Balkgo's Construction and Another v Greater Temba Representative Council and Others (640/2001) [2002] ZANWHC 41 (5 December 2002)

CASE NO. 640/2001

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

BALKGO’S CONSTRUCTION 1ST

PLAINTIFF

MOTO-KOA KGOBE 2ND

PLAINTIFF

and

THE GREATER TEMBA REPRESENTATIVE COUNCIL1ST

DEFENDANT

CHIEF EXECUTIVE OFFICER GREATER TEMBA 2ND

DEFENDANT

GERT PIETERSE 3RD

DEFENDANT

______________

JUDGMENT

MOGOENG JP.

INTRODUCTION

[1] This is an application by the Defendants for an order dismissing the Plaintiffs’ action owing to their alleged failure to comply with an order of this Court which compelled them to make a further discovery in terms of Rule 35(3).

[2] The particulars of the parties to the action from which this application arose are set out below: 2.1 The first Plaintiff is BALKGO’S CONSTRUCTION, a close corporation registered in terms of the relevant company laws of the Republic of South Africa, with its principal place of business situate at Majaneng, near Hammanskraal. 2.2 The second Plaintiff is Moto-Koa Nat Kgobe who is a member of the first Plaintiff, and acts herein in his capacity as a member of the first Plaintiff and in his personal capacity. 2.3 The first Defendant is the Greater Temba Representative Council, being a Local Council for Temba, which was established in terms of the Local Government Laws and regulations. 2.4 The second Defendant is the Chief Executive Officer of the first Defendant, who is sued in his capacity as a functionary responsible for the administration of the affairs of the first Defendant. 2.5 The third Defendant is Gert Pieterse, who is sued in his capacity as Consultant on behalf of the first and second Defendants and in his individual capacity. It is necessary to give a brief background to this application and I do so below.

[2] The particulars of the parties to the action from which this application arose are set out below:

2.1 The first Plaintiff is BALKGO’S CONSTRUCTION, a close corporation registered in terms of the relevant company laws of the Republic of South Africa, with its principal place of business situate at Majaneng, near Hammanskraal.

2.2 The second Plaintiff is Moto-Koa Nat Kgobe who is a member of the first Plaintiff, and acts herein in his capacity as a member of the first Plaintiff and in his personal capacity.

2.3 The first Defendant is the Greater Temba Representative Council, being a Local Council for Temba, which was established in terms of the Local Government Laws and regulations.

2.4 The second Defendant is the Chief Executive Officer of the first Defendant, who is sued in his capacity as a functionary responsible for the administration of the affairs of the first Defendant.

2.5 The third Defendant is Gert Pieterse, who is sued in his capacity as Consultant on behalf of the first and second Defendants and in his individual capacity.

It is necessary to give a brief background to this application and I do so below.

BACKGROUND [3] The first Defendant appointed the first Plaintiff and a certain entity referred to as Balemi Civils to render certain services to them. Pursuant thereto, the first Plaintiff and Balemi Civils concluded a Joint Venture Pact. [4] The Plaintiffs alleged that in order to ensure an adequate and reasonable performance of the functions that partners to the Joint Venture were expected to perform, the first Defendant appointed the third Defendant as consultant to furnish the first Defendant with a certificate of the Joint Ventre’s satisfactory meeting of its contractual obligations. This was, however, denied by the Defendants. [5] Eventually, the pleadings were closed. The parties then exchanged their respective discovery affidavits. Thereafter the Defendants served the following notice in terms of Rule 35(3) on the Plaintiffs: “The First and Second Defendants (hereinafter referred to as “the Defendants”) believe that the Plaintiffs did not discover all relevant documentation in their possession. The Defendants therefore require further discovery by the Plaintiffs of the following documentation if in their possession, if not, the Plaintiffs should indicate where the documentation is: 1.1 All affidavits filed in the criminal charge laid by the Plaintiff(s) against the Third Defendant; 1.2 All correspondence between Plaintiff and/or BALEMI CIVILS and the Third Defendant including all correspondence with any company or entity represented by the Third Defendant;

BACKGROUND

[3] The first Defendant appointed the first Plaintiff and a certain entity referred to as Balemi Civils to render certain services to them. Pursuant thereto, the first Plaintiff and Balemi Civils concluded a Joint Venture Pact.

