1IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAALSE PROVISIONAL DIVISION)

	Case number: 25173A/2005
NOT REPORTABLE					     Date: 18/1/2008

In the matter between:

WRAYPEX (PTY) LTD	  Applicant
				
and

ARTHUR BARNES	Respondent

JUDGMENT
______________________________________________________________

PRETORIUS J,
This matter is a combination of applications. There is one application in terms of Rule 30 A read with Rule 37 (4) and three applications in terms of Rule 35 (7) to compel compliance with notices in terms of Rule 35 (3). This relief is sought by the defendant as applicant in these applications. It will be convenient to refer to the parties as plaintiff and defendant to avoid confusion.

The application in terms of rule 30 A is:
“1.	The defendant’s non-compliance with the requirements of the Rules of this court is condoned and the requirements of the Rules of this court are dispensed with.
	2.	The plaintiff is ordered to respond to the list of admissions and enquiries sought by the defendant in terms of Rule 37 (4) of the Rules of this honourable court and attached as annexure A of the founding affidavit within 1 day from the date of this order.”

Rule 30 A provides:
	“30A	Non-compliance with rules
(1)	Where a party fails to comply with these rules or with a request made or notice given pursuant thereto, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days, to apply for an order that such rule, notice or request be complied with or that the claim or defence be struck out.
(2)	Failing compliance within 10 days, application may on notice be made to the court and the court may take such order thereon as to it seems meet.”

This rule is a general rule to remedy non-compliance with the rules, where no other remedy exists. In ABSA Bank Ltd v The Farm Klippan 490 CC 2000 (2) SA 211 Epstein AJ found at 214 I-J:
	“Rule 30A has an important place in the Rules, in that, as I have stated, it provides a remedy where none exists elsewhere. However, it could not have been intended by the drafters of Rule 30A to jettison the existing and effective remedies provided in the specific remedy Rules. If it was so intended, it would render such remedies nugatory. The remedies in the specific remedy Rules have always been effective and there is no reason to denude them of their efficacy.”

This finding cannot be sustained as to my mind, Rule 30 A will only apply in cases where the rule does not supply a remedy. Both Rule 20 A and Rule 37 do supply remedies for non-compliance.

The first application in terms of Rule 35 (7) read with Rule 35 (3) of the Rules relates to items 5 – 8 of the defendant’s notice in terms of Rule 35 (3):
	“1.	Directing the respondent to furnish a reply to the applicant’s notice in terms of Rule 35 (3) served on the respondent’s attorney of record on 12 February 2007, within ten (10) days of the grant of this order, or in such time as this Honourable Court may direct;”

Rule 35 deals with discovery and Rule 35 (7) provides the remedy should any party fail to comply with the provisions of Rule 35 as follows:
“(7) 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 dismiss the claim or strike out the defence.”

The second application in terms of Rule 35 (7) read with Rule 35 (3) relates to items 1 to 4 of the defendants’s notice in terms of Rule 35 (3) where defendant requests the following order:
“1.	The defendant’s non- compliance with the requirements of the Rules of this court is condoned and the requirements of the Rules of this court are dispensed with;
2.	Directing the plaintiff to furnish a reply to the defendant’s notice in terms of Rule 35 (3) served on the respondent’s attorneys of record on 10 April 2007, within one (1) day from the date of this order”

The fourth application was complied with in terms of Rule 35 (7) and no order is sought. The court will thus not deal with the fourth application, except regarding costs.

These applications stem from summons which was issued by the plaintiff on 18 July 2005 and served on the defendant.  The plaintiff, a private company, is suing the defendant for damages due to the alleged publication of defamatory remarks made by the defendant. The first claim relates to the alleged publishing of false and malicious statements concerning the plaintiff in regards to the development of the Blair Atholl township. The amount claimed is R5 million.

