---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

CASE NUMBER: A5005/2021

CASE NUMBER COURT a quo: 44725/2016

 

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

14 October 2021

 

In the matter between:

 

DR ELSA SUSANNA CECILIA BAARD                                                    Appellant

 

and

 

DR MAUREEN ALLEM INC                                                                       Respondent

 

Coram:          Matojane J, Adams J et Nichols AJ

Heard:            18 August 2021 – The ‘virtual hearing’ of the Full Court Appeal was conducted as a videoconference on Microsoft Teams.

Delivered:     14 October 2021 – This judgment was handed down electronically by circulation to the parties' representatives via email, by being uploaded to CaseLines and by release to SAFLII. The date and time for hand-down is deemed to be 11H00 on 14 October 2021.

 

ORDER

 

On appeal from: The Gauteng Local Division of the High Court, Johannesburg (Mtati AJ sitting as Court of first instance):

a.         The defendant’s application for condonation for the late furnishing of the appeal record to the plaintiff is granted.

b.         The appeal is dismissed.

c.         The defendant is ordered to pay the costs of the appeal.

 

JUDGMENT

 

Nichols AJ (Matojane J et Adams J concurring)

Introduction

[1] This is an appeal in which the appellant seeks firstly condonation for the late furnishing of the record of the appeal to the respondent and leave to proceed with the appeal. Secondly, the appellant seeks, with the leave of the Supreme Court of Appeal, to appeal the judgment and order of the court a quo, which was granted pursuant to an application in terms of Rule 35(7) requiring the appellant to respond to the respondent’s notice in terms of Rule 35(3) and (6).

[2] The appellant is the defendant in an action instituted against her by the respondent. For the sake of convenience, I shall refer to the parties as the plaintiff and the defendant.

[3] Once pleadings in the action had closed and discovery had been made, the plaintiff served upon the defendant a notice in terms of Rule 35(3) and (6) in November 2018. The defendant responded in May 2019 and the plaintiff’s dissatisfaction with the defendant’s response led to the plaintiff’s institution of the application in terms in Rule 35(7) in May 2019.

[4] The defendant opposed the application and filed a counter-application for separation of issues in terms of Rule 33(4). Both the application and counter-application were argued before Mtati AJ who granted an order in favour of the plaintiff on 30 October 2019. The defendant’s counter-application was dismissed and the defendant was ordered to deliver a full and complete response to the plaintiff’s notice in terms of Rule 35(3) and (6). Further to make the documents listed in the notice available for inspection within ten days of the order. The order also made provision for the plaintiff, on duly supplemented papers, to approach the court for the defendant’s plea to be struck and for judgment to be entered against her in the event that she failed to comply with the order to compel.

[5] The defendant’s application for leave to appeal the judgment and order was refused by the court a quo on 20 March 2020. The defendant was, however, granted leave to appeal to the Full Court of this division by the Supreme Court of Appeal on 3 September 2020. The appeal was heard by this court on 18 August 2021. That is the genesis and time frame of this interlocutory matter before reaching this court.

The Condonation

[6] The plaintiff does not oppose the defendant’s application for condonation for the late furnishing of the record to it. The reasons advanced by the defendant’s attorneys for delay do not evince any mala fides on the part of the defendant or her attorneys or a reckless disregard for the rules of court. Importantly, there is no prejudice to the plaintiff consequent upon the delay, and the plaintiff does not contend of having suffered any. The defendant instituted the application for condonation with the minimum of delay once it became apparent to the defendant’s attorneys that there had been non-compliance with the rules of court.[1]

[7] Accordingly, there is no reason why the defendant’s application for condonation for the late furnishing of the record to the plaintiff should not succeed.

Issues

[8] The issues in this appeal are whether the judgment of the court a quo is appealable and whether the court a quo erred when it granted the order ordering the defendant to comply with the plaintiff’s notice in terms of Rule 35(3) and (6).

Appealability Test

[9] The plaintiff contends that the court a quo’s order was granted pursuant to an interlocutory application which is not dispositive of all of the issues or a substantial portion of the relief claimed in the main proceedings; it is not final in effect and not susceptible to alteration by the court of first instance and it is not definitive of the rights of the parties. The submission was that the order had the effect of a ruling on how the trial would proceed and since such rulings do not dispose of a substantial portion of the relief sought, they are not appealable. The plaintiff finds support for its contentions in the oft-cited authority of Zweni v The Minister of Law and Order of the Republic of South Africa.[2]

[10] In the judgment refusing leave to appeal, Mtati AJ recorded that the application (upon which leave to appeal was sought) was an interlocutory application, which application was not dispositive of the main matter before the court but rather intended to compel the defendant to deliver a full and complete response to the Rule 35(3) and (6) notice which had been served upon her.

