Standard Bank of South Africa Limited v Auto Executive (Pty) Ltd and Others (458/02) [2003] ZANWHC 36 (17 July 2003)

CA NO.: 458/02

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

STANDARD BANK OF SOUTH AFRICA LIMITED Plaintiff

and

AUTO EXECUTIVE (PTY) LTD 1st Defendant

GAVIN LIONEL KRESFERLDER 2nd Defendant

MARTHA SUSANNA PRETORIUS 3rd Defendant

APPLICATION

MAFIKENG

HENDRICKS AJ

DATE OF HEARING : 26 June 2003

DATE OF JUDGMENT : 17 July 2003

COUNSEL FOR PLAINTIFF : Adv. C. da Silva

COUNSEL FOR DEFENDANTS : Adv. J. Stander

HENDRICKS AJ: This is an application by the Defendant’s for an order in terms of Rule 35 (14) of the Uniform Rules of Court. This application was opposed by the Plaintiff and was argued on 26 June 2003 and judgment was reserved. It appears that the Defendants served a notice in terms of Rule 35 (14) on the Plaintiff. In answer to this notice, Plaintiff wrote a letter to the Defendants on the 1st April 2003 with the following contents:- “ 1. With regard to your notice in terms of Rule 35 (14) of the Uniform Rules of Court, our instructions are to refer you to the Rule itself, the commentary in Erasmus and the matter of Cullinan Holdings Limited vs Mamelodi Stadsraad 1992 (1) SA 645 (T) in which it is clearly stated that the Rule was designed to call for the production of a specific document, which can be described precisely. It does not provide for a mechanism whereby a party can, in genetic terms, cast a net which to fish for possible documents. Our instructions are in the circumstances to inform you that we will not answer to your abovementioned notice in view of the aforegoing and must call upon you to plead, failing which we are to place you under bar. Please note that proper discovery will take place in due course and at the appropriate time and you will be entitled to all the documents at the appropriate time”.

HENDRICKS AJ:

This is an application by the Defendant’s for an order in terms of Rule 35 (14) of the Uniform Rules of Court. This application was opposed by the Plaintiff and was argued on 26 June 2003 and judgment was reserved.

It appears that the Defendants served a notice in terms of Rule 35 (14) on the Plaintiff. In answer to this notice, Plaintiff wrote a letter to the Defendants on the 1st April 2003 with the following contents:-

“ 1. With regard to your notice in terms of Rule 35 (14) of the Uniform Rules of Court, our instructions are to refer you to the Rule itself, the commentary in Erasmus and the matter of Cullinan Holdings Limited vs Mamelodi Stadsraad 1992 (1) SA 645 (T) in which it is clearly stated that the Rule was designed to call for the production of a specific document, which can be described precisely. It does not provide for a mechanism whereby a party can, in genetic terms, cast a net which to fish for possible documents.

Our instructions are in the circumstances to inform you that we will not answer to your abovementioned notice in view of the aforegoing and must call upon you to plead, failing which we are to place you under bar.

Please note that proper discovery will take place in due course and at the appropriate time and you will be entitled to all the documents at the appropriate time”.

On the 24th April 2003, Plaintiff served a notice of Bar on Defendants.

On the 30th April 2003, after being placed under bar, Defendants served a notice of application to compel on the Plaintiffs, which forms the basis of this application. Defendants seek an order compelling the Plaintiff to produce the following documents:-

“1. A detailed statement of account in respect of the transactions

Proof of all payments made during June 1998 and August 1999".

Rule 35 (14) provides as follows:-

“ After appearance to defend has been entered, any party to any action may, for purposes of pleading acquire any other party 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 t he action and to allow a copy of the transcription to be made thereof.: (My underlining).

In the Superior Court Practise by Erasmus, the following is stated by the learned author on page B1-262 A:-

“The subrule was designed for the situation where a party to an action requires, for the purposes of pleading, the production of a specific document of which he has knowledge and which he or she can describe precisely. The subrule does not provide a mechanism whereby a party, by making use of genetic terms, can cast a net with which to fish for vaguely known documents. The test is whether the document in question is essential, not merely useful, in order to enable a party to plead”.

