Derks v Du Plessis and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: MC Mamosebo J
• Judgment Date: 23 February 2022
• Docket Number: 1876/2019
• Hearing Date: 04 February 2022
• Court: Northern Cape Division
• Citation: 2022 JDR 1979 (NCK)

Mamosebo J:

[1]

This is an interlocutory application by Mr Paulus Retief Derks, the defendant in the main action for damages, seeking relief in terms of Rule 35(7) of the Uniform Rules of Court for an order compelling the respondents to reply to his notice in terms of Rule 35(3). The application is opposed. For convenience, the parties will be referred to as they are cited in the main action.

[2]

The defendant was the plaintiffs' attorney instructed to institute action on their behalf against SANRAL for damages occasioned by a veld fire on 10 December 2015. The defendant allegedly negligently allowed the claim to prescribe. The plaintiffs have now brought an action for damages against the defendant arising from his alleged professional negligence in the context of an attorney and client relationship. As stated in their particulars of claim all the plaintiffs farm in livestock and the damages claimed emanate from damages to their natural grazing and fencing.

[3]

The defendant first served an electronic copy of the notice in terms of Rule 35(3) on the plaintiffs' erstwhile attorney on 05 May 2021, followed by the service of a hard copy on 12 May 2021 calling on the plaintiffs' to produce the following documentation for inspection by the defendant within ten (10) court days:

3.1

The trust deed in respect of the Lyndon de Meillon Family Trust, registration number IT113/2002;

3.2

The letters of authority certifying that the fourth and fifth plaintiffs are authorised to act as trustees of the Lyndon de Meillon Family Trust:

3.3

The resolution authorising the fourth and fifth plaintiffs to institute a claim against the defendant on behalf of the Lyndon de Meillon Family Trust;

2022 JDR 1979 p3

Mamosebo J

3.4

The resolution taken by the members of the third plaintiff authorising the Close Corporation to institute a claim against the defendant;

3.5

The title deed pertaining to the transfer of portion 7 of the farm Leeuwpoort No. 18, Division Kimberley, from its former owner to the third plaintiff;

3.6

The annual financial statements of the plaintiffs for the period 1 January 2014 to 31 December 2014, as well as the annual financial statements for the period 1 January 2015 to 31 December 2015;

3.7

The annual financial statements of the plaintiffs for the period 1 January 2016 to 31 December 2016, as well as the annual financial statements for the period 1 January 2017 to 31 December 2017;

3.8

8 All documentation indicating the alleged damages suffered by the plaintiffs, including any and/or all photographs in their possession evidencing the alleged damages sustained for their natural grazing and fencing;

3.9

All documentation indicating the number of livestock owned by the respective plaintiffs, both as at 10 December 2015 as well as for the financial year thereafter;

3.10

All financial documentation of all entities undertaking farming operations on all the plaintiffs' farms for the period 1January 2014 to 31 December 2015, as well as for the period 1January 2016 to 31 December 2017.

[4]

Despite numerous telephone calls, exchange of correspondence and undertakings by the erstwhile attorney that the required documents will be availed they were not honoured nor was the requested discovery made. The defendant enrolled the application to compel on the unopposed motion roll on 13 August 2021. The plaintiffs delivered a reply to the defendant's Rule 35(3) notice on 12 August

2022 JDR 1979 p4

Mamosebo J

2021. The application was then removed from the roll on 13 August 2021. This reply, however, partially complied with what was sought. The plaintiffs refused to furnish information set out at paras 3.6 to 3.10 at para 3 (above) which they describe as quantum documents. In their answering affidavit deposed to by their instructing attorney, Ms Riana Gagiano, the plaintiffs contend that the outstanding requested information is irrelevant and that relevance is determined from the pleadings.

[5]

For the plaintiffs' claim to succeed against the defendant they must, inter alia, prove that they suffered damages as a result of the alleged professional negligence of the defendant. This means that they must demonstrate...