[4] The Plaintiffs alleged that in order to ensure an adequate and reasonable performance of the functions that partners to the Joint Venture were expected to perform, the first Defendant appointed the third Defendant as consultant to furnish the first Defendant with a certificate of the Joint Ventre’s satisfactory meeting of its contractual obligations. This was, however, denied by the Defendants.

[5] Eventually, the pleadings were closed. The parties then exchanged their respective discovery affidavits. Thereafter the Defendants served the following notice in terms of Rule 35(3) on the Plaintiffs:

“The First and Second Defendants (hereinafter referred to as “the Defendants”) believe that the Plaintiffs did not discover all relevant documentation in their possession. The Defendants therefore require further discovery by the Plaintiffs of the following documentation if in their possession, if not, the Plaintiffs should indicate where the documentation is:

1.1 All affidavits filed in the criminal charge laid by the Plaintiff(s) against the Third Defendant;

1.2 All correspondence between Plaintiff and/or BALEMI CIVILS and the Third Defendant including all correspondence with any company or entity represented by the Third Defendant;

1.3 All agreements between Plaintiffs and/or BALEMI CIVILS and the Third Defendant including any company or entity represented by the Third Defendant; 1.4 All correspondence between the Plaintiff and BALEMI CIVILS; 1.5 The tendered document whereby First Plaintiff and BALEMI tendered.” [6] Apparently, the Plaintiffs did not react to the notice. As a result, the Defendants applied for and were granted the following order in terms of Rule 35(7) (“the order”): “1. THAT Respondents (First and Second Plaintiffs) be and are hereby ordered within (5) Five days of service of this order on them or their attorneys to comply with the notice in terms of rule 35(3) served on their attorneys on 30 October 2001.

2. THAT Respondents (First and Second Plaintiffs) be and are ordered to, within five (5) days of having made discovery required in the said notice to make available for inspection any documents and/or tape recordings so disclosed, in terms of rule 35(3).

3. THAT Respondents (First and Second Plaintiffs) be and are hereby ordered to specify in writing, five (5) days before the trail(sic) date particulars of dates and parties and/or any documents and/or tape recording intended to be used at the trial of the action.

4. THAT Respondents (First and Second Plaintiffs) be and are hereby ordered to produce at the hearing the original of such document or tape recording, not being privileged document or tape recording in the Respondents’ possession.

1.3 All agreements between Plaintiffs and/or BALEMI CIVILS and the Third Defendant including any company or entity represented by the Third Defendant;

1.4 All correspondence between the Plaintiff and BALEMI CIVILS;

1.5 The tendered document whereby First Plaintiff and BALEMI tendered.”

[6] Apparently, the Plaintiffs did not react to the notice. As a result, the Defendants applied for and were granted the following order in terms of Rule 35(7) (“the order”):

“1. THAT Respondents (First and Second Plaintiffs) be and are hereby ordered within (5) Five days of service of this order on them or their attorneys to comply with the notice in terms of rule 35(3) served on their attorneys on 30 October 2001.

2. THAT Respondents (First and Second Plaintiffs) be and are ordered to, within five (5) days of having made discovery required in the said notice to make available for inspection any documents and/or tape recordings so disclosed, in terms of rule 35(3).

3. THAT Respondents (First and Second Plaintiffs) be and are hereby ordered to specify in writing, five (5) days before the trail(sic) date particulars of dates and parties and/or any documents and/or tape recording intended to be used at the trial of the action.

4. THAT Respondents (First and Second Plaintiffs) be and are hereby ordered to produce at the hearing the original of such document or tape recording, not being privileged document or tape recording in the Respondents’ possession.

5. THAT Applicants (First and Second Defendants) be and are hereby given leave to apply to this Honourable Court on the same papers, supplemented by affidavit if necessary, for the dismissal of the Respondents (First and Second Plaintiffs) claim in the event of non-compliance with this order.

