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[2024] ZAGPPHC 546
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Channon v Monama and Others (64482/2020) [2024] ZAGPPHC 546 (13 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 64482/2020
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE: 13 June 2024
SIGNATURE
In
the matter between:
ARTHUR
CHANNON
Applicant
(In
his capacity as the legal agent and on behalf of the late estate of
NAMANYANE
PONTSHO MONAMA
(identity number: 8[...]
)
Master
Nr. (0[...])
And
MPYANA
ROSEMARY MONAMA
First
respondent
Identity number: 5[...]
MOYAHABO
NAOMI MONAMA
Second Respondent
Identity number: 5[...]
MMAKGALA
RELEABETSWE MONAMA
Third
Respondent
Identity number: 8[...]
MMANKOKWANE
MONAMA
Fourth Respondent
Identity number: 8[...]
MOTSIRI
OFENTSE MONAMA
Fifth Respondent
Identity number: 9[...]
MASTER
OF THE HIGH COURT, JOHANNESBURG
Sixth Respondent
JUDGMENT
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected on 13 June 2024 and is handed down electronically
by
circulation to the parties/their legal representatives by e-mail and
by uploading it to the electronic file of this matter on
CaseLines.
The date for hand-down is deemed to be10h00 on 13 June 2024.
MNISI
AJ
INTRODUCTION:
[1]
This is an opposed application made in terms of
Rule 35(3) of the Uniform Rules in which
the applicant is seeking the
following relief:
1.
The
first to fourth respondents be ordered to comply with the applicant’s
request to properly and comprehensively respond
to the Applicant’s
Rule 35(3) Notice dated 1 March 2023 within 10 (TEN) days of service
of this order on the First to Fourth
Respondents’ attorneys of
record.
2.
That the First to
Fourth Respondents be ordered to pay the costs of this application;
3.
Further and/or
alternative relief.’
[2]
This application is only opposed by the first to
fourth respondent.
RELEVANT
FACTUAL BACKGROUND:
[3]
The applicant has applied in terms of the provisions of Rule
35(3) of the Uniform Rules of Court that the respondents be compelled
to discover in respect of certain specified documents.
[4]
This application comes before this Court pursuant to certain
issues in the main
application, which involves a determination of the
deceased’s ownership of a liquor shop under the above case
number having
been referred for oral evidence through a court order
dated 23 August 2022.
[5]
On 1 March 2023, the
applicant issued a Notice in terms of Rule 35(3) of the Uniform Rules
on the first to fourth respondents’
attorney of record as she
believed that there are certain documents or tape recordings in their
possession which are relevant for
determination of the matter.
[6]
It is apparent that in the applicant’s notice in terms of Rule
35(3),
the applicant has listed various specified documents which
include
inter alia
:
1.
Financial statements for the years ending between 2010 and 2022;
2.
Copies of all stocktaking reports for the financial years ending
between 2010
and 2022;
3.
Copies if the bank statements for all accounts held in the name of
Tshwane Liquor
Store, for the financial years ending between 2010 and
2022; and
4.
General ledgers for the financial years ending between 2010 and 2022.
ISSUES
FOR DETERMINATIION:
[7]
The issue for determination is simply whether
or not the applicant has made out a
case to compel the respondents to
discover documents listed in the Rule 35(3) Notice.
SUMMARY
OF THE EVIDENCE:
[8]
The applicant in her founding affidavit
in support of this application, averred the respondents
have failed
to properly and comprehensively respond to her Rule 35(3) Notice
dated 2 March 2023.
[9]
On
15 March 2023, the
applicant issued a follow up letter to the respondents’
attorneys of record informing them that they have
failed to discover
properly in terms of the Rule 35(3) Notice. The aforesaid letter also
states that the respondents had 5 (five)
days from the date thereof
to discover. The
dies
has since expired and this prompted the applicant to bring this
application.
[10]
The second respondent filed an answering affidavit dated 23 May
2023, deposed by the Moyahabo Monama
and averred that the statements
and the required documents have already been provided to the
applicant and that the same was already
in the applicant’s
possession. She also avers that she fails to see that the required
statements are relevant for the purposes
of the main application. The
second respondent then sought for the dismissal of this application
with costs.
[11]
In her replying affidavit, the applicant averred that the documents
are relevant in order
to fully prepare for the hearing of oral
evidence in which the Court will be tasked with determining amongst
other things, the
extent of the ownership which the second respondent
holds in an entity known as Tshwane Liquor Shop. She also states that
the dispute
regarding the ownership of the liquor shop emanates from
as far back on or during 2010 which is during or about the period
which
the deceased took over the ownership of the liquor shop from
the second respondent.
[12]
On 12 September 2023, the second respondent filed and served a
response to the applicant’s
Notice in terms of Rule 35(3). In
her response, the second respondent simply denies being in possession
of the information required
by the applicant in terms of the Notice.
[13]
On 12 December 2023, and despite the second respondent’s
response to the applicant’s
Rule 35(3) Notice, the applicant
proceeded to seek allocation for the adjudication of this
application. The matter was finally
enrolled for 4 March 2024.
