REPUBLIC OF SOUTH AFRICA
          
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

                                                                                CASE NO:

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

         ……………………..		………………………...
                   DATE			        SIGNATURE

  18650/2014

In the matter between:

CITY PRESS						                          First Applicant

FERIAL HAFFAJEE					          Second Applicant

SIPHO MASONDO						              Third Applicant

and

MOKITI MAPATAGANYE PEACE				       Respondent
______________________________________________________________ 

J U D G M E N T

MAHALELO, AJ:

[1]	This is an interlocutory application for the discovery of certain documents in terms of Rule 35(7) of the Uniform Rules of Court. The applicants seek an order compelling the respondent to comply with a notice in terms of Rule 35(3). The application is opposed by the respondent.

[2]	The applicants are the defendants in a defamation action instituted by the respondent which is pending in this Court.  It will be convenient to refer to the parties as plaintiff and defendants respectively.

[3]	The first defendant is City Press Newspaper, the publisher of news, the second defendant is the editor-in-chief of the first defendant newspaper and the third defendant is a journalist in the employ of the first defendant. The plaintiff is the School Principal of Gwele Primary School in Soweto.

[4]	The Plaintiff is suing the defendants for damages arising from the publication on 18 May 2014 in the City Press of an article titled “SADTU man demands sex for job”.  The plaintiff alleges that the article was defamatory against him and the grounds of his claim are set out in his particulars of claim.

[5]	The defendants dispute the plaintiff’s claim of defamation and has entered notice of intention to defend the matter.

[6]	On 28 November 2014 and in response to the defendants’ notice in terms of Rule 35(1), the plaintiff served its discovery affidavit and listed in part one of the First Schedule the following documents:

          6.1	All pleadings, including annexures under Case Number 20674/2014.

	6.2	Newspaper article.

	6.3	Letter from plaintiff’s attorney to City Press dated 21 May 2014.

	6.4	Letter from SANCO.

	6.5	Letter from ANC dated 23 August 2013.

	6.6	Points for meeting.

	6.7	Meeting called for 28 February 2014.

[7]	In Schedule 2 of its discovery affidavit, the plaintiff set out the following documents over which it asserted legal privilege:

          7.1	Without prejudice letters sent by defendant’s attorney to plaintiff’s attorney, and

          7.2	Consultation notes, counsel’s memorandum and instructions to counsel.

[8]	On 9 April 2015 the defendants served a notice in terms of Rule 35(3) calling upon the plaintiff to make better and further discovery.  In such request, the defendants specified certain documents as set out in Annexure “A” of its notice.  I shall deal with the nature of the documents later in the judgment. The plaintiff’s response to the above request in the form of an affidavit is that:  the documents are privileged and/or irrelevant to the triable issues and the plaintiff is not authorised by the Provincial Department of Education to disclose some of the documents.

[9]	On 4 May 2016 the defendants filed and served a notice of motion in which they claimed relief under Rule 35(7). The latter Rule reads as follows:

“If any party fails to give discovery as aforesaid or, having been served with a notice under subrule (6), omits to give notice of a time for inspection as aforesaid or fails to give inspection as required by that subrule, the party desiring discovery or inspection may apply to a court, which may order compliance with this rule and, failing such compliance, may dismiss the claim or strike out the defence.”

[10]	The application was opposed by the plaintiff as stated. In his opposition, the plaintiff maintained that the documents requested were privileged and/or not relevant, further that he is not allowed to disclose some of the documents by the Provincial Department of Education.

[11]	The defendants pleaded the following defences to the main action:

          11.1 	The statements are substantially true and their publication was in the public interest, and

	11.2	Reasonable publication.

          11.3	Opinions expressed amounted to protected comment based on facts which are true or substantially true on matters of public interest.

[12]	Rule 35(7) is designed to assist a party that is dissatisfied with the discovery or supplementary discovery that has been made and remedies under Rule 35(3) have been exhausted (Tractor and Excavator Spares (Pty) Ltd v Goenedijk 1976 (4) SA 359 (W)).  Rule 35(7) empowers the court to dismiss a claim, or strike out the defence, if a party fails to give discovery in compliance with the Rules. Discovery was defined in S T T Sales (Pty) Ltd v Fourie 2010 (6) SA 272 (GSJ) at 276C-D as “a tool used to identify factual issues once legal issues are established”. The purpose of discovery is not only to assist the parties as well as the court in determining the truth, but also to save costs as stated in Air Canada v Secretary of State of Trade [1983] 2 AC 394 at 445-446 and Santam Ltd and Others v Segal 2010 (2) SA 160 (N) at 162E-F.

[13]    Schultz AJ (as he then was) in Crown Cork & Seal Co Inc and Another v Rheem SA (Pty) Ltd and Others 1980 (3) SA 1093 (W) at 1095 stated that:

“The object of mutual discovery is to give each party before trial all documentary material of the other party so that each can consider its  effect on his own case and his opponent’s case, and decide how to             carry on his proceedings or whether to carry them on at all … Another             object is to enable each party to put before the Court, all relevant             documentary evidence …”

 [14]  	In Mlamla v Marine & Trade Insurance Company 1978 (1) SA 401 (E) at 402 it was found:

“the right of a party to an action to resist discovery is a limited right  existing only in certain well-defined circumstances” for instance, where the document “is covered by legal professional privilege” or “if it would disclose the party’s evidence” or “if it would be injurious to the public interest if it were to be disclosed.”

[15]   In Durbarch v Fairway Hotel Ltd 1949 (3) SA 1081, it was stated, furthermore, that:
“a party is required to discover every document relating to the matters in question, and that means relevant to any aspect of the case. This obligation to discover is in very wide terms. Even if a party may lawfully object to producing a document, he must still discover it.”

