Bothma v Protea Furnishers (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Erasmus J
• Judgment Date: 23 April 1970
• Citation: 1970 (3) SA 180 (O)
• Hearing Date: 09 April 1970
• Court: Orange Free State Provincial Division

Erasmus, J.:

This is an opposed application by notice of motion in terms of Rule 35 (7) of the Rules of Court. The applicant, who is the plaintiff in an action instituted against the respondent company, gave

Erasmus J

the respondent company, as defendant in the pending action, on 10th March, 1970, proper notice in terms of Rule 35 (3) to make available for inspection certain books, viz. invoice books, sales journal, ledgers and all other books appertaining to sales in the respondent's business over A a specified period referred to in the pleadings of the action. The respondent, however, has failed to give the applicant notice of a time for inspection, or inspection, as required by Rule 35 (6).

I may state that the notice of 10th March, 1970 was one by way of correction and renewal. The respondent had first been given notice to the same effect on 11th June, 1969 but, in that notice, the applicant B referred to Rule 35 (5) instead of Rule 35 (3). The respondent's attorneys, in a letter dated 20th August, 1969, pointed out the mistake and continued to write as follows:

'Our Johannesburg correspondents would like to know at this stage whether you wish to see any of the books or records referred to in your notice under Rule 35 (5). If so, they advised that this will be opposed C because it would be prejudging the plaintiff's case.'

In reply to this letter the applicant's attorney wrote to the respondent on 5th September, 1969, inter alia in the following terms:

'At this stage I cannot see how the perusal of the defendant's books, for the period mentioned in the said notice, can have the effect of prejudging plaintiff's case. Plaintiff's case must, in the end, be based on the turnover of the defendant company, and the books referred to are D required to establish the position. Defendant's books will have to be disclosed at some time, and it would be appreciated if you will kindly set out your reasons for the belief that perusal now will have the effect of pre-judgment.'

Notwithstanding further reminders sent by the applicant's attorney and applicant's notice of 10th March, 1970, the respondent has done nothing to satisfy the requirements of Rule 35 (6), hence the present application.

E The action has been set down for hearing on 21st April, 1970.

Mr. van Coller, for the respondent, submitted that the application was premature in view of the nature of the pleadings in the action.

That part of the declaration relative to the issue reads:

'3.

During or about September, 1966, at Bloemfontein plaintiff F entered into an oral contract with defendant in terms of which plaintiff would as from 1st October, 1966 be employed by defendant as manager of its Bloemfontein branch at a monthly remuneration of R350 plus a commission of 1 per cent of the sales turnover of the said branch while plaintiff is...