The questions that need to be addressed is whether:- the documents are clearly specified documents; and whether the documents requested is essential / necessary for purposes of pleading (a) Clearly Specified documents Defendants, in their Heads of Argument and during argument conceded that the documents relating to “proof of all payments made during June 1998 and August 1999" does not satisfy the requirements for discovery in terms of Rule 35 (14) and consequently abandoned that request. I am of the view that this concession is well made seeing that the wording is very wide and vague. These documents are not clearly specified as required by Rule 35 (14). The remaining document required is “ a detailed statement of account in respect of the transactions’. The question arises as to whether this is a document clearly specified. In Cullinan Holdings LTD v Mamelodi Stadsraad 1992 (1) SA 645 (T) on page 648 F-G, Van Dijkhorst J stated the following:- “ Myns insien skep reël 35 (14) nie  metode waardeur  gedings party deur gebruikmaking van generiese omskrywings  net kan knoop waarmee vir half-bekende dokument gevis kan word nie. Dit is  remedie wat vir besondere omstandighede geskep is. Dit vereis die oproep van  spesifieke dokument waarvan die applikant kennis dra en wat hy presies kan omskryf. Slegs dan kan hy deur die gebruikmaking van reël 35 (14) die normale blootlegging van reël 35 (1) vooruitloop”.

The questions that need to be addressed is whether:-

the documents are clearly specified documents; and whether the documents requested is essential / necessary for purposes of pleading

(a) Clearly Specified documents

Defendants, in their Heads of Argument and during argument conceded that the documents relating to “proof of all payments made during June 1998 and August 1999" does not satisfy the requirements for discovery in terms of Rule 35 (14) and consequently abandoned that request. I am of the view that this concession is well made seeing that the wording is very wide and vague. These documents are not clearly specified as required by Rule 35 (14).

The remaining document required is “ a detailed statement of account in respect of the transactions’. The question arises as to whether this is a document clearly specified.

In Cullinan Holdings LTD v Mamelodi Stadsraad 1992 (1) SA 645 (T) on page 648 F-G, Van Dijkhorst J stated the following:-

“ Myns insien skep reël 35 (14) nie  metode waardeur  gedings party deur gebruikmaking van generiese omskrywings  net kan knoop waarmee vir half-bekende dokument gevis kan word nie. Dit is  remedie wat vir besondere omstandighede geskep is. Dit vereis die oproep van

 spesifieke dokument waarvan die applikant kennis dra en wat hy presies kan omskryf. Slegs dan kan hy deur die gebruikmaking van reël 35 (14) die normale blootlegging van reël 35 (1) vooruitloop”.

Mr Da Silva, who appeared on behalf of the Plaintiff submitted that it is unclear what is meant by “a detailed statement of account in respect of the transactions”. I am in agreement with Mr Da Silva that it is unclear precisely what detail is required to be contained in the ‘statement of account’. It is not clear for which period such detailed statement is requested and for which transactions. Is it for all the transactions from the date of agreement in respect of the initial loan or in respect of the subsequent renewed loan agreement. Is it just for a period of a few months of for one month only? It is furthermore not clear to which “transactions” is referred to. Is it only in respect of payments made on specific dates or to all the transactions on this account since it was opened? There is a lot of questions that can be asked which clearly indicates that this is not a clearly specified document. See:- Quayside Fish Suppliers CC vs Irvin & Johnson Ltd 2000 (2) SA 529 (C). In their Heads of Argument, Defendants refer to “bank statements” which differs from “detailed statement of account” as stipulated in the Rule 35 (14) notice. Even if “a detailed statement of account” means “bank statements” then it is still uncertain in respect of which account(s) bank statements are required and for which period is it required and what specific detail is required on these “bank statements”.

Mr Da Silva, who appeared on behalf of the Plaintiff submitted that it is unclear what is meant by “a detailed statement of account in respect of the transactions”.

I am in agreement with Mr Da Silva that it is unclear precisely what detail is required to be contained in the ‘statement of account’. It is not clear for which period such detailed statement is requested and for which transactions. Is it for all the transactions from the date of agreement in respect of the initial loan or in respect of the subsequent renewed loan agreement. Is it just for a period of a few months of for one month only? It is furthermore not clear to which “transactions” is referred to. Is it only in respect of payments made on specific dates or to all the transactions on this account since it was opened? There is a lot of questions that can be asked which clearly indicates that this is not a clearly specified document.

