respondent and two
other companies, jointly and severally,
the one paying the other to
be absolved, in an amount, inclusive of interest and costs, in
excess of R10 million. Second respondent
is a director of both
defendant companies.
The first respondent opposes the
sequestration order sought against her and has filed an opposing
affidavit. The second respondent,
represented by a different set of
attorneys to the first respondent, also purports to oppose the
relief sought against the first
respondent and has filed both an
answering affidavit and a supplementary affidavit in the main
application despite no relief being
sought against him. His
answering affidavit, together with annexures, run to some 170 pages.
In August 2006 the second respondent
caused a notice in terms of
Rule 35(12)
to be issued stating that,
for the purposes of filing an answering affidavit, he required the
applicant to make fifteen different
documents or sets of documents
available for inspection and copying. He stated that these documents
were in the applicant’s possession
and were relevant to the
reasonably anticipated issues in the application. No response was
forthcoming to this notice. At the end
of August 2006, pursuant to
the notice, the second respondent launched a compelling application
which also sought certain other
unrelated relief.
In his founding affidavit in the
compelling application the second respondent states that, first
respondent being overseas, both
his and the first respondent’s
legal representatives were entitled to have sight of the
documentation in question. The applicant
opposes the compelling
application. When the application came before court, certain
arrangements were arrived at between the parties
and, without
admitting that it was obliged to do so, the applicant agreed to
deliver a formal reply to the second respondent’s
notice in terms
Rule 35(12).
This was duly done, subsequent whereto the first
respondent filed an answering affidavit in the main application and
the second
respondent filed his supplementary affidavit in the main
application having already filed an answering affidavit.
The first respondent responded to all
the allegations contained in the applicant’s founding affidavit in
the main application
and, save for one instance, did not complain
that she was unable to deal with the contents by virtue of the fact
that the documents
referred to in the founding affidavit were not
made available to her.
By contrast, in his answering
affidavit the second respondent complained of the applicant’s
failure to produce documents to which
reference had allegedly been
made in its founding affidavit and stated that it might be necessary
for him i.e. second respondent,
to file a supplementary affidavit
which he duly did. He concluded the latter affidavit by reserving
his rights to supplement the
affidavit yet further once the
application to compel had been decided. Notwithstanding these
reservations of right, there are,
in my view, no clear indications
in the second respondent’s opposing affidavit that he was unable
to deal with the allegations
contained in the applicant’s founding
affidavit.
What does emerge from his affidavits
is the second respondent’s outrage at what he describes as the
“scandalous, fictitious
and gratuitously defamatory” allegations
made in the applicant’s affidavits against him. These, he stated,
led him to instruct
his attorney to institute a defamation action
against the deponents to the affidavits filed on behalf of the
applicant. The second
respondent was as good as his word. In a
supplementary affidavit filed two-and-a-half months later, he
annexed a copy of the particulars
of claim in a defamation action
which he had launched in the meantime against one of the deponents
to the applicant’s founding
affidavits.
In its response to the second
respondent’s notice in terms of
Rule 35(12)
, the applicant alleges
in general that the notice is an abuse of process designed to delay
and frustrate the final determination
of the main application;
further, that the notice calls for unduly large volumes of documents
without regard as to whether they
are in fact referred to in the
applicant’s founding affidavit or not. It also complains that most
of the documents sought had
been in the first and second
respondent’s possession for a number of years. The applicant also
deals in detail with why it cannot
or will not produce each of the
documents or sets of documentation called for by second respondent.
The applicant’s reply did not
completely satisfy the second respondent who renewed his application
to compel compliance and at
the same time used the opportunity to
dispute various claims made by the applicant in relation to the
documentation being sought.
I shall detail some of the conflicting
claims when I deal with the remaining documents in dispute.
By the time the matter was argued
only six items of documentation remained in dispute between the
parties. Apart from the specific
ground upon which the applicant
stated it was under no obligation to produce any such document,
namely, that the document/s did
not exist or had not been referred
to in the founding affidavit, it raised two general defences.
Firstly, it contended that there
was no connection between the
relief sought by the applicant in the main application and the
second respondent, with the result
that he did not require any
document to mount a defence to the relief sought by the applicant.
Secondly, it was contended that
second respondent’s insistence on
documentation was an abuse of the court process intended only to
harass the applicant or to
obtain an advantage in the form of early
discovery in the defamation action which the second respondent had
launched.
