Bruwer v Stols (5571/2010) [2011] ZAFSHC 120 (4 August 2011)
- Citation
- [2011] ZAFSHC 120
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- H.M. Musi
- Case number
- 5571/2010
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- H.M. Musi
- Case number
- 5571/2010
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant's request under Rule 35(14) was specific and legitimate, as the documents sought were referenced in the respondent's counterclaim and their existence was not disputed. The respondent's objections regarding cost and time were not valid, as the applicant only sought inspection and would bear the cost of copying. Access to the documents was necessary for the applicant to plead properly to the counterclaim, which involved substantial sums and detailed expenditure. The respondent's argument that the applicant did not require the documents for pleading was rejected, as it would force the applicant into a bare denial, which is not acceptable. Accordingly, the order compelling the respondent to comply with Rule 35(14) was justified, and costs were awarded to the applicant.
Court disposition
Application granted; respondent compelled to comply with Rule 35(14) and costs awarded to applicant.
Orders
- The respondent is compelled to make the specified documents available for inspection by the applicant within five days from the date of the order.
- The applicant is entitled to make copies of the documents at her own expense.
- The costs of the previous appearance on 9 June 2011 are awarded to the applicant.
- The registrar is directed to issue an amended order deleting the erroneous phrase from paragraph 1 of the original order.
02
Material facts
Parties
Aletta Johanna Bruwer
Applicant Counsel: G.F. AckermannLodewyk Stephanus Jacobus Stols
Respondent Counsel: J. BlignautAmounts and remedies
- Estimated Cost to Sort Documents (as Per Respondent's Auditors): ZAR 30,000
- Estimated Maximum Cost to Sort Documents (as Per Respondent's Auditors): ZAR 40,000
03
Procedural history
Posture
Civil Application / Reasons for Order Following Rule 49(1)(c) Request
04
Questions and positions
Legal issues
- 01
Whether the applicant's request under Rule 35(14) was valid and specific.
- 02
Whether the respondent was obliged to make the requested documents available for inspection.
- 03
Whether the applicant should bear the costs of sorting and copying the documents.
- 04
Whether the applicant requires the documents for purposes of pleading to the counterclaim.
Party arguments
- Applicant
- The applicant argued that the documents requested under Rule 35(14) are specifically identified and referenced in the respondent's counterclaim. She requires access to these documents to properly plead to the counterclaim and is willing to make copies at her own expense. The request is not a fishing expedition but a legitimate exercise of procedural rights.
- Respondent
- The respondent objected to the Rule 35(14) notice, claiming the documents are with his auditors, that sorting them would take about three months and cost between R30,000 and R40,000, and that the applicant should bear these costs. He argued that the applicant does not require the documents for purposes of pleading and that the request is unduly burdensome.
05
Court’s reasoning
Legal principles
- 01
Uniform Rule 35(14)
Rule 35(14) allows a party to require another to make available for inspection a clearly specified document relevant to a reasonably anticipated issue in the action, for purposes of pleading.
- 02
Erasmus, Superior Court Practice at B1-262A
The sub-rule is designed for situations where a party requires, for purposes of pleading, the production of a specific document of which it has knowledge and can describe precisely. It does not allow for fishing for vaguely known documents.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant's request under Rule 35(14) was specific and legitimate, as the documents sought were referenced in the respondent's counterclaim and their existence was not disputed. The respondent's objections regarding cost and time were not valid, as the applicant only sought inspection and would bear the cost of copying. Access to the documents was necessary for the applicant to plead properly to the counterclaim, which involved substantial sums and detailed expenditure. The respondent's argument that the applicant did not require the documents for pleading was rejected, as it would force the applicant into a bare denial, which is not acceptable. Accordingly, the order compelling the respondent to comply with Rule 35(14) was justified, and costs were awarded to the applicant.
Obiter and limits
- The phrase starting with 'alternatiewelik' in the original order was erroneous and should be deleted; the registrar is directed to issue an amended order reflecting this correction.
- It stands to reason that the applicant will make copies at her own expense when inspecting the documents.
