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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case number: 66656/2012

Date: 25 September 2014

In the matter between:

HOLLARD LIFE INSURANCE COMPANY LIMITED...............................................................Applicant

and

COVER LINE (PTY) LTD.........................................................................................................1^st Respondent

NEL CA........................................................................................................................................3^rd Respondent

BOSHOFF MJJ...........................................................................................................................4^th Respondent

NEL A...........................................................................................................................................5^th Respondent

JUDGMENT

PRETORIUS J.

[1] In this application the applicant launched an order to compel the respondents to:

“1. That the respondents comply with the Rules of this Honourable Court, and respond to the Applicant’s Rule 35 (3) (“the Notice”) dated 2 September 2013 served upon the First, Second and Third Respondents on 25 October 2013 and the Fourth Respondent on 30 September 2013;

2. That the Respondent pay the costs of this Application on the attorney and client scale. ”

[2] On 19 November 2012 the applicant issued summons against the first and second respondents, which was served on the second respondent’s previous residential address. The first and second respondents were not aware that summons had been served, as both the first and second respondents had moved to new addresses. Therefor they did not enter a notice of intention to defend the matter.

[3] Default judgment was granted against them and a writ of execution was issued for attachment of movable property to satisfy the judgment debt. The sheriff attached certain movable property at the first and second respondents new business address on 27 May 2013. This new address of the first and second respondents is also the new address for the fourth respondent. According to the third and fourth respondent (first and second claimants) a number of the goods attached by the sheriff belong to them and is their property. On 5 August 2013 the respondents forwarded affidavits to the sheriff setting out that certain of the items attached, belonged to them and that they were the de facto owners of these items. The next step should have been for the sheriff to commence with interpleader procedures. For reasons unbeknown to the Court the sheriff did not do so. On 2 September 2013 the applicant’s attorney forwarded a notice in terms of Rule 35 (3) to the respondent’s attorney. On 26 November 2013 the same notice was served on the respondents.

[4] According to the notice the respondents had to provide certain documents to the applicant. Although the respondent was of the opinion that the applicant was not entitled to use Rule 35 (3) to obtain the required documents, the necessary documents were dispatched by way of five e-mails on 2 October 2013. This was done to expedite the matter and to save costs. It was however not set out under oath.

[5] The applicant failed to inform the respondents or their attorney that they were not satisfied by the documents provided. On 26 November 2013 the respondents were served by the Sheriff with a Notice of Motion to:

“...comply with the Rules of this Honourable Court and to respond to the Applicant’s Rule 35 (3) (“the notice”) dated 2 September 2013 served upon the First, Second and Third Respondents on 25 October 2013...”

[6] On 6 December 2013 the applicants attorney stated in a letter:

“We are yet to receive a formal response as prescribed in the Rules and accordingly, our client is entitled to launch this Application”

[7] The applicant reffered to Rule 35 (3) as read with Rule 35 (14) in terms of the Notice of Motion. Rule 35 (3) provides:

“If any party believes that there are, in addition to documents or tape recordings disclosed as aforesaid, other documents (including copies thereof) or tape recordings which may be relevant to any matter in question in the possession of any party thereto, the former may give notice to the latter requiring him to make the same available for inspection in accordance with sub-rule (6), or to state on oath within 10 days that such documents are not in his possession, in which event he shall state their whereabouts, if known to him.” (Court’s emphasis)

and Rule 35 (14) provides:

“After appearance to defend has been entered, any party to any action may, for purposes of pleading, require from the 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 the action and to allow a copy or transcription to be made thereof.”(Court’s emphasis)

[8] Rule 35 (14) provides specifically that this Rule only applies after an appearance to defend has been entered, which is obviously not the case in the present instance, as there was no appearance to defend at any stage and default judgment was granted.

[9] In Rule 35 (1) it is pertinently set out that “Any party to any action...” It does thus not automatically apply to applications. Although Rule 35 (13) make provision that this rule shall apply to applications, it is only on rare occasions that it will be granted.

[10] There is no pending action before court, as default judgment had been granted and the order has been executed up to the stage where the Sheriff had attached the movable items.

[11] I must agree with the counsel for the respondents that Rule 35 (3) read with Rule 35 (14) cannot apply as there is no action pending.

[12] In the present instance there has been no application for the court to direct that Rule 35(13) should be applicable and therefor the application to compel falls short of the provisions of Rule 35 (13), which provides:

“The provisions of this rule relating to discovery shall mutatis mutandis apply, in so far as the court may direct, to applications. ”

[13] The applicant has not set out any exceptional circumstances at all, as there is no application to the court to make Rule 35 (13) applicable.

[14] In Moulded Components v Coucourakis and Another 1972 (2) 457 (WLD) Botha J held at 470 D - E:

“In application proceedings we know that discovery is a very, very rare and unusual procedure to be used and I have no doubt that that is a sound practice and it is only in exceptional circumstances, in my view, that discovery should be ordered in application proceedings.’’ (Court’s emphasis)

[15] This was confirmed in Firstrand Bank t/a Westbank v Manhattan Operations (Pty) Limited and others [2013] JOL 4516 (GSJ) where Molaheli AJ held:

“The exception to the general rule, that discovery does not apply in application proceedings, does not arise as a matter of course, but can only be by way of an application. Once an application is made, the Court, in considering whether the exception to the general rule applies, has discretion to exercise. In order to succeed, the applicant has to persuade the Court that there exist exceptional circumstances that justify the departure from the general rule.” (Court’s emphasisj

[16] It was specifically set out by Southwood J in Loretz v Mackenzi [199] JOL 4516 (T):

“The rules and in particular rule 35(13) provide for a party to seek to have the rules of discovery made applicable to a particular application. That is an essential prerequisite for a notice in terms of rule 35(1) and obviously for an application to compel compliance with a notice in terms of rule 35(1).” (Court’s emphasis)

[17] There is no such application before this court. In this case the applicant did not even request the court to make Rule 35 (13) applicable. I have to apply the principles set out in the above dictum and consider what Plaskett AJ stated in Premier Freight (Pty) v Breathetex Corp (Pty) Ltd [2003] JOL 10797 (SE) on page 4:

“The starting point in the enquiry as to the application of rule 35(13) is that there is no discovery in applications: it is only possible for discovery to apply in applications if, in terms of rule 35(13), a court has been approached to make the rules relating to discovery, or some of them, applicable and makes an order to this effect. A court has a discretion to allow discovery in applications.”(Court’s emphasis)

[18] I cannot find that Rule 35 (13) can be applicable or should be applicable in the present instance it I have regard to the wording of Rule 35 (13) and the principles found in the quoted dictum.

[19] The applicant’s contention that the applicant as plaintiff or claimant in the putative rule 58 proceedings can thus not be entertained as there is no action pending nor any other application pending where the applicant could rely on Rules 35 (13) and/or 35 (14).

[20] In these circumstances the court cannot find for the applicant.

[21] I make the following order:

1. The application is dismissed with costs.

Judge C Pretorius

Case number: 66656/2012

Heard on: 8 September 2014

For the Applicant: Adv Roux

Instructed by: R C Christie Inc

For the Respondent: Mr van Schalwyk

Instructed by: Van Schalkwyk

Date of Judgment: 25 September 2014

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