I shall first deal with those items
of documentation in respect of which there is a dispute as to
whether they exist or not or were
referred to in the founding
affidavit, or both.
ITEM NO. 3
The following passage appears in the
applicant’s founding affidavit in the main application:
“
The aforesaid funds were then
systematically transferred to another ABSA account (number
4053213709) and eventually found its way
into the accounts of Blue
Sky and then into the personal accounts of Blue Sky’s shareholders
which included the respondents and
Arleen Klein.
”
In terms of
Rule 35(12)
the second
respondent called for production of any and all documents relating to
the specified ABSA bank account. The response given
by the applicant
in this and other instances was that there were no documents of this
sort referred to in the founding affidavit.
I take this statement as
falling short of stating that no such documents exist or are in the
possession of the applicant. Rather,
it appears to be based upon the
proposition that there was no reference in the founding affidavit to
such documents such as would
trigger the provisions of
Rule 35(12).
The subrule in question provides for the service of a notice on “
any
other party in 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
”. The penalty for non-compliance with the rule is that
the offending party is not permitted, save with the leave of the
court,
to use such document or tape recording in the proceedings.
A leading case dealing with the
provisions of the subrule is
Protea Assurance Company Ltd and
Another v Waverley Agencies CC and Others
1994 (3) SA 247
in
which it was held that it is inherent in the subrule that a litigant
cannot ordinarily be required to draft and file his own
pleadings
and affidavits before being given an opportunity to inspect and
copy, or transcribe, a document or tape recording referred
to in his
adversary’s, pleadings or affidavits. In dealing with the nature
of the reference required, Marais J (as he then was)
stated as
follows:
“
This is therefore not a case in
which no reference whatsoever had been made to tape recordings, but
it is sought to deduce that they
exist by an elaborate process of
reasoning and inference drawing. It is a case in which applicants had
made direct reference to tape
recordings and placed reliance upon
them without explicitly describing them as such by name. The
omission, whether it be studious
or not, to refer to them by name
does not derogate from the fact that they were indeed referred to.
Compare
Erasmus v Slomowitz (2)
1938 TPD 242
at 244
where Murray J said of a substantially similarly worded rule:
‘
An essential is, of course,
a reference by the opponent, in his pleading or affidavit to the
documents whereof such production is
required, but the terms of the
Rule do not require a detailed or descriptive reference to such
documents, nor is any distinction
made between documents upon which
the action or other proceedings is actually founded and documents
possessing merely evidentiary
value
’.”
Clearly therefore, even a reference
to a document (or tape recording) which is not detailed or
descriptive will suffice to trigger
the provisions of subrule
35(12). The question which arises in the present instance is whether
Rule 35(12)
can be invoked when not only has no detailed or
descriptive reference been made to the document/s, but neither has
there been any
indirect reference to such document/s and it is only
through a process of reasoning and inference drawing that it can be
deducted
that the document does or may exist. In neither of two
other leading cases dealing with the subrule,
Gorfinkel v Gross,
Hendler and Frank
1987 (3) SA 766
(C) and
Unilever plc and
Another v Polagric (Pty) Ltd
2001 (2) SA 329
was this question
directly considered.
Mr. Vetten, who appeared for second
respondent, argued for a very wide interpretation of the concept of
a “reference” to a document
as envisaged in
Rule 35(12
). In so
doing he relied on
Protea Assurance
as authority for
proposition that the documents hit by the provisions of the subrule
are those whose existence may be deduced through
a process of
reasoning and inference. However, I do not read Marais J’s
remarks, quoted above, as authority for the proposition
that where
the existence of a document can be deduced by such a process, it
falls to be produced in terms of
Rule 35(12)
, notwithstanding the
lack of any direct or even indirect reference thereto.
This was in effect the argument
adopted by the second respondent in the compelling application. The
approach was developed by Mr.
Vetten in argument, his submission
being that where, upon analysis of a statement made by a deponent it
can reasonably be inferred
that a document/s must exist relating to
that fact or allegation, then the opposing party is entitled to call
for the production
of such documents. In my view this extends the
provisions of
Rule 35(12)
too far in that it gives the concept of a
“reference” to a document so broad a meaning as to make it
almost superfluous. In
my view this does not fit within the purpose
or scope of
Rule 35(12).
The subrule provides a mechanism for a
party to obtain production and inspection of documents prior to
making out his case where
these documents have been referred to by
another litigant but not annexed. To give the subrule the wide
meaning contended for by
Mr. Vetten would be to sanction immediate
and full discovery as provided for by
Rule 35(1).
