African Contractors Finance Corporation (Pty) Ltd v LW Home Builders and Another (26302/04) [2005] ZAGPHC 113 (28 October 2005)

fcTHE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)Date:18,27 October 2005Case No.: 26302/2004REPORTABLEDELIVERED: 28/10/2005In the matter between:African Contractors Finance Corporation(Pty)LtdPlaintiff/ApplicantandLW Home BuildersFirst Defendant/RespondentLefoko William MawashaSecond Defendant/RespondentStriking of defence as a result of deficient and late discovery – not granted – costs order against respondents,however,on attorney and client scaleVan Rooyen AJ[1] This is an application for the striking of the defense of the respondents in an action instituted by the applicant against the respondents.[2] The application is based on the fact that the respondents had not, in terms of Rule 35(3) and (6), reacted to a Court order that they discover specified documentation to the applicant within 10 days. The Court order was issued on the 22ndSeptember 2005 and by the 11thOctober 2005 there had been no reaction. On the 12thOctober, however, the respondents reacted and discovered a number of documents.[3] I need to refer to aspects of the history of this case. The summons was served in October 2003. Intention to defend was filed on the 31stOctober 2003. An application for summary judgment failed and respondents were permitted to defend. A notice of bar was served on the 22ndApril 2004, but that was reacted to positively. After pleadings had closed, applicant filed a notice for discovery in terms of Rule 35(1), (6) and (10).Ultimately the trial date was set down on the 24thNovember 2004 for the 18thOctober 2005. On the 30thMarch 2005 respondents discovered documents in what is described as list A (25 documents). List B was said to be privileged. On the 21stJuly 2005 applicant sent a list of documents, which it required to be discovered, to respondents. There were 21 categories. On the 22ndSeptember 2005 applicant obtained an order from this Court that the respondents reply to the applicant’s notice in terms of Rule 35(3) and(6). A pre-trial conference was arranged for 3 October 2005. The applicant’s attorneys, not having received the 21 July 2005 documents as fortified by the Court order, filed this application on the 11thOctober 2005 for the striking of the respondents’ defense. On the 12thOctober the respondents reacted and discovered a number of documents to the applicant. On the 14thOctober the documents were handed to Senior Counsel, for the applicant in this matter. Second respondent explains in his discovery affidavit that, as the sole member of the first respondent, he did all he could humanly do and that he had substantially complied with the order. He could not obtain the documents within the 10 days since they were not readily at hand. He complied with the order five days later. The list of documents discovered runs into some 8 pages. On the 14thOctober a supplementary discovery was signed and a further 8 page list was attached.[4] Mr.PelserSC, for the applicant, argued that, in spite of the two recent discoveries there were still documents which were not discovered. However, respondents stated unequivocally that these documents were the documents in their possession and that they did not have any further documents pertaining to this action in their possession. Mr.Pelser,however, quoted Rule 35(3)“(3) If any party believes that there are, in addition to documents . . . disclosed as aforesaid, other documents (including copies thereof) . . . 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 subrule (6), or to state on oath within ten days that such documents are not in his possession, in which event he shall state their whereabouts, if known to him.”which provides that when a person who discovers declares that he does not possess a document as required by the opposing party, he “shall” state their whereabouts,if known to him.”Emphasis added in italics.So as to give full meaning to the latter phrase, it was argued cogently by Mr.Pelserthat even where a party does not know their whereabouts, he or she must state this. It is not sufficient to simply state that they are not in his possession. In practice the necessity for this statement becomes even more relevant where a party – as is the case in the present matter - has already stated in the previous discovery affidavit that he does not possess any other documents and then, scarcely two days later, discovers a further long list of documents and once again solemnly states under oath that he does not have any other document in his possession. InCopalcor Manufacturing (Pty) Ltd & Another v GDCHauliers(Pty) Ltd (formerly GDC Hauliers(C))2000(3) SA 181(W).CJ Claassen J states as follows:

fc

THE HIGH COURT OFSOUTH AFRICA

THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

Date:

18,27 October 2005

Case No.: 26302/2004

REPORTABLE

DELIVERED: 28/10/2005

In the matter between:

African Contractors Finance Corporation

Pty

)

