De Beers Consolidated Mines Limited v Mondira Pula CC and Others (667/2003) [2003] ZANCHC 40 (12 September 2003)

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[2003] ZANCHC 40
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De Beers Consolidated Mines Limited v Mondira Pula CC and Others (667/2003) [2003] ZANCHC 40 (12 September 2003)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case no: 667/2003
Date
heard: 2003-09-05
Date
delivered: 2003-09-12
In
the matter of
:
De
Beers Consolidated Mines Limited
Respondent/Applicant
versus
Mondira
Pula CC
Applicant/First
Respondent
The
Director Mineral Development
Northern Cape
Second
Respondent
Sol
Plaatje Municipality
Third
Respondent
Coram:
MAJIEDT
J
JUDGEMENT
MAJIEDT
J:
This
is an interlocutory application for the discovery of certain
documents in terms of Uniform Rules of Court 35(12) and 35(14).

The first respondent in the main application is the applicant herein
while the applicant in the main application is the respondent.
I
shall refer to the parties in this judgement as they are depicted in
the interlocutory application.
In
the main application the respondent seeks an order as follows:
“
1. That the
forms and services provided for in the Court Rules be dispensed with
and that this matter be disposed of as an urgent
application.
2. That
the First Respondent is called upon to furnish reasons (if any) in
this Court on FRIDAY the 15
th
of AUGUST 2003 AT 10H00 why the following order should not be granted
–
2.1 That the First
Respondent is interdicted from entering upon the property known as
CERTAIN remainder
of Erf 5045;
SITUATE in
the City and District of Kimberley;
HELD under Deed
of transfer No T.176/1941
or
remove any mining tailings from the said property.
2.2 That the First
Respondent is ordered to restore the Applicant’s undisturbed
possession of the said property;
2.3 That the First
Respondent is ordered to remove the gates erected in the fence of the
said property and to restore the said fence
in its original position;
2.4 That the First
Respondent (as well as any other Respondent opposing this
Application) be ordered to pay the costs of this Application
(in the
case of more than one Respondent, jointly and severally).
3. That the order
contained in paragraph 2.1 will have interim operation with immediate
effect.
4. Further and/or
alternative relief.”
On
the urgent application of the respondent an order was issued in
chambers as per paragraphs 2.1, 2.2, 2.3, 2.4 and 3 as prayed
in the
Notice of Motion,
supra
.
I
set out in full detail the relief sought in the Notice of Motion and
the relief granted on an urgent interim basis, because it
is of some
importance, as will appear later herein.
The
applicant herein filed a notice in terms of Rule 35(12)
requesting the discovery of certain documents and also a discovery
notice in terms of Rule 35(14) requesting the discovery of some
other documents. The aforementioned notices had been preceded
by
correspondence between the attorneys of the parties.
At
the commencement of the hearing of this matter, I indicated to
Counsel that, since the respondent had complied to an extent
with
the notices, save and except insofar as four of the items requested
under the notice in terms of Rule 35(14) is concerned,
that the
exercise has become largely academic. All that is left to consider
at this stage is the four outstanding items requested
under Rule
35(14) as well as the matter of costs. Argument was therefore
largely restricted to these specific aspects. It is,
however,
necessary to deal with the documents requested and discovered under
Rule 35(12) and the balance of Rule 35(14).
I
deal firstly with the outstanding items requested in the applicant’s
Rule 35(14) notice. These outstanding items are
the
following:
“
a) The
documentation evidencing the ownership of the tailings referred to in
the final paragraph, paragraph 8.1 of the affidavit of
Mr. Fisher.
b) The
documentation evidencing the rights to the minerals referred to in
the final paragraph, paragraph 8.1 of the affidavit of Mr.
Fisher.
c) The
documentary proof that the tailings were extracted from the Kimberley
and De Beers Mines.
d) The documentary
proof that the said tailings were deposited on the Remainder of Erf
5045.”
In
the main application the respondent seeks the order set out herein
before. The dispute primarily concerns the fact that the
applicant
had obtained a mining authorisation from the second respondent in
the main application in terms whereof the applicant
was authorised
to sort for diamonds on a portion of Erf 5024 (the description of
the property is incorrect and has now been corrected
by the second
respondent in the main application – it should refer to Erf 5045).
The applicant has thereafter entered the said
property and has
commenced exercising its rights pursuant to the said mining
authorisation. The respondent claims in the main application
that it
is the owner of the mining tailings and the diamonds therein
contained which has been deposited on Erf 5045 and also avers
that
it was in undisturbed possession of the said mining tailings, which
possession has been disturbed unlawfully by the applicant.
Rule 35(14)
reads 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 five 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.”
(the
emphasis is mine).
The
respondent has objected to making discovery of the aforementioned
four items on the basis:
a) that
they are not relevant to the anticipated issues in the matter; and
b) that
it has not been clearly specified.