6. THAT Respondents (First and Second Plaintiffs) be and are hereby ordered to pay the costs of this application.” [7] In an apparent compliance with the above order, the second Plaintiff filed an affidavit which says “I do not have in my possession or control any other documents except those once which have already been discovered in my discovery affidavit.” [8] Having received the above affidavit, the Defendants launched the current application to dismiss the Plaintiffs’ action on the basis that the aforegoing affidavit amounts to a failure to comply with the order whose terms are set out in para 6 above. [9] The issues raised by the Defendants were that: the affidavit deposed to by the second Plaintiff in an attempt to comply with the order was made only on behalf of the second Plaintiff and does not address the first Plaintiff’s position; the Plaintiffs do not deny that they laid criminal charges against the third Defendant and should either be able to discover the affidavit on the strength of which those charges were laid or state its whereabouts;

5. THAT Applicants (First and Second Defendants) be and are hereby given leave to apply to this Honourable Court on the same papers, supplemented by affidavit if necessary, for the dismissal of the Respondents (First and Second Plaintiffs) claim in the event of non-compliance with this order.

6. THAT Respondents (First and Second Plaintiffs) be and are hereby ordered to pay the costs of this application.”

[7] In an apparent compliance with the above order, the second Plaintiff filed an affidavit which says “I do not have in my possession or control any other documents except those once which have already been discovered in my discovery affidavit.”

[8] Having received the above affidavit, the Defendants launched the current application to dismiss the Plaintiffs’ action on the basis that the aforegoing affidavit amounts to a failure to comply with the order whose terms are set out in para 6 above.

[9] The issues raised by the Defendants were that:

the affidavit deposed to by the second Plaintiff in an attempt to comply with the order was made only on behalf of the second Plaintiff and does not address the first Plaintiff’s position;

the Plaintiffs do not deny that they laid criminal charges against the third Defendant and should either be able to discover the affidavit on the strength of which those charges were laid or state its whereabouts;

the documentation listed in 1.1 to 1.5 of the Notice, in terms of Rule 35(3), which was reproduced in para 5 above, would typically fall within the knowledge and be under the control of the Plaintiffs; if the Plaintiffs were not in possession of the documents to which the order relate, they should at least know the whereabouts of those documents and in the absence of an averment, in the supplementary discovery affidavit or the opposing affidavit, to the effect that the Plaintiffs do not know the whereabouts of the documents, then the Plaintiffs must be regarded as knowing the whereabouts of the relevant documents and as having failed to comply with the order in that they did not disclose their whereabouts. [10] In response, the Plaintiffs submitted that the Defendants have always been free to obtain the affidavits in question from the police, that all the documents in their possession have been discovered and that if the Defendants believe that further documents or agreements exist then they are free to contact Balemi Civils and obtain them and that the tender document referred to in paragraph 1.5 of the notice had in terms of Rule 35(3) already been discovered by the Defendants themselves.

DISCUSSION Is the further discovery affidavit for the second Plaintiff alone?

the documentation listed in 1.1 to 1.5 of the Notice, in terms of Rule 35(3), which was reproduced in para 5 above, would typically fall within the knowledge and be under the control of the Plaintiffs;

if the Plaintiffs were not in possession of the documents to which the order relate, they should at least know the whereabouts of those documents and in the absence of an averment, in the supplementary discovery affidavit or the opposing affidavit, to the effect that the Plaintiffs do not know the whereabouts of the documents, then the Plaintiffs must be regarded as knowing the whereabouts of the relevant documents and as having failed to comply with the order in that they did not disclose their whereabouts.

[10] In response, the Plaintiffs submitted that the Defendants have always been free to obtain the affidavits in question from the police, that all the documents in their possession have been discovered and that if the Defendants believe that further documents or agreements exist then they are free to contact Balemi Civils and obtain them and that the tender document referred to in paragraph 1.5 of the notice had in terms of Rule 35(3) already been discovered by the Defendants themselves.

DISCUSSION

Is the further discovery affidavit for the second Plaintiff alone?