Ltd

Plaintiff/Applicant

and

LW Home Builders

F

irst Defendant/Respondent

Lefoko William Mawasha

Second Defendant/Respondent

Striking of defence as a result of deficient and late discovery – not granted – costs order against respondents

,

however

on attorney and client scale

Van Rooyen AJ

[1] This is an application for the striking of the defense of the respondents in an action instituted by the applicant against the respondents.

nd

th

[3] I need to refer to aspects of the history of this case. The summons was served in October 2003. Intention to defend was filed on the 31stOctober 2003. An application for summary judgment failed and respondents were permitted to defend. A notice of bar was served on the 22ndApril 2004, but that was reacted to positively. After pleadings had closed, applicant filed a notice for discovery in terms of Rule 35(1), (6) and (10).Ultimately the trial date was set down on the 24thNovember 2004 for the 18thOctober 2005. On the 30thMarch 2005 respondents discovered documents in what is described as list A (25 documents). List B was said to be privileged. On the 21stJuly 2005 applicant sent a list of documents, which it required to be discovered, to respondents. There were 21 categories. On the 22ndSeptember 2005 applicant obtained an order from this Court that the respondents reply to the applicant’s notice in terms of Rule 35(3) and(6). A pre-trial conference was arranged for 3 October 2005. The applicant’s attorneys, not having received the 21 July 2005 documents as fortified by the Court order, filed this application on the 11thOctober 2005 for the striking of the respondents’ defense. On the 12thOctober the respondents reacted and discovered a number of documents to the applicant. On the 14thOctober the documents were handed to Senior Counsel, for the applicant in this matter. Second respondent explains in his discovery affidavit that, as the sole member of the first respondent, he did all he could humanly do and that he had substantially complied with the order. He could not obtain the documents within the 10 days since they were not readily at hand. He complied with the order five days later. The list of documents discovered runs into some 8 pages. On the 14thOctober a supplementary discovery was signed and a further 8 page list was attached.

st

[4] Mr.PelserSC, for the applicant, argued that, in spite of the two recent discoveries there were still documents which were not discovered. However, respondents stated unequivocally that these documents were the documents in their possession and that they did not have any further documents pertaining to this action in their possession. Mr.Pelser,however, quoted Rule 35(3)“(3) If any party believes that there are, in addition to documents . . . disclosed as aforesaid, other documents (including copies thereof) . . . 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 subrule (6), or to state on oath within ten days that such documents are not in his possession, in which event he shall state their whereabouts, if known to him.”

Pelser

“(3) If any party believes that there are, in addition to documents . . . disclosed as aforesaid, other documents (including copies thereof) . . . 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 subrule (6), or to state on oath within ten days that such documents are not in his possession, in which event he shall state their whereabouts, if known to him.”

if known to him

Emphasis added in italics.

Copalcor Manufacturing (Pty) Ltd & Another v GDC

Hauliers

Pty) Ltd (formerly GDC Hauliers

(C)

2000(3) SA 181(W).

“[30] The next question for decision concerns the consequences flowing from the plaintiff's allegation that the documents referred to in BBJ10 are incomplete, but insofar as they are incomplete, such documents are not in its possession and have gone missing. Despite this admission, plaintiff alleges that all relevant documentation in its possession has been discovered and that no other documentation is available.Mr.Faberfor the defendants has argued that such a reply is insufficient as there is still a basement storeroom full of documentation. By implication he is suggesting that the plaintiff be ordered to go back to the storeroom and have another look for such documents which have either been discovered incompletely or not at all. In my view this is not permissible.The plaintiff is on oath as having stated that it, who is supposed to know the documents, has done a proper investigation of those documents in the basement storeroom and has extracted what is relevant. It alleges that there are no more relevant documents. The defendants have not been able to point to any specific and relevant documentation in existence in the storeroom which has not been discovered. In these circumstances, there is in my opinion no reason to go behind the plaintiff's oath.”(emphasisin italics added)

“

[30] The next question for decision concerns the consequences flowing from the plaintiff's allegation that the documents referred to in BBJ10 are incomplete, but insofar as they are incomplete, such documents are not in its possession and have gone missing. Despite this admission, plaintiff alleges that all relevant documentation in its possession has been discovered and that no other documentation is available.

