Tractor & Excavator Spares (Pty) Ltd v Groenedijk

• Jurisdiction: South Africa
• Judge: McEwan J
• Judgment Date: 14 May 1976
• Hearing Date: 13 May 1976
• Court: Witwatersrand Local Division

McEwan, J.:

This is an action in which the plaintiff claims that the defendant is in unlawful possession of certain G machinery and spare parts of which the plaintiff is the owner. The plaintiff claims delivery of the goods; alternatively, payment of their value amounting to R11 454,86. In further particulars the plaintiff states that the value which it claims is the market value of the goods. The plaintiff also alleges that the defendant came into possession of the goods in or about June 1975. In a letter which is attached to the further particulars, the plaintiff's attorney in fact says that the H goods came into the possession of the defendant prior to 30 May 1975. In his plea the defendant has first of all put in issue the plaintiff's ownership of the goods and their value, and, secondly, has denied that he was at any relevant time in possession of the goods.

The trial was set down for Tuesday, 11 May, but was crowded out. Yesterday, that is 12 May, application was made on behalf of the defendant for a postponement of the trial. The application was made on two grounds; firstly, that the plaintiff had failed to make proper discovery and, secondly,

McEwan J

that the plaintiff had not answered properly or adequately a request for further particulars for trial. In addition to moving for a postponement, counsel asked for an order compelling discovery and an order compelling the furnishing of the particulars which had been sought.

I shall deal first with the question of discovery. The plaintiff's discovery affidavit is dated 22 January 1976. In A schedule A, the plaintiff discloses a document described as 'list of parts missing from Wynberg yard'. This list is the same as the list set out in para. 3 of the particulars of claim. In addition there is only correspondence between the attorneys. In schedule B the usual privileged documents are disclosed.

A pre-trial conference was held on 8 March 1976. The minute of B the conference was signed on 14 April. Para. (c) of the minute reads:

'It was noted that discovery had been made by both parties.'

On 30 April 1976 the defendant issued a subpoena calling upon the secretary or the person in control of the plaintiff to attend the trial to give evidence and to produce the following documents:

C 'All books, registers, documents, records, agreements, books of account, stock sheets, invoices, statements, receipts, correspondence and any other documents or books relating to the ownership set out in para. 3 of the particulars of the plaintiff's claim'.

I was informed that in response to the subpoena Mr. Filmer, the managing director of the plaintiff, attended Court on 11 May. D He brought with him a suitcase full of documents. Mr. Ancer, who appears for the defendant, was allowed to look through the suitcase and did so cursorily. Counsel says that there appeared to be many documents that were relevant to the two issues of the ownership of the goods and the value of the goods. The documents included order books relating to the purchase of goods, cheques, a cash book, a book of credit notes, a file E called 'the Joubert file' which appears to relate to the hire-purchase of one item, and stock sheets. Counsel's statement that there were these documents and that they appeared to be relevant was not challenged by the other side. It is said that the defendant now needs time to investigate these documents.

As I understood the argument of Mr. Van Niekerk, who appeared F for the plaintiff, he resisted the application for a postponement and for discovery, or at any rate an order for costs, on two main grounds. The first was that the Court cannot go behind the plaintiff's oath in para. 5 of the discovery affidavit. That paragraph reads:

'That according to the best of my knowledge, information and G belief, the plaintiff company has not now and never had in its possession, custody or power, or in the possession, custody or power of its attorney or agent or any other person on its behalf, any documents or copy of or extract from any documents related to the matters in question in this suit, other than and except the documents set forth in schedule A and schedule B hereto.'

It is a well known principle that prima facie the oath of a person who makes an affidavit of discovery is taken as being H conclusive. I need refer to only one case in which that principle...