This is not the
purpose of the subrule 35(12).
Reverting to the particular documents
sought, no doubt where a bank account is utilized there must exist
somewhere documents evidencing
its existence and its use. It does
not follow, however, that a reference to that bank account, without
more, constitutes a reference,
for the purposes of
Rule 35(12)
, to
documentation relating to such bank account.
ITEM NO. 10
In a founding affidavit the
applicant’s deponent states:
“
In addition thereto the first
respondent is no doubt aware (or at the very least suspects) that
criminal charges are in the process
of being laid against her and
others (including Klein and the second respondent) with the South
African Police Services.
”
In his
Rule 35(12)
notice the second
respondent calls for “
a copy of the complaint/list of charges
which the applicant intends laying with the South African Police
Services against first respondent
” and was met with the
response, not surprisingly, that there was no such document referred
to in the founding affidavit.
It was argued on behalf of the second
respondent that, if charges had been laid, then there would likely
be a written statement
by the complainant and the applicant was
obliged to produce it in response to the notice. This submission
entirely misses the point
since there
is
no reference, direct
or indirect, to any document in the passage quoted. Thus, even if
such a list or written complaint exists
and is in the possession of
the applicant, for the reasons I have set out above, the second
respondent is not entitled to production
thereof in terms of
Rule
35(12).
The provisions of
Rule 35(12)
exists
for a specific purpose and it is not a mechanism whereby a litigant
can go behind the words of an affidavit or pleading
and argue that,
although there is no direct or even indirect reference to a
document/s, such documents would in the ordinary course
of events
exist and must, if in the possession of the opposing party, be
produced for inspection.
ITEM NO. 11
The second respondent called for the
production of any and all documents relating to a bank account
number 417016 under the name
“
Fos Partnership
”, this in
response to the following statements in the founding affidavit:
“
I have also been advised (by a
third party who does not want me to disclose his/her involvement in
the matter) that bank account number
417016 under the name ‘
Fos
Partnership
’ was opened by or on behalf of the first
respondent, either alone or together with the second respondent and
her other co-shareholders
and directors, with Kleinwort Benson at PO
Box 44, The Grange, St. Peter Point in Guernsey. I have been told
that the first respondent
is either the sole beneficiary in respect
of such offshore account or is one of a number of beneficiaries
.”
The applicant stated in its reply to
the second respondent’s notice that there was no such document
referred to in the founding
affidavit. There is no direct reference
to a document/s in the passage quoted above nor is there an indirect
reference thereto.
Again, best it can be said there probably exists
documentation somewhere which, if the allegations are true, confirm
the existence
of such an account and record details of its use. This
is, however, in my view, not a reference envisaged or encompassed by
the
provisions of
Rule 35(12).
Apart from anything else the passage
quoted indicates that the deponent received the information in
question second hand from an
informant with no indication that any
documentation passed hands.
ITEM NO. 12
This is a further instance where the
second respondent sought the production of any and all documents
relating to various bank accounts,
namely those referred to in the
following passage from the applicant’s founding affidavits:
“
Certain information in regard to
bank account details has recently come into my possession. Whether
the bank accounts pertain to Blue
Sky, Aspect or the first respondent
(or perhaps even the second respondent or Klein) I do not know but a
trustee, once appointed,
will have the opportunity to investigate
same. Furthermore as indicated to the above Honourable Court in this
affidavit, it is to
be noted that the first respondent’s modus
operandi involved a mingling of funds between her and the defendant
companies. These
bank account details are the following…
”
There follows a list of 14 bank
account numbers specifying in each case the bank in question.
In its reply to the second
respondent’s
Rule 35(12)
notice, the applicant states that there
are no such documents referred to in in the founding affidavit and
that all these accounts
are those of the first and/or second
respondents or of companies in their direct or indirect control. The
latter part of the answer
can be ignored since it is no answer to a
valid request for documents in terms of
Rule 35(12)
to state that
the party requiring the documents already has them in his/her
possession or control. However, there is, in my view,
no direct
reference in the passage quoted to the documentation sought.
Furthermore the allegations relating to these bank accounts
are so
vague and uncertain that they cannot be construed as even an
indirect reference to documentation relating to the bank accounts
in
question. In the circumstances the applicant cannot be compelled to
produce the documents sought in terms of
Rule 35(12).