Mr.

Faber

for the defendants has argued that such a reply is insufficient as there is still a basement storeroom full of documentation. By implication he is suggesting that the plaintiff be ordered to go back to the storeroom and have another look for such documents which have either been discovered incompletely or not at all. In my view this is not permissible.

The plaintiff is on oath as having stated that it, who is supposed to know the documents, has done a proper investigation of those documents in the basement storeroom and has extracted what is relevant. It alleges that there are no more relevant documents. The defendants have not been able to point to any specific and relevant documentation in existence in the storeroom which has not been discovered. In these circumstances, there is in my opinion no reason to go behind the plaintiff's oath.”

(emphasis

in italics added)

In that matter the defendants were shown stacks of unidentified documents in a storeroom. As appears from the above quoted passage, the defendants could not point to any specific and relevant documentation in the storeroom which had not been discovered and it was deemed unnecessary to go behind the plaintiff’s oath. In the present matter the applicant has, however, specified the existence of documents in its rule 35(3) notice and respondents have not denied that they exist or that they are relevant. There is simply the bald statement that they are not in their possession. In the circumstances this is not sufficient and it is necessary to go behind second respondent’s affidavit and require at least a direct statement that the respondents are also unaware of their whereabouts. I accordingly agree with Mr.Pelserthat more should have been said.

[5] The question is, however, whether the omission of the respondents to react timeously and fully, is a sufficient ground to strike their defense in the present circumstances. The consequences of striking a defense are, of course, grave as pointed out by Mr.Harms, for the respondents. It will deprive the respondents from the opportunity to have a justiciable dispute decided upon by a Court as guaranteed to them by s 34 of the Constitution of the Republic of South Africa. The limits to this right must be sought in s 36, which permits such limitation where it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, some of which are set out in the section.Zondi v MEC for Traditional Local Government & Others2005(3) SA 589(CC);Metcash Trading Ltd v Commissioner SA Revenue Services and Another2001(1) SA 1109(CC);Chief lesapo v North West Agricultural Bank & Another 2000(1) SA 409(CC); Beinash & Another v Ernst & Young & Others1999(2) SA 116(CC).

Harms

Zondi v MEC for Traditional Local Government & Others

2005(3) SA 589(CC);

Metcash Trading Ltd v Commissioner SA Revenue Services and Another

2001(1) SA 1109(CC);

Chief lesapo v North West Agricultural Bank & Another 2000(1) SA 409(CC); Beinash & Another v Ernst & Young & Others

1999(2) SA 116(CC).

[7] In so far as the application to amend the defendant’s plea is concerned, the application was filed and served on the applicant on the day that I heard the application to strike. The ten day opportunity to respond had, accordingly, not expired at that stage. I leave this matter open and determine that the ten days referred to at the end of the affidavit of second respondent should run as from 27 October 2005, the date on which this judgment is handed down.OrderThe application to strike the defense is dismissed with costs, such costs to be paid on an attorney and client scale by the respondents jointly and severally, the one paying the other to be absolved.

Order

That the Trial is postponedsinedie, costs occasioned otherwise than as a result of this application to be costs in the trial.

sine

die

That the application to amend is not decided and that the ten days referred to at the end of the affidavit of second respondent should run as from 28 October 2005, the date on which this judgment is handed down. If it is contested and one of the parties deems it necessary to do so, Van Rooyen AJ may be approached to deal with this application for an amendment in Chambers. Costs of the application for amendment must be costs in the trial.That the second respondent is ordered to declare to applicant by way of affidavit within 10 days from 28 October 2005 that the whereabouts of the documents not discovered are not known to him or, if they are known, what those whereabouts are.

JCW van Rooyen……………………Acting Judge of the high Court28 October 2005For the applicant: Q Pelser SC, High Court Chambers, Pretoria, instructed by Reaan Swanepoel attorneys c/o Jacobson Levy, Pretoria.For the Respondents: C Harms, New Court Chambers, Pretoria, instructed by Corrie Nel Attorneys, c/o Jacques Roets Attorneys, Pretoria