APPLICABLE
LEGAL PRINCIPLES:
[14]
This current application to compel a proper and comprehensive
discovery is preceded by Rule 35(3) Notice
which is premised on the
applicant’s belief that the respondents have the required
documents. Rule 35(3) Notice reflects
that the applicant believes
that there are other documents which may be relevant to the matter in
possession of the respondents
(presumably the second respondent).
[15]
Rule
35(3) of the Uniform Rules provides as follows:
‘
if
any party believes that there are, in addition to documents or tapes
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 him to make the same available for
inspection in accordance with sub-rule (6) or
to state on oath within
10 days that such document are not in his possession, in which event
he shall state their whereabouts,
if known to him.’
Rule
35 (3) does not authorise or sanction a fishing expedition. See
MV
Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia)
(Pty) Ltd
1999
(3) SA 500
(W)
at 515
where
it was held ‘Rules 35(3) and (14) do not afford a litigant a
licence to fish in the hope of catching something useful.’
[16]
It is clear that the object of discovery is to ensure that before the
trial, both parties are
made aware of all the documentary evidence at
the disposal of the parties which in turn assist not only the
litigating parties
but the court to discover the truth.
[1]
Discovery affidavits are regarded as
prima
facie
conclusive save where it can be shown that there are reasonable
grounds for believing that the other party has the relevant documents
or that the other party is false in his or her assertions.
See
Federal
Wine and Brandy Co Ltd v Kantor
1958
(4) SA 735
(E)
at
749H.
[17]
In
Swissborough
Diamond Mines and Others v Government of the Republic of South
Africa
1999
(2) SA 279
(T)
at
320F-H it was held ‘Accepting that the onus is on the party
seeking to go behind the discovery affidavit, the court, in
determining whether to go behind the discovery affidavit, will only
have regard to the following:
(i)
The discovery
affidavit itself; or
(ii)
The documents
referred to in the discovery affidavit; or
(iii)
The pleadings
in the action; or
(iv)
Any admissions
made by the party making the discovery affidavit; or
(v)
The nature of
the case or the documents in issue.’
[18]
It is a well-established legal principle that
where
there is failure by the other party to discover despite the request
and notice, the provisions of Rule 35(7) may be utilized.
Rule 35(7)
provides:
‘
If
any party fails to give discovery as aforesaid or, having been served
with a notice under sub-rule (6), omits to give notice
of a time for
inspection as aforesaid or fails to give inspection as required by
that sub-rule, the party desiring discovery or
inspection may apply
to court, which may order compliance, may dismiss the claim or strike
out the defence.
[19]
Over the years, the courts have made it clear that there is no
absolute right to discovery.
The court has a discretion whether or
not to order compliance with the Rule 35.
[2]
The words ‘‘
If
any party fails to give discovery’
must
be interpreted to mean that Rule 35(7) applies in circumstances where
the party that is required to make discovery but fails
to do so.
Discovery is for the court to decide and does not depend on the
parties’ views on the matter.
[3]
Discovery allows for the proper ventilation of issues and any
document that is relevant to the issue is discoverable.
[4]
EVALUATION:
[20]
It is clear that following the Rule 35 (3) Notice, the second
respondent filed a discovery
affidavit in response thereto and she
avers that she is not in possession of the documents as set out in
the applicant’s
notice.
[21]
Adjudicating on the merit of the current
application, the applicant in her practice Note, concedes
that the
second respondent has responded to the applicant’s Rule
35(3) Notice. However, she argues that the response
does not comply
with the said Rule and that the second respondent ought be ordered to
comply comprehensively with the prescripts
of Rule 35(3).
[22]
This begs question, if the second respondent did comply with the Rule
35 (3) Notice then what
is the basis for this application to compel?
In this matter, even on the applicant’s version there was
compliance. It appears
to me that what the applicant truly seeks is
further and better discovery which can be achieved by invoking other
rules provided
in the Uniform rules of the Court. It follows that the
contention by the second respondent’s Counsel that the
applicant ought
to make use of Rule 35(3) is correct.
[23]
It follows that the applicant has failed to make out a case for the
relief she is seeking. Simply
put, my finding is that there is no
merit to the present.
[24]
In the circumstances, I make the following order:
1.
The applicant’s
application is dismissed.
2.
Costs shall be costs
in the course.
J
Mnisi
Acting
Judge of the High Court
Date
of hearing:
4
March 2024
Date
of Judgment:
13
June 2024
For
the Applicant:
Adv
C Barreiro
Instructed
by:
Arthur
Channon Attorneys
For
the Respondents:
Adv
ASL Van Wyk
Instructed
by:
Hefferman
Attorneys
[1]
See
Durbach
v Fairway Hotel Ltd
1949
(3) SA 1081
(SR)
at
1083.
[2]
See
Continental
Ore Construction v Highveld Steel &Vanadium Corporation
Lts
1971
(4) SA 589
(W
)
at 594H.
[3]
See
Swissborough
on
para [18]
[4]
See
Quintessence
Co-Ordinators (Pty) Ltd v Government of the Republic of Transkei
1991(4) SA
214
(Tk
) at
216B-F.