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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

10

Representation for parties:

For applicant: M. Van Staden (Attorney)

Instructed by: Savage Jooste & Adams

For Respondent: L. VR. Van Tonder (Advocate)

Instructed by: Baker McKenile