The second claim relates to further alleged publication of false and malicious statements for which R10 million is claimed.  A claim for R20 million is made for damages suffered as a result of delays caused by the defendant in respect of finance and contractual penalties.  A further R5 million is claimed in terms of section 38 of Act 108 of 1996 as punitive constitutional damages.  These allegations and claims are denied by the defendant, as the defendant denies that they had been published by him and were defamatory.  If however, according to the defendant these allegations and claims are held to be defamatory the defendant pleads:
“They were true, 
Alternatively, they were fair comment,
Further alternatively, they were privileged,
Further alternatively, they were reasonable,
Further alternatively, they were protected by section 31 (4) of the National Enviromental Management Act, 107 of 1998,
Further alternatively, that the defendant lacked animus iniuriandi.”

On 27 March 2007 a request for further particulars in terms of Rule 21(2) was served on the plaintiff.  No reply was received.  A pre-trial conference was held on 3 April 2007. At the pre-trial meeting plaintiff’s counsel indicated that the plaintiff was not going to respond to the request for further particulars as it had been served late.  It must be noted that the remedy for non-compliance with rule 20(2) is set out in Rule 20(4).  On 19 April 2007 the plaintiff’s attorney in writing informed the defendant’s attorney that the plaintiff did not intend replying to the rule 20(2) notice as it was served out of time.  On 3 April 2007 at the pre-trial hearing, the defendant asked the same questions, as set out in the rule 20(2) notice, in terms of Rule 37(4).  Rule 37(4) provides:
 	“(4)	Each party shall, not later than 10 days prior to the pre-trial conference, furnish every other party with a list of -
	(a)	the admissions which he requires;
(b)	the enquiries which he will direct and which are not included in a request for particulars for trial; and
(c)	other matters regarding preparation for trial which he will raise for discussion”
 
While there may be good reasons given why the plaintiff should be compelled to give further particulars, the defendant fails to explain why the defendant failed to go through the proper process to obtain them.

On 19 April 2007 the defendant’s attorney requested the plaintiff’s response to the request in terms of Rule 37(4).  On 20 April 2007 the plaintiff’s attorney informed the defendant’s attorney, that no response would be forthcoming.  The plaintiff alleges that the refusal to answer the requests is justified as:
“6.1	The plaintiff has responded to the request made in terms of Rule 37 (4) by stating that it did not intend answering the questions put or supplying the information sought.
6.2	…
6.3	The plaintiff is further advised and accepts the advice that it was entitled to ignore a request for further particulars which was made out of time.
6.4	In these circumstances, the plaintiff is advised that it is not obliged to limit the issues raised in the formal pleadings.
6.5	The plaintiff does not wish to limit the issues by responding to any further questions put to it during the pre-trial procedure.

The trial was set down for 27 April 2007.  The Rule 30A application only afforded the plaintiff one day to respond.  The defendant applied for condonation for it’s failure to give plaintiff 10 days within which to comply with the Rule 37(4) request.

The remedy for the non-compliance with the request in terms of Rule 21(2) is set out in rule 21(4).  The defendant chose not to approach the court with an application to compel delivery, or to have the action dismissed or struck out. Mr Campbell now argues that after the trial was postponed on 27 April 2007, the plaintiff has had more than enough time to comply. I cannot agree as this court has to decide the issue on the fact that the Rule 20 (2) notice was served out of time. It is clear that Rule 30A is not applicable in this instance.

The defendant chose to invoke the provisions of Rule 37(4) to obtain the requested further particulars.

Rule 37(8) should have been used if the defendant was not satisfied and an appropriate costs order in terms of rule 37(9) provides a further remedy.  Both these rules provide for a process in the event of non-compliance with Rule 37(4). The defendant chose not to invoke the provisions of these rules.

Therefore the argument by the plaintiff, that Rule 30A is not applicable, must be accepted. As the defendant could not succeed in obtaining the further particulars due to it’s own neglect in serving the notice late, the defendant tried to slip in through the backdoor by way of Rule 37(4) at the pre-trial conference.  This cannot be entertained as the provisions of Rule 37(4) is peremptory and the request should not be made during the pre-trial conference, but shall be made prior to the holding of the pre-trial conference and not at the conference as happened in this particular instance.  Mr Campbell, for the defendant, argued that these particulars are required, as the particulars of claim are vague and embarrassing.  The correct remedy to that would have been to except to the pleadings as conceded by Mr Campbell.

