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[2024] ZAMPMBHC 34
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Wozani Berg Gasoline (Pty) Ltd v Mkhondo Oil and Diesel (Pty) Ltd (48/2019) [2024] ZAMPMBHC 34 (9 May 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NO: 48/2019
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: YES
DATE: 09/05/2024
SIGNATURE
In the matter between:
WOZANI
BERG GASOLINE (PTY) LTD
Applicant
and
MKHONDO
OIL AND DIESEL (PTY) LTD
Respondent
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 09 May 2024 at 10:00.
JUDGMENT
MASHILE J:
INTRODUCTION
[1]
This Court is to adjudicate on two interlocutory applications. In
each instance, the
one application has been launched by the one
against the other. In the first application, the Applicant (“Wozani”)
is, in terms of Rule 21(4) of the Uniform Rules of this Court,
compelling the Respondent (“Mkhondo Oil”) to furnish
further particulars for trial. In the second application Mkhondo Oil,
as the Applicant, is compelling Wozani (the Respondent in
this
instance) in terms of Rule 35(7) of the Rules, to make further and
better discovery as intended in Rule 35(3). I have elected
to refer
to the parties in their actual names to avoid confusion.
FACTUAL MATRIX OF
THE FIRST APPLICATION
[2]
Turning first to the application in terms of Rule 21(4). The factual
background to
this application emanates from an action instituted by
Wozani against Mkhondo Oil for payment due and owing by the latter in
respect
of fuel supplied for and on its behalf. The facts are largely
common cause. For a better appreciation of the dispute and to put
the
matter in its proper perspective, it is important to lay out the
circumstances that led the parties to both these applications.
Wozani
issued and served summons against Mkhondo Oil in early 2019. Mkhondo
Oil responded by excepting to the particulars of claim,
which
prompted Wozani to amend its particulars of claim during the same
year.
[3]
When Mkhondo Oil delayed to promptly plead to the amended particulars
of claim, Wozani
placed it under bar. Mkhondo Oil persisted with its
exception but it was nonetheless ultimately dismissed following
opposition
by Wozani. On 3 September 2020, Mkhondo Oil delivered a
plea and counterclaim to the action. On 30 September 2022, Wozani
delivered
a request for further particulars for purposes of the
impending trial. The further particulars for trial were directed at
the averments
made in the plea and counterclaim of Mkhondo Oil.
[4]
Mkhondo Oil furnished the further particulars as requested on 25
October 2022 but
Wozani alleges that the response of Mkhondo Oil was
insufficient insofar as it failed to provide a substantive and
meaningful reply
to paragraphs 2.2.2, 2.4.2, 2.6.2 and 2.8.2. The
response of Mkhondo Oil to each of the aforesaid paragraphs was that
it intended
to amend its pleadings. On 2 December 2022, Wozani wrote
to Mkhondo Oil advising that it was entitled to a proper response in
respect
of those paragraphs. Wozani further reminded Mkhondo Oil that
it has failed to observe its commitment that it would amend its
pleadings.
[5]
In responding to Wozani on 7 December 2022, Mkhondo Oil recommitted
to its intention
to amend its pleadings. On 18 April 2023, Wozani
once more reminded Mkhondo Oil by letter that its pleadings remained
unamended.
In view of that failure, Wozani persisted on answers to
those specific paragraphs failing which it threatened to launch an
application
to compel for further particulars. Wozani alleges further
that even on 17 may 2023, the date on which it launched the
application
for the request for further particulars for trial,
Mkhondo Oil had neither delivered its intention to amend its
pleadings nor had
it provided substantive answers to paragraphs
2.2.2, 2.4.2, 2.6.2 and 2.8.2.