Court disposition
Application granted; respondent compelled to comply with Rule 35(14) and costs awarded to applicant.
- The respondent is compelled to make the specified documents available for inspection by the applicant within five days from the date of the order.
- The applicant is entitled to make copies of the documents at her own expense.
- The costs of the previous appearance on 9 June 2011 are awarded to the applicant.
- The registrar is directed to issue an amended order deleting the erroneous phrase from paragraph 1 of the original order.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 5571/2010
In the matter between:-
ALETTA
JOHANNA BRUWER ….............................................Applicant
and
LODEWYK STEPHANUS JACOBUS STOLS …..................Respondent
_____________
HEARD ON: 23 JUNE 2011
DELIVERED ON: 4 AUGUST 2011
JUDGMENT
H.M. MUSI, JP
[1] The application herein was argued on 23 June 2011 and I granted an order in terms of prayers 1, 2 and 3 of the Notice of Motion, as well as awarding the costs of the previous appearance on 9 June 2011 to the applicant. I indicated that reasons for the order would be provided upon request in terms of the Rules. The respondent has now requested such reasons in terms of Rule 49(1)(c). This judgment is in response to such request.
[2] At the outset I wish to correct an error in paragraph 1 of the order which reads as follows:
“Respondent antwoord op Applikant se Kennisgewing in terme van Reël 35(14) en wel binne vyf dae vanaf datum van verlening van hierdie bevel, alternatiewelik binne die tydperk bepaal deur die Agbare Hof.”
[3] The phrase starting with “alternatiewelik” should be deleted from the order and the registrar will be directed to issue an amended order to reflect this.
[4] Rule 35(14) stipulates that after a notice of intention to defend has been filed, any party to an action may, for purposes of pleading, require the other party to the action
“to make available for inspection within five 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”.
[5] Commenting on this Rule, Erasmus in Superior Court Practice says at B1-262A:
“The sub-rule was designed for the situation where a party to an action requires, for purposes of pleading, the production of a specific
document of which he has knowledge and which he or she can describe precisely. The sub-rule does not provide a mechanism whereby a party, by making use of generic terms, can cast a net with which to fish for vaguely known documents.”
[6] In my view, it cannot be said in this case that the applicant has cast a wide net with which to fish for vaguely known documents. The documents that the applicant requires to inspect are alluded to in the respondent’s counterclaim and the applicant wishes to inspect them for purposes of pleading to the counterclaim. The respondent does not dispute the existence of the requested documents
nor does it say that it does not know which documents are requested. There is simply no dispute about which documents are requested.
[7] The respondent’s objection to the Rule 35(14) notice is contained in the letter annexed to its opposing affidavit and marked “LS”. The letter states inter alia that the documents are in the possession of the respondent’s auditors and that the auditors say it will take about three months to sort them and that this would cost between R30 000,00 and R40 000,00 and that the applicant must carry such costs. Paragraph 3 thereof reads:
“U moet onthou dat die dokumente en kwitansies ensovoorts sedert 2007 bestaan, so die sistematisering daarvan gaan ‘n tydjie neem.”
[8] In my view, the objections raised by the respondent are not valid. The applicant does not require to be furnished with copies of the documents. Its request is that the documents be made available to it to inspect and for it to be allowed to make copies thereof. It stands to reason that the applicant will make copies at its own expense.
[9] In my view, the applicant needs to have sight of these documents if it is to file a plea that complies with the requirements of Rule 22. The counterclaim is for a substantial amount of money which far exceeds the claim in convention and massive expenditure is detailed in the counterclaim which can only be based on documents. The respondent’s argument that the applicant does not require the documents for purposes of pleading is tantamount to saying that the applicant must file a plea amounting to a bare denial, which is untenable.
[10] For those reasons I gave the order compelling the respondent to comply with the request in terms of Rule 35(14) and it speaks for itself that the costs should follow the cause.
____
On behalf of applicant: Adv. G.F. Ackermann
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of respondent: Adv. J. Blignaut
Symington & De Kok
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