[11] The first and second Defendants alleged that since no reference was made to the first Plaintiff in the supplementary discovery affidavit, then that affidavit was deposed to on behalf of the second Plaintiff only to the exclusion of the first Plaintiff. This cannot be correct. It is clearly spelt out in the particulars of the Plaintiffs’ claim that the second Plaintiff ‘acts herein (meaning in the action) in his capacity as a member of the first Plaintiff and in his personal capacity.’ The objection by the Defendants is indeed highly technical in nature. The nature of the Plaintiff’s relationship, and the above-quoted statement is enough to show that the second Plaintiff was also acting in his representative capacity as a member of the first Plaintiff. The Affidavit [12] The Plaintiffs did not deny the existence of the affidavits, deposed to by them or by the second Plaintiff on their behalf, so as to initiate criminal proceedings against the third Defendant. One would have expected of the Plaintiffs to at least say that the affidavits are with the police and possibly even mention the police station to which those affidavits were submitted. They failed to do so which amounted to a failure to comply with the order. Taken in isolation, is it something so material that it should necessarily result in the dismissal of the Plaintiffs’ action? I don’t think so. It is

evident from the Defendants’s notice in terms of Rule 35(3) that they know that the affidavits were with the police and it has always been open to them to approach the police to obtain those affidavits. In other words, they have a reasonable knowledge of the whereabouts of the documents and did not really have to be told about those whereabouts. This leads me to the issue of the further agreements and correspondence between the Plaintiffs and Balemi Civils.

[11] The first and second Defendants alleged that since no reference was made to the first Plaintiff in the supplementary discovery affidavit, then that affidavit was deposed to on behalf of the second Plaintiff only to the exclusion of the first Plaintiff. This cannot be correct. It is clearly spelt out in the particulars of the Plaintiffs’ claim that the second Plaintiff ‘acts herein (meaning in the action) in his capacity as a member of the first Plaintiff and in his personal capacity.’ The objection by the Defendants is indeed highly technical in nature. The nature of the Plaintiff’s relationship, and the above-quoted statement is enough to show that the second Plaintiff was also acting in his representative capacity as a member of the first Plaintiff.

The Affidavit

[12] The Plaintiffs did not deny the existence of the affidavits, deposed to by them or by the second Plaintiff on their behalf, so as to initiate criminal proceedings against the third Defendant. One would have expected of the Plaintiffs to at least say that the affidavits are with the police and possibly even mention the police station to which those affidavits were submitted. They failed to do so which amounted to a failure to comply with the order. Taken in isolation, is it something so material that it should necessarily result in the dismissal of the Plaintiffs’ action? I don’t think so. It is evident from the Defendants’s notice in terms of Rule 35(3) that they know that the affidavits were with the police and it has always been open to them to approach the police to obtain those affidavits. In other words, they have a reasonable knowledge of the whereabouts of the documents and did not really have to be told about those whereabouts. This leads me to the issue of the further agreements and correspondence between the Plaintiffs and Balemi Civils.

Further agreements and correspondence between the Plaintiffs and Balemi Civils.

[13] The Plaintiffs said in their Particulars of Claim that they had entered into a joint venture pact with Balemi Civils. They also alleged that they were also awarded a tender by the first and second Defendants. Those contracts were annexed to the Particulars of the Plaintiffs’ Claim as “BC2" and “BC1" respectively. The Defendants harbour a suspicion that there may have been other agreements, over and above the annexed one, and correspondence between the Plaintiffs and Balemi Civils. It may well be a reasonable suspicion or belief. Be that as it may, the Plaintiffs have said under oath effectively that no such agreements or correspondence exist. The Defendants have not suggested that any such agreements and correspondence is known to be in fact in existence. I am, therefore, faced with two competing scenarios. The one scenario is the first and second Defendants’ belief or suspicion that certain documents exist and the other is the Plaintiffs’ positive assertion that those documents do not exist.