I
shall deal later with the question of relevance, but for purposes of
deciding whether the request for discovery of the four items
under
Rule 35(14) is justified, I need do no more than to consider the
question as to whether the requested documents had been
clearly
specified. Van Dijkhorst J in the matter of
Cullinan
Holdings Ltd
v
Mamelodi Stadsraad 1992(1) SA 645 (T)
emphasized the restricted confines within which the discovery of
documents can be requested under Rule 35(14) and said the following
at 647 H:
“
Dit is myns
insiens nie wat die Reël voorsien nie. Dit was nie die bedoeling
met die invoeging van Reël 35(14) in 1987 om ‘n
onbeperkte of wye
reg tot blootlegging voor sluiting van pleitstukke in te voer nie.”
At
648 F-G the learned Judge continued as follows:
“
Myns
insiens skep Reël 35(14) nie ‘n metode waardeur ‘n gedingsparty
deur gebruikmaking van
generiese
omskrywings
‘n
net kan knoop waarmee vir halfbekende dokumente gevis kan word nie.
Dit is ‘n remedie wat vir besondere omstandighede geskep
is. Dit
vereis die oproep van ‘n
spesifieke
dokument
waarvan
die applikant kennis dra en wat hy
presies
kan omskryf
.”
(emphasis
supplied).
When
one compares the description of the documentation requested in these
four outstanding items, they appear to be very similar
to the nature
of the request in the matter of
Quayside
Fish Suppliers CC
v
Irvin
& Johnson Ltd 2000(2) SA 529 (C)
at 533 A-G. In that case a vast array of documentation was
requested “reflecting” certain information. In the present
matter
it strikes one that in two of the four items documentation is
requested “evidencing” certain aspects.
In
my view the documentation requested in the applicant’s Rule
35(14)-notice pertaining to these four outstanding items, has been
insufficiently described and can be categorized as generic
descriptions. To my mind this is no more than a shot in the dark

and a fishing expedition which the applicant is not entitled to
embark upon under Rule 35(14).
Moreover,
and in any event, it seems to me that, the applicant having been
furnished at his request with the “mining licences
pursuant to
which the tailings were extracted from the Kimberley and De Beers
Mines”, the rest of the documentation requested
under these four
outstanding items have become obsolete and should fall away. Be
that as it may, I am satisfied that the applicant
is not entitled to
discovery of the said documentation.
I
turn now to the question of relevance, particularly insofar as it
concerns the documentation requested and discovered under the
notice
furnished in terms of Rule 35(12) and the rest of the items
discovered under Rule 35(14) (i.e. save and except
for the four
outstanding items dealt with herein above). Mr. Van Niekerk, who
appears for the respondent in this interlocutory
application, has
argued strenuously that the main application is simply an
application for a mandement van spolie and nothing else.
That being
the case, so he argued, the merits of the applicant’s defence in
the main application or his purported title or authorisation
to
the.mining tailings on Erf 5045 do not come into the picture at
all. Consequently, so the argument went, all the documentation
requested in terms of Rule 35(12) and Rule 35(14) have no
relevance to the issues in the main application and the applicant
is
not entitled to seek discovery thereof. It is the respondent’s
case that it has made discovery of the documents without
conceding
at all that same is relevant to the issues in the main application.
I
think it is important that I should in this judgement, decide the
question of relevance, since this is an aspect which may ultimately
have an important bearing on the question of costs which I intend to
reserve for determination at the main application.
Mr.
Van Niekerk has in support of his contention that the main
application concerns the mandament van spolie only and nothing
else, referred me to the matter of
Minister
of Agriculture and Agricultural Development
v
Segopolo 1992(3) SA 967 (T)
.
In that matter the relevant prayer contained in the notice of
motion reads as follows:
“
(waarom)
die respondent nie beveel sal word nie om die applikante in die
vreedsame en onverstoorde
besit
van die plaas Goedgevonden in die distrik Ventersdorp te herstel of
om besit daarvan aan applikante terug te gee en om alle
woonstrukture
wat deur hulle en lede van hulle huishoudings op daardie plaas
opgerig is tesame met hulle ander persoonlike besittings
onverwyld te
verwyder.”
In
respect of this prayer Goldstein J held that the prayer seeks no
more than spoliatory relief. I am in respectful agreement
with the
learned judge on that score.
A
further prayer marked 2(c) in the notice of motion in that case reads
as follows:
“
(Waarom) die
respondente nie belet sal word nie om die plase Nagel, Welgevonden en
Doornkop in die distrik Ventersdorp te betree,
te besit of te
okkupeer.”
In
respect of this subprayer 2(c) Goldstein J found as follows at
972 H:
”
The prayer is
consistent with both spoliatory and vindicatory relief. There is
much to be said for the view that despite the surplusage
I have
referred to, the founding affidavits show that subprayer (c) was
designed only for spoliatory relief and was intended to be
no more
than an interdict against spoliation. See paras 13 and 14 of
the main founding affidavit. I need not, however, make
a decision in
this regard because counsel for the applicants expressly disavowed
any claim for vindicatory relief and restricted
his case entirely to
spoliatory relief.”
