Bragan Chemicals (Pty) Ltd v Season Flavour Manufacturers CC (49187/16) [2017] ZAGPPHC 498 (18 August 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 49187/16

Reportable

Not of interest to other judges

Revised.

18/8/2017

In the matter between:

BRAGAN CHEMICALS (PTY) LTD APPLICANT/DEFENDANT

and

SEASON

FLAVOUR MANUFACTURERS CC RESPONDENT/PLAINTIFF

Coram:

HUGHES J

JUDGMENT

HUGHES J

[1] In this interlocutory application the applicant, Bragan Chemicals (PTY) LTD, (the defendant in the main action seeks) an order

directing that the respondent, Flavour Manufacturers CC, (the plaintiff in the main action) to comply with the applicant's notice

in terms of Rule 35(14) which was delivered on 27 July 2016.

[2] The respondent is a manufacturer of spices and sauces. It concluded a partly oral and partly written agreement (the agreement) with the applicant for the applicant to supply it with a substance called Maltodextrin DE 15-20 (Maltodextrin) for which the applicant would receive payment.

[3] The respondent utilises Maltodextrin as a bulking agent. It alleges that the Maltodextrin supplied by the applicant was defective. It was utilised in the preparation of a sauce product that was inserted and thereafter used in pies. The sauce product was then supplied by the respondent to manufacturers and distributors.

[4] The pies which had the defective Maltodextrin resulted in the manufacturers and distributors recalling these pies. In turn these

manufacturers and distributors claimed damages from the respondent as a consequence of the recall and destruction of the pies. The respondent alleges that it subsequently paid out an amount of R2 349 103.00 to the manufacturers and distributors.

[5] On 23 June 2016 the respondent issued summons against the applicant for the alleged damages it had suffered as a result of its payment to the manufacturers and distributors. Subsequently the applicant delivered its notice in terms of Rule 35 (14).

[6] Rule 35(14) of the Rules of Court states as follows:

''After appearance to defend has been entered, any party to any action may, for the purposes of pleading. require any other party to make available for inspection within 5 days a clearly specified document or tape recording in his possession which is relevant to a reasonably anticipated issue in the action and to allow a copy or transcription to be made thereof." [My emphasis]

[7] Initially the applicant sought a host of documents from the respondent to be made available for inspection within 5 (five) days

from service of the said notice. These documents were:

"1. The company registration documents of the plaintiff;

2. The financial statements of Season to Season Flavour Manufacturers CC for the period January 2011 to date hereof,·

3. Any written contract entered into between the plaintiff and the defendant relating to the supply of Maltodextrin and/or any other similar chemicals;

4. A list reflecting the names of all other suppliers of Maltodextrin to the plaintiff during

the period January 2012 to December 2012;

5. Any contracts entered into with the suppliers of Maltodextrin to the plaintiff;

6. All purchase orders relating to the purchase of Maltodextrin by the plaintiff for the period January 2012 to December 2012;

7. A list reflecting the ingredients used in preparing for the sauce product which was

inserted in the pies;

8. A list reflecting the names of the suppliers of all ingredients used in preparation for the sauce product which was inserted into the pies;

9. The contracts entered into between the plaintiff and the suppliers of the ingredients used in preparation for the sauce product which was inserted into the pies;

10. A list reflecting the names of the manufacturers and distributors of the pies;

11. The contracts entered into between the plaintiff and the manufacturers and distributors of the pies;

12. All correspondence and legal process exchanged between the plaintiff and the manufacturers and distributors of the pies relating to the alleged damages suffered by them;

13. All contracts of insurance which the plaintiff had in place at the time when the loss allegedly occurred;

14. All correspondence exchanged between the plaintiff and all suppliers of Maltodextrin relating to defective Maltodextrin, including but not limited to correspondence with Global Chem Group Hong Kong Co Ltd;

15. Any reports obtained by the plaintiff relating to the defective Maltodextrin in the plaintiff's possession;

16. Any test results relating to defective Maltodextrin in the plaintiff' possession; 17. Any test results indicating enzyme activity in the batches supplied by the defendant to the plaintiff in the plaintiff's possession;

18. All SGS test reports in the plaintiff's possession relating to defective Maltodextrin."

[8] The applicant advanced the following reasons for requesting the documents sought:

(a) With regards to paragraph 1, the company registration documents, the applicant contends that this is required to satisfy itself as regards the locus standi of the plaintiff;

(b) As regards paragraph 2, the request for the financial statements to ascertain if the plaintiff can rely on the Consumer Protection Act 68 of 2008 as the plaintiff's claim, in the main, is premised on section 61 read with section 64 of the said Act. The protection is only afforded if the plaintiff's turnover is less than R2 000 000.00;

(c) The request in paragraph 3, the written portion of the contract between the plaintiff and defendant, is to address the alternative claim of the plaintiff as it states that the claim of the plaintiff is premised on a breach of contract between the plaintiff and the defendant which was partly written and partly oral;

(d) The applicant contends that it is not the only supplier of Maltodextrin and thus the requests in paragraphs 4, 5 and 6, for the list and contracts with suppliers, as a joinder of a third party might be envisaged by the defendant;

(e) The request in paragraph 7, list of ingredients used, is to dispel the allegation that the Maltodextrin supplied by the defendant which is alleged to have been defective is not the only product that could have caused the pies to be recalled;

(f) As regards the requests in paragraphs 8 and 9 the following was stated "I repeat mutatis mutandis what is detailed in paragraph 27.3" (paragraph 27.3 is that which is reflected in paragraph (a) supra);

(g) The request in paragraphs 10,11,12, and 14, the list, contracts and correspondence with manufacturers and distributors, would assist the defendant in establishing how the claim of the plaintiff was formulated, the basis of the settlement and whether same was correct, fair and reasonable;

(h) Lastly, as regards the requests in paragraphs 13, 15, 16, 17 and 18, the applicants contended that they no longer seek inspection and copies of these documents requested.