If I agree with the Defendants that the Plaintiffs have failed to discover documents which are believed or suspected to be in existence (not actually known to be in existence) then I may have to dismiss the Plaintiffs’ claim. Such a harsh action does, in my view, call for a lot more than just an unsubstantiated suspicion. No basis was given for believing that there were agreements and correspondence in existence that are capable of discovery. All the other documents sought to be discovered may or may not be in existence. The Defendants think that they exist but do not know that to be the case. The Plaintiffs said that they do not exist. Why should I reject their statement? I have not been given any reason why I should go behind the Plaintiffs’ supplementary discovery affidavit. See Copalcor Manufacturing (Pty) Ltd & Another v GDC Haubers (Pty) Ltd 2000 (3) SA 181 (W); Swissborough Diamond Mines v Government of the RSA 1999 (2) SA 279 (T). I am inclined to believe the Plaintiffs who are stating a fact as opposed to the Defendants who are expressing a belief. I turn now to the alleged agreements and correspondence between the Plaintiffs and/or Balemi Civils on the one hand and the third Defendant on the other. Agreements and correspondence between the Plaintiffs and/or Balemi Civils and the third Defendant [14] Apart from the first and second Defendants’ assumption

or unsubstantiated belief there is nothing to suggest that any other agreement was concluded and that there was any correspondence between the Plaintiffs and/or Balemi Civils on the one hand and the third Defendant on the other hand. In fact the Particulars of Plaintiffs’ Claim seem to suggest that such agreements and correspondence, if any, would be expected to have been between the third Defendant and the first and second Defendants since the Plaintiffs allege that it is these Defendants who engaged the services of the third Defendant. The Defendants have not suggested why they believe there would have been agreements between the Plaintiffs and the third Defendant. The Plaintiffs have discovered correspondence between them and the entity which, according to the Plaintiffs, received certificates from the third Defendant to be submitted to the first Defendant.

[13] The Plaintiffs said in their Particulars of Claim that they had entered into a joint venture pact with Balemi Civils. They also alleged that they were also awarded a tender by the first and second Defendants. Those contracts were annexed to the Particulars of the Plaintiffs’ Claim as “BC2" and “BC1" respectively. The Defendants harbour a suspicion that there may have been other agreements, over and above the annexed one, and correspondence between the Plaintiffs and Balemi Civils. It may well be a reasonable suspicion or belief. Be that as it may, the Plaintiffs have said under oath effectively that no such agreements or correspondence exist. The Defendants have not suggested that any such agreements and correspondence is known to be in fact in existence. I am, therefore, faced with two competing scenarios. The one scenario is the first and second Defendants’ belief or suspicion that certain documents exist and the other is the Plaintiffs’ positive assertion that those documents do not exist.

If I agree with the Defendants that the Plaintiffs have failed to discover documents which are believed or suspected to be in existence (not actually known to be in existence) then I may have to dismiss the Plaintiffs’ claim. Such a harsh action does, in my view, call for a lot more than just an unsubstantiated suspicion. No basis was given for believing that there were agreements and correspondence in existence that are capable of discovery. All the other documents sought to be discovered may or may not be in existence. The Defendants think that they exist but do not know that to be the case. The Plaintiffs said that they do not exist. Why should I reject their statement? I have not been given any reason why I should go behind the Plaintiffs’ supplementary discovery affidavit. See Copalcor Manufacturing (Pty) Ltd & Another v GDC Haubers (Pty) Ltd 2000 (3) SA 181 (W); Swissborough Diamond Mines v Government of the RSA 1999 (2) SA 279 (T). I am inclined to believe the Plaintiffs who are stating a fact as opposed to the Defendants who are expressing a belief. I turn now to the alleged agreements and correspondence between the Plaintiffs and/or Balemi Civils on the one hand and the third Defendant on the other.

Agreements and correspondence between the Plaintiffs and/or Balemi Civils and the third Defendant

[14] Apart from the first and second Defendants’ assumption or unsubstantiated belief there is nothing to suggest that any other agreement was concluded and that there was any correspondence between the Plaintiffs and/or Balemi Civils on the one hand and the third Defendant on the other hand. In fact the Particulars of Plaintiffs’ Claim seem to suggest that such agreements and correspondence, if any, would be expected to have been between the third Defendant and the first and second Defendants since the Plaintiffs allege that it is these Defendants who engaged the services of the third Defendant. The Defendants have not suggested why they believe there would have been agreements between the Plaintiffs and the third Defendant. The Plaintiffs have discovered correspondence between them and the entity which, according to the Plaintiffs, received certificates from the third Defendant to be submitted to the first Defendant.