See:- Quayside Fish Suppliers CC vs Irvin & Johnson Ltd 2000 (2) SA 529 (C).

In their Heads of Argument, Defendants refer to “bank statements” which differs from “detailed statement of account” as stipulated in the Rule 35 (14) notice. Even if “a detailed statement of account” means “bank statements” then it is still uncertain in respect of which account(s) bank statements are required and for which period is it required and what specific detail is required on these “bank statements”.

Documents essential / necessary for purposes of pleading

A further question that need to be addressed is whether the “detailed statement of account” document is essential and / or necessary for purposes of pleading.

Plaintiff filed a notice of application for summary judgment on 25 October 2002 which was served on the Defendants the same day. In answer thereto, Defendants filed affidavits resisting summary judgment on 12 November 2002. As defences were raised inter alia the contravention of the in duplum

rule and prescription.

Already on 12 November 2002, Defendants were in a position to raise at least these two defences. It cannot be argued that the reason why the “detailed statement of account in respect of the transactions” is required, is for the purposes of pleading. The defences raised as far back as 12 November 2002 can serve as pleas on the allegations contained in the summons.

Moreso, this is an action and after the close of pleadings, there will be discovery and Defendants still have the right to apply for further particulars for the purpose of trial. The onus is also on the Plaintiff to proof its case. The maxim ‘he who alleges must proof’ finds application and Plaintiff is duty bound to proof it’s case.

Even if, I were to find that the document required is a clearly specified document (which I say is not), I am still of the view that, if regard is had to what is contained in the affidavits resisting summary judgment, it cannot be said that this document is necessary and/or essential for purposes of pleading. See in this regard Herbstein & Van Winsen. The Civil Practice of the Supreme Court of South Africa, 4th edition on page 586 where the following is stated:- “The fact that a party would find it useful to be furnished with a document or tape recording before pleading does not entitle him to demand it under the subrule, which may be invoked only when it is essential that the document or tape recording be produced in order to enable the party requesting it to plead. Accordingly, where a defendant had been able to formulate its defences in an affidavit opposing an application for summary judgment in the absence of the documents it requested under Rule 35 (14), the court held that the defendant was not entitled to require production of those documents under the subrule prior to the delivery of its plea. In Cullinan Holdings LTD v Mamelodi Stadsraad 1992 (1) SA 645 on page 647 E-F Van Dijkhorst J. stated the following:- “Die eerste vereiste is dat die aangevraagde dokument ‘vir doeleindes van pleit’ benodig word. Uit die eedsverklaring van Nel is dit duidelik dat die verweerder sy verwere duidelik kon formuleer sonder die vermelde dokumente. Die dokumente is nie noodsaaklik ten einde te kan pleit nie. Die feit dat dit nuttig kan wees indien die opsteller van die pleitstuk dit beskikbaar het, is nie die toets nie. Om hierdie rede alleen al moet die aansoek ander Reel 30 faal”. Similarly in this matter, the defences of contravention of the in duplum rule and prescription were raised in affidavits resisting summary judgment without the documents requested under rule 35 (14).

Even if, I were to find that the document required is a clearly specified document (which I say is not), I am still of the view that, if regard is had to what is contained in the affidavits resisting summary judgment, it cannot be said that this document is necessary and/or essential for purposes of pleading. See in this regard Herbstein & Van Winsen. The Civil Practice of the Supreme Court of South Africa, 4th edition on page 586 where the following is stated:-

“The fact that a party would find it useful to be furnished with a document or tape recording before pleading does not entitle him to demand it under the subrule, which may be invoked only when it is essential that the document or tape recording be produced in order to enable the party requesting it to plead. Accordingly, where a defendant had been able to formulate its defences in an affidavit opposing an application for summary judgment in the absence of the documents it requested under Rule 35 (14), the court held that the defendant was not entitled to require production of those documents under the subrule prior to the delivery of its plea.

