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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

MAGISTRATES' COURT CASE NUMBER: 60092/2015

APPEAL CASE NO: A177/19

12/12/2019

ln the appeal between:

 

SOUTH AFRICAN MICRO-ELECTRONIC

SYSTEMS (PTY) LTD                                                                              Appellant

 

and

 

MORGAN CREEK PROPERTIES 311 CC                                             Respondent

 

JUDGMENT

 

WANLESS A.J

Introduction

[1]       In this matter JORGAN CRE EK PROPERTIES 311 CC, a close corporation. instituted an action against. SOUTH AFRCAN MICRO- ELECTRONIC SYSTEMS (PTY) LIMITED, a company, in the Magistrates' Court for the District of Tshwane, held at Pretoria, under case number 60092/2015 (hereafter referred to as "the action").On the 19^th of October 2018 (one month prior to the trial commencing in the court a quo) the Plaintiff served upon the Defendant a notice in terms of subrule 23(3) of the Magistrates' Coutts Rules of Court (hereafter referred to as ..the Rules" ).[1]

[2]      Subrule 23(3) of the Rules states:-

 

"If any party believes that there are, in addition to documents or tape. electronic, digital or other forms of recordings disclosed in terms of this rule, other documents, including copies thereof, or tape, electronic digital or other forms of 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 or her to make the same available for inspection in accordance with subrule (6), or to state on oath within 10 days that such documents are not in his or her possession, in which event he or she shall state their whereabouts, if known to him or her."

 

[3]        It is common cause that upon receipt of this notice the Defendant failed to make any further documentation available to the Plaintiff for inspection in terms of subrule 23(6) of the Rules. It is further common cause that the Defendant foiled to state, on oath and within 10 days of receipt of the notice, that such documents "'ere not in its possession and, in that event, the "hereabouts of those documents, if known to it. Rather, the Defendant’s attorneys addressed a letter to the Plaintiffs attorneys dated the 29^th of October 2018.[2] It is common cause between the parties to this appeal that the said letter does not comply with the provisions of section 23(3) as it is not on oath. Following thereon the Plaintiff instituted an interlocutory application in terms of subrule 23( 8) of the Rules (hereafter referred to as “the application”).[3] The application was opposed by the Defendant.[4] On the 8^th of March 2018 the learned Magistrate B Dangalazana made an order which states:-

 

"1.       The application in terms of section 23(3) is granted.

2.        The respondent is compelled in terms of section 23(8) to comply within five (5) days of service of this order on the respondent ·s attorney of record, with the applicant's notice in terms of rule 23(3) dated 19 October 2018 and delivered to the respondent on 19 October 2018 by making the listed documents available for inspection by the applicant in terms of rule 23.

3.       The respondent is ordered to pay the costs of the application."

 

[4]        On or about the 14^th of March 2019 the Defendant served upon the Magistrates' Court (Pretoria) a notice in terms of subrule 51(1) of the Rules whereby the Defendant requested from the learned Magistrate a written judgment which would become part of the record showing the facts she found to be proved and her reasons for judgment.[5] This written judgment was provided by the learned Magistrate and is dated the 12^th of April 2019.[6] It is against this judgment that the Defendant (as Appellant) appeals to this court.[7] The Plaintiff (as Respondent) opposes the appeal. For ease of reference the parties shall be referred to herein as they were in the court a quo, namely the Plaintiff and the Defendant.

 

Grounds of the Appeal

[5]       The first ground relied upon by the Defendant that the order of the court a quo be set aside by this court is as follows.[8] From the contents of the Plaintiffs Founding Affidavit in the application the Defendant submits that it is clear therefrom that the purpose of the application and the relief sought by the Plaintiff was that the court a quo order the Defendant to comply with the Plaintiffs notice in terms of subrule 23(3).[9] This the Defendant submits was the extent of the relief sought by the Plaintiff. The Plaintiff did not, so the Defendant further submits, seek an order that the Defendant make all of the documents as set out in the Plaintiffs notice in terms of subrule 23(3) of the Rules available for inspection in terms of subrule 23(6) of the Rules. In the premises, the Defendant submits, relying, inter alia, on the decisions of Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA) at paragraph [13] and Cape Town City v South African National Roads Authority and Others 2015 (3) SA 386 (SCA) at paragraph [10] that the court a quo impermissibly ranged beyond that which it had been asked to adjudicate upon and thus erred. Such error, it was further submitted, is prejudicial and irreparably ham1ful to the Defendant, since unless and until the order of the court a quo is set aside, it remains extant and the Defendant must comply with it.