In
that matter the applicants, having abandoned their claims for
vindicatory relief, amended their notice of motion and restricted
their case entirely to spoliatory relief. The following
dictum
of
Goldstein J at 973 D-F in the said case, has been advanced
by Mr. Van Niekerk as lending support to his submissions that
the
present case concerns spoliatory relief only:
“
Counsel
for the respondents contended that if prayer 2(c), which became
para 1(c), of the rule
nisi
,
were to be regarded merely as an interdict against spoliation, the
applicant’s persistence in claiming such relief took them outside
of the ambit of the rules I have discussed. The interdict, so the
argument ran, was directed not at restoring possession which the
mandament van spolie seeks to do, but at prohibiting interference
with it. A respondent in such circumstances was in fact, it was
argued, subjecting himself to the Court’s jurisdiction and was thus
entitled to be heard on the merits and, furthermore, since
he had not
yet despoiled the applicant, there was no pressing reason not to
entertain his defence on the merits.
In my view these
arguments must rejected. A respondent who threatens to spoliate
sufficiently seriously to justify an interdict
does not necessarily
cease to do so when an interdict is sought against him and he opposes
the proceedings. And it is just as important
to stop him
expeditiously as it is to undo the results of a completed
spoliation.”
The
aforementioned contention by Mr. Van Niekerk cannot be upheld.
First and foremost, it must be borne in mind that the applicants
in
the aforementioned case had specifically abandoned any reliance on
vindicatory relief and had amended their notice of motion
accordingly. Moreover, Goldstein J dealt with the argument
there on the basis that the applicants merely sought an interdict
to
enforce spoliation. In the present matter, the situation is
entirely different in my view. While paragraph 2.2 of the
respondent’s
notice of motion in the main application quite
clearly constitutes nothing but spoliatory relief, the same cannot
be said of paragraph
2.1 thereof. The respondent seeks not only an
interdict as against the applicant prohibiting it from entering the
property known
as Erf 5045, but importantly also further seeks an
interdict prohibiting the applicant from removing any mining
tailings from the
aforesaid property. This last portion is
integral to my view that the main application concerns more than a
mere mandament van
spolie inasmuch as the said relief sought clearly
contains elements of vindicatory relief. I am in agreement with
the submissions
made by Mr. Van Heerden on behalf of the applicant
herein, that ownership of the mining tailings and the diamonds
therein, will
come to the fore in the adjudication of the main
application. In that regard, the question of the applicant’s
right to minerals
in the mining tailings which emanates from its
mining authorisation issued by the second respondent in the main
application, will
also have to be dealt with.
In
the premises I am of the view that the main application goes beyond
mere spoliatory relief and that a request for the discovery
of
documentation relating to ownership is indeed very relevant in this
case.
Lastly
I consider the question of costs. As is apparent from my
aforementioned findings, the applicant was entitled to seek
discovery
of all the documents in its Rule 35(12) notice which
are relevant to the issues in the main application, save and except
for
items 5 and 7 thereof which respectively entails a reported
judgement and in the second instance does not refer to a particular
document. It should also be clear that I hold the view that, save
and except for the four outstanding items in the Rule 35(14)
notice, the applicant was entitled to seek discovery of the balance
of the documents in that notice. Ultimately, it will only
become
clear at the hearing of the main application whether these documents
were in fact relevant to the issues for adjudication
in the main
application. It may also turn out that my view on the nature of the
relief sought in the main application is incorrect
and if that is
the case, then it may well be that the judge hearing the main
application may take the view that discovery of the
documents in
terms of the Rule 35(12) and 35(14) notices was not necessary.
That being the case, I am of the view that I
should reserve the
decision on costs for the Court hearing the main application.
A
final matter that remains is the fact that Mr. Van Heerden on behalf
of the applicant has complained that full and proper discovery
has
not been made inasmuch as the applicant had merely been furnished
with those documents which the respondent saw fit to make
available,
without conceding that it was in law obliged to do so. Insofar as
it may be necessary to correct this matter, I issue
the following
order:
a) The
respondent in the interlocutory application is ordered to make
available for inspection to the applicant or its attorneys,
the
documents listed in items 1, 2, 3, 4 and 6 of the applicant’s
notice in terms of Rule 35(12) and as contained in annexure A
to the founding affidavit in the interlocutory application as well as
the documents listed in 1.1 , 1.2, 1.3, 1.4, 1.7 and 1.10
of the
applicant’s notice in terms of Rule 35(14) and as contained in
annexure B of the founding affidavit in the interlocutory
application.
b) The
costs of this interlocutory application stand over for determination
at the hearing of the main application.
___________
SA
MAJIEDT
JUDGE
ADVOCATE
FOR THE RESPONDENT/APPLICANT : ADV JG VAN NIEKERK
ADVOCATE
FOR THE APPLICANT/RESPONDENT : ADV CN VAN HEERDEN
ATTORNEY FOR THE
RESPONDENT/APPLICANT : DUNCAN & ROTHMAN
ATTORNEY
FOR THE APPLICANT/RESPONDENT : VD WALL & PARTNERS
DATE OF
HEARING : 2003-09-05
DATE
OF JUDGEMENT :
2003-09-12