Copalcor Manufacturing (Pty) Ltd and Another v GDC Hauliers (Pty) Ltd (Formerly Gdc Hauliers Cc)

• Jurisdiction: South Africa
• Judge: Claassen J
• Judgment Date: 24 November 1999
• Docket Number: 96/13742
• Hearing Date: 24 November 1999
• Counsel: G Farber SC (with him A G Sawma) for the applicants. A O Cook for the respondent.
• Court: Witwatersrand Local Division

Classen J:

[1] The applicants seek an order directing the respondent to make A discovery of and produce for inspection within a period of ten days from the date of the order certain listed documents relevant to the period February 1994 to and including February 1996 as listed in para 1 of the notice of motion. The applicants are the defendants in the main B action and the respondent is the plaintiff therein. For ease of reference I will refer to the parties as the plaintiff and defendants respectively.

[2] The plaintiff is a member of the GDC Group of companies consisting of GDC Hauliers (Pvt) Ltd; GDC Hauliers, Lubumbashe; GDC C Hauliers, Harare; GDC Hauliers, Zaire; GDC Hauliers, Lusaka; GDC International, London; and GDC International, West Germany. The relevance of the plaintiff's membership of this group of companies will become apparent later in this judgment.

The action D

[3] The plaintiff is a haulage contractor having its principle place of business at 3 Atlas Road, Elandsfontein, Gauteng. It appears from the pleadings that a certain public company, La Generale Des Carrieres et des Minse - Exploitation (hereinafter referred to as 'Gecamines') incorporated under the Zairian law, employed plaintiff E to transport copper from Zaire to Harare. In annexure A to the particulars to plaintiff's claim, a list of 8 consignments dated between 1 and 29 June 1994 to the value of US $315 538,79 are referred to. It is alleged that these consignments were stolen by certain individuals and that the defendants received such stolen goods F into their possession, full well knowing that they were stolen from the plaintiff's possession. It is further alleged that the defendants owed the plaintiff a duty of care to prevent it from suffering loss which might have arisen from such theft and the consequent termination of its haulage contract with Gecamines. It is further alleged that Gecamines G suffered a loss, being interest on the value of the stolen goods in the amount of US$65 034, for which the plaintiff is held liable by Gecamines. Plaintiff's further loss arose from the fact that Gecamines refused to make payment to the plaintiff of the transportation charges in respect of the stolen goods in the amount of US$18 592. Finally plaintiff claims loss of profits in the amount of US$1 885 620 for the period 1 August 1994 to 30 June 1995, during which H Gecamines ceased using the plaintiff's haulage services. Schedule B to the plaintiff's particulars of claim sets out how this amount is calculated. It is alleged that due to the aforesaid cessation of services rendered to Gecamines, the plaintiff's trucks returned empty from Zaire and thus failed to earn income for the plaintiff. The loss I of profits thus allegedly suffered by the plaintiff is calculated on the following basis:

3.1

The plaintiff earned a gross revenue from the Gecamines contract per truck load comprising 28 tons of copper at the standard transport charge of US$ 94 per ton. J

Claassen J

3.2

Substitute transport contracts with third parties during the period of interrupted carriage for Gecamines earned the plaintiff a A gross revenue of US$820 per load (per truck).

3.3

The empty return trips from Zaire to Harare caused a saving to the plaintiff of 17c per kilometre calculated with reference to the difference in expenses between loaded and empty trucks vis-à-vis the cost of diesel, tyres, maintenance, tolls, B drivers and overheads. So calculated, the saving amounted to US$212 per trip.

3.4

On each trip undertaken by the plaintiff on behalf of Gecamines, 28 tons of copper was transported. In terms of the haulage agreement between Gecamines and the respondent, prior to the C interruption of services, plaintiff was entitled to and did in fact transport not less than 3 000 tons of copper per month.

[4] It is further alleged that in addition, and to the extent that it may be found that Gecamines and not the plaintiff suffered the loss arising from the value of the stolen goods, Gecamines orally ceded its rights, title and interest in and to any such claim which it may have D had against the defendants, to the plaintiff.

[5] In its further particulars for trial, plaintiff relies on an oral agreement which it concluded with Gecamines at Lubumbashe, Democratic Republic of Congo (formerly Zaire), during 1992 in respect of the haulage contract concluded between them. E

[6] The defendants' defence is a denial of plaintiff's allegations coupled with a plea of contributory negligence by the plaintiff. There is no counterclaim by the defendants. On a proper analysis of the pleadings, the plaintiff will carry the onus of proof to establish all its monetary claims against the defendants. The only F onus of proof resting upon the defendants will be in respect to the alleged contributory negligence on the part of the plaintiff. See Boberg The Law of Delict at 659.