[11] Notwithstanding the plaintiff’s contentions, it is now trite that the test for appealability has been widened since Zweni and the critical consideration now is whether the granting of an appeal would be in the interests of justice. As stated by Mogoeng CJ in Tshwane City v Afriforum[3]:

‘The common law test for appealability has since been denuded of its somewhat inflexible nature. Unsurprisingly so because the common law is not on par with but subservient to the supreme law that prescribes the interests of justice as the only requirement to be met for the granting of leave to appeal. Unlike before, appealability no longer depends largely on whether the interim order appealed against has final effect or is dispositive of a substantial portion of the relief claimed in the main application. All is now subsumed under the constitutional interests of justice standard. The overarching role of interests of justice considerations had relativized the final effect of the order or the disposition of the substantial portion of what is pending before the review court, in determining appealability.’

[12] Our courts have also held that all factors impacting on the issues must be considered when deciding whether or not an order is appealable.[4] One such factor, in my view, would be the effect of the order of the court a quo and other relevant factors would be the facts and circumstances of the matter in question. Indubitably, the effect of the order is to compel the defendant to respond properly, clearly and unambiguously to the notice in terms of Rule 35(3) and (6). It is only if the defendant fails to do so that the plaintiff may approach the court, on duly supplemented papers, to seek the relief that the defendant’s defence be struck, and judgment be entered against her.

[13] I now consider the facts and background of the application in terms of Rule 35(7).

Facts and background

[14] The plaintiff’s action against the defendant arises from the employment relationship between the parties for the period May 2010 to July 2016, when the defendant was employed as a medical doctor providing services to patients. The plaintiff contends that this employment relationship was governed by a written employment contract that contained a restraint of trade provision. The causa of the plaintiff’s action is an alleged breach of the restraint of the trade provision and damages, alternatively enrichment, as well as a claim for the alleged use of confidential information and statement and debatement of account. The restraint period contended for is 12 (twelve) months commencing from the termination of the defendant’s employment, namely 31 July 2016 to 31 July 2017.

[15] Subsequent to the service of her discovery affidavit, the plaintiff served a notice in terms of Rule 35(3) and (6) upon the defendant requiring her to discover and make available for inspection a list of itemized documents that the plaintiff contended may be relevant to one or more of the issues in the action. The breadth of the documents is confined to the alleged restraint period and relate to employment and income earned by the defendant during this period.

[16] These documents fall within the purview of what would be expected in a claim of the nature instituted by the plaintiff. The application in terms of Rule 35(7) ensued because the plaintiff contended that the defendant failed to provide any of the requested documents; failed to state categorically that such documents are not in her possession or do not exist and failed to specify the whereabouts of the documents if known.

[17] It is trite that the court deciding an application in terms of Rule 35(7) exercises a discretion whether or not to grant the relief sought. The relevance of the documents sought will be one of the factors which will have an influence on the exercise of that discretion. Relevance is determined having regard to the issues between the parties.[5]

[18] The court a quo recorded that the defendant failed to provide any of the requested documentation and her response to the Rule 35(3) and (6) notice was essentially to the effect that :

‘she does not have in her possession or power or under her control the documents requested, alternatively, that the documents requested are confidential and privileged due to doctor-patient relationship; she was never employed by, or carried on business with, or was associated with the entities referred to in the notices; the information/documents does not exist, alternatively, is not relevant to the matter at hand; and she does not have in her possession or power or under her control the documents as she was not employed by certain entities during the period 31 July 2016 to 31 July 2017.’[6]

[19] The defendant’s counsel did not address this Court during the hearing of the appeal and elected to rely solely on the appeal pleadings and the detailed heads of argument which had been filed in support of the defendant’s case. The defendant’s salient grounds of appeal are the following:

a. The court a quo should not have ordered the defendant to discover the itemized documents which the plaintiff’s counsel, during argument before Mtati AJ, had conceded were no longer required.

b. The application was defective because the plaintiff’s attorney deposed to the affidavits in support without a confirmatory affidavit by the plaintiff and axiomatically the opposition to the counter-application was likewise defective. The defect being that the plaintiff’s attorney was not a party to the proceedings, his affidavit constituted hearsay evidence on facts that are not within his knowledge, and he could not, as a third party, dispute any of the factual averments by the defendant.

