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South Africa Judgment

North Gauteng High Court, Pretoria

Morgan Beef (Pty) Limited v Mkhulu Electro Distribution Projects (Pty) Limited and Another (60027/2015) [2017] ZAGPPHC 507 (18 August 2017)

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01

Holding and result

The court found that none of the Respondent's objections to providing the requested documents under Rule 35(3) were valid. The fact that some documents may already be in the Applicant's possession does not absolve the Respondent of its duty to provide them. The argument that a new application should be brought for documents already provided is unsupported by authority and incorrect. The documents requested are relevant to the main action, as they pertain to the collision and related insurance matters. The claim of privilege was not substantiated and does not apply to the documents requested. Accordingly, the court granted the relief sought by the Applicant, ordering the Respondent to provide the specified documents within ten days and to pay the costs of the application.

Court disposition

Application granted in favour of the Applicant.

Orders

  • The Respondent/First Defendant is directed to within ten days comply with numbered paragraphs 1, 2, 16, 18, 19 and 20 of the Applicant/Plaintiff's Rule 35(3) Notice dated 1 March 2016.
  • The Respondent/First Defendant is ordered to pay the costs of the application.

02

Material facts

Parties

Morgan Beef (Pty) Limited

Applicant

Mkhulu Electro Distribution Projects (Pty) Limited

Respondent

Jean Marcello Lamperini

Defendant

03

Procedural history

  1. Posture

    Civil Application / Application for Further Discovery Under Rule 35(3)

04

Questions and positions

Legal issues

Party arguments

Applicant
The Applicant contends that the Respondent is required to provide the documents listed in the Rule 35(3) Notice, regardless of whether some may already be in the Applicant's possession. The Applicant argues that the documents are relevant to the main action, which concerns a collision between two trucks, and include information about the identity of the driver and insurance documents. The Applicant maintains that there is no duty to bring a new application if some documents have already been provided, and that no valid claim of privilege has been substantiated by the Respondent.
Respondent
The Respondent opposes the application on four grounds: some documents are already in the Applicant's possession; some documents have already been provided and a new application should be brought for any further documents; the requested documents are irrelevant to the main action; and the documents are privileged. The Respondent did not provide authority for the requirement of a new application, nor did it substantiate the claim of privilege or irrelevance during argument.

05

Court’s reasoning

  1. 01

    Uniform Rules of Court, Rule 35(3)

    A party is obliged to provide documents requested under Rule 35(3), even if the requesting party may already possess them.

  2. 02

    Hero Shipping Corporation of Monrovia v Minister of Agriculture, Economics and Marketing and Others (1979) 3 ALL SA 505 (C) at 509

    A claim of privilege must be substantiated and cannot be asserted without basis; privilege generally refers to communications between attorney and client for the purpose of litigation.

  3. 03

    United Tobacco Company (South) Limited v International Tobacco Company of SA Limited 1953 (1) SA 66 (N) at 70 D

    Documents requested in discovery must be relevant to the issues in the main action.

06

Ratio, limits and disposition

Ratio decidendi

The court found that none of the Respondent's objections to providing the requested documents under Rule 35(3) were valid. The fact that some documents may already be in the Applicant's possession does not absolve the Respondent of its duty to provide them. The argument that a new application should be brought for documents already provided is unsupported by authority and incorrect. The documents requested are relevant to the main action, as they pertain to the collision and related insurance matters. The claim of privilege was not substantiated and does not apply to the documents requested. Accordingly, the court granted the relief sought by the Applicant, ordering the Respondent to provide the specified documents within ten days and to pay the costs of the application.

Obiter and limits

  • Neither party is to blame for the wasted costs incurred due to the postponement on 14 February 2017; each party should bear its own costs for that appearance.
  • The Respondent's suggestion to supplement its Opposing Affidavit in response to new matters raised in the Applicant's Replying Affidavit was not pursued during argument.

Court disposition

Application granted in favour of the Applicant.

  • The Respondent/First Defendant is directed to within ten days comply with numbered paragraphs 1, 2, 16, 18, 19 and 20 of the Applicant/Plaintiff's Rule 35(3) Notice dated 1 March 2016.
  • The Respondent/First Defendant is ordered to pay the costs of the application.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Judgment

[2017] ZAGPPHC 507

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION. PRETORIA)

CASE NO: 60027/2015

DATE: 18/8/2017

In the matter between:

MORGAN BEEF (PTY)

LIMITED

Applicant/Plaintiff

and

MKHULU

ELECTRO DISTRIBUTION

PROJECTS (PTY) LIMITED Respondent/First Defendant

JEAN

MARCELLO LAMPERINI Second Defendant

JUDGMENT

Rautenbach AJ:

1. This is an application i terms of Rule 35(3) of the Uniform Rules of Court in terms of which the Applicant requested certain documentation from the Respondent in terms of a Rule 35(3) Notice dated the 1st March 2016.

