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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 33380/16

Not reportable

Not of interest to other judges

revised.

22/3/2018

In the matter between:-

SANTAM LIMITED                                                                     First Applicant/Defendant

STALKER HUTCHISON ADMIRAL (PTY) LTD                    Second Applicant/Defendant

and 

GROUP FIVE LIMITED                                                              Respondent / Respondent

and 

CIRCUIT BREAKER INDUSTRIES (PTY) LTD                                          Third Defendant

t/a CBI ELECTRICAL SOLUTIONS

JUDGMENT

 

CRUTCHFIELD AJ:

[1] This is an application by the first and second defendants (‘the applicants’) for an order compelling a further and better response from the plaintiff / respondent to a notice in terms of Rules 35(12) and (14) of the Uniform Rules of Court, dated 14 October 2016 (‘the notice’).  The third defendant was not involved in the application.

[2]  Whilst the notice sought documents in terms of both Rules 35(12) and (14) of the Uniform Rules of Court, the application, however, was framed (in paragraph 3 of the founding affidavit), in terms of Rule 35(14) of the Uniform Rules of Court (‘Rule 35(14)’) only.

[3] The respondent, who opposed the application, complained that the applicants had failed to comply with Rule 30A prior to launching the application. 

[4] Whilst it is correct that the applicants did not request compliance in terms of a Rule 30A notice prior to issuing the application, the fact that the respondent did not permit inspection of the three disputed documents after inception of the application renders the issue of Rule 30A irrelevant.    

[5] Rule 35(14) provides:

‘After appearance to defend has been entered, any party to any action may, for purposes of pleading, require any 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.’

[6] The ambit of Rule 35(14) is narrow and its wording serves to limit application[1] of the Rule.

[7] Hence, in order for the applicants to succeed, they must meet all of the following preconditions:[2]

7.1 Discharge the onus of persuading a court that an order should be made in terms of the Rule;

7.2 An appearance to defend must have been entered;

7.3 The documents must be required for purposes of pleading;

7.4 The documents must be clearly specified;

7.5 The documents must be relevant to a reasonably anticipated issue in the action.

[8] The requirements in issue were whether the documents were:

8.1 Required for the purposes of pleading; and

8.2 Adequately specified.  

[9] In respect of the last mentioned requirement, Rule 35(14) envisages a specific document, a known and identifiable document, precisely described by the applicants.[3] 

[10] Documents that are described generically do not fall within the purview of Rule 35(14).

[11] Items numbered 6, 11 and 13 of the notice were the subject of the application.

[12] The respondent did not allege that the documents did not exist or were not in its possession. Nor that it was unable to discern the specific documents requested by the applicants.

[13] Thus, the applicants argued that the respondent relied upon its own subjective view as to the necessity or otherwise of the documents for the applicants to plead.

[14] The respondent contended that the documents were not ‘essential’ for the purposes of pleading and hence not compellable under Rule 35(14).

[15] The court in Cullinan Holdings Ltd v Mamelodi Stadsraad (‘Cullinan’),[4] held that the test is whether the document in question is essential, not merely useful, in order to enable a party to plead.  

[16] Rule 35(14) provides, however, that the documents must be ‘required’. The wording of the Rule does not suggest that the documents must be ‘necessary’ or ‘essential’,[5] a far more stringent requirement.

[17] A document is required[6] if it serves to assist in the exercise or protection of a right. In order to determine if a document does so assist, a litigant must identify the right that he or she seeks to protect, the information that he or she requires in order to do so, and, how that information will assist in exercising or protecting the specified right.

[18] Hence, the test is whether the documents are reasonably required in the circumstances in order to plead,[7] which must be understood to connote an element of need.[8]

[19] The respondent’s claim arose from three (3) policies of insurance concluded with the first defendant in respect of professional indemnity cover, in relation to the respondent’s construction businesses.

[20] The period in respect of which each policy operated differed but the terms of the policies were otherwise identical.  The policies operated for the periods 1 July 2013 to 30 June 2014 (‘the 2013 policy’), 1 July 2014 to 20 June 2015 (‘the 2014 policy’), and 1 July 2015 to 30 June 2016 (‘the 2015 policy’), respectively.

[21] The respondent’s claim, according to the applicants, could be divided into three (3) broad categories:

21.1 Firstly, a claim for payment of R22 633 540.30 for the replacement of transformers that the respondent was required to design, detail engineer and specify, that were subsequently found to be defective (‘the defect claim’);

21.2 The second was for payment of R1 260 000.00 for the alleged liquidated damages that the respondent suffered due to the defective transformers (‘the damages claim’);

21.3 The third for payment of R5 118 718.28 for additional time, preliminary and general costs incurred by the respondent as a result of the defective transformers (‘the P&G claim’); and

21.4 The fourth for payment of R15 000 000.00 for the cost of replacing two standby generators (‘the generator claim’).

Item 6 of the notice.

[22] Item 6 of the notice requested inspection of “the reports setting out or dealing with ‘the defects’ referred to in paragraph 15 of the Particulars of Claim” (‘the defects reports’).