c. The court a quo should not have construed her response as a refusal to comply. The court a quo should have disregarded the hearsay evidence presented by the plaintiff’s attorney and then accepted her undisputed evidence in totality.

d. The court a quo erred by going beyond the defendant’s oath of her discovery affidavit.

e. The court a quo should not have found that the application in terms of Rule 35(7) met the requirement of relevance.

f. The court a quo should have found that the defendant’s refusal to discover any confidential or privileged information was justified in law, particularly in so far as this information pertains to section 14 of the National Health Act, 61 of 2003. Essentially, the defence of doctor-patient confidentiality.

g. Since the defendant disputed the written employment agreement and liability was still in dispute, the court a quo should have deferred discovery, alternatively granted the defendant’s counter-application for a separation of issues.

[20] It is trite that an appeal court may not interfere with a discretion exercised by the court a quo unless it is shown that the discretion was not exercised judicially, or it was based on a wrong appreciation of the facts or wrong principle of law.[7]

[21] Save for the issue of hearsay evidence, the defendant’s salient grounds of appeal were all arguments that were pertinently raised and argued in the court a quo. It is apparent from the judgment that Mtati AJ considered, addressed and rejected these arguments. For example, when addressing the issue of doctor-patient confidentiality, Mtati AJ considered the relevant legislation and case law and noted firstly that section 14(2)(b) of the National Health Act, 61 of 2003 specifically permits disclosure of confidential information through a court order or if required by law. The court went on to find that:

‘the information sought has nothing to do with matters that can be construed to interfere with the doctor-patient privilege. The applicant seeks records which should be in possession of the respondent for a certain period or to state under oath that such information is not in the possession of the respondent, in which event, she should state the whereabouts of such information if known.’[8]

The court found support for this finding in the matter of Botha v Botha.[9]

[22] Mtati AJ did not reject the defendant’s contention that her dispute of the written employment contract indicated that the issue of liability remained a live issue. What was rejected, and correctly so, was the further contention that until this issue had been determined, discovery should be held over. The court held that the application to compel was not concerned with the validity or otherwise of the restraint of trade provision. It was concerned with determining whether the information/documents sought were relevant to the main issues for determination. I agree with the court’s reasoning in this regard. My view is further fortified by the judgment of Meyer J in the matter of Allen and Another v Kirkinis[10]. One of the objections raised to discovering documents sought in this matter was that the plaintiff should not be entitled to the documents unless and until the court has determined the main issue in the trial. In rejecting this argument, Meyer J held:

‘I must disagree with the defendant’s argument that the plaintiffs must establish a right to an accounting before they can obtain discovery of the documentation. If it is found that it is reasonable to suppose that the documents contain information which may be relevant to any matter in question and that they are in the possession of the defendant, then they must, in the absence of a legally valid ground of objection, be discovered. It matters not that certain of the documents which the plaintiffs seek by way of discovery may also ultimately be provided by the defendant as constituting the vouchers that accompany his account to the plaintiffs, should they be successful in their action. Furthermore, the defendant’s position is premised on the incorrect understanding that the mere provision of documents constitutes an accounting. As Binns-Ward J said in Grancy Properties Ltd and Another v Seena Marena Investments (Pty) Ltd and Others (15757/2007) [2010] ZAWCHC 116 para [32] - [33], citing Hansa v Dinbro Trust (Pty) Ltd 1949 (2) SA 513 (T), it was insufficient to provide an account to the effect that- ‘[h]ere are my books and here are my vouchers, you are at liberty to go through them and make up an account for yourself’.’[11]

[23] The defendant’s contention that the court a quo should not have ordered her to discover certain documents because the plaintiff’s counsel had allegedly conceded these were no longer required is ill-conceived. Whilst the plaintiff’s counsel may have accepted the defendant’s right to aver that documents were not in existence or that a particular entity never employed the defendant, he took issue with the contradictory manner in which the defendant framed her responses and specifically argued that these were not in accordance with Rule 35 (3) which required a party to ‘state on oath within ten days that such documents are not in his possession, in which event he shall state their whereabouts if known to him.’ The court a quo found that the defendant’s responses that ‘the documents do not exist, alternatively, are confidential and privileged due to doctor-patient relationship’ were clearly contradictory and created confusion. This style of response was prevalent throughout the defendant’s response to the notice in terms of Rule 35(3) and (6).

[24] In the circumstances, it was not unreasonable for the court a quo to require and compel the defendant to properly, clearly and unambiguously articulate a response to the entire notice in terms of Rule 35(3) and (6).

