Federal Wine and Brandy Co Ltd v Kantor

• Jurisdiction: South Africa
• Judge: Wynne J
• Judgment Date: 31 July 1957
• Citation: 1958 (4) SA 735 (E)
• Court: Eastern Cape Division

G Wynne, J.:

Plaintiff, Federal Wine & Brandy Co. Ltd., has instituted action against defendant, Alexander Kantor, for recovery of the sum of £645 19s. 7d. in respect of goods sold and delivered. Defendant filed a plea denying the purchase of the goods in question and denying indebtedness to plaintiff in any sum whatsoever. The matter was duly set H down for trial in this Court on the 18th and 19th July, 1957. Therefore at 2.15 p.m. on the 4th July, 1957, defendant's present attorney, Mr. M. S. Jacobs, served upon plaintiff's attorney a notice calling upon plaintiff for an affidavit of discovery and a request for further particulars to plaintiff's declaration for purposes of trial.

On the 9th July, 1957, plaintiff filed an affidavit of discovery sworn

Wynne J

by one John Samuel Saunders. Defendant's attorney thereupon addressed a letter to plaintiff's attorney refusing to accept this affidavit on the following grounds:

'(a) It is signed by John S. Saunders who has nothing whatsoever to do with the plaintiff and who is not a manager, director or other A person having been duly authorised to sign on their behalf:

(b) It does not state in full all the facts in terms of the Rules of Court.'

Plaintiff then filed a discovery affidavit dated 11th July, 1957, sworn by plaintiff's attorney, Mr. L. H. Bendelstein, and reading, so far as material:

'3. That I have fully acquainted myself with the documents relating B to the matters in question in this suit.

4. That the documents disclosed in Schedule 'A' to this affidavit numbered 8 to 48 inclusive had been but are not now in the possession or power of the plaintiff.

6. That the last mentioned documents were seized by the Police and were produced as exhibits in the case of R v the defendant and one Edward Ching Sent and that the said documents are in the possession of the clerk of the criminal court at Port Elizabeth.

C 7. According to the best of my knowledge, opinion and belief, the plaintiff has not now and never has had in its possession, custody or power, or in the possession, custody or power of its attorney or agent, or any other person on its behalf, any document, or copy of or extract from any document relating to the matters in question in the suit or any of them other than the documents set forth in Schedule 'A' hereto.'

D Items 8 to 48 in the above Schedule 'A' enumerate copies of certain receipts, invoices, orders and statements identified by number and date, save that item 48 reads:

'Such other exhibits in the criminal case of R v Kantor and Sent as have not been specifically included in the above.'

Items 1 to 7 of Schedule 'A' include the pleadings in the action and certain letters between the attorneys for plaintiff and defendant.

E Plaintiff also supplied defendant with certain further particulars pursuant to the request therefor, and, after objection taken by defendant's attorney furnished further particulars in amplification of those originally supplied.

Thereafter at 5 p.m. on the 15th July, 1957, notices of two applications were served upon plaintiff's attorney by defendant's attorney:

F (1) Application for an order compelling plaintiff to furnish a full reply to the particulars asked for in defendant's request for further particulars:

(2) Application for an order compelling plaintiff to file a proper and complete discovery affidavit.

G In support of this latter application defendant's attorney filed an affidavit, formulating the grounds of his objections to plaintiff's discovery affidavits thus:

'6. The affidavit is not in complete or proper form in that it is not signed by the plaintiff but signed by plaintiff's attorney. No reason is given as to why plaintiff has not signed the affidavit.

7. No mention is made of any letters that have passed between H plaintiff and John Samuel Saunders. To the best of my knowledge and belief there were letters dealing with the question of defendant's account and these letters have not been disclosed.

8. That para. 48 of the aforesaid discovery affidavit is too vague to enable me to make copies for counsel and instruct them properly . . .. The matter is of a complicated nature, and in the time at my disposal I have tried to sort things out, but there are at least a hundred exhibits in the criminal trial.'