ITEMS NO. 4 AND 13
In respect of the two remaining
disputed items the applicant concedes the existence of the documents
being sought by second respondent
but refuses to produce them on
other grounds. The first document is described as a written
Agreement dated 27 July 1995. In its
response to the second
respondent’s
Rule 35(12)
notice, the applicant states that there
were three versions of the Agreement and identifies them in relation
to their use in the
litigation recently concluded in Johannesburg.
The second respondent replied that he was not in possession of the
documents, adding
that he was entitled to require the document’s
production from the applicant and that he persisted in seeking to
enforce his
rights in this regard. The applicant counters this by
stating that the second respondent appears to require the document
not in
relation to the main application but rather in regard to his
recently launched defamation action.
The final documents in dispute were
described in the following terms in the applicant’s founding
affidavit:
“
During the trial in the
Witwatersrand Local Division it was proved by means of documents
(which the first respondent tried to prevent
being produced in
evidence on the ground that they were “irrelevant”) that part of
the monies defrauded and stolen from the applicant
was used to
artificially and fraudulently inflate the earnings of the company
which they and Klein, together with others, were shareholders
namely
BLGK.
”
In its reply to the second
respondent’s
Rule 35(12)
notice, the applicant stated that the
documents used during the trial in the Witwatersrand Local Division
comprised over 7000 pages
contained in 14 lever arch files. It went
on to state that as the judgments in that matter had been pronounced
and there was no
prospect of success in the application for leave to
appeal, the abusive nature of the notice was made manifest by the
request.
Finally the applicant’s deponent states:
“
As stated above, the Respondents
are in possession of an entire bundle and an appeal record
incorporating all of these documents and
they had been in possession
of same for a number of years.
”
[29] Thus, notwithstanding the clear
reference to documents in these two instances, the applicant declines
to produce them. The question
which arises is whether it is justified
in this refusal, either for the reasons given above or for the
general reasons which it advances
elsewhere. In my view, neither the
bulkiness of the record in the Johannesburg litigation nor the fact
that the second respondent
may have once been in possession of such
documents entitles the applicant to refuse to produce them. Applicant
itself clearly referred
to a limited number of documents when its
deponent added the qualification “which the first respondent tried
to prevent being produced
on the ground that they were irrelevant”.
As I have previously stated, furthermore, a litigant may call for the
production of a
document under
Rule 35(12)
notwithstanding that he
may already possess a copy thereof, if only to confirm that it is
such document upon which the other party
relies.
[30] The question of how the
provisions of
Rule 35(12)
are to be applied was considered in
Gorfinkel (supra)
where
Friedman J (as he then was)
found that the subrule should interpreted as providing for a
prima
facie
obligation on a party who refers to a document in a
pleading or an affidavit to produce it for inspection if called upon
to do so
in terms of
Rule 35(12).
That obligation is, however,
subject to certain limitations; for example, if the document is not
in his possession and he cannot
produce it or the document is
privileged or is irrelevant, the court will not compel him to produce
such document. It was held further
that since it would not
necessarily be within the knowledge of the person serving the notice
whether the document is one which falls
within the limitations
mentioned, the
onus
would be on the recipient of the notice to
set up the facts relieving him of the obligation to produce the
document. The learned judge’s
analysis and reasoning, at 773H –
774I, bears quoting:
“
There are undoubtedly
differences between the wording of
Rule 35(12)
and the other subrules
relating to discovery, for example subrules (1), (3) and (11) of
Rule
35.
The latter subrules specifically refer to relevance whereas
subrule (12) contains no such limitation and is
prima facie
cast in terms wider than subrules (1), (3) and (11).
It is nevertheless to my mind
necessarily implicit in
Rule 35(12)
that there should be some
limitation on the wide language used……
With regard to relevance there must
also, in my view, be some limitation read into
Rule 35(12).
To
construe the Rule as having no limitation with regard to relevance
could lead to absurdity. It would be absurd to suggest that
the Rule
should be so construed that reference to a document would compel its
production despite the fact that the document has no
relevance to any
of the issues in the case. It is not difficult to conceive of
examples of documents which are totally irrelevant.
Booysen J in the
Universal City Studios
case gave one such example. What is
more difficult to decide is where the line should be drawn. A
document which has no relevance
whatsoever to the issues between the
parties would obviously, by necessary implication, be excluded from
the operation of the Rule.
But would the fact that a document is not
subject to discovery under
Rules 35(1)
, (3) or (11) render it immune
from production in terms of
Rule 35(12)?
