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South Africa Judgment

North Gauteng High Court, Pretoria

Telfree Communications (Pty) Ltd v Mobile Telephone Networks (Pty) Ltd (33647/2012) [2014] ZAGPPHC 627 (20 August 2014)

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Source document

01

Holding and result

The court held that Rule 35(12) provides an unqualified right to production and inspection of documents referred to in pleadings or affidavits. The applicant's notice under Rule 35(14) was found to be too broad and not applicable, as it did not specify relevant documents. The respondent's objections based on privilege and ongoing arbitration were rejected, as a tender to produce the agreements reflecting fees had already been made. The applicant is entitled to inspect and copy the documents and agreements mentioned in the specified paragraphs of the respondent's affidavit. The respondent is ordered to produce these documents within ten days and to pay the costs of the application.

Court disposition

Application granted in favour of the applicant.

Orders

  • Respondent is ordered to produce for the applicant's inspection and permit the applicant to make copies of the documents and agreements mentioned in paragraphs 23, 34 and 71 of the opposing affidavit of 22 April 2013, within ten days of service of this order upon the respondent.
  • Respondent is ordered to pay the costs of this application.

02

Material facts

Parties

Telfree Communications (Pty) Ltd

Applicant

Mobile Telephone Networks (Pty) Ltd

Respondent

03

Procedural history

  1. Posture

    Civil Application / Application for Production of Documents Under Rule 35(12) and 35(14)

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contends that it is entitled to inspect and copy documents referenced in the respondent's affidavits, specifically those reflecting amounts mentioned and agreements referred to by the deponent. The applicant argues that Rule 35(12) does not distinguish between documents foundational to the proceedings and those with evidentiary value. It asserts that the respondent's references to ongoing arbitration and privilege do not preclude production, especially where a tender to produce agreements was made.
Respondent
The respondent opposes the application, arguing that the applicant's notice is overly broad and does not specify relevant documents as required by Rule 35(14). It raises technical defences, including alleged abuse of process, privilege, and irrelevance due to ongoing arbitration. The respondent maintains that calculations are not documents and thus not subject to production, but acknowledges a tender to produce certain agreements reflecting fees.

05

Court’s reasoning

  1. 01

    Magnum Aviation Operations v Chairman NTC 1984 (2) SA 398 (WLD) at 400D

    Rule 35(12) entitles a party to production and inspection of any document referred to in pleadings or affidavits, regardless of whether the document is foundational or merely evidentiary.

  2. 02

    Harms: Civil Procedure in Superior Courts at D/252

    Documents that are privileged cannot be sought under Rule 35(12) or 35(14).

06

Ratio, limits and disposition

Ratio decidendi

The court held that Rule 35(12) provides an unqualified right to production and inspection of documents referred to in pleadings or affidavits. The applicant's notice under Rule 35(14) was found to be too broad and not applicable, as it did not specify relevant documents. The respondent's objections based on privilege and ongoing arbitration were rejected, as a tender to produce the agreements reflecting fees had already been made. The applicant is entitled to inspect and copy the documents and agreements mentioned in the specified paragraphs of the respondent's affidavit. The respondent is ordered to produce these documents within ten days and to pay the costs of the application.

Obiter and limits

  • Calculations as such are not documents and are not subject to production unless contained within documents.
  • Rule 35(12) and 35(14) notices may be delivered at any time before the hearing.

Court disposition

Application granted in favour of the applicant.

  • Respondent is ordered to produce for the applicant's inspection and permit the applicant to make copies of the documents and agreements mentioned in paragraphs 23, 34 and 71 of the opposing affidavit of 22 April 2013, within ten days of service of this order upon the respondent.
  • Respondent is ordered to pay the costs of this 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

[2014] ZAGPPHC 627

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 33647/2012

DATE: 20 AUGUST 2014

In the matter between:

TELFREE COMMUNICATIONS (PTY) LTD................................................................................Applicant

and

MOBILE TELEPHONE NETWORKS (PTY) LTD....................................................................Respondent

JUDGMENT

BREDENKAMP AJ:

INTRODUCTION

In this matter the Applicant obtained a rule nisi on an ex parte basis before Victor J in this Honourable Court on the 8th of March 2013. The interim order called on the Respondent to show reasons why it should not restore the call short message system (sms) functionality pertaining to the Applicant over the Respondent’s carrier network. A declaratory order was also made recording that the Respondent had already been interdicted from disabling, diminishing or restricting the Applicant’s access for sms purposes to the Respondent’s carrier network. The Respondent opposed this order, and filed opposing papers. A reply was filed to that.