At 10.40 a.m. on the 17th July, 1957, defendant served upon plaintiff's

Wynne J

attorneys a notice that at the trial of the action he would apply for the amendment of his plea. This notice of amendment shows that defendant desires to substitute an entirely new plea in place of his original plea, categorically denying all the allegations in plaintiff's declaration. Defendant's amended plea, if granted, would aver that defendant admits having made the purchase of a substantial portion of A the goods covered by plaintiff's claim; that he admits all the payments made by him as set out in plaintiff's declaration; but that defendant, by reason of further payments and credits, has in fact overpaid plaintiff for the actual goods purchased, so that he is not legally indebted to plaintiff in any amount. An alternative defence incorporated B in defendant's amended plea is that, should any balance be found to have accrued to plaintiff in respect of the goods sold to defendant, such balance is irrecoverable because it arises from illegal sales of liquor by plaintiff to defendant.

Late on the afternoon of the 17th July, 1957, plaintiff served upon defendant's attorney a further affidavit of discovery sworn by certain C Edward Ball, accountant to plaintiff Company, together with a further explanatory affidavit by the said Ball. The affidavit of discovery filed by accountant Ball is the same as that filed by plaintiff's attorney, save that Mr. Ball sets out that he is an officer of plaintiff Company, being its accountant, and that he is duly authorised to make the affidavit, and has fully acquainted himself with the documents relating to the matters in question in the suit. Para. 4 of Mr. Ball's D explanatory affidavit states:

'Owing to the objection made by defendant's attorney a fresh affidavit of discovery was filed by plaintiff's attorney. As at that time all officers and representatives of the plaintiff Company were in Cape Town, it was felt that owing to the urgency of the request and owing to the fact that no possible prejudice could result to the defendant, that this E affidavit could in fact be signed by the plaintiff's attorney. A further reason was that all the relevant exhibits were in Port Elizabeth.'

When the matter came before this Court on the morning of Thursday, 18th July, 1957 Mr. Porter Mathew, Q.C., with him Mr. Rein, appeared for the plaintiff and Mr. Gordon Davis, Q.C., with him Mr. Seligson, for the defendant. Mr. Davis, Q.C., indicated to the Court that he did not F intend applying at once for an amendment of his plea in terms of the notice filed, but that he proposed first arguing defendant's application for further and better discovery. He considered this question vital, because, in the event of defendant succeeding in his discovery application, this might well affect the ultimate form in which defendant's amended plea should be framed. Notwithstanding that Mr. G Mathew, Q.C., indicated that he would not oppose the amendment, subject to plaintiff obtaining proper compensation for wasted costs, and that he pointed out that if defendant's plea were amended in terms of the notice presently filed, what plaintiff might ultimately be called upon to H discover might be entirely different from the discovery necessitated by the present plea, senior counsel for defendant refused to deviate from his course of seeking a decision of this Court on defendant's discovery application without reference to any other question material to his defence of the action.

The relief sought by defendant from this Court, as formulated by his counsel in the course of argument is an order for further and better

Cotton LJ

discovery with costs against plaintiff in respect of the two following matters:

(1)

An order for discovery of letters relating to the matters in question in the action which passed between plaintiff and John Samuel Saunders prior to the commencement of litigation;

(2)

A Discovery and identification of the specific exhibits in the criminal case of R v Kantor and Sent included in item 48 which plaintiff alleges are relevant to the matters in question in the action.

The legal issues raised in the adjudication of the validity of this claim for the above further and better discovery require consideration B of the general principles of our law relating to discovery and of the specific principles of our practice in relation to the conclusiveness of a discovery affidavit on the question of relevancy.

In the interpretation of our Rules and practice on the subject of C discovery and inspection of documents our Courts are guided by English practice and decisions, because the Rules of the various Divisions of the Supreme Court of South Africa on these matters are derived from similar Rules followed in the Superior Courts of England.

The basic authority upon which the practice of the English Courts is founded is the case Jones v Monte Video Gas Company, (1880) 5 Q.B. D 556. The fundamental principles crystallised in this decision are best conveyed in the following extracts from the judgments:

Judgment

Brett, L.J.:

'An order was obtained that defendants should make discovery of documents: the plaintiff was not satisfied with the affidavit of the defendant's officer, and alleged that certain documents had not been set out. He made a contentious affidavit to that effect . . .. The proper practice as to the discovery of documents now depends upon the orders and rules of the Judicature Acts . . .. We have consulted all the other members of the Court of A ppeal who usually sit and act, and we are of opinion that...