[6]
Wozani alleges that it persisted in Mkhondo Oil responding to the
questions raised
in respect of those paragraphs of the request for
further particulars or amending its pleadings because Mkhondo Oil had
raised
five defences to the claim for payment. These defences also
formed the basis of five counterclaims instituted against Wozani by
Mkhondo Oil. The defences were that Wozani overcharged Mkhondo Oil:
6.1
In the amount of
R 4 057 637.02
by raising invoices
for diesel which was never delivered to the
defendant;
6.2
For fuel to the value of
R8 382.50
in respect of excessive
litres which were never delivered and at an incorrect price;
6.3
For fuel to the value of
R1 543 423.34
by raising invoices for
diesel at a tariff that does not equate to the agreed tariff;
6.4
For consignment stock at a tariff that did not equate to the agreed
tariff, to the
value of
R1 339 717.03
; and
6.5
In the amount of
R 754 631.23
in respect of fuel delivered to
Mkhondo Oil but subsequently collected by Wozani.
[7]
To avoid Mkhondo Oil catching it by surprise at the trial by
ultimately relying on
instances of alleged incorrect charging not
specifically pleaded, Wozani alleges that it sought to establish from
Mkhondo Oil if
it relied on any such instances other than those that
it has specifically pleaded in the counterclaim. These requests were
made
firstly, in relation to the first defence and counterclaim.
Secondly, in relation to the second defence and counterclaim.
Thirdly,
in relation to the third defence and counterclaim. Fourthly,
in relation to the fourth defence and counterclaim. Mkhondo Oil’s
answers to all these was that it would amend its pleadings in due
course, which it has since 25 October 2022 not done.
ASSERTIONS ADVANCED
BY THE PARTIES
[8]
Wozani contends that having regard to the length of period that
Mkhondo Oil has had
since 25 October 2022 to either supply the
details of the unpleaded instances of incorrect charging or initiate
a process that
would lead to the amendment of its pleadings, it would
by now have done so. Mkhondo Oil’s failure in that regard to
date
is reminiscent or has a flavour of a party bereft of bona fides.
It is unavoidable, maintains Wozani, to conclude that Mkhondo Oil
does not have any claims against it other than those pleaded, is not
eager to get to grips with the issues and wishes to protract
matters
as much as possible.
[9]
Wozani further asserts that in respect of amounts claimed by it,
Mkhondo Oil has referred
to specific transactions such that it is
able to identify the transactions and investigate the merits of the
allegations. Conversely,
Mkhondo Oil has not done so in respect of
amounts not claimed by it. It has not referred to specific order
numbers or invoices.
As such, Wozani is incapable of identifying the
transactions and investigate the claims.
[10]
Wozani further argues that Mkhondo Oil’s reliance on a strict
interpretation of Rule 21
that on the pleadings as they stand, Wozani
is not entitled to the particulars that it seeks could be correct but
disingenuous
and misguided in these circumstances. Wozani is
steadfast that Mkhondo Oil has known that whether or not, strictly
speaking the
allegations which it relies on, are part of the
pleadings, it was certainly going to rely on them at some stage.
Wozani suspected
that Mkhondo Oil would do so at the trial but
instead, it did so by a belated request of discovery of every
document that relates
to all business transactions between the
parties from inception.
[11]
Wozani maintains that Mkhondo Oil’s failure to single out any
specific transactions during
the parties’ business relationship
fortifies the contention that it does not know of any other
transactions on which it can
rely but instead hopes to find something
in the mountain of documents that it is demanding. Wozani concludes
that Mkhondo Oil is
simply on a fishing expedition with the hope of
protracting the matter. This is manifest, asserts Wozani, because by
failing to
reply to its answering affidavit in the request for
further discovery, Mkhondo Oil has not only failed to show the
relevance of
the documents that it is demanding but has also not
succeeded to demonstrate that its claims against Mkhondo have not
prescribed.
[12]
Mkhondo Oil, on the other hand, asserts that Wozani had
requested
from it to answer, in the case of amounts not claimed, by referring
to invoice number, date and time of
purchase
, which deliveries were not
made. In response, Mkhondo Oil indicated that it would attend to the
amendment of its plea and counter
claim. Having answered as
aforesaid, Mkhondo Oil proceeded to make a counter request in terms
of Rule 35(3) of all of the invoices
mentioned by Wozani in its
request for further particulars for trial. Mkhondo Oil claims that it
cannot furnish the further particulars
without information from
Wozani. In other words, Wozani must first discover in terms of the
Rule 35(3) Application to enable it
to make the discovery.