In my view the parameters governing
discovery under
Rules 35(1)
,
35
(3) and
35
(11) are not the same as
those applicable to the question whether a document is irrelevant for
the purposes of compliance with
Rule 35(12).
A party served with a
notice in terms of
Rule 35(1)
is obliged to make discovery of
documents which may directly or indirectly enable the party requiring
discovery either to advance
his own case or to damage that of his
opponent or which may fairly lead him to a train of enquiry which may
have either of these
consequences. Documents which tend merely to
advance the case of the party making discovery need not be disclosed.
As
Rule 35(12)
can be applied at any time, i.e. before the close of
pleadings or before affidavits in a motion have been finalised, it is
not difficult
to conceive of instances where the test for determining
relevance for the purposes of
Rule 35(1)
cannot be applied to
documents which a party is called upon to produce under
Rule 35(12)
,
as for example where the issues have not yet become crystallised.
Having regard to the wide terms in which
Rule 35(12)
is framed, the
manifest difference in wording between this subrule and the other
subrules, i.e. subrules (1), (3) and (11) and the
fact that a notice
under
Rule 35(12)
may be served at any time, i.e. not necessarily
only after the close of pleadings or the filing of affidavits by both
sides, the
Rule should, to my mind, be interpreted as follows:
prima
facie
there is an obligation on a party who refers to a
document in a pleading or affidavit to produce it for inspection if
called upon
to do so in terms of
Rule 35(12).
That obligation is,
however, subject to certain limitations, for example, if the
documents is not in his possession and he cannot
produce it, the
Court will not compel him to do so.(See the
Moulded
Components
case
supra
at 461D-E.)
Similarly, a privileged document will not be subject to production.
As it would not necessarily be within the knowledge
of the person
serving the notice whether the document is one which falls within the
limitations which I have mentioned, the
onus
would be on the recipient of the notice to set up facts relieving him
of the obligation to produce the document. Cf
Quilter v
Heatly
(1883) 23 ChD 42
at 51.
”
[31] The approach enunciated by
Friedman J was approved of by Thring J in
Unilever plc (supra)
.
I too am in respectful agreement with this approach. It remains
then to apply it to the facts of the present matter in relation to
the two remaining documents in dispute.
[32] Firstly, it was argued on behalf
of the second respondent and also averred in the papers, that he
seeks some of the documentation
not only on his own behalf but on
behalf of the first respondent. In this regard it was stated on his
behalf that no purpose would
have been served by the first respondent
also filing a notice in terms of
Rule 35(12)
seeking the documents in
question. I cannot accept this reasoning. It is not proper, in my
view, for a litigant, whether represented
by the same legal
representatives or not, to purport to seek documentation or invoke a
rule on behalf of another litigant. For one
thing I do not understand
the second respondent to purport to bind the first respondent to pay
her share of the costs in the event
that the compelling application,
launched pursuant to the
Rule 35(12)
notice, is unsuccessful. I
propose then, for this reason alone, to disregard any claim which the
first respondent may have to production
of the documents in question.
[33] The applicant contends that the
compelling application was launched simply to frustrate the main
application and furthermore
alludes to the fact that no relief is
being sought against the second respondent. These themes were
expanded upon in argument, the
contentions being that the application
was an abuse of the court process. It is the applicant’s case that
the underlying cause
for the judgment against the first respondent
and certain related companies in the sum of R10 million odd related
to cheques allegedly
stolen by the first respondent. On several
occasions in the applicant’s founding affidavits the second
respondent is alleged to
have been involved in one or other aspect of
the first respondent’s fraudulent or irregular dealings. The
overall suggestion is
moreover that the second respondent was
assisting in frustrating other creditors and the applicant in its
attempts to execute on
its judgment against the first respondent. It
is furthermore alleged that the first and second respondent’s
financial affairs are
intermingled. In his opposing affidavits the
second respondent baldly denies that his wife is insolvent. He takes
umbrage at, and
denies the allegations of, complicity on his part in
commercial and financial irregularities allegedly committed by the
first respondent.
[34] It is clear then that the second
respondent is not merely cited in a nominal capacity or solely by
virtue his marriage to the
first respondent. Rather, he is alleged to
be a role player in the underlying commercial transactions which led
to the litigation
culminating in the judgment against the first
respondent and hence the sequestration application.
[35]
S 9(3)(a)(ii)
of the
Insolvency
Act, 24 of 1936
, requires the full names, date of birth and identity
number of the spouse of a respondent to be set out in a sequestration
application.