The tender document [15] The Defendants have asked for the tender document on which the first Plaintiff and Balemi Civils based their tender. The Plaintiffs failed to either discover these documents or state their whereabouts. These are documents which actually exist and which should either have been discovered or their whereabouts stated. This was not done and the order was clearly not complied with. Having said that, it is proper to express my surprise at this request for further discovery. The pleadings as a whole suggest that the tender in question would have been made to the first Defendant since it is the first Defendant who awarded the tender to the Plaintiffs and Balemi Civils. This means that the tender document would have been deposited with and kept by the first Defendant. I do not understand why the Defendants would then have deemed it necessary to seek an order directing the Plaintiffs to discover such a document which the Defendants are in possession of and, by the way, have already discovered. There has to be meaning and purpose behind the further discovery of documents as was sought by the Defendants. However, this was a purposeless request in so far as it related to the tender document. The Defendants themselves had already discovered that document.

CONCLUSION

The tender document

[15] The Defendants have asked for the tender document on which the first Plaintiff and Balemi Civils based their tender. The Plaintiffs failed to either discover these documents or state their whereabouts. These are documents which actually exist and which should either have been discovered or their whereabouts stated. This was not done and the order was clearly not complied with. Having said that, it is proper to express my surprise at this request for further discovery. The pleadings as a whole suggest that the tender in question would have been made to the first Defendant since it is the first Defendant who awarded the tender to the Plaintiffs and Balemi Civils. This means that the tender document would have been deposited with and kept by the first Defendant. I do not understand why the Defendants would then have deemed it necessary to seek an order directing the Plaintiffs to discover such a document which the Defendants are in possession of and, by the way, have already discovered. There has to be meaning and purpose behind the further discovery of documents as was sought by the Defendants. However, this was a purposeless request in so far as it related to the tender document. The Defendants themselves had already discovered that document.

CONCLUSION

[16] The Plaintiff should, in compliance with the order, have discovered the affidavit filed in the criminal charge they laid against the third Defendant. Their failure to do so amounts to non-compliance with the Court order. Furthermore, they should have discovered the tender document, their failure to do so amounts to disregard of the order. No reason was furnished as to why, they were either not discovered or their whereabouts stated. Be that as it may, on the Defendants’ own notice it is evident that the affidavit was given to the police and the tender document was given to the first Defendant itself. The discovery of these documents was really not necessary. The Defendants know where to find the affidavits and they already have the tender document. This is essentially the explanation given by the Plaintiffs in the opposing affidavit. [17] Our Courts have dismissed the claim or struck out the defence of the party in default whenever there was wilful non-compliance with the equivalent of a Rule 35(7) order. (See Leggatt & Others v Forrester 1925 WLD 36; Mostert v Pienaar 1930 WLD 151; Bhikha & Co v Chorassi’s Trustee (1923) 2 PH F20 (W)). Although they were also accommodative in similar cases (See Weiner v Matthews 1928 WLD 273; Pullen v Robert Williams & Co 1941 (1) PH F32 (T); Baloyi v British Oak Insurance Co Ltd 1942 (1) PH F31 (W)). Where the reason given by the defaulting party for his failure to comply with the order was found to be bona fide the Court refrained from dismissing the claim or striking out the defence. (See Mears v Rissik & Mears’s Trustee 1906 TS 649; Bosman v Meyer 1917 WLD 32).

[16] The Plaintiff should, in compliance with the order, have discovered the affidavit filed in the criminal charge they laid against the third Defendant. Their failure to do so amounts to non-compliance with the Court order. Furthermore, they should have discovered the tender document, their failure to do so amounts to disregard of the order. No reason was furnished as to why, they were either not discovered or their whereabouts stated. Be that as it may, on the Defendants’ own notice it is evident that the affidavit was given to the police and the tender document was given to the first Defendant itself. The discovery of these documents was really not necessary. The Defendants know where to find the affidavits and they already have the tender document. This is essentially the explanation given by the Plaintiffs in the opposing affidavit.