[13]
Mkhondo Oil argues that it finds Wozani’s refusal to answer to
its request for discovery
in terms of Rule 35(3) and its complaint
that it (Mkhondo Oil) has failed to respond to its request for
further particulars not
only illogical but mala fide. Mkhondo Oil
further argues that a
party
is only entitled to call for such further particulars as are
‘strictly necessary’ to enable him to prepare for
trial.
The purpose of permitting a party to call for further particulars for
trial is:
13.1
To prevent surprise
;
13.2
A party should be told with greater precision what the other party is
going to prove in order
to enable his opponent to prepare
his case to combat counter allegations; and
13.3
Having regard to the aforegoing nevertheless not to tie the other
party down and limit his case unfairly
at the trial.
ISSUES
[14]
Central in this application is whether or not Wozani has made a case
for the granting of an order
compelling Mkhondo Oil to furnish
further particulars as envisaged in Rule 21(4).
LEGAL FRAMEWORK
[15]
The pertinent Rule of Court concerned with request for further
particulars for purposes of trial
and failure to respond thereto is
21. Sub-rules (1) and (4 respectively provide that:
“
(1)
After the close of pleadings any party may, not less than 20 days
before trial,
deliver a
notice requesting only such further particulars as are strictly
necessary to enable him or her to prepare for trial. Such
request
shall be complied with within
10
days after receipt thereof.”
(2)
…
“
(4)
If the party requested to furnish any particulars as aforesaid fails
to deliver them timeously
or sufficiently, the party
requesting the same may apply to court for an order for
their delivery or for the dismissal
of the action or the striking out
of the defence, whereupon the court may make
such order as to it seems
meet.”
[16]
The purpose of particulars for trial is not to elicit evidence or
information that will emerge
on cross-examination. See in this
regard, the matter of
Von
Gordon v Von Gordon
[1]
.
In determining what particulars fall within the scope of the Rule,
one would look primarily at the pleadings. The matter of
Hardy
v Hardy
[2]
is relevant. Where a party pleads a bare denial of allegations made
by his opponent, such a party cannot be required to furnish
particulars of any aspect placed in issue by such denial.
[17]
In applying this principle, it must be borne in mind that a statement
in a plea which is in form
a denial may embody by necessary
implication a positive averment of some fact. In such a case it may
be proper to require that
particulars be furnished of the implied
averment.
Si
nce
the pleadings alone do not necessarily contain sufficient information
to determine whether or not a party may be taken by surprise
and what
the other party intends to prove, it is permissible to go beyond the
pleadings and to look at matter forming part of the
record, such as
expert witnesses’ summaries and even (in an appropriate case)
evidence given at an earlier hearing which
forms part of the record.
See
in this regard, the matter of
Schmidt
Plant Hire (Pty) Ltd v Pedrelli
[3]
.
ANALYSIS
[18]
The situation confronted by this Court is rather peculiar in that the
essence of Mkhondo Oil
is, without conceding that it is under any
obligation to make further discovery, willing to provide the further
particulars but
it cannot comply with the request because the
information sought is in the possession of Wozani. This matter is
also peculiar in
the sense that the assertion of Wozani that Mkhondo
Oil has answered all the other questions but four, which happen to be
linked
to its counterclaim, presents difficulties insofar as it
leaves Wozani understandably anxious of Mkhondo Oil’s actual
intention.
[19]
Wozani’s apprehension of Mkhondo Oil’s true intention
while understandable is in
fact unfounded. This has to be the case in
circumstances where Mkhondo Oil has gone to great lengths explaining
why delayed to
advance the matter a step further since 25 October
2022. The point is that it had to instruct an accountant to attempt
to make
sense of the figures claimed by Wozani. It is common cause
that the exercise involved trawling through a mountain of pages of
papers.
Besides, Mkhondo Oil also explains that there was a personal
difficulty why Mkhondo Oil delayed. Against that background, it will
be premature for this Court to draw a negative inference from Mkhondo
Oil’s inability to address the situation earlier than
it did.
