Carpede v Choene NO and Another

• Jurisdiction: South Africa
• Citation: 1986 (3) SA 445 (O)

Carpede v Choene NO and Another
1986 (3) SA 445 (O)

1986 (3) SA p445

Citation	1986 (3) SA 445 (O)
Court	Orange Free State Provincial Division
Judge	Lichtenberg J
Heard	November 5, 1985; November 6,1985; November 8, 1985; December 5, 1985; December 6, 1985
Judgment	December 30, 1985

Flynote : Sleutelwoorde B

Discovery and inspection — Discovery affidavit — What must be disclosed — Documents need not be disclosed which only tend to advance the case of the party making discovery — This must be qualified by the following addition thereto, namely "provided such party does not intend using such document during the trial" — If a party intends using document in C such a way that it becomes evidence then he needs to make due and proper discovery timeously to enable his adversary to prepare to meet it — Rule of Court 35.

Headnote : Kopnota

The Rule (Rule 35 of the Uniform Rules of Court) according to D which discovery need not be made of documents which only tend to advance the case of the party making discovery, must be qualified by the following addition thereto, namely "provided such party does not intend using such document during the trial". If he intends using it in such a way that it becomes evidence - which it undoubtedly will become if it contradicts the evidence of his opponent or his witnesses, or if it proves or supports his own case - then he must make due and proper discovery of it so that his adversary is enabled E to prepare for it and to meet it, if he can, and if he cannot, to take such steps as are appropate with a view to proceeding with his case or otherwise, including possible settlement or even withdrawal of his action of defence.

Plaintiff had alleged that a partnership had existed between herself and defendant's deceased husband who died in June 1984. A month later plaintiff was ejected from the business and F defendant conducted the business alone for some 13 months prior to her discovery affidavit being filed. Plaintiff had already filed her discovery affidavit timeously and defendant was late by 31 days. In May the Court had ordered the hearing of oral evidence in terms of Rule 33 (4) and had ordered discovery to be made timeously. On the fourth day of the trial in December, and when plaintiff was in the process of being cross-examined, defendant produced a box of documents including G cheques upon which her counsel wanted to cross-examine plaintiff. The cheques had only been signed by the deceased and defendant wanted to use them to refute plaintiff's allegation that she signed cheques in the alleged partnership. The documents had been stored away in a filing cabinet at all times on the business premises and under the control of the defendant. Counsel for defendant argued that it was not necessary to have discovered these documents because they only H tended to advance the case of the party making discovery. Plaintiff's counsel objected and contended that, although the Court had a discretion to allow further discovery, such discretion had to be exercised judicially and plaintiff would suffer irreparable prejudice if defendant were allowed to introduce documents which plaintiff's counsel would only be able to inspect after discovery and upon which they could no longer consult plaintiff because she was already under I cross-examination.

Held, that, if the documents were to be produced in evidence, then due and proper discovery should have been made of them and, what was more, should have been made timeously.

Held, further, that defendant's flaunting of the Court order and Rules of Court with regard to discovery was inexcusable on even the most benevolent and charitable view taken of her quite irresponsible attitude thereanent.

Held, further, that defendant's behaviour deserved severe censure and it would be quite wrong of the Court to exercise J its discretion in defendant's favour

1986 (3) SA p446

A where she had been guilty of such grossly culpable remissness and utter indifference which had already caused very grave prejudice to plaintiff which could not be repaired by an order of costs in plaintiff's favour.

Held, accordingly, that the application for leave to make further discovery had to be dismissed with costs on the scale B as between attorney and client, such costs to include the costs of two counsel.

Case Information

Application for leave to make further discovery. The facts appear from the reasons for judgment.

R K R Zeiss SC (with him A H Jordaan) for plaintiff.

A P Beckley SC for defendant.

Cur adv vult. C

Postea (December 30).