[9] The respondent formally responded to the aforesaid request as follows:

"Ad Paragraphs 1-18

These documents are not required for the purposes of pleading."

[10] During the argument before me, the applicant abandoned the request in paragraphs 13,15,16,17 and18.The applicant argued that it would leave the request in paragraphs 3, 4, 6 and 9 in the hands of the court and Ideal with these later in the judgment. The request which the applicant still persist with are paragraphs 1, 2, 5, 7, 8, 10, 11, 12 and14.

[11] The respondent sets out in its answering affidavit why the applicants are not entitled to the documents sought. The crux of their reasoning, is of course, that the applicant is not entitled to same, further that in relation to some of the requests made these seem to point towards enabling the applicant to sue notional third parties and in respect of other requests, these are matters of evidence.

[12] In the circumstances, the respondent contends, that the request by the applicant is certainly not for the purpose of pleading to the plaintiffs claim. The respondent further contends that the requests made by the applicant are akin to a request in terms of rule 35(3) and not competent in respect of rule 35(14) resulting in a bare denial to the applicant's request.

[13] Adv. Segeels, for the applicant, submitted that the defendant in the process of pleading needs to set out the grounds of his defence with sufficient precision and detail in order for the plaintiff to know what case he has to meet. Further, the material facts ought to be set out and it is not sufficient to just set out the nature of one's defence, hence the request made by the applicant highlights the necessity of the requisite documents. Ms Segeels argues that the applicant has clearly defined the relevant documents required for the purpose of pleading, as is required. See Quayside Fish Suppliers CC v Irvin and Johnson Ltd 2000 (2) SA 529 (C) at 532G-J.

[14] Adv. Govender, for the respondent, submitted that the notice of the applicant reads as a Rule 35(3) request for further particulars. Further, that the documents called for are of a general or generic nature and calls for the creation of various lists instead of specific document which the defendant has knowledge of. The plaintiff argues that that the defendant has sufficient facts before it to plead, in that, the details and date when the Maltodextrin was purchased from the applicant, the precise description of the item, the manner in which it was defective and the amount of the damages paid is set out in the plaintiff's pleadings. Mr Govender argued that the request in paragraphs 3, 4, 6, and 9 are such so as to create an envisaged basis for a joinder of a third party. These are also generic in nature and within the knowledge of the applicant.

[15] What is distinct to me in an analysis of the applicant's Rule 35(14), is that it certainly seeks information of other manufacturers and distributors engaged with the respondent. This does indeed amount to a creation of a list which culminates into a document which is currently not in existence and therefore cannot be known with

precision to the applicant, as is required by Rule 35(14). The utilisation of Rule 35(14) requires knowledge of the specific documents sought and they should be described with precision.

[16] This is also so with the request for the contracts with other suppliers and suppliers names, as well as the lists requested of the ingredients. The aforesaid, in my view, is in a pursuit to strengthen the applicant's quest to join other parties as third parties in these proceedings. This is clearly evident from the reasons advanced for the documents so requested.

[17] Indeed the documents requested are not specified with precision. In addition they are in fact generic as the request is for a broad spectrum of documents. The applicant's request is akin to embarking on a "fishing expedition". The applicant does not even know specifically which documents it seeks and this is why it cannot describe the documents requested with precision.

[18] In my judgment the applicant's request does not amount to a request for specific documents, described with precision, which are known to the applicant that are relevant to the issue at hand.The so called documents requested are thus not defined, neither are they relevant for the purpose of pleading to the case of the plaintiff.

[19] In the circumstances, the applicant has not discharged the onus required in order to obtain the documents requested in terms of Rule 35(14).

[20] Turning to the issue of costs. The applicant seeks costs on an attorney and client scale. The argument advanced for such a costs order is that correspondence was transmitted to the respondent far back for it to provide the documents requested and the respondent has failed to agree to provide the documents requested.

[21] It is trite that attorney and client costs amount to a punitive cost order. This order is confined to special circumstances, for example where a party has been guilty of dishonesty or fraud or had acted vexatious or reckless and/or malicious. Likewise if a party proceeded with a frivolous motive or committed a grave misconduct.

[22] In the circumstances of this case none of the aforesaid mention arises or is present. In the circumstances a punitive cost order is not warranted. In these circumstances I am of the view that the respondent followed due process in responding to the applicant's

request. Thus, the order that is appropriate in this instance is for the costs to follow the result on a party and party scale.

[23] In the result the application is dismissed with costs on a party and party scale.

_______

W Hughes

Judge of the High Court Gauteng, Pretoria

Appearances:

For the Applicant/Defendant: Adv. L Segeels Instructed by: Hogan Lovells (South Africa) Inc

For the Defendant: Adv. Anban Govender Instructed by: Norton Rose Fulbright South Africa

Date heard: 31 July 2017

Date delivered: 18 August 2017