[20]
It is trite that Wozani must confine its case within the four corners
of the provisions of Rule
21. It is unmistakable that the further
particulars that are sought by Wozani fall outside the precinct of
Rule 21. In these circumstances,
Wozani should confine itself to what
is before it and not venture to cross the border. If Mkhondo Oil has
stated that it would
amend its papers and then stay idle, Wozani
should accept that the papers of Mkhondo Oil are what they purport to
be and proceed
with the case. The fear that Mkhondo Oil would
surprise it at the trial has been allayed as the request for further
discovery has
come early than the date of hearing.
[21]
Considering the above the application for request for further
particulars for purposes of the
forthcoming trial is refused. I note
that Mkhondo Oil has asked for attorney client costs, which are by
nature punitive. I do not
think that this is warranted on the facts
of what truly caused the delay that raised suspicions on the side of
Wozani. The following
order is made:
The
application for request for further particulars in terms of Rule
21(4) is dismissed with costs.
THE RULE 35(7)
APPLICATION
[22]
The facts upon which the previous application was decided are similar
and remain applicable to
this application. As such, I will not repeat
them here.
ISSUES
[23]
The issue in this instance is to determine whether Mkhondo Oil has
made a case for Wozani to
make further discovery.
LEGAL FRAMEWORK
[24]
As in the previous application, the starting point should be a
citation of the relevant parts
of Rule 35 being the Rule on which
Mkhondo Oil has founded this application to compel further discovery.
Of specific interest in
this regard are sub-rules (3) and (7) which
respectively provide that:
“
(3)
If any party believes that
there are, in addition to documents or tape recordings disclosed as
aforesaid, other documents (including
copies thereof) or tape
recordings which may be relevant to any matter in question in the
possession of any party thereto,
the former may give
notice to the latter requiring such party to make the
same available for inspection in accordance
with subrule (6), or to
state on oath within 10 days that such documents or tape recordings
are not in such party’s
possession, in which event the
party making the disclosure shall state their whereabouts, if known.”
(4)
…
(5)
…
(6)
…
“
(7)
If any party fails to give discovery as aforesaid or, having been
served with a notice under subrule
(6), omits to give notice of a
time for inspection as aforesaid or fails to give inspection as
required by that subrule, the party
desiring discovery or
inspection may apply to a court, which may order compliance
with this rule and, failing such compliance, may
dismiss the claim or strike out the defence.”
[25]
Mkhondo
Oil states that it
is
trite that the test for discovery of documents is relevance having
regard to the issues as defined in the pleadings. That said,
relevance is a matter for the Court, having regard to the pleadings
and does not depend upon the Applicant’s own views on
the
matter. In this regard, this Court was referred to the matter of
Haupt
t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd
[4]
.
Furthermore, relevance is to be determined from the pleadings without
regard to extraneous evidence. This Court was asked to consider
the
matter of
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South
Africa
[5]
.
[26]
It was noted in
Rellams
(Pty) Ltd v James Brown & Hamer Ltd
[6]
that it is not without significance that Rule 35(3) refers to
documents that may be relevant and not those that are to the action.
This is determined, having
regard
to the issues, taken at face value, as defined in the pleadings.
[27]
The importance of discovery of documents is accentuated in by
The Civil Practice of the Supreme Court of South Africa 4
th
Edition
(1997) by the
authors,
Herbstein & van Winsen
where
the following is stated:
"The
scope of discovery ... is wide. It extends to documents having only a
minor or peripheral bearing on the issues, and to
documents which may
not constitute evidence but which may fairly lead to an enquiry
relevant to the issues."
ANALYSIS
[28]
Wozani asserts that all the documents dated prior to 13 July 2028 are
irrelevant. As such, Mkhondo
Oil is not entitled to them. All the
other transactions recorded on what is referred to as Annexure “A”,
so continues
the argument, and falling outside of the 12 invoices on
which Wozani’s claims are based, have merely been included for
convenience
alone. In the particulars of claim, Wozani alleges that
as on 4 October 2018, there was a balance outstanding of
R2
564 382.41
due to Wozani. Once again, Wozani refers to the entire
Annexure “A” for proof even though it refers specifically
to
Annexures “B” to “V” for the period of 13
July 2017 to August 2018.