[17] Our Courts have dismissed the claim or struck out the defence of the party in default whenever there was wilful non-compliance with the equivalent of a Rule 35(7) order. (See Leggatt & Others v Forrester 1925 WLD 36; Mostert v Pienaar 1930 WLD 151; Bhikha & Co v Chorassi’s Trustee (1923) 2 PH F20 (W)). Although they were also accommodative in similar cases (See Weiner v Matthews 1928 WLD 273; Pullen v Robert Williams & Co 1941 (1) PH F32 (T); Baloyi v British Oak Insurance Co Ltd 1942 (1) PH F31 (W)). Where the reason given by the defaulting party for his failure to comply with the order was found to be bona fide the Court refrained from dismissing the claim or striking out the defence. (See Mears v Rissik & Mears’s Trustee 1906 TS 649; Bosman v Meyer 1917 WLD 32).

[18] Orders of this Court have to be obeyed however unfair or unnecessary they may be thought to be. This, as I have said above, the Plaintiffs have failed to do. This Court must therefore be careful not to do anything that could leave litigants thinking that a wilful disregard of Court orders would under any circumstances be acceptable or understandable. The plaintiffs’ failure to state even the whereabouts of the documents is said to be because the Defendants know where the documents are and that the other documents asked for do not exist. In other words if they had stated the whereabouts of the affidavit and tender document as the order directed them to, this would have been nothing new to the Defendants. That is strictly speaking no excuse but it amounts to good reason for their failure to comply which ameliorates their non-compliance. The Defendants were not really prejudiced by that failure. I cannot find sufficient reason to dismiss the Plaintiffs’ action. However, since the Plaintiffs cannot really say that they did not know the whereabouts of the affidavit and the tender document and yet said nothing about their whereabouts their non-compliance cannot be left unpunished. As a mark of my disapproval of their conduct, though the application for the dismissal of the action will be dismissed and costs would ordinarily have to follow the result, I will order that there be no order as to costs. [19] In the result, I make the following order: a). The application is dismissed; and b). Each party is to pay his/her own costs. M.T.R.

MOGOENG

JUDGE

PRESIDENT OF THE HIGH COURT

[18] Orders of this Court have to be obeyed however unfair or unnecessary they may be thought to be. This, as I have said above, the Plaintiffs have failed to do. This Court must therefore be careful not to do anything that could leave litigants thinking that a wilful disregard of Court orders would under any circumstances be acceptable or understandable. The plaintiffs’ failure to state even the whereabouts of the documents is said to be because the Defendants know where the documents are and that the other documents asked for do not exist. In other words if they had stated the whereabouts of the affidavit and tender document as the order directed them to, this would have been nothing new to the Defendants. That is strictly speaking no excuse but it amounts to good reason for their failure to comply which ameliorates their non-compliance. The Defendants were not really prejudiced by that failure. I cannot find sufficient reason to dismiss the Plaintiffs’ action. However, since the Plaintiffs cannot really say that they did not know the whereabouts of the affidavit and the tender document and yet said nothing about their whereabouts their non-compliance cannot be left unpunished. As a mark of my disapproval of their conduct, though the application for the dismissal of the action will be dismissed and costs would ordinarily have to follow the result, I will order that there be no order as to costs.

[19] In the result, I make the following order:

a). The application is dismissed; and

b). Each party is to pay his/her own costs.

M.T.R.

MOGOENG

JUDGE

PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 17 OCTOBER 2002

DATE OF JUDGMENT : 05 DECEMBER 2002

COUNSEL FOR PLAINTIFFS : ADV J.M. BARNARD

COUNSEL FOR DEFENDANTS : ADV N. GUTTA

ATTORNEYS FOR PLAINTIFFS :

SMIT STANTON MOTLHABANI INC

ATTORNEYS FOR DEFENDANTS : S.E. MONARE & PARTNERS