Zoned Earth Development Company (Pty) Ltd v ASAP Rentals CC t/a ASAP Properties (50763/2014) [2017] ZAGPPHC 182 (16 May 2017)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 50763/2014

16/5/2017

Reportable: No

Of interest to other judges: No

Revised.

In the matter between:

ZONED EARTH DEVELOPMENT COMPANY (PTY)

LTD APPLICANT

and

ASAP

RENTALS CC T A ASAP

PROPERTIES RESPONDENT

JUDGMENT

KUBUSHI J

[1] This is an opposed application in terms of which the applicant seeks an order striking out the respondent's particulars of claim for failing to produce the documents referred thereto, together with an order for costs of the application as well as costs reserved on 12 August 2015.

[2] The respondent is opposing the application and in turn seeks a dismissal of the application with an order for costs of the application on a punitive scale as between attorney and client.

[3] In the main action the respondent instituted action against the applicant for payment of the state agent's commission. In paragraph

1.2 of the particulars of claim, the respondent alleges that it is an estate agent who at all relevant times was the holder of a valid Fidelity Fund Certificate issued to it in terms of section 26 (a) of the Estate Agents Affairs Act 112 of 1976.

[4] Pursuant to the respondent's summons, the applicant delivered a notice in terms of Uniform Rule 35 (12) calling upon the respondent

to provide it with the Fidelity Fund Certificate together with the sale agreements pertaining to the transactions the respondent is claiming commission for in paragraph 1.2 of its particulars of claim. The documents were not made available, which resulted in the application being set down and an order granted, by consent, in favour of the applicant on 12 August 2015. In terms of the court order, the respondent was to provide the applicant with the agreements for the transactions in question together with Fidelity

Fund Certificates for and in respect of the respondent, Anne-Marie Aspeling and the manager Peter John Truter Aspeling for the period 31 December 2013 to 27 March 2014. Costs of this application were reserved.

[5] In pursuance of the aforesaid court order on 1 March 2016 the respondent filed a supplementary answering affidavit in which,

according to it, it provided the appl!cant with the documents as stated in the court order. The applicant did not reply to the

respondent's . supplementary affidavit and on 13 April 2016 the respondent called on the applicant to file its plea to the particulars of claim. In response thereto the applicant contended that, in its opinion, the respondent had not complied fully with the applicant's Uniform Rule 35 (12) notice or the court order of 12 August 2015. This led to the applicant filing a supplementary affidavit essentially taking issue with the fact that the respondent failed to comply with paragraph 2 of the court order in that the respondent failed to provide the applicant with the Fidelity Fund Certificates for and in respect of the respondent, Anne-Marie Aspeling and the manager Peter John Truter Aspeling for the period 31 December 2013 to 27 March 2014.

[6] On 23 June 2016 the respondent filed its supplementary affidavit raising the following defences:

6.1 The application is fatally defective and cannot succeed confined to the manner in which it has been .couched in its founding affidavit as no proper case has been made out for the relief sought therein;

6.2 Neither Uniform Rules 35 (12) provide for the type of relief sought in terms of the application nor at this stage of the proceedings;

6.3 Any Fidelity Fund Certificates for the period 31 December 2013 to 27 March 2014 in respect of either the respondent or the relevant individuals do not exist and are furthermore irrelevant for purposes of the action or this application.

[7] What this court is then called upon to decide is whether the application should be dismissed based on the defences raised by the respondent in its supplementary affidavit.

[8] It appears from the record that almost all of the documents requested in the Uniform Rule 35 (12) notice have, since the order of 12 August 2015, been furnished to the applicant except, according to the applicant, the Fidelity Fund Certificates for the respondent close corporation, Anne-Marie Aspeling and all other members and/or managers for the period of 31 December. 2013 to 27 March 2014. The applicant has as such re-enrolled the application on the basis that the respondent has not complied with prayer 2 of the court order of 12 August 2015. The applicant now applies for an order in terms of prayer 5 of the notice of motion as well as costs in terms of prayer 6 thereof and the reserved costs of 12 August 2015.

[9] Prayer 5 and 6 are stated as follows in the notice of motion:

"5. Should the Respondent fail to comply with paragraphs 1 to 4 supra, within 5 days from the service of this order, the Applicant may apply for an order striking out the particulars of claim, on the same papers supplemented if necessary, on notice to the Respondent.

