African Bank Ltd v Buffalo City Municipality

• Jurisdiction: South Africa
• Judge: Notshe AJ
• Judgment Date: 17 March 2005
• Citation: 2006 (2) SA 130 (CkH)
• Docket Number: 1243/04
• Hearing Date: 08 March 2005
• Counsel: G Bofilatos for the applicant. T J M Patterson for the first respondent.
• Court: Ciskei High Court

Notshe AJ:

[1] In this matter the applicant brought an application for an order setting aside a number of sales in execution in respect of a certain three properties, pursuant to judgments obtained by the first respondent. I refer to this application as the main application. The matter was set down for hearing on 8 March 2005. On 4 E March 2005 the first respondent brought an interlocutory application for the postponement of the matter and for an order directing the applicant to make discovery of certain documents. The applicant opposes the interlocutory application.

[2] In order to avoid confusion I will refer to the parties in the manner in which they are cited in the main application. In other F words although the interlocutory application has been instituted by the first respondent I will not refer to it as the applicant but as the first respondent and the applicant as the applicant.

[3] It is necessary that one considers the history of this matter before one deals with the merits of the interlocutory application. The chronology of events in this matter is the following: G

[3.1]

The main application was instituted on 24 June 2004;

[3.2]

the first respondent delivered its notice of opposition on 27 July 2004; H

[3.3]

the first respondent then delivered its answering affidavit on 19 August 2004;

[3.4]

thereafter attempts were made to set the matter down for hearing;

[3.5]

on or about 4 February 2005 the applicant filed its replying affidavit; I

[3.6]

on 24 February 2005 the applicant filed its heads of argument;

[3.7]

on 28 February 2005 the applicant filed notice of application for substitution of the applicant for 'Company Unique Finance (Pty) Ltd'; J

Notshe AJ

[3.8]

on 28 February 2005 the first respondent filed its heads of argument; and A

[3.9]

the present application was instituted.

[4] The present proceedings are interlocutory proceedings to the main application. In summary the first respondent seeks an order for discovery of certain documents. The application for a postponement of the main matter is a consequence of the interim relief sought. B

[5] The present proceedings are necessitated by the fact that main proceedings are application proceedings instituted in terms of Rule 6 of the Uniform Rules. As a result thereof the rules regarding discovery of documents do not apply unqualified. The matter of discovery of documents in application proceedings is governed by Rule C 35(13) of the Uniform Rules. The aforesaid Rule provides as follows:

'The provisions of this rule relating to discovery shall mutatis mutandis apply, insofar as the Court may direct, to applications.'

It is clear from the aforesaid provisions that rules relating to discovery (except subrules 35(11) and 35(12)) apply to application D proceedings 'insofar as the Court may direct'.

[6] It is clear from the aforesaid provision that the discovery in application proceedings does not apply as a matter of course. A litigant seeking discovery from an opponent is obliged to first seek the direction of Court. [1] The discovery is not E there for the taking. [2] The reason therefor is simple. In the application proceedings the pleadings and trial stage of a matter are rolled up in one. A party pleads, so to speak, and adduces evidence in one process. [3] Invariably the parties to application proceedings will attach all the documents that they seek to rely on in support of the application for the relief that they seek. F It is not surprising therefore that the Courts have insisted that discovery in application proceedings should be made only in exceptional circumstances. [4]

[7] In my respectful view this requirement should be strictly applied in view of our new constitutional dispensation, which allows persons access to information in possession of other persons. A G litigant will investigate the case properly before embarking on application proceedings. It will use all the arsenal at its disposal in preparing and launching application proceedings. The present constitutional dispensation has put an additional armour at a litigant's disposal by giving persons access to information. A H litigant will exhaust all those remedies before launching application proceedings. In this regard it must be borne in mind that an applicant is obliged to stand or fall by its founding affidavit. He is bound to justify his claims, to make his case in his founding affidavit. He must I

Notshe AJ

also sufficiently inform the other party of the case he is required to meet. [5] In that process he is obliged to furnish A supporting documents, otherwise proof of his allegations might be found wanting. Similarly a respondent will need to support his case with supporting documents at his disposal. He may, however, be hamstrung in his defence by the paucity of proof in the founding papers. Even then, resort to discovery will be the last resort because the paucity of B proof in the founding paper is a clear sound of a death knell to the applicant's case. The parties should not be allowed to adopt the process of spraying and praying, spraying the allegations and praying that one or some will hit the target. That will convert litigation into a hazard and a trap. In this regard Thring J held the following: [6]

'Discovery has been said to rank with cross-examination as one of the two mightiest engines for the exposure of the truth ever to have C been devised in the Anglo-Saxon family of legal systems. Properly employed where its use is called for it can be, and often is, a devastating tool. But it must not be abused or called in aid...