2. In the Practice Note that was filed on behalf of the Applicant, at page 6 of the bundle dealing with Set Down, Practice Notes and Heads of Argument, the Applicant indicates that the relief that it seeks in this matter is that the Respondent (First Defendant) be directed to, within ten days, comply with numbered paragraph 1, 2, 16 , 18 , 19 and 20 of the Applicant/Plaintiff's Rule 35(3) Notice dated 1 March 2016. These are the items as specified in the Notice in terms of Rule 35(3).

3. The Respondent/First Defendant has opposed this application on various grounds. To sum up the objections on behalf of the First

Defendant against providing the documentation to the Applicant are fourfold:

3.1. Firstly in respect of some of the documents, they are already in the possession of the Applicant. In my view this is not a proper defence as Rule 35(3) require a Respondent to provide the Applicant with such document.

3.2. Secondly that the Applicant was been provided with some of the documents. That having been the case, the Applicant had to bring a new application in terms of Rule 35. I am of the view that this stance is in fact incorrect and there is no duty on such an Applicant to start afresh. No authority for this

proposition has been provided by the Respondent to me during argument or in the Heads of Argument.

3.3. Thirdly that the information requested is irrelevant. The documents listed is relevant to the main action in that it refers to a claim in respect of a collision between two trucks and some of the questions were related to the identity of the driver as well as the insurance documents. I invited the legal representative for the Respondent to argue why the documents are irrelevant and I am not persuaded that any of these documents are irrelevant to the main action.

3.4. Fourthly the documents are privileged. This statement is made without setting out any basis why the documents could be privileged. The documents requested surely does not refer to communications between attorney and client for purposes of pending or contemplated litigation.[1]

4. I am of the view in any event that the reasons why any of these documents should be regarded as privileged has not been set out in the

-Respondent's Affidavit opposing this application.

5. · In the Heads of Argument on behalf of the First Respondent it is suggested that should the Court consider any new matter

introduced by the Applicant in his Replying Affidavit, then the First Respondent will seek to supplement its Opposing Affidavit in order to address the new matter raised by the Applicant. Such an application was never forthcoming during argument.

6. In the circumstances I am inclined to grant the relief sought by the Applicant as amended in its Practice Note.

7. A further issue that I will have to deal with is that this matter was on the opposed roll of this Court on the 14th February 2017. A Court Order marked "X" was handed up to me which was stamped by the Registrar on the 15th February 2017 indicating that the matter was postponed sine die and that the Respondent's Heads were not filed and but that the Respondents have a stamped Heads of Argument in their possession. Costs were then reserved. I am of the view that neither party could be blamed for the state of affairs and that each party should pay its own wasted costs as far as that appearance on the 14th February 2017 is concerned.

8. In the premises I make the following order:

1. The Respondent/First Defendant is directed to within ten (10) days, comply with numbered paragraphs 1, 2, 16, 18, 19 and 20 of Applicant/Plaintiff's Rule 35(3) Notice dated 1 March 2016.

2. The Respondent/First Defendant is ordered to pay the costs of the application.

J G Rautenbach

Acting Judge of the High Court

Gauteng Division

Pretoria

[1] Hero Shipping Corporation of Monrovia v. Minister of Agriculture, Economics and Marketing and Others (1979) 3 ALL SA 505 (C) at 509; United Tobacco Company (South) Limited v. International Tobacco Company of SA Limited 1953 (1) SA 66 (n at 70 D.

[1] Hero Shipping Corporation of Monrovia v. Minister of Agriculture, Economics and Marketing and Others (1979) 3 ALL SA 505 (C) at 509;

United Tobacco Company (South) Limited v. International Tobacco Company of SA Limited 1953 (1) SA 66 (n at 70 D.

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Hero Shipping Corporation of Monrovia v Minister of Agriculture, Economics and Marketing and Others (1979) 3 ALL SA 505 (C) at 509

Case cited

United Tobacco Company (South) Limited v International Tobacco Company of SA Limited 1953 (1) SA 66 (N) at 70 D

Case cited

Uniform Rules of Court, Rule 35(3)

Legislation

Legislation referenced in the available case record.

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