2.

2.1 In its said Notice in Terms of Rule 35(12)(14) the Applicant states that it requires insight into and copies of the documents “reflecting what amount is involved as is directly mentioned by Karel Pienaar” (referring to the opposing affidavit of which Karel Pienaar deposed to on 26 April 2013) and which indicates how the amounts are calculated, when the amount was alleged to be due and secondly it also requests copies of the agreements referred to above by the deponent Karel Pienaar.

2.2 The relevant statements made by Karel Pienaar in which the Applicant is interested is Paragraphs 34, 35 and 71 of the opposing affidavit deposed to on 26 April 2013.

3.

In terms of Rule 35(12), a party can any time before the hearing give notice to any other party in whose pleadings or affidavits reference is made to any document, to produce that document for inspection and permitting it to make a copy of it. This Rule does not qualify the documents and no distinction is made between documents upon which the proceedings are actually founded and documents possessing merely evidentiary value. (See Magnum Aviation Operations v Chairman NTC 1984 (2) 398 (WLD) on p 400 D).

4.

The notice in casu, does not refer to clearly specified documents, and does not state that these documents are relevant to a reasonably anticipated issue in the action. Rule 35(14), to my mind therefore do not find application. As the notice is too widely worded it cannot fit within the framework of a Rule 35(14) notice.

5.

In its answering affidavit, Respondent stated a number of technical defences regarding the Rule 35(14) application. It is not necessary to consider them, as I have stated above, that Rule 35(14) cannot find application in these circumstances.

6.

6.1 In regard to the Rule 35(12) as well as 35(14) notice, the Respondent firstly states, that this notice amounts to an abuse of the Court processes. However, Rule 35(12) clearly states, that a Rule 35(12) notice [and for that matter also Rule 35(14)] may at any time before the hearing thereof be delivered.

6.2 Documents that are privileged cannot be sought. (See Harms: Civil Procedure in Superior Courts at D/252]. However this is not a defence of the Respondent, as in paragraph 34 of its answering affidavit of 26 April 2013, a tender to produce the agreements reflecting fees, was made.

6.3 It is also argued in the opposing papers, that the documents required by the Applicant are subject to an on-going arbitration process to the parties and as such are irrelevant for the purposes of determining whether Respondent’s conduct of deactivating the provision of telecommunication services to the Applicant boils down to spoliation. As pointed out above, Rule 35(12), does not have a qualification and no distinction is made between documents upon which the proceedings are founded and even documents possessing evidentiary value. Furthermore, a tender was made to produce agreements, which reflect fees as stated above.

7.

7.1 As stated above Rule 35(12) clearly states, that the Applicant is entitled to any document or tape recording, referred to by the other party (parties in the pleadings or affidavits). He’s not entitled to calculations as such, unless those calculations are contained in documents.

7.2 I am satisfied that the Applicant has made out a case, in terms of Rule 35(12) and the following order is consequently made.

8.

8.1 Respondent is ordered to produce for the Applicant’s inspection and to permit Applicant to make copies of the documents and agreements mentioned in paragraphs 23, 34 and 71 of the opposing affidavit of 22nd April 2013, within 10 (ten) days of service of this order upon the Respondent.

8.2 Respondent is ordered to pay the costs of this application.

BREDENKAMP IM

ACTING JUDGE OF

THE HIGH COURT

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Authorities

Authorities used by the court

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

Magnum Aviation Operations v Chairman NTC 1984 (2) SA 398 (WLD)

Case cited

Uniform Rules of Court, Rule 35(12)

Legislation

Legislation referenced in the available case record.

Uniform Rules of Court, Rule 35(14)

Legislation

Legislation referenced in the available case record.

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