In the matter between:
JOHANNES WILHEM CHRISTIAAN BOOYSEN
A nd
NGWATHE LOCAL MUNICIPALITY
HEARD ON: 01 AUGUST 2024
JUDGMENT BY: MHLAMBI , J
DELIVERED ON: 24 DECEMBER 2024
Reportable: NO
Of Interest to other Judges: NO
Circulate to Mag istrates: NO
CASE NO : 2586/2020
Applicant
Respondent
[1] This is an application to compel in terms of the Uniform Rule of Court 30A in
w hich the following orders are sought:
"1. Directing. the Respondent to reply comprehensively in writing to all issues raised/requests
made at the pre-trial conference convened between the parties as recorded in the minute
thereof and in paragraph 5 of the Founding Affidavit hereto, within 10 (TEN) days from the
service of this Court Order, and furnish the Applicant's attorneys of record therewith,
together with the signed pre-trial minute either electronically or by hand;
2. That should the Respondent fail and/or refuse to comply with the order granted in terms of
1 above, either timeously, in full or at all in respect of one or more of the requests/issues
raised in the pre-trial minute as recorded in paragraph 5 of the Founding Affidavit hereto,
the Respondent's defence shall be automatically struck out and the Applicant shall be
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entitled to proceed to apply for judgment against the Respondent on a default judgment
basis;
3. Directing the Respondent to pay the costs of this application on the attorney and client scale;
4. Further and/or alternative relief."
[2] As the plaintiff, the applicant instituted an action against the defendant for certain
relief. On 12 December 2024, a Rule 37 pre-trial conference was convened, and
a pre-trial minute was prepared and furnished to the respondent's attorneys for
signature. The respondent undertook, in terms of the draft minute, to provide the
following information by no later than 18 December 2023:
'5.1 The Respondent's version of events (paragraph 1.4 of the pre-trial minute);
5.2 The Respondent's stance regarding the entire content of paragraph 8 of the
previous minute and whether it persists with its responses thereto dated 31
October 2022 (paragraph 9 of the pre-trial minute);
5.3 A list of admissions sought by the Respondent (paragraph 1 O of the pre
trial minute);
5.4 The Respondent's stance about the proposals made regarding documents
(paragraph 11 of a pre-trial minute);
5.5 The number of witnesses the Respondent wishes to call in the matter
(paragraph 12 of the pre-trial minute).'1
[3] On 31 January 2024, the applicant's attorneys sent a letter to the respondent's
attorneys dated 24 January 2024 requesting a response to the information
requested before 16h00 on Friday, 2 February 2024, upon failure of which an
application to compel would be launched. On 6 February 2024, another letter
was addressed to the respondent to respond before 16h00 on Friday, 9 February
2024 to comply with the requests, failing which an application to compel would
be filed. On 4 March 2024, the applicant served the respondent with a notice in
terms of Rule 30A that he would apply for an order after the lapse of ten days
1 Para 5 on page IO of the Index.
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compelling the respondent to furnish its responses to the pre-trial minute, failing
which the respondent's defence would be struck out.
[4] On 10 April 2024, the applicant served the respondent with an application to
compel in terms of Rule 30A seeking the orders set out in the notice of motion.
The respondent opposed the application and raised two preliminary points: the
pre-trial questions are, in substance, a request for further particulars, and its
amendment of pleadings renders the application to compel moot.
[5], The respondent submitted that the plaintiff should have approached the Judge
President for the allocation of a Judge to hold a pre-trial conference in chambers
if the plaintiff held the view that the defendant was not willing to bind itself on pre
trial questions. The practical consequences of the application are to compel the
defendant to admit factual issues that should be left for the trial court. The court
was not entitled to bind the defendant as this would violate the defendant's right
to a fair trial. The questions were impermissible and should only be ventilated at
the trial. The applicant's solution was to be found in the provisions of Rule
37(8)(a) of the Uniform Rules of Court.
[6] In support of its contentions, the respondent referred me to Fransch v Premier,
Gauteng, and Anothei2 and argued that any party that is frustrated by a lack of
cooperation or bona fides on the part of an opponent is to request that the
conference be held before the judge in chambers. The respondent contended
that the application to compe l is not the method or approach the plaintiff should
have followed.
[7] The applicant pointed out that the respondent accepted the undertaking to
provide the requested information in the pre-trial minute of 12 December 2023.
The plea was never amended, and the annexure to the respondent's answering
affidavit was only an intention to amend . The applicant submitted that the
information sought by him was highly relevant because:
2 20 19(1) SA 247 (G J).
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7.1 The draft pre-trial minute was aimed at obtaining the respondent's version
as the parties are com pelled to outline and limit the issues in the case;·
7.2 The draft pre-trial minute was aimed at parties exploring the making of
admissions, agreeing on the status of documents and the preparation of a
trial bundle, and agreeing on the issue of expert witnesses.