6. The Respondent is ordered to pay the costs of this application.”

The relief the applicant seeks in this regard, is to have the respondent's particulars of claim struck out for failing to provide

the Fidelity Fund Certificates the respondent was ordered to furnish by the court order of 12 August 2015.

[10] The respondent's submission is that the relief sought by the applicant is misguided as it is not provided for in the Uniform

Rules. The contention by the respondent is that the applicant should have, instead, applied for relief in terms of Uniform Rule 30A as Uniform Rule 35 (12) does not provide for the relief the applicant seeks. On that basis the respondent's argument is that the application should be dismissed. I agree with this submission.

[11] The relevant provisions of Uniform Rule 35 read as follows:

"(12) Any party to any proceeding may at any time before hearing thereof deliver a notice as near as may be in accordance with Form 15 in the First Schedule to any other party in whose pleadings or affidavits reference is made to any document or tape recording to produce such document or tape recording for his inspection and to permit him to make a copy or transcript thereof. Any party failing to comply with such notice shall not, save with leave of the court, use such document or tape recording in such proceeding provided that any other party may use such document or tape recording."

[12] The relief provided for in Uniform Rule 35 (12) for failure to comply with the said notice was succinctly explained in the judgment in Machingawuta and Others v Mogale Alloys (Pty) Ltd and Others 2012 (4) SA 113 at paras 6 - 13. In that judgment, the court at paras 7 - 8 stated the following:

"The relief provided for in rule 35 (12) of the Uniform Rules of Court for failure to comply with a notice in terms of that rule is to the effect that the party who fails to comply with the notice in terms of the aforesaid rule should not be allowed to use such document in such proceedings, save with the leave of court. The party who gave such notice is, however, not confined to the relief provided for in rule 35 (12). The relief provided in rule 30A is wide enough to cover the failure to comply with the request made in terms of rule 35 (12) of the Uniform Rules of Court, namely that the party giving notice 'may notify the defaulting party that he or she intends, after the lapse of 1O days, to apply, for an order that such rule, notice or request be complied with or that the claim or defence be struck out.”

[13] In the premises and on this ground alone, Iam of the view that the application falls to be dismissed with cost.

[14] I, however, find it necessary that I deal with another defence of the respondent as well, namely that the certificates sought to be disclosed are irrelevant for purposes of the claim in this instance and that the respondent does not have them. Even in this regard I agree with the respondent's submissions.

[15] The court in the Machngawuta-judgment above made it clear that it is implicit in the wording of Uniform Rule 35 (12) that a party cannot be compelled under this rule to produce a document which is irrelevant or privileged; and, in my view, a document which is not in that party's possession as well.

[16] It is trite that no estate agent is entitled to any remuneration or other payment in respect of or arising from the performance of any act relating to the business of an estate agency (as defined in the definition Of 'estate agent') unless at the time of the performance of the act a valid Fidelity Fund Certificate had been issued.[1]

[17] The respondent's submission is that the Fidelity Fund Certificates sought by the applicant for the period 31 December 2013 to 27 March 2014 are not covered by the agreements on which it claims commission as an estate agent. This is not denied by the applicant. It is, therefore, my view that in such circumstances the certificates falling within that period are irrelevant and need not be produced for purposes of the claim in this matter.

[18] As regards costs, I am inclined to order that the reserved costs of 12 August 2015 be paid by the respondent. It is the respondent who occasioned the postponement. It was upon the respondent to have alerted the applicant about the irrelevancy of the certificates for purposes of this claim or made the applicant aware at that stage that it does not have the certificates. I, however, do not think that the costs should be punitive as I am not of the view that the respondent was vexatious.

[19] As a result I make the following order:

19.1. The application is dismissed with costs.

19.2. The respondent is ordered to pay the reserved costs of 12 August 2015.

_____

E.M.KUBUSHI

JUDGE

OFTHE HIGH COURT

APPEARANCE:

Counsel for Applicant

:R DE VILLIERS

Instructed by

:BERT SMITH INCORPORATED

Counsel for the Respondent :P LOURENS

Instructed by

:SNYMAN DE JAGER INCORPORATED

Date heard

:02 MAY 2017

Date of judgment

:16 MAY 2017

[1] See Amler's Precedents of Pleadings at p20