In Cullinan Holdings LTD v Mamelodi Stadsraad 1992 (1) SA 645 on page 647 E-F Van Dijkhorst J. stated the following:-

“Die eerste vereiste is dat die aangevraagde dokument ‘vir doeleindes van pleit’ benodig word. Uit die eedsverklaring van Nel is dit duidelik dat die verweerder sy verwere duidelik kon formuleer sonder die vermelde dokumente. Die dokumente is nie noodsaaklik ten einde te kan pleit nie. Die feit dat dit nuttig kan wees indien die opsteller van die pleitstuk dit beskikbaar het, is nie die toets nie. Om hierdie rede alleen al moet die aansoek ander Reel 30 faal”.

Similarly in this matter, the defences of contravention of the in duplum rule and prescription were raised in affidavits resisting summary judgment without the documents requested under rule 35 (14).

In view of what is stated above, the application must be dismissed. What remains to be decided is whether the court can accede to Plaintiff’s request that default judgment should be granted against the Defendants. In his Heads of Argument, Plaintiff submitted that although this matter is to a large extent similar to the Cullinan Holdings - case (supra), the difference lies therein that Defendants, who are correctly placed under bar, did not file a plea. No application for condonation is consequently made. It is submitted that Plaintiff is therefor entitled to default judgment. I disagree with Mr Da Silva’s submission that Plaintiff is entitled to obtain default judgment. There is no compliance with Rule 31 (2) in that no notice of the application for default judgment is either served on Defendants or filed in the court file. Rule 31 (2) (a) requires that the Plaintiff may set the action down for default judgment, as provided for in subrule (4). Rule 31 (4) states that the proceedings referred to in inter alia subrule (2) SHALL be set down for hearing upon not less than five days notice to the party in default. In terms of subrule (4), it is peremptory that the application for default judgment must be set down for hearing upon not less than five days notice to the party in default. I am mindful the fact that Harms in his book entitled Civil Procedure in the Supreme Court [Issue 26] states on page B31.5 - B31.6 that default judgment may be granted against a defendant in default of the delivery of

In view of what is stated above, the application must be dismissed.

What remains to be decided is whether the court can accede to Plaintiff’s request that default judgment should be granted against the Defendants. In his Heads of Argument, Plaintiff submitted that although this matter is to a large extent similar to the Cullinan Holdings - case (supra), the difference lies therein that Defendants, who are correctly placed under bar, did not file a plea. No application for condonation is consequently made. It is submitted that Plaintiff is therefor entitled to default judgment.

I disagree with Mr Da Silva’s submission that Plaintiff is entitled to obtain default judgment. There is no compliance with Rule 31 (2) in that no notice of the application for default judgment is either served on Defendants or filed in the court file.

Rule 31 (2) (a) requires that the Plaintiff may set the action down for default judgment, as provided for in subrule (4).

Rule 31 (4) states that the proceedings referred to in inter alia subrule (2) SHALL be set down for hearing upon not less than five days notice to the party in default.

In terms of subrule (4), it is peremptory that the application for default judgment must be set down for hearing upon not less than five days notice to the party in default.

I am mindful the fact that Harms in his book entitled Civil Procedure in the Supreme Court [Issue 26] states on page B31.5 - B31.6 that default judgment may be granted against a defendant in default of the delivery of

either a notice of intention to defend or a plea after having been barred (including a plea to a counterclaim), but this can only be the case where the Defendants are given proper notice.

In Mauritz Marais Bouers (Pty) Ltd v Carizette (Pty) LTD 1986 (4) 439 (O) Findlay A.J. states on page 446 - C the following:-

“ In Botes’ case supra Nicholas A.J. declined to make an order on the application for default judgment. I respectfully agree with that course. In the circumstances I make no order on the application by the defendant for default judgment on the claim in reconvention”.

In this matter, I am also of the view that I must make no order with regard to default judgment as requested by Plaintiff.

In the premises, I make the following order:-

The application in terms of Rule 35 (4) is dismissed with costs.

R.D. HENDRICKS

ACTING JUDGE OF THE HIGH COURT

DATED: 17 JULY 2003

Plaintiff’s Attorneys: Mac Robert Inc C/O Minchin & Kelly Inc MAFIKENG Defendants’ Attorneys: Smit Stanton Inc MAFIKENG

Plaintiff’s Attorneys: Mac Robert Inc

C/O Minchin & Kelly Inc

Defendants’ Attorneys: Smit Stanton Inc