The process of discovery G

[7] Pursuant to a notice in terms of Rule 35 of the Uniform Rules of Court, plaintiff on 8 April 1997 served and filed its discovery affidavit upon the offices of the defendants' attorney of record. Pursuant thereto and on 6 August 1997, a Rule 35(3) notice (BBJ1) was served upon the plaintiff's attorney of record alleging that the defendants believed that in addition to the documents H disclosed in the plaintiff's discovery affidavit, plaintiff was in possession of certain additional documents listed in schedule A to such notice, which documents were relevant to the matters in question in the action. The plaintiff was requested to make such documents available for inspection in accordance with Uniform Rule of Court 35(6) or to I state on oath within ten days that such documents were not in its possession, in which event it was to state the whereabouts of such documents, if known to it. Schedule A to this notice, is a 14-page document containing 43 paragraphs of specifically described documents. The plaintiff replied thereto on 18 September 1997 in a document headed, 'Plaintiff's response to defendants' notice in terms of Rule J

Claassen J

35(3)', (BBJ2). Simultaneously therewith plaintiff served and filed a A supplementary discovery affidavit. Save in respect of paras 1, 4, 7 and 9(a) of BBJ2, plaintiff responded in either of four ways to the defendants' Rule 35(3) notice ie:

7.1

It was unable to identify what documents the defendants referred to; or B

7.2

It did not believe that the documents were relevant; or

7.3

It was unable to locate the documents sought; or

7.4

The documents had already been discovered.

[8] Mr Joffe, the defendants' attorney of record, thereafter addressed a 13-page letter dated 6 October 1997 (BBJ3) stating that the plaintiff's response to the Rule 35(3) notice is entirely C inadequate having regard to the various claims and allegations made by the plaintiff in the pleadings. He then proceeded to amplify the Rule 35(3) notice by setting out in greater detail in para 2 of this letter, the documents required as referred to in the Rule 35(3) notice. In para 3 of this letter he furthermore required discovery and inspection of D additional documentation for purposes of preparing for trial, over and above such documentation already referred to in the Rule 35(3) notice. It was alleged in para 4 of this letter that all the required documentation was necessary for purposes of allowing forensic accountants appointed by the defendants to properly assess the E plaintiff's claims. The letter concludes in para 6 thereof with a request to supply a response to the requests posed in paras 3 and 5 of the letter, at the forthcoming pre-trial conference scheduled for 8 October 1997. The pre-trial conference was indeed held on 8 October 1997 and in para 2 on p 3 of the minutes thereof, it is recorded that the plaintiff had received a letter from the defendants' attorneys on 7 October 1997 (this is a reference to the letter F written by Mr Joffe dated 6 October 1997, BBJ3) and that it will advise the defendants of its intended action in respect thereof. Thereafter in a letter dated 14 October 1997 (BBJ4), plaintiff's attorneys of record responded by stating that the documents requested in the letter of 6 October were voluminous, most of which were not G in the plaintiff's possession. The letter further recorded that, to enable the plaintiff to produce for inspection such documents, the plaintiff would have to locate the documents insofar as they may exist and determine whether or not such documents were relevant to the issues in the trial. This exercise, it was said, would require a considerable H period of time making it impossible to continue with the intended trial. Paragraph 6 of this letter recorded the plaintiff's contention that the relevance or discoverability of the documents requested in the letter of 6 October is not conceded and it was therefore proposed that the trial be postponed to a later date after the relevance and discoverability of the documents requested had been established. What I is of importance at this stage is to note that neither at the pre-trial conference nor in the plaintiff's letter dated 14 October 1997 was the point taken by the plaintiff that Joffe's letter dated 6 October 1997 was an irregular amplification of the Rule 35(3) notice and/or an irregular substitution for a formal Rule 35(3) notice in respect of the additional J

Claassen J

documents requested in para 3 of such letter. The relevance of this observation will become apparent later herein. A

[9] Thereafter the plaintiff took no further steps to prosecute its claim until late in 1998 when the matter was again set down for trial for a date in June 1999. In the light of the impending trial Joffe, in a letter dated 10 March 1999 (BBJ6), threatened to launch a court application to compel further discovery. The plaintiff's...