[16] 	In Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masethla v President of the Republic of South Africa 2008 (5) SA 31 (CC) at 41J-42B it was stated that:

“ordinarily Courts would look favourably on a claim of a litigant to gain access to documents ... reasonably required to ... advance a cause of action. This is so because Courts take seriously the valid interest of a litigant to be placed in a position to present its case fully during the course of litigation. Whilst weighing meticulously where the interests of justice lie, Courts strive to afford a party a reasonable opportunity to achieve its purpose in advancing its case. After all, an adequate opportunity to prepare and present one’s case is a time-honoured part of a litigating party’s right to a fair trial.”

[17]    The test for discoverability in the context of privilege or relevance is set out in Continental Ore Construction v Highveld Steel and Vacuum Corporation Ltd 1971 (4) SA 589 (W) at 598D-F as follows:

“The test for discoverability or liability to produce for inspection, where no privilege or like protection is claimed, is still that of relevance; the  oath of a party alleging non-relevance is still prima facie conclusive,                unless it is shown on one or other of the bases referred to above                that the Court ought to go behind that oath; and the onus of proving                relevance, where such is denied, still rests on the party seeking                discovery or inspection.”

[18]     It is so that the courts in matters of this nature are generally reluctant to go beyond the oath of the deponent in discovery. In Continental Ore Construction v Highveld Steel and Vanadium Corporation Ltd supra the following was stated:

	“The court will go behind the affidavit only if it is satisfied –

1.	from the discovery affidavit; or

2.	from the  documents referred to in the discovery affidavit; or

3.	from the pleadings in the action; or

4.	from any admissions made by the party making the discovery affidavit; or

5.	from the nature of the case or documents in issue,

that there is a probability that the party making the affidavit has or has had other relevant documents in his possession or power or has misconceived the principles upon which the affidavit should be made.”

[19]	The article which the plaintiff claimed to be defamatory states the following:

“Mokiti lives in a double storey house with a swimming pool in Witpoortjie West of Joburg. For some time , teachers around Soweto have been asking how he can afford to arrive at work in a Golf 5 GTI or a BMW X5 when his salary, local principals say could not exceed R30 000 a month before tax and deductions.”

[20]  The documents presently sought by the defendants by way of further discovery contained in Annexure “A” of the application include the following: phone records detailing all calls made and received on cellular telephone number 0837113848 during the period 1 June to 31 July 2013 and 12 May to 20 May 2014, salary slips, records evidencing additional income and bank statements for the period 1 January 2010 to31 December 2014, title deeds of all immovable property owned or co-owned by the plaintiff, motor vehicle registration certificates, copies of correspondence and written statements relating to allegations of improper conduct by the plaintiff in relation to the application of Ms Thiru Naidu for the post of principal of Tshepisong 3 Primary School during or about June 2013 which correspondence was exchanged between the plaintiff, SADTU, the Gauteng Department of Education, the office of the Public Protector, the Ministry of Education and the South African Police Services. These documents are undoubtedly relevant for the just determination of the defamation action which is pending before this court. This is so in line with the defence of truth or substantial truth and public interest as well as of reasonableness of the publication raised by the defendants in their plea.

[21]   The plaintiff alleges that he does not have the Provincial Department of Education’s authority to disclose some of the documents requested. This objection cannot be sustained because the plaintiff failed to set out the basis upon which it can be concluded that such authority is necessary. Secondly, the plaintiff has failed to explain why the provincial Department of Education would have authority to prevent him from disclosing his correspondence with the following, SADTU, (a trade union for which he is an office bearer), the office of the Public Protector, the National Minister of Education and any other person or institution other than the Provincial Department of Education.

[22] 	With regard to privilege, the plaintiff has not specified any category of privilege it wished to rely on. Nonetheless the documents requested do not fall under any category of privilege and accordingly the claim of privilege cannot be sustained.

[23]    In my view, it is necessary for the defendants to have access to the documents requested in order to assess and prepare their case. The information sought is directly or indirectly relevant to the issues in dispute. The defendants are entitled to full disclosure of the legal and factual basis of the plaintiff’s claim. Accordingly, I find that the documents requested are relevant and in no way privileged and it is in the interest of justice that they be disclosed to the defendants. .  In any event, the nature of the documents sought by way of better and further discovery is such that the plaintiff has easy access thereto or copies thereof

COSTS

[24] 	The defendants sought costs on a punitive scale. In my view it was not unreasonable for the plaintiff to defend the matter when one considers the nature of the documents requested. In other words his opposition is not frivolous or malicious. See A C Cilliers Law of Costs 3 ed (2008) Nor did the defendants argue that the plaintiff conducted his opposition in that manner.

In the result the following order is made
   
1.	The plaintiff is ordered to comply with the defendants’ notice in terms of Uniform Rule 35(3) which was served on the plaintiff’s attorney on 9 April 2015. This order to be complied with within fifteen (15) days of this judgment.

2.	Failing compliance with paragraph 1 above, the defendants are granted leave to apply to this Court on the same papers (duly amplified to the extent necessary), for an order striking out the plaintiff’s claim with costs.

3.	The plaintiff to pay costs of the application.

		    _________________________________________________
                                                            M B MAHALELO
                         ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA 
		              GAUTENG LOCAL DIVISION, JOHANNESBURG

Appearances

For the Plaintiff:       Advocate RG Cohen

Instructed by:            Glynnis Cohen Attorneys

For the Defendants:  Advocate Ndumiso Luthuli

Instructed by:            Willem De Klerk Attorneys

Date of Hearing:        23 November 2016