The court was referred to and furnished with the unreported decision of BLIEDEN J in Mail and Guardian and Others v African National Congress and Others, case number 6451/04 (T).  This matter is distinguishable as in that instance the plaintiffs correctly invoked the provisions of Rule 21(4), which was not done in this case.  A dissatisfied party with discovery may in terms of Rule 35(3) approach the court in terms of rule 35(6).  Reasonable grounds must exist before a court will go behind a discovery affidavit.  In Swissborough Diamond Mines v Government of the Republic of South Africa 1999(2) SA 279 (TPD) at 320 F-G
“Accepting that the onus is on the party seeking to go behind the discovery affidavit, the Court, in determining whether to go behind the discovery affidavit, will only have regard to the following:
	(i)	the discovery affidavit itself; or
	(ii)	the documents referred to in the discovery affidavit; or  
	(iii)	the pleadings in the action; or
	(iv)	any admissions made by the party making the discovery affidavit; or
(v)	the nature of the case or the documents in issue.”

The defendant argues that it is not required to lay a basis for the relief sought in the founding affidavit and has reluctantly dealt with it in the replying affidavit.  There is also no explanation for the lack of a proper basis for further discovery and inspection in the founding affidavit.  The plaintiff is correct when stating that the replying affidavit cannot and should not be used to lay such a basis and to amplify the shortcomings in the founding affidavit.  The defendant’s argument that the court should grant some form of relief and specially in the instance of Mr Hampson, as a possible witness, for the plaintiff cannot be granted as no case for such relief was set out in the founding affidavit. The defendant cannot come to court and rely on the replying affidavit for the requested relief and argue that the basis for the applications are set out and amplified in the replying affidavits. The defendant’s attitude is clear from the preamble to paragraph 4 of the replying affidavit, where defendant’s attorney states: “the Defendant denies that it is required, in terms of the rule, to lay a basis for the relief sought.” The argument by the plaintiff that the defendant does not inform the court whether the documents exists or are relevant, must be correct. Furthermore Rule 37 (4) does not provide for the furnishing of further particulars, but mentions requests, notices or lists. There is nothing in the founding affidavit to indicate why the court should go behind the oath in the discovery affidavit. The test set out in the Swissborough case (supra) should be applied to decide whether the defendant should be granted any relief.
“It is trite law that in motion proceedings the affidavits serve not only to place evidence before the Court but also to define the issues between the parties. In so doing the issues between the parties are identified. This is not only for the benefit of the Court but also, and primarily, for the parties. The parties must know the case that must be met and in respect of which they must adduce evidence in the affidavits. 

In Prokureursorde van Transvaal v Kleynhans  A  1995 (1) SA 839 (T) it was held by van Dijkhorst J:
“Dit is myns insiens vir die behoorlike ordening van die praktyk absoluut noodsaaklik dat konstitusionele punte nie deur advokate as laaste debatspunt uit die mou geskud word maar pertinent in die stukke as geskilpunt geopper word sodat dit volledig uitgepluis kan word deur die partye ten einde die Hof in staat te stel om dit behoorlik te bereg.”

In the Swissborough case (supra) Joffe J held that it should apply to all issues, not only constitutional issues.

The defendant could not rely on the replying affidavits to discharge the onus of setting out sufficient facts upon which a court can find in his favour in the two applications.  Plaintiff is thus correct when arguing that no proper case was made out in the founding affidavit.

Both applications must thus fail for the reasons as set out above.  I must agree that in this instance, the cost of two counsel should not be allowed, as it is neither such a complex or lengthy matter to require two counsel.

I make the following order:

1.	The application in terms of Rule 30A is dismissed;
2.	The first and second applications in terms of Rule 35(7) read with Rule 35(3) are dismissed;
3.	The defendant to pay the costs of the applications.
4.	The applicant to pay the cost of the third application in terms of Rule 35(7) read with Rule 35(3). 

______________________
C Pretorius
Judge of the High Court

Case number			: 	25173/2005		
Heard on				:	7 December 2007
For the Applicant / Plaintiff		:	Adv Campbell SC
Instructed by				:	Connie Myburgh & Partners
For the Respondent 		: 	S van Nieuwenhuizen SC
Instructed by				:	Deneys Reitz INC
Date of Judgment			:  	18 January 2008