[25] The court a quo also addressed the counter-application and its dearth of legal, factual and substantive motivation for the relief sought in terms of Rule 33(4). It correctly found that an order separating the issues to be decided by a trial court was not one which could be sought as a formality and which was there for the asking. Sufficient information had to be placed before the court justifying the grant of such relief. The court a quo cannot be faulted for refusing the relief sought in the counter-application.

[26] The dismissal of the counter-application does not preclude the defendant or the plaintiff from seeking separation of the issues at the commencement of the trial of this matter, provided such application is properly substantiated.

[27] With regard to the issue of hearsay evidence, the defendant contends that the court a quo should have disregarded all the evidence in all the affidavits filed on behalf of the plaintiff because these affidavits were deposed by the plaintiff’s attorney, who is not in a position to dispute her evidence regarding her response to the application to compel and the request to discover documents. Particularly, so the argument goes, since these responses are on affidavit and relate to facts regarding the nature and scope of the defendant’s business and employment history subsequent to her resignation from the plaintiff.

[28] The defendant relies upon the Kirkinis[12] judgment as support for this contention. That reliance is misplaced as the Kirkinis matter is distinguishable in a number of respects. The defendant, in that matter, set out a complete and detailed factual response in his affidavit opposing the application to compel and his response to the discovery notices. The defendant did so in order to substantiate his contention that the documents sought from him were not relevant. Meyer J held the following:

‘I am not reasonably satisfied that the defendant’s denial of relevancy is incorrect and I am unable to hold that it is reasonable to suppose that the required documents contain information which may either directly or indirectly enable the plaintiffs to advance their own case or damage the defendant’s case. A probability has not been shown to exist that the defendant is either mistaken or false in his assertion of irrelevance.’[13]

[29] It is, therefore apparent that the paramount consideration was not the issue of hearsay but rather the issue of relevance. The court in Kirkinis addressed the requirement of relevance at length, accepting that:

‘the broad meaning ascribed to relevance is circumscribed by the requirement in both subrules (1) and (3) of Rule 35 that the document or tape recording relates to (35(1)) or may be relevant to (35(3)) “any matter in question”. The “matter in question” is determined from the pleadings. See in this regard SA Neon Advertising (Pty) Ltd v Claude Neon Lights (SA) Ltd 1968 (3) SA 381 (W) at 385A-C; Schlesinger v Donaldson and Another 1929 WLD 54 at 57, where Greenberg J held “In order to decide the question of relevancy, the issues raised by the pleadings must be considered . . .”, and Federal Wine and Brandy Co Ltd v Kantor 1958 (4) SA 735 (E) at 753D-G.’

[30] By contrast, the defendant’s response to the discovery notice may be described as succinct and is summarized in para 18 supra. In the application to compel, the factual averments by the defendant relate to the issue of doctor-patient confidentiality, and this aspect was fully canvassed and addressed by the court a quo.

[31] Where relevance was raised as an issue, the defendant merely stated the documents sought were not relevant. No further factual information was provided to substantiate this view. The court a quo, however, found that the documents sought were relevant to the determination of the main issues in dispute, and I see no reason to reject that finding.

Conclusion

[32] In the premises, I am of the view that there is no basis for this court to interfere with the discretion exercised by the court a quo and to depart from the judgment and order of Mtati AJ. Taking into consideration the amount of time which this application alone has occupied the parties and by implication delayed the finalization of the main action, I am further of the view that the interests of justice and fair trial considerations dictate that the appeal should be dismissed and the order of the court a quo should be upheld.

Order

[33] In the result, the following order is made:

a. The defendant’s application for condonation for the late furnishing of the appeal record to the plaintiff is granted.

b. The appeal is dismissed.

c. The defendant is ordered to pay the costs of the appeal.

 

 

T H NICHOLS

Acting Judge of the High Court

Gauteng Local Division, Johannesburg

 

I agree

 

K MATOJANE

Judge of the High Court

Gauteng Local Division, Johannesburg

 

I agree

 

LR ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

 

Heard:                                                   18 August 2021 – in a ‘virtual hearing’ during a videoconference on the Microsoft Teams digital platform.

Judgment:                                            14 October 2021 – judgment handed down electronically

For Appellant:                                      Advocate Guldenpfennig SC

Instructed by:                                      Corne Guldenpfennig Attorneys, Johannesburg

For Respondent:                                 Advocate M Nowitz

Instructed by:                                      Schindlers Attorneys, Johannesburg

---