Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Citation: 1999 (2) SA 279 (T)

Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others
1999 (2) SA 279 (T)

1999 (2) SA p279

Citation	1999 (2) SA 279 (T)
Case No	18474/93
Court	Transvaal Provincial Division
Judge	Joffe J
Heard	October 13, 1997; October 17, 1997; November 3, 1997; November 7, 1997; November 24, 1997
Judgment	December 12, 1997
Counsel	C Edeling (with him Anton Katz) for the second plaintiff; J Dugard for all three plaintiffs; GL Grobler (with him RJ Raath and EN Keeton) for the defendants

Flynote : Sleutelwoorde B

Discovery and inspection — Discovery — Further discovery — Plaintiff calling for further discovery of documents it labelled C relevant — Relevance to be determined from pleadings — Plaintiff only entitled to discovery of documents relevant to issues in pleadings — In determining issues raised by pleadings no regard to be had to requests for further particulars for purposes of trial and further particulars furnished in response thereto — Such further particulars for trial given after close of pleadings and therefore relate to pleaded issues and do not raise further or new issues between parties. D

Discovery and inspection — Discovery — Further discovery — Onus — Onus of proving existence or relevance of additional documents — Sections 32(1) and 34 of Constitution of the Republic of South Africa Act 108 of 1996 not shifting onus in litigation against State.

Discovery and inspection — Discovery — Further discovery — In determining whether to go behind discovery affidavit E Court will only have regard to (i) discovery affidavit itself; (ii) documents referred to in discovery affidavit; (iii) pleadings; (iv) admissions made by party making discovery affidavit; or (v) nature of case or documents in issue — Limitation subject to exception that conclusiveness of discovery affidavit can always be challenged where mala fides shown. F

Discovery and inspection — Discovery — Further discovery — Due to consequences of failure to comply with notice in terms of Rule 35(3) of Uniform Rules, important that party dissatisfied with discovery should describe documents G required for inspection in such a manner that they are identifiable — However, Rule 35(3) notice not limited to specific document but may require production of any number of documents — Document described with sufficient accuracy to enable it to be identified where it is described within genus enabling it to be identified.

Discovery and inspection — Discovery — Privilege — State privilege — Court obliged to balance extent to which it is H necessary to disclose evidence against public interest in non-disclosure — Where interest in non-disclosure clearly outweighs interest in disclosure, challenge to claim to State privilege must fail.

Constitutional practice — Courts — Jurisdiction — Action instituted in 1993 and interlocutory application launched in 1997, after Constitution of the Republic of South Africa Act 108 of 1996 came into effect — Interlocutory application I constituting 'proceedings' in itself — Provisions of Constitution applicable to application.

Practice — Applications and motions — Affidavits — Issues upon which parties seek to rely to be raised in affidavits by defining relevant issues and setting out evidence relied upon — Relevant issues should be dealt with in J

1999 (2) SA p280

affidavits and not left to be raised only in argument by counsel — Facts set out in affidavits to be set out simply, clearly A and in chronological sequence, and without argumentative matter — New matter cannot be raised in replying affidavit — Distinction drawn between primary and secondary facts, where former used as basis for inference as to B existence or non-existence of inferred or secondary facts — In absence of primary fact alleged, secondary fact is merely conclusion of law — Party can advance legal argument in support of relief or defence claimed even where such arguments were not specifically mentioned in papers, provided they arise from facts alleged and provided there is no prejudice to party.

Practice — Applications and motions — Affidavits — Party may not merely annex to its affidavit documentation and C request Court to have regard thereto — Party required to identify portions thereof on which reliance is placed and indicate case which is sought to be made out on strength thereof.

International law — International treaties and conventions — Treaty between two sovereign States not incorporated into D municipal law — Court can take cognisance of agreements between States, as well as contents thereof, as facts, just as it can take cognisance of any fact properly proved before it — Court, however, cannot interpret or construe agreements or legal consequences arising therefrom nor determine true agreement concluded between States.