[23] Paragraph 15 alleged that certain defects occurred in relation to the installation of the transformers for which the respondent was responsible.

[24] Paragraph 24 of the particulars of claim averred that the respondent was liable to pay ‘downtime liquidated damages to the employer and to incur actual expenses reasonably necessary to rectify the defect’.

[25] The respondents contended that the defects documents were neither adequately specified nor required in order to plead, and, that the applicants were not entitled to assess the quantum of damages claimed by the respondent.

[26] Whilst the applicants are not entitled to documents under Rule 35(14) merely ‘to consider their position’, Rule 18 (10) of the Uniform Rules of Court requires that all claims for damages are pleaded in a manner that enables a defendant to reasonably assess the quantum thereof.

[27] The consequence thereof is that the applicants are reasonably entitled, prior to pleading, to such details as are necessary to assess the quantum of the claim brought against them. Hence, those details are reasonably required in order to plead.

[28]  It follows that a document that enables a defendant to reasonably assess the quantum of damages claimed against it would be reasonably necessary for the defendant to plead, and compellable under Rule 35(14) subject to fulfilment of the further requirements thereof.

[29] The remaining question is whether the defects reports were adequately specified.  

[30] The applicants argued that the defects reports were not generically described and that the label of ‘defects reports’ was adequate for the purposes of Rule 35(14).

[31] A generically described document is one that is referenced according to a category or class of similar things, a document that is exactly typical of the kind of documents mentioned, and without any special or unusual characteristics.[9] An example would be a bank statement or a tax invoice. 

[32] The reports requested were referenced by way of a specific characteristic – being the fact that they dealt with the defects in respect of which the respondent’s damages claim was made.  That characteristic set the reports apart from others, and lent them an element of specificity sufficient, in my view, to justify their disclosure in terms of Rule 35(14).

[33] In the circumstances, I intend to grant an order that the defects reports be disclosed in terms of Rule 35(14).

Item 11 of the notice.

[34] Item 11 sought the ‘document, contract or like document’ that comprised the basis of the respondent’s alleged liability referred to in paragraph 24 of the particulars of claim (‘the liability document’).

[35] Paragraph 24 of the particulars of claim, referred to above, alleged that the respondent was liable to pay ‘downtime liquidated damages to the employer and to incur actual expenses reasonably necessary to rectify the defect’.

[36]  Given that the respondent relied upon the first applicant’s alleged failure to indemnify the respondent for the damages and / or costs allegedly incurred by the respondent pursuant to the ‘liability document’, the applicants are entitled to inspect the document/s comprising the ‘liability document’ and to be appraised of the terms of that liability in order to plead meaningfully to the claim.

[37] The respondent argued (and the applicants denied), that the relevant document comprised the construction contract concluded between the Plaintiff and the ‘employer’ (‘the contract’) and that the respondent had made the contract available to the applicants.

[38] The applicants denied that the contract comprised the required document. However, a perusal of paragraph 23 of the particulars of claim revealed that the basis of the plaintiff’s obligation to pay the ‘downtime liquidated damages to the employer’ was the contract, which the respondent had furnished to the applicants.

[39] Hence, the applicants are not entitled to relief under Rule 35(14) in respect of Item 11 of the notice.

Item 13 of the notice.

[40] Item 13 referred to the “refusal” by the first applicant as referenced in paragraph 25 of the particulars of claim (‘the refusal’). 

[41] Paragraph 25 provided that the first applicant refused and / or failed to indemnify the respondent for the expenses incurred and the downtime liquidated damages

[42] The respondent did not deny that the alleged refusal or repudiation of the respondent’s claim was a reasonably anticipated issue in the trial.

[43] In so far as the applicants relied upon the fact that the refusal or repudiation document might identify which policy was the operative one and under which policy the claim was lodged, those issues can be dealt with in a request for particulars for trial.

[44] I am not persuaded that the refusal document is reasonably required for the purposes of pleading and the applicants are not entitled to relief in respect of item 13 of the notice.  

[45] As to the costs of the application, each party achieved some success with neither being the outright winner. Hence, I intend to order that each party pay its own costs of the application.

[46] By reason of the afore-mentioned, I grant the following order:

1. The respondent is ordered to make the defects reports referred to in paragraph 6 of the applicants’ notice in terms of Rules 35 (12) and (14) dated 14 October 2016, available for inspection by the applicants, within five days of the date on which this judgment is handed down. 

2. The balance of the relief claimed by the applicants is dismissed.

3. Each party is ordered to pay its own costs of the application.

_________________________________________________

A A CRUTCHFIELD

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

COUNSEL FOR APPLICANT                           A Govender.

INSTRUCTED BY                                            Clyde & Co.

COUNSEL FOR RESPONDENT                     Mr C Humphries.

INSTRUCTED BY                                            Tiefenthaler Attorneys.

DATE OF HEARING                                        7 December 2017.

DATE OF JUDGMENT                                    22 March 2018.

 

_________________________________________________

A A CRUTCHFIELD

ACING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

[1] Business Partners Ltd v Trustees Riaan Botes Family Trust and Another 2013 (5) SA 514 (WCC).

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