[29]
The above said, Mkhondo Oil has demonstrated that between 13 July
2018 and 4 October 2018 it
had paid to Wozani an amount of
R2 800
449.31
. On the other hand, Wozani states in the particulars of
claim that the amount that was outstanding for the period 13 July
2018
to 7 August 2018 was
R2 564 382.41
.
It is evident that the amount paid by Mkhondo Oil for the period
exceeds that claimed by Wozani suggesting that there might be
an
overpayment. Because the amounts due are different, it becomes
necessary to consider all the transactions on Annexure “A”
to determine the source of the discrepancy.
[30]
Acknowledging that Wozani will have to provide a whole mountain of
papers, which may well be
in excess of two thousand pages, it
attracted upon itself the duty to make discovery by annexing the
whole of annexure “A”
even though it knew that it was
relying on twelve of the invoices. Given the attitude of previous
Courts and authors, as set out
above, this Court is bound to direct
that Wozani is under obligation to discover the documents as
requested in Rule 35(3). See
the case of In
Universal
Studios v Movie Time
[7]
where
the Court said that many references to documents in annexures to
pleadings are probably irrelevant to the proceedings and
would for
that reason not have to be produced but it does not follow that the
Rule does not apply to documents to which reference
is made in
annexures.
[31]
Wozani
cannot, as it has done, pick and choose which of those documents are
relevant and which are not. Perhaps it will be appropriate
to
conclude on the subject by mentioning the matter of
Independent
Newspapers (Pty) Ltd v Minister for Intelligence services and
Another; In re:
Billy
Masetlha v President of the Republic of South Africa
[8]
where
it was held as follows:
“
Ordinarily
courts would look favourably on a claim of a litigant to gain access
to documents or other information reasonably required
to assert or
protect a threatened right or to advance a cause of action. This is
so because Court take seriously the valid interest
of a litigant to
be placed in a position to present its case fully during the course
of litigation. Whilst weighing meticulously
where the interests of
justice lie, courts strive to afford a party a reasonable opportunity
to achieve its purpose in advancing
its case. After all, an adequate
opportunity to prepare and present one’s case is a
time-honoured part of a litigating party’s
right to a fair
trial”
[32]
Wozani has argued that Mkhondo Oil is not entitled to the discovery
of further documents because
prescription has intervened. If for
purposes of the counterclaim prescription has indeed occurred, so
asserted Wozani, the corollary
is that it would equally be
ineffective for purposes of the application. I agree with Mkhondo Oil
that a defence of non-delivery
or incorrect charges cannot describe
notwithstanding any contention to the contrary by Wozani.
[33]
Everything above considered, the application for further discovery in
terms of Rule 35(7) ought
to succeed. Again, and insofar as costs are
concerned, I do not think that the facts support a punitive cost
order against Wozani.
In the result I make the following order:
1.
Wozani is directed to comply with the Notice in terms of Rule 35(3)
within
10 days of date hereof;
2.
Should Wozani fail to comply with paragraph 1 above, Mkhondo Oil will
be entitled
to approach this Court on the same papers, duly
supplemented, for an order in terms of which the claim of Wozani is
struck out,
and further, in terms of which the defence of Wozani’s
to the counterclaim is struck out;
3.
Wozani is liable for the payment of this application.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES:
Counsel
for the Applicant:
Adv
Rall SC
Instructed
by:
Grant
& Swanepoel Attorneys
C/O
Du Toit-Smuts & Partners
Counsel
for the Respondent:
Adv
A Basson
Instructed
by:
Rudolph
Botha Attorneys
C/O
WDT Attorneys
Date
of Judgment:
09
May 2024
[1]
1961
(4) SA 211 (T)
at
213
[2]
1961
(1) SA 643 (W)
at
646
[3]
1990
(1) SA 398 (D)
at
402–3
[4]
2005
1 SA 398 (C) 404
[5]
1999
(2) SA 279 (T)
[6]
1983
(1) SA 556
(N) at 565 B)
[7]
1983
(4) 736 (D) at 750 D
[8]
(Case
No: CCT/38/07
[2008] ZACC 6