[6]       At the commencement of the hearing of this appeal the court specifically raised this ground of appeal with Counsel for the Plaintiff. It did so, since it appeared to the court that not only was this ground of appeal, prima facie. a good one but that Plaintiff’s Counsel. despite having noted in her Heads of Argument that "ft is common cause that notwithstanding the lapse of 12 months from service of the notice, the appellant has still not filed a reply to the notice that complies ·with the court rules" and that " ...the appellant has to be compelled to file a compliant reply to the respondent's notice”[10] the Plaintiffs argument was nevertheless based on what appeared to be the ill-conceived premise that the relief sought in the application in the court a quo was reconcilable with the order granted by it. Faced with this difficulty, Plaintiffs Counsel conceded (correctly in my view) that this ground of appeal, as raised on behalf of the Defendant, was a good one. If she did not specifically concede this point, she certainly did not (once again, correctly in this court's opinion) place any strenuous argument before this court in an attempt to persuade this court that this was not the case.

[7]       Pertaining to the issue as to the nature of the order this court should make in the event of the court upholding the Defendant's appeal on this ground, both patties were in agreement that this court could, in setting the order of the court a quo aside, refer the matter back to that court to consider the application afresh. Not surprisingly the pai1ies were not ad idem in respect of which party. if any, should pay the costs of this appeal.

 

Conclusion

[8]       The provisions of subrules 23(3) and 23(8) of the Rules are clear. Insofar as this particular matter is concerned the relevant provisions thereof are that once a notice calling upon a party to make further and/or better discovery in terms of subrule 23(3) has been served the party receiving same must react thereto by, either making the documents sought available for inspection or by stating, on oath, that the documents sought are not in that party's possession (in which case also stating the whereabouts of same if known to the party). If a party (as in this case) does neither, then the other party's remedy lies with subrule 23(8) of the Rules. In terms thereof, this party must apply to court for an order that the other party comply with ' the provisions of this rule". In this case it is the provisions of subrule 23(3) in respect of which compliance must be sought and not any other of the subrules of rule 23. These are set out above. So, this is the first step which it is incumbent upon a party to follow. It is only after such an order has been obtained and a party has failed to comply therewith (that is, failed either to make the documents listed in the notice avail able for inspection or state under oath that the documents are not in his possession etc) that the other party can seek a further order in terms of subrule 23(8) of the Rules. That order would be one dismissing a claim or striking out a defence.

[9]       In the premises, it is clear that the court a quo could not make an order as it did whereby the Defendant was ordered to make available for inspection by the Plaintiff all of the documents as listed in the Plaintiff's notice dated 19 October 2018.[11] Not only was it not competent for the court a quo to do so but the granting of such an order placed the Defendant in the extremely precarious position in that, before being given the opportunity to respond in terms of subrule 23(3) and, if unable to comply with the court order of 8 March 2018, the Plaintiff would be in the position to apply, in terms of subrule 23(8) of the Rules, that the Defendant's defence in the action be struck out. Further to the aforegoing the Defendant is correct when it states that it is necessary for the order of the cou1t a quo to be set aside, since, until this is done the said order remains of full force and effect,[12] with the consequences thereof, as dealt with above.

[10]     A further potential difficulty with the order of the court a quo (as raised by the Defendant) is the fact that the order[13] simply provides for an order for costs, whilst in the judgment in terms of subrule 51(I) of the Rules the learned Magistrate purports to make an order in respect of costs (without amending her previous order or providing reasons for doing so) which costs are to include the costs of Counsel.[14]

[11]     In passing, there is one remaining aspect of the order made by the learned Magistrate which must, by its very nature, be of concern (despite not being raised by either of the parties in this appeal). It is this. From the record of appeal before this court, it is clear that the court a quo granted relief to the Plaintiff with reference to the Plaintiffs notice in terms of subrule 23(3) dated 19 October 2018.[15] However, it is clear from the application papers in the application that the Plaintiff served and filed an amended notice dated 5 November 2018.[16]

[12]     It is not necessary for this cou1t to reach a decision as to these latter difficulties in respect of the order and judgment of the court a quo. From the aforegoing it must be clear that the learned Magistrate erred and should not have granted the order which she did. At the very best for the Plaintiff the court a quo could only have granted an order whereby the Defendant was to either make available for inspection any documents in its possession or, a reply, under oath, stating which documents are not in its possession (in which event stating the whereabouts of these documents if known to it).ln the premises, the appeal must succeed and (for the reasons set out herein) the order of the court a quo must be set aside. Having found that the order of the court a quo should be set aside on this ground, it is unnecessary for this court to consider any other grounds as set out. inter alia, in the Defendant's Notice of Appeal.