Such spouse need not be cited as a party if the marriage
is out of community of property and therefore no joint estate is
sought
to be sequestrated. However, Cape Practice Note 15 (having
effect from 1 August 2001) requires that notice of intention to apply
for a provisional order of sequestration shall, if married, be given
to the debtor’s spouse, whether married in or out of community
of
property, which spouse shall be joined as a respondent.
[36] It was necessary, therefore, for
the applicant to join the second respondent in the main application.
No relief was sought against
him although at one stage there appears
to have been an erroneous reference to a sequestration order being
sought against the joint
estate of the respondents. I am satisfied,
however, that it was entirely clear from the papers as a whole that
no relief was sought
against the second respondent and that he was at
no stage misled into believing that this was not the case
notwithstanding the final
paragraph in his opposing affidavit wherein
he prays that the application be dismissed against him with costs on
the attorney and
client scale.
[37] When the second respondent’s
replying affidavit in the compelling application is considered it
would appear that his main concern
is to defend himself against the
“
scandalous, vexatious and defamatory
” allegations made
against him in the main application. He motivates for the production
of documents in terms of his
Rule 35(12)
notice on the ground that
this will serve the legitimate purpose of allowing him to test the
allegations of wrongdoing made against
him. It would seem, therefore,
that the second respondent is greatly concerned with defending his
good name and this is borne out
by the fact that has already launched
a defamation action arising out of the allegations made in the
founding affidavits. The second
respondent’s reputation is,
however, by no means a central issue in the main application hence
the applicant’s contentions that
the
Rule 35(12)
notice constitues
abuse of the court’s process and is purposeless since no
substantive relief is sought against the second respondent.
The
applicant goes further and states that what the second respondent in
fact seeks is early discovery in the defamation action.
[38] There is no certain method of
determining precisely what motivates the second respondent in seeking
to obtain the documentation
he has called for and more specifically
whether he is motivated simply by a desire to obtain early discovery
in his action for defamation.
Furthermore, I consider that a court
would be embarking on a slippery slope were it to withhold from a
litigant the right to invoke
a rule of court because his/her motives
in so doing might be mixed or less than pure.
[39] The second respondent could, if
he had so wished, simply have ignored the allegations made against
him, filed no opposing affidavits
and not sought the production of
any documents. However, he
has
been cited as a party to the
action, serious allegations have been made against him and, as a
party, he is in principle entitled
to entitled to invoke the
provisions of
Rule 35(12).
[40] Furthermore, any sequestration of
the first respondent’s state will have far-reaching effects for the
second respondent. In
terms of
s 21
of the
Insolvency Act the
effect
of the sequestration of the estate of a spouse is to vest in the
Master, until a trustee has been appointed, and in the trustee
on his
appointment, all the property of the spouse whose estate has not been
sequestrated, as if it were the property of the sequestrated
estate
and to empower the Master or the trustee to deal with such property
accordingly. Such acquisition is not necessarily permanent
because
the solvent spouse may secure the release of his or her assets by
proving that they fall into any of a number of categories.
But until
the spouse actually does this he/she has none of the ordinary powers
of ownership over the assets and cannot alienate or
encumber them.
[41] It is clear therefore that,
although no direct relief is sought against the second respondent,
should the first respondent’s
estate be sequestrated this will have
potentially far-reaching consequences for him.
[42] Reverting to the test formulated
by Friedman J in
Gorfinkel
, I have, for the reasons cited,
come to the conclusion that the applicant has not discharged the
onus
of proving, on a balance of probabilities, that the second respondent
is not entitled to the two sets of documents which he requires
the
applicant to produce in terms of paragraphs 4 and 13 of his notice in
terms of
Rule 35(12).
[43] Insofar as the costs of the
application are concerned I do not consider it appropriate to make
any order at this stage. The second
respondent has ultimately been
successful in compelling production in respect of only two of the
various documents which were initially
sought in the compelling
application. He has, moreover, already filed an opposing affidavit
and a supplementary affidavit and it
remains to be seen as to what
use the documentation compelled will be put and what role, if any, it
will play in the main application.
In the circumstances I propose to
let the question of the costs of this compelling application stand
over for determination in the
main application.
[44] In the result it is ordered as
follows:
Applicant is ordered to produce the
documents called for in paragraphs 4 and 13 of second respondent’s
notice in terms of
Rule 35(12)
, served on 25 August 2006, by not
later than 15 January 2007;
The costs of this application will
stand over for later determination.
_________________
LJ BOZALEK, J