Judgment

Lichtenberg J:

Plaintiff sues defendant for, inter alia, an D order declaring that plaintiff and defendant's deceased husband were partners in equal shares in certain three businesses, that their partnerships were dissolved by the deceased's death on 13 June 1984, that plaintiff is entitled to custody and control of the three businesses pending the winding up and liquidation of the partnerships, and plaintiff also E claims, inter alia, an order ejecting defendant from the business premises of these businesses, an order compelling defendant to deliver the businesses and their assets to plaintiff, including a number of motor vehicles belonging to two of the businesses, and a number of further orders which are ancillary to, and flow from, the said declaratory orders and F other orders already mentioned. Defendant is the executrix dative in her late husband's estate and she defends plaintiff's action. Before this action could be tried in the normal course, plaintiff (as applicant) brought an urgent application against defendant (as first respondent) and second respondent in which G she asks, inter alia, that, pending the determination of the said action, first respondent be interdicted from using, alienating or otherwise dealing with the said three businesses and their assets, including all the motor vehicles belonging to two of these three businesses, and that the deputy sheriff be authorized to attach all the said assets and to keep them in H his custody. This application is opposed by the first respondent. The second respondent, against whom no relief is claimed and who is joined in the application merely because he is charged with, inter alia, the supervision of the winding up of the estates of deceased Black persons who died - as did the deceased in this case - intestate (see s 23 (7) (a) and I 23 (10) of the Black Administration Act 38 of 1927 and reg 34 of the Regulations for the Administration and Distribution of Estates of Deceased Blacks, dated 17 January 1966), does not oppose the application and abides by the decision of the Court. I shall henceforth refer to applicant as plaintiff and to first respondent as defendant.

Because of disputes of fact apparent from the affidavits filed in the application, HATTINGH AJ (as he then was), on 30 May 1985, ordered, inter alia, that the question of the conclusion J or otherwise of partnership-agreements between plaintiff and the deceased be tried by the hearing of

1986 (3) SA p447

Lichtenberg J

oral evidence, and at the commencement of such hearing A plaintiff and defendant agreed that my findings on the said question as to the conclusion or not of partnership-agreements

"shall constitute res judicata in the action in respect of the following issues of fact: (a) whether the partnerships as pleaded in the main action came into existence and subsisted; and (b) whether the vehicles enumerated in the notice of motion B or any of them were assets in the partnerships".

In terms of Rule 33 (4) and in accordance with the provisions of the said agreement, I ordered that the hearing of the oral evidence at the application should be deemed to be a hearing of the said two issues. In the action plaintiff has (in her amended particulars of claim) pleaded that two partnership-agreements were concluded verbally between her and C the deceased, alternatively that they were concluded by their conduct, and that these two partnerships comprised the said three businesses and their assets including the various motor vehicles.

Paragraph 6 of the said order made by HATTINGH AJ reads as follows:

"Within 21 Court days of the making of this order" (which D was made on 30 May 1985) "each of the parties shall make discovery, on oath, of all documents relating to the issue referred to in para 1 thereof" (ie the said issue whether partnership-agreements had or had not been concluded as pleaded by plaintiff) "which are or have at any time been in the possession or under the control of such party. Such discovery shall be made in accordance with Rule of Court E 35, and the provisions of that Rule with regard to the inspection and production of documents discovered shall be operative."

Plaintiff filed her discovery affidavit on 1 July 1985 and defendant filed hers on 13 August 1985. Plaintiff's discovery affidavit was, therefore, filed in time, but defendant's was F filed late by 31 Court days. However, no objection has been taken to this by plaintiff, and it does not affect the issue which is at present under consideration.

During the afternoon of 5 December 1985, ie on the fourth day of the trial, Mr Beckley for defendant, when cross-examining plaintiff, produced a large number of cheques and other G documents which he said he had received from a certain Joseph Choene, defendant's brother-in-law, deceased's brother, only a very short while before he produced them, and he handed them to Mr Zeiss (for plaintiff), in open Court. It was obvious, and it is, in fact, common cause, that Mr Beckley intended to use these cheques there and then during his cross-examination of plaintiff since his cross-examination at that stage and H immediately prior to it quite clearly led up to intended questioning of plaintiff about these cheques and possibly other documents as well, or...