[8] The applicant contended that the requested information was required to get the
matter trial ready, and the respondent had undertaken to provide the requested
information.
[9] Pre-trial conferences are regulated by Rule 37 of the Uniform Rules of Court.
Rule 37(4) provides that each party shall, not later than 10 days before the pre
trial conference, furnish every other party with a list of-
(a) the admissions which such party requires;
(b) the enquiries which such party will direct and which are not included in a
request for particulars for trial; and
( c) other matters regarding preparation for trial w hich such party will raise for
discussion.
[1 O] Rule 37(8)(a) provides that a judge, who need not be the judge presiding at the
trial, may , if such judge deems it advisable, at any time at the request of a party
or own accord, call upon the attorneys or advocates ~or the parties to hold or to
continue with a conference before a judge in chambers and may direct a party to
be available personally at such conference.
[11] Erasmus : Superior Court Practice states that the purpose of rule 37 is to promote
the effective disposal of the litigation, investigate ways of avoiding costs at a
stage when it can still be avoided, and is intended to expedite the trial and to limit
the issues before the court.3 The rule is intended primarily to curtail the duration
of a trial, narrow down issues, cut costs, and facilitate settlements
3 Erasmus Superior Court Practice: RS 22, 2023, DI Rule 37-3; MEC for Economic Affairs, Environment and
Tourism, Eastern Cap e v Kruizenga and Another 2010 (4) SA 122 (SCA).
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[12] A party cannot be compelled to agree to anything during the Rule 37
proceedings. Rule 37(8)(c) provides that, even in a case where a conference had
been convened before a judge in chambers, the judge may give directions that
might promote the effective conclusion of the matter, but only with the parties'
consent.4 The remedy for any party frustrated by the lack of cooperation from the
other party during the Rule 37 proceedings appears to be to request that a
conference before a judge in chambers be held in terms of Rule 37(8).5 The
directions given by consent of the parties in terms of rule 37(8) are, however, not
covered by rule 30A , and that rule cannot be invoked to compel compliance w ith
any such direction.6
[13] It was held in Filta-Matix (PTY) Ltd v Freudenberg and Others, 7 that to allow a
party, without special circumstances, to resile from an agreement deliberately
reached at a pre-trial conference, would be to negate the object of Rule 37, which
is to limit issues and to curtail the scope of the litigation.
[14] In Fransch v Premier, 8 the applicant had raised a number of queries and directed
questions to the respondents in terms of rule 37(4). The respondents replied to
all the questions. The applicant was not content with the replies given and
believed that the respondents did not reply to the questions truthfully. The
applicant was particularly aggrieved by the fact that the respondents alleged that
they were unable to reply to certain questions because the hospital records had
not been located. The respondents also refused to answer other enquiries on the
basis that those related to matters of evidence. The respondents opposed the
application on the basis that they had replied to the rule 37(4) questions and that
the applicant could rely on rule 30A to extract replies she believed appropriate.
This case is distinguishable from the one at hand.
[15] The respondent does not deny the undertakings to provide the requested
information in the pre-trial minute dated 12 December 2023. The defences raised
4
Katlou Bo erdery v Matsepe N.0. and Another (A 79/2 I) [2022] ZA WCHC 49 (19 April 2022) paras 23 and 24.
5 Kriel v Bowens 2012(2) SA45 (ECP).
6 Katlou, supra.
7 1998(1) SA 606 SCA.
8 Supra.
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by the respondent to the relief sought are without merit and stand to be rejected.
Consequ ently, I make the following order:
ORDER:
1. The Respondent is directed to reply comprehensively in writing to all issues
raised/requests made at the pre-trial conference convened between the parties
as recorded in the minute and paragraph 5 of the Founding Affidavit, w ithin 10
(TEN) days from the service of this Court Order, and furnish the Applicant's
attorneys of record therewith, together with the signed pre-trial minute either
electronically or by hand;
2. Should the Respondent fail and/or refuse to comply -with the order granted in
terms of 1 above, either timeously, in full, or at all in respect of one or more of
the. requests/issues raised in the pre-trial minute as recorded in paragraph 5 of
the Founding Affidavit hereto, the Respondent's defence shall be automatically
struck out, and the Applicant shall be entitled to proceed to apply for judgment
against the Respondent on a default judgment basis;
3. Directing the Respondent to pay the costs of this application on the attorney and
client scale and counsel's fees on scale C .
On behalf of Plaintiff:
Instructed by:
Adv. HJ Cilliers SC ,
Honey Attorneys
Kenneth Kaunda Street
Helicon Heights
Bloemfontein
On behalf of the Defendant: Adv. M Ramaili SC
Instructed by: Thebe Attorneys
65 Kellner Street Incorporated
Westdene
Bloemfontein
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