Van der Merwe and Others v Deutsher Schulverein Windhoek (105 of 2009) [2011] NAHC 204 (14 July 2011)

Van der Merwe and Others v Deutsher Schulverein Windhoek (105 of 2009) [2011] NAHC 204 (14 July 2011)

Rule 35(11) may be invoked to compel production of documents even if other discovery procedures were available, as the Court has discretion to do justice between the parties. The plaintiffs established a basis for the Court to examine the document referred to as A to determine relevance and privilege, particularly as the defendant's claim of privilege for the pre-litigation document was inadequately substantiated. Plaintiffs did not establish waiver of privilege for the other documents.

Citation
[2011] NAHC 204
Parties
1st Plaintiff: Nica Jana Ruda van der Merwe; 2nd Plaintiff: Melanie van der Merwe; 3rd Plaintiff: Morgan Ruth van der Merwe; Defendant: Deutscher Schulverein Windhoek
Court
High Court
Jurisdiction
Namibia
Judgment Date
14 July 2011
Case Number
105 of 2009
Procedural Posture
Interlocutory Application / Ruling on Rule 35(11) Application
Outcome
Partially granted
Legal Topics
Discovery of Documents, Privilege, Waiver of Privilege, Production of Documents
Source Language
English
Civil Procedure Discovery of Documents Privilege Waiver of Privilege Production of Documents

Case Brief

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Parties

Nica Jana Ruda van der Merwe

1st Plaintiff

Melanie van der Merwe

2nd Plaintiff

Morgan Ruth van der Merwe

3rd Plaintiff

Deutscher Schulverein Windhoek

Defendant

Procedural Posture

Interlocutory Application / Ruling on Rule 35(11) Application

Legal Issues

  1. 1 Whether Rule 35(11) can be invoked to compel production of documents when other discovery procedures exist
  2. 2 Whether the documents sought are relevant to the proceedings
  3. 3 Whether privilege attaches to the documents sought

Ratio Decidendi

Rule 35(11) may be invoked to compel production of documents even if other discovery procedures were available, as the Court has discretion to do justice between the parties. The plaintiffs established a basis for the Court to examine the document referred to as A to determine relevance and privilege, particularly as the defendant's claim of privilege for the pre-litigation document was inadequately substantiated. Plaintiffs did not establish waiver of privilege for the other documents.

Court Disposition

Partially granted

Orders

  • Defendant to produce document A dated November 2006, with translation, to the Court for examination regarding privilege and relevance.
  • Costs to be determined after examination of the document.