International law — International treaties and conventions — Allegations of unlawful conduct by government of one E country which was party to treaty and allegations of interference in that country by other country which was party to treaty — Has to be very particular case, even if such case could exist, that would justify Courts interfering with foreign Sovereign — Judicial branch of government ought to be astute in not venturing into judicial no-man's land — In appropriate case, as exercise of Court's inherent jurisdiction to regulate its own procedure, Court can determine to exercise judicial restraint and refuse to entertain matter, notwithstanding it having jurisdiction to do so, in view of F involvement of foreign States therein.

Costs — Attorney and client costs — Plaintiff endeavouring to overwhelm defendant and Court with papers — Plaintiff G relying on speculative matter and arguments based on speculation — Plaintiff deposing to replying affidavit even more replete with offensive matter, even in face of application to strike out — Attorney and client costs justified.

Headnote : Kopnota

The plaintiffs had instituted action against the defendants arising out of an alleged interference with certain mining rights held by the plaintiffs in the Kingdom of Lesotho. The alleged interference related to the implementation of a treaty between the first defendant and the Government of the Kingdom of Lesotho (GOL) which provided for the I Lesotho Highlands Water Project (LHWP). In reply to the first defendant's request for further particulars for the purposes of trial the plaintiffs had raised several issues which had not been canvassed in or were at variance with their particulars of claim. It appeared from the plaintiffs' particulars of claim that they alleged that the first defendant controlled the LHWP, whilst in the reply to the request for further particulars it was alleged that the first defendant controlled the GOL. In response to the plaintiff's notice requiring the first J

1999 (2) SA p281

defendant to discover the first defendant delivered a discovery affidavit in which it, inter alia, referred to A documents which the first defendant objected to producing on the basis of State privilege. In response thereto the plaintiffs applied in terms of Rule 35 of the Uniform Rules of Court for an order that the first defendant make further discovery of certain documents which it considered relevant and which were broadly defined; that the plaintiffs were entitled to inspect and copy certain documents in which privilege had been claimed; and that the B documents in respect of which State privilege had been claimed were not privileged. In attacking the first defendant's discovery affidavit the plaintiffs endeavoured to establish a conspiracy of silence or mala fides on the part of the first defendant. In support of the application the plaintiffs annexed lengthy affidavits and endeavoured to incorporate several other documents by annexing them to the affidavits. C

The first defendant opposed the application and applied for the striking out of certain paragraphs of the affidavits and supporting documents used in support of the plaintiff's application. The plaintiffs argued, inter alia, that the new constitutional dispensation justified a departure from previous authorities which placed the onus of proving the existence and/or relevance of documents not discovered on the party requiring such additional documents. To D determine this issue the Court was further required to decide whether either the 'interim' Constitution (the Constitution of the Republic of South Africa Act 200 of 1993) or the Constitution (the Constitution of the Republic of South Africa Act 108 of 1996) applied to the present matter, as the action had been instituted in 1993, although E the present application had been launched during 1997. It was further necessary for the Court to decide whether the determination of the true agreement between the first defendant and the GOL, as an international law agreement between two sovereign States and not incorporated into South African municipal law, was a justiciable issue. The first defendant contended that the Court should act with restraint in respect of allegations ascribing F unlawful conduct to the GOL or that the sovereignty of the GOL had been compromised.

Held, that what the plaintiffs had endeavoured to achieve in their notice in terms of Rule 35 was to foist upon the first defendant and the Court their definition of 'relevant issues'. Relevancy was to be determined from the pleadings and not extraneously. The plaintiffs were only permitted to obtain inspection of documents relevant to the G issues in the pleadings. (At 310I/J—311A/B and 337H/I—J.)

Held, further, that, in determining the issues raised by the pleadings, regard should not be had to requests for further particulars for the purposes of trial and the further particulars furnished in response thereto, as requests for further...