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THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
( 1 ) (2) (3)
~~:::.~;:.;,:.9.(Y., DATE
In the matttr bet.ween;
PAftMISCO (PTV) LTD
eASI NUMBER: '1117111011
DATE OP HEARING: 30 NOVEMBER 2017
DA'i'E OP JUDGMENT: ae FE!BRUARY 2018
Pla.lntiff/Respondent
G!RRIT COETZEE ATTORNEYS lNCORPOAA TED Defendant/Applicant
... t4A&t4 " ' . j { a JC, $5 t lt i .....
JUQGMIN T
AWAKOUMIDES. AJ ;
[1] The plaintiff Instituted action proceeding, against the defendjnt for payment
of three amounts in damages, such arising from the alleged negligence of the
defEJndant in representing the plaintiff. The plaintiff had previously instructed
the defendant to represent it in the negotiatiQn and/or conclusion of
commercial sale agreements.
[2] The pleadings in the action proceedings have not yet closed and the
defendant, despite summons having been issued on 29 September 2016, has
yet to file a plea. Instead, the defendant alleges that it is unable to file a plea
because it requires copies of certain documents to enable it to prepare and
file a plea.
[3] The particulars of claim refer to the calculation of damages under three
subheadings (Claim 1) which are as follows:
[3.1]
[3.2]
[3.3]
Loss of stock:
Loss of eq1,1ipment and/or capital
Wasted legal costs
TOTAL
R528 955.23
R496 000.00
R154 778.13
R1179 733.36
[4] Claim 2 comprises a claim of R590 000.00 arising from an investment being
part of sundry receivables In one of the commercial agreements, which
agreement the defendant either drafted on behalf of the plaintiff, alternatively,
advised the plaintiff in respect thereof.
[5] The defendant flied a notice In terms of Rule 35(12) and (14) dated 17
January 2017 wherein it required of the plaintiff to furnish the following
documents:
• Yara South Africa's financial records on 8 November 2010, referred to
in paragraph 7 .6 of the Particulars of Claim ("POC");
• The certificate in respect of the face value of the Sundry Receivables,
referred to paragraph 7,7 of the POC;
• The claim, referred to paragraph 12.3 of the POC;
• All doc~mentation refl-,ctlng the loss of stock In the amount of
R528 955.23 referred to paragraph 18.1 of the POC;
• All documentation reflecting the loss of equipment and/or capital in the
amount of R496 000.00 referred to paragraph 18.2 of POC;
• All documentation reflecting the wasted legal costs in the amount of
R 154 778.13, referred to paragraph 18.1 of the POC;
• All documentation reflecting the damages in the amount of
R422 000.00 referred to paragraph 10 of "F>OC2";
• The books of account of Yara South Africa (Pty) Ltd, referred to
paragraph 13 of 11POC,11:
• Th, 1 000 000 shares ef Yara South Africa (Pty) Ltd In Aquaharvest
Investment Ltd, referred to p~ragrt;1ph 13 of "POC2";
• All d.oeumontation refleetlng the damages in the amount of
RS10 000.00 referred to paragraph 16 of "POC";
!
• The lease agreement entered Into between Yara South Africa (Pty) Ltd
and Balfour Liquids Depot, referred to paragraph 4.4 of annexure "A" to
Annexure "POC1";
• The warehousing agreement entered into between Yara South Africa
{pty) Ltd and Balfour Liquids Depot, referred to paragraph 5.3 of
annexure "A" to Annexure "POC1";
• The agency agreements entered into between Yara South Africa {Pty)
Ltd and its agents, referre_d to in paragraph 8 of annexure "A" to
Annexure "POC 1 ";
• The leese agreement concluded between Yflra South Africa {Pty) Ltd
and the lessor of the premises at Balfour Liquids Depot, referred to In
clause 1.23, read with el~use 1.32 and par~graph 5 of annexure "F" to
annexure "POC 1 ";
• All documentation indicating the seller's stock-in-trade on 30
September 2010, referred to In paragraph 1.43 of "POC1";
• All documentation indicating the stock invoiced during the period
commencing on 1 October 201 O until the Effective Date, referred to in
paragraph 1.43 of "POC 1 ";
• All documentation lndlc:ating the stock added to the inventory of Yara
South Africa (Pty) Ltd during the period commencing on 1 October
2010 until the Effective Oate, referred to in paragraph 1.43 of "POC1";
• Yara South Afric~ (Pty) Ltd's financial records on the Effective Date,
referred to in paragraph 1.44 of "POC 1 ";
• The certificate in respect of the face value of the book value of the
Fixed Assets, referred to in paragraph 7 .1.1, 1 of "POC 1 ";
• Documentation indicating the face value of the debtors, referred to in
paragraph 7.1.1 .2 of "POC1 ";
• The balance sheet of Fermentech (Pty) Ltd on the Effective Date,
referred to in paragraph 7 .1.1.4 of "POC 1 ";
• The certificate in respeot of the face value of the Employee Liabilities,
referred to in paragraph 7.1 .1.8 of "POC1 ";
• Documentation indicating the accounting nett profit before interest and
before tax, excluding the salaries and other direct costs of 4 employees
continuing with Yara South Africa (Pty) Ltd, made during the period
commencing on 1 October 2010 until the Effective Date, referred to In
paragraph 7.1 .1.7 of "POC1 ";
• Documentation indicating the accounting nett loGs before interest and
before tax, excluding the salaries and other direct costs of 4 employees
continuing with Yara South Africa (Pty) Ltd, made during the period
commencing on 1 October 2010 until the Effective Date, referred to in
paragraph 7 .1 .1.8 of 1'POC 1 "; and
• The written confirmation of the Purchase Consideration, referred to in
paragraph 7.2 of "POC1''.
