Minister of Public Works and Infrastructure and others v NMPS Construction CC and otheres (Application to set aside)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Lowe J
• Judgment Date: 30 May 2023
• Citation: 2023 JDR 1876 (ECB)
• Hearing Date: 18 May 2023
• Docket Number: 84/2022
• Court: Eastern Cape Division

Lowe J:

INTRODUCTION:

1.

It is unnecessary to deal in any detail with the origin of the principal dispute between the parties in this matter which is being litigated by way of an application to which this is interlocutory.

2.

Put shortly the founding papers in the main application seek orders directing the respondents (applicants herein) to implement phase three of the Eastern Cape School Building Expanded Public Works Programme (allegedly initiated in favour of the applicants) to commence within thirty days of the order with monthly progress reports submitted to the court. I will for convenience then refer to the parties as they are in the interlocutory application.

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Lowe J

3.

During June 2022 second and third respondents (applicants herein) delivered and filed answering papers.

4.

On 30 June 2022 the applicants in the main application (respondents herein) delivered a notice to produce documents referred to in the answering affidavit, this being a composite notice in terms of Rule 35(12) and 35(14) of the Uniform Rules, identifying specific documents referred to in the answering affidavit to be produced within five days for their inspection.

5.

In due course, applicants brought this interlocutory application to set aside the composite Rule 35(12) and 35(14) notice dated 27 June 2022 directing the respondents to pay the costs thereof.

6.

The crux of the argument relevant to such setting aside turns upon the proper meaning to be given to Rule 35(12), Rule 35(13), and Rule 35(14), properly interpreted in the usual manner.

7.

In short, applicants contend that:

7.1

the notice, and the Sub-Rules of Rule 35 referred to do not permit of the application of any part of Rule 35, save with the prior direction of the Court as set out in Rule 35(13);

7.2

in summary the entire Rule 35 (including Rule 35(27) applies to applications only insofar as the Court may direct;

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Lowe J

7.3

That, as is common cause, the court has not so directed.

8.

Respondents contend the contrary insofar as Rule 35(12) is concerned arguing that this is a self-standing Rule and does not require, as a trigger event, the court's directive in terms of Rule 35(13). It must be said, however, that respondents conceded that Rule 35(14) applies only to action proceedings having regard to the wording of the Rule contending however, that if Rule 35(12) was appropriately used, the additional reference to Rule 35(14) is by the way.

RULE 35

9.

Rule 35 as to Discovery, Inspection and Production of Documents provides as follows:

"35 (1)

Any party to any action may require any other party thereto, by notice in writing, to make discovery on oath within 20 days of all documents and tape recordings relating to any matter in question in such action (whether such matter is one arising between the party requiring discovery and the party required to make discovery or not) which are or have at any time been in the possession or control of such other party. Such notice shall not, save with the leave of a judge, be given before the close of pleadings.

(2)

The party required to make discovery shall within 20 days or within the time stated in any order of a judge make discovery of such documents on affidavit in accordance with Form 11 of the First Schedule, specifying separately—

(a)

such documents and tape recordings in the possession of a party or such party's agent other than the documents and tape recordings mentioned in paragraph (b);

(b)

such documents and tape recordings in respect of which such party has a valid objection to produce;

(c)

such documents and tape recordings which a party or such party's agent had, but no longer has possession of at the date of the affidavit.

A document shall be deemed to be sufficiently specified if it is described as being one of a bundle of documents of a specified nature, which have been initialled and consecutively numbered by the deponent. Statements of witnesses taken for purposes of the proceedings, communications between attorney and client and between attorney and advocate, pleadings, affidavits and notices in the action shall be omitted from the schedules.

2023 JDR 1876 p4

Lowe J

(3)

If any party believes that there are, in addition to documents or tape recordings disclosed as aforesaid, other documents (including copies thereof) or tape recordings which may be relevant to any matter in question in the possession of any party thereto, the former may give notice to the latter requiring such party to make the same available for inspection in accordance with subrule (6), or to state on oath within 10 days that such documents or tape recordings are not in such party's possession, in which event the party making the disclosure shall state their whereabouts, if known.

(4)

A document or tape recording not disclosed as aforesaid may not, save with the leave of the court granted on such terms as it may deem appropriate, be used for any purpose at the trial by the party who was obliged but failed to disclose it, provided that any other party may use such document or tape recording.

(5) (a)

Where the Fund, as defined in the Road Accident Fund Act, 1996 (Act No. 56 of 1996), as amended, is a party to any action by virtue of the provisions of the said Act, any party to the action may obtain discovery in the manner provided in paragraph (d) of this subrule against the driver or owner or short term insurer of the vehicle or employer of the driver of the vehicle, referred to in the said Act.

(b)

The provisions of paragraph (a) shall apply mutatis mutandis to the driver or owner or short term insurer of the vehicle or employer of the driver of a vehicle referred to in section 21 of the said Act.

(c)

Where the plaintiff sues as a cessionary, the defendant shall mutatis mutandis have the same rights under this rule against the cedent.

(d)

The party requiring discovery in terms of paragraph (a), (b) or (c) shall do so by notice in accordance with Form 12 of the First Schedule.

(6)

Any party may at any time by notice in accordance with Form 13 of the First Schedule require any party who has made discovery to make available for inspection any documents or tape recordings disclosed in terms of subrules (2) and (3). Such notice shall require the party to whom notice is given to deliver within five days, to the party requesting discovery, a notice in accordance with Form 14 of the First Schedule, stating a time within five days from the delivery of such latter notice when documents or tape recordings may be inspected at the office of such party's attorney or, if such party is not represented by an attorney, at some convenient place mentioned in the notice, or in the case of bankers' books or other books of account or books in constant use for the purposes of any trade, business or undertaking, at their usual place of custody. The party receiving such last-named notice shall be entitled at the time therein stated, and for a period of five days thereafter, during normal business hours and on any one or more of such days, to inspect such documents or tape recordings and to take copies or transcriptions thereof. A party's failure to produce any such document or tape recording for inspection shall preclude such party from using it at the trial, save where the court on good cause shown allows otherwise.

(7)

If any party fails to give discovery as aforesaid or, having been served with a notice under subrule (6), omits to give notice of a time for inspection as aforesaid or fails to give inspection as required by that subrule, the party desiring discovery or inspection may apply to a court, which may order

2023 JDR 1876 p5

Lowe J

compliance with this rule and, failing such compliance, may dismiss the claim or strike out the defence.

(8)

Any party to an action may after the close of pleadings give notice to any other party to specify in writing particulars of dates and parties of or to any document or tape recording intended to be used at the trial of the action on behalf of the party to whom notice is given. The party receiving such notice shall not less than 15 days before the date of trial deliver a notice—

(a)

specifying the dates of and parties to and the general nature of any such document or tape recording which is in such party's possession; or

(b)

specifying such particulars as the party may have to identify any such document or tape recording not in such party's possession, at the same time furnishing the name and address of the person in whose possession such document or tape recording is.

(9)

Any party proposing to prove documents or tape recordings at a trial may give notice to any other party requiring him within ten days after the receipt of such notice to admit that those documents or tape recordings were properly executed and are what they purported to be. If the party receiving the said notice does not within the said period so admit, then as against such party the party giving the notice shall be entitled to produce the documents or tape recordings specified at the trial without proof other than proof (if it is disputed) that the documents or tape recordings are the...