[13]     Regrettably. that is not the end of the matter. When setting the order of the court a quo aside this court, as a court of appeal, must decide upon the most practical and expedient manner in which this interlocutory application in the Magistrates' Court should be dealt with hereafter. Implicit therein is whether this court should simply set the order of the court a quo aside; refer the matter back to the court a quo for proper consideration or replace the order of that court with an appropriate order which will ensure that the matter is dealt with not only expeditiously but also correctly in terms of the Rules. Then, of course, there is the issue of the costs incurred in respect of this appeal.

[14]     As dealt with earlier in this judgment, both parties were in agreement that this court could refer the matter back to the court a quo for proper consideration. This would have the practical effect (as would be the case where this court simply set the order of the learned Magistrate aside) of putting the pat1ies back into the position they were prior to that order being made. This would however mean that the application in the court a quo would remain alive. As is clear from this judgment, that application should never have been entertained. Nor can any regard be had thereto (insofar as the merits of that application are concerned) by this court, sitting as a court of appeal. Having given due consideration to the aforegoing, this court has arrived at an appropriate order which is not only just but will ensure that the matter is properly dealt with hereafter in the court a quo.

[15]     With regard to the issue of the costs of this appeal, it is true, in the first instance, that the Defendant has been successful in respect thereof, particularly insofar as the order of the court a quo has been set aside. It is trite that unless good grounds exist to depart therefrom, a court would, in the exercise of its discretion, normally grant costs to the successful party. However, it is also trite that a court has a fairly wide discretion to be exercised judicially and based upon the correct principles, when arriving at an order in respect of costs. In this regard the Defendant, in its Answering Affidavit in the application,[17]did not raise, at that stage, the fact that the court a quo could not deal with the merits of any purported application in terms of subrule 23(8) until the Plaintiff had, as it was obliged to do, sought an order that the Defendant comply properly and fully with the provisions of subrule 23(3) of the Rules. Simply put, the Defendant did not raise the very ground upon which this appeal was decided (in its favour) until it instituted this appeal. Had it raised that ground at an appropriate stag the costs of the application in the court a quo and the costs of this appeal could (and should) have been avoided. In the premises, both parties were at fault for not appreciating, from the outset, that the application was not proper in terms of the Rules and failing to adopt the proper approach to rectify same. In this regard, the Plaintiff should have formally requested the Defendant to comply fully and properly with the provisions of subrule 23(3).On the other hand, the Defendant should have tendered to do so and/or complied therewith. The letter of the 29^th of October 2018 on behalf of the Defendant to the Plaintiff,[18] as dealt with above, clearly did not constitute proper compliance with the relevant subrule of the Rules. In the premises, it would be just and equitable if this court, in the exercise of its discretion, ordered each party to pay its own costs in respect of the appeal.

[16]     The court makes the following order:-

1.        The appeal is upheld and the order of the Magistrates' Court for the District of Tshwane (held at Pretoria) dated the 8^th of March 2019 under case number 60092 /2015 (at page 97 of the record, under appeal case number A177/19) is set aside.

2.        The Defendant under case number 60092/2015 in the Magistrates' Court for the District of Tshwane (held at Pretoria), is ordered to comply with the provisions of subrule 23(3) of the Magistrates' Court’s Rules of Court within ten (10) days of the date of this order.

3.        The Appellant and the Respondent (Defendant and the Plaintiff under case number 60092/2015 in the Magistrates' Court for the District of Tshwane, held at Pretoria) are each to pay their own costs in respect of the appeal in this court under case number A177/19.

 

 

 

BC WANLESS

ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

 

 

I agree

 

 

 

NV KHUMALO

JUDGE OF THE GAUTENG DIVISION PRETORIA

 

 

 

 

Heard on:                          29 October 2019

For the Appellant:              Adv M D Silver

Instructed by:                       Stein Cop Attorneys

For the Respondent:          Adv C Humphries

Instructed bv:                       Coetzee Spoelstra & Van Zyl Inc

Date of Judgement:           12 DECEMBER 2019

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