[6] The plaintiff (the respondent in these proceedings) has not provided the
documents requested in terms of the aforesaid Rule 35(12) and (14) notice,
thus resulting in this application. The applicant has brought this application in
terms of rule 30 (A) in order to compel the respondent to provide the said
docurnents. I note that the list of documents contained in the notice of motion
Is not as comprehensive as the list contained in the aforesaid Rule 35 notice.
Be this as it may, and prior to the hearing of this opposed application, the
defendant (applicant in these proceedings) correctly abandoned its reliance
upon Subrule 35(14) and proceeded only on the provisions of Subrule 35(12).
[7] I now turn to the notlee under Rule 35(12). This subrule reads:
"Any party to any proceeding may at any time before the hearing thereof
deliver a notice as near as may be in accordance with Form 15F in the First
Schedule to any other party in whose pleadings or affidavits reference is
made to any document or tape reoordlng to produce such document or tape
recording for his inspection and to permit him to make a copy or transcription
thereof. Any party failing to comply with such notice shall not, save with the
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".
[8] I have listed, and considered, the individual documents and categories of
documents sought under Rule 35(12). I have had regard to the decision in
Potch Boudienste CC v Flrstrand Bank Limited case number 23898/2015
(unreportable) dated 25 April 2016, wherein a similar situation arose. I am in
respectful agreement with Tuchten J that a party is entitled only to those
documents to which reference is made in the particulars of claim. This does
not include documents which it can inferentially be deduced from the affidavit,
(or, of course, pleading) must exist, or would probably exist. It is the reference
to the document in the affidavit (or pleading) that triggers the obligation to
produce, all else being equal. The rule Is not triggered when the existence of
I
a document can only be deduced by~ process of Inferential reasoning. See:
Penta Communication Services (Pty) Ltd v King and Another 2007 (3) SA 471
C paras 15-17 and Holdsworth and Others v Reunert Limited 2013 (6) SA
244G & P para 12.
[~] Where a document identifies a process by which documents can be (or even
probably or certainly will be or were) created, that by itself does not trigger the
oblig~tion under the Rule. This is of relevance In the present case. In Penta
Communication supra, Bozalek J held that:
"The question that arises in the present instance is whether Rule 35(12) can
be invoked when not only has no detailed or descriptive referenoe been made
to the document/s, but neither has there been any indirect reference to such
documentls and it i$ only through a process of reasoning and Inference
drawing that it can be deduced that the document does or may exist."
[1 O] Mr van Staden (attorney), appearing for the applicant/defendant submitted
that, upon analysis of the relevant allegations made in the particulars of claim,
it can be reasonably inferred that a document/s must exist relating to the loss
of stock, loss of equipment and/or capital, wasted legal costs and the
dama9es suffered by the aforesaid investment in the sum of R510 000.00. Mr
van Staden submitted further that this being the case, the applicant/
defendant is entitled to call for production of such documents. In my view this
proposition would extend the provieions of Rule 35(12) so far that it would
give the concept of a "reference" to a document so broad so as to make it
almost superfluous. See: Penta Communications supra.
[11] The provisions of rule 3f5(12) exist for a sr,eolfio purpose and such provisions
do not bring about a mechanism whereby one party can go behind the words
of an affidavit or pleading and argue that, although there is no direct or even
indirect reference to document/&, such documents would in the ordinary
course of events exist and must, if in the pos,ession of the opposed party, be
produced for inspection.
(12] The applicant/defendant has failed to call for "a clearly specified document"
from the respondent in terms of Uniform Rule 35(12) ~md inasmuch as the
court has a discretion to compel or not. I am guided by the decision of Centre
for Child Low v Governing Boc;ty of Ho~r$kool Fochville and Another 2016 (2)
SA 121 (SCA) wherein Ponnan JA, in considering a court's discretion, stated
the following:
"In my view, the court has a general discretion in terms of which it is required
to try to strike a balance between the conflicting interests of the parties to the
case. Implicit in that is that it should not fatter its own discretion in any manner
and particularly not by adopting a predisposition either in favour of or against
granting production. And, in the exercise of that discretion, it Is obvious, I
think, that a court w/11 not make an order against a party to produce a
do.cument that cannot be produced or Is privileged or irrelevant".
[13] Lastly, I cannot acc;ede to the line of argument that the applicant/defendant is
not able to prepare and file a plea under the prevailing circumstances. Once
this is done, the applicant/defendant Is entitled to call for discovery by the
plaintiff/ resportdent and in addition thereto, use the mechanism provided in
terms of rule 35(3) of the Uniform Rules of Court. I have had careful regard to
the nature of the documents listed in the Rule 35(12) notice. In my respectful
view the applicant/defendant would not be precluded from preparing and filing
an appropriate plea to the particulars of claim.
[14] I accordingly make the following order: The application is dismissed with
costs.
G. T. AWAKOUMIDES
GE OF THJ: HIGH COURT
GAUTENG DIVISION, PRETORIA
DATE: 28 FEBRUARY 2018