Van Der Wethuizen v Akarana Homeowners Association and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Van Zyl AJ |
| Judgment Date | 23 August 2023 |
| Citation | 2023 JDR 3185 (WCC) |
| Hearing Date | 23 August 2023 |
| Docket Number | 11867/2020 |
| Court | Western Cape Division, Cape Town |
Van Zyl AJ:
Introduction
On 15 June 2023 I granted the plaintiffs leave to amend their particulars of claim in various respects. I however prohibited the plaintiffs from referring, by way of the amendment, to a letter dated 13 December 2022 written on the plaintiffs’ behalf to the defendants (the letter was proposed to be annexed as “POC14” to the amended particulars of claim). I further ordered that any reference to such letter was to be removed from the record.
I also ordered the plaintiffs to bear the opposing [1] defendants’ costs, including the costs of two counsel.
2023 JDR 3185 p2
Van Zyl AJ
The defendants’ opposition to the proposed amendment was limited to the proposed inclusion of the letter in the amended particulars of claim. The issue was whether the letter was in fact “without prejudice” and hence protected from disclosure to the Court.
The plaintiffs subsequently requested reasons for the order. These are the reasons.
The letter of 13 December 2022
By way of background, the plaintiffs are members of the first defendant (“the Akarana HOA”). In the main action the plaintiffs seek, amongst other relief, declaratory orders in relation to the validity of various iterations of the Akarana HOA constitution.
On 13 December 2022, the plaintiffs’ attorneys addressed a letter to the opposing defendants’ attorneys, the second paragraph of which states that “[t]his is an open letter, the purpose of which is to make proposals for the settlement of the matter as contained in paragraph 12 below”. Paragraphs 3 and further set out the background to the action, and highlight issues that are already on record.
Paragraph 11 of the letter records that it is clear that “there are three disparate categories of members in the Akarana HOA . . . each with its own interests and needs. It is precisely for these reasons that [the plaintiffs] are of the view that the matter ought to be settled by allowing the three groups to functions autonomously – that is, on the basis described in ‘Option 1’ below”.
In paragraph 12 of the letter, the plaintiffs’ attorneys stated that they were certain that all the parties could agree that settlement was “in the best interests of all members of the Akarana HOA”. The plaintiffs indicated that they were willing to withdraw their action (with each party to pay their own costs) on the basis that one of the three proposals set forth in paragraphs 12.1 to 12.3 in the
2023 JDR 3185 p3
Van Zyl AJ
letter was adopted and implemented. Those proposals were for the amendment of the relevant constitutions in various respects (the precise nature and extent of the suggestion variations would have to be discussed and agreed between the parties), or to revert to a constitution allegedly adopted in 2001. The options presented do not accord with the relief sought in the particulars of claim save for Option 2 which proposes that the members of the Akarana HOA revert to the provisions of the 2001 constitution – the proposed new prayer 13 seeks, as alternative relief (but only to “prayers 1, 2 and 13”), a declaration that the 2001 constitution remains valid and binding in respect of the HOA.
Reliance on Rule 34
In their heads of argument the plaintiffs submit, with reference to Rule 34, that the Rule distinguishes between unconditional offers and those made “without prejudice”. They say that the disclosure of the latter is prohibited, but that the protection does not apply to unconditional offers.
I agree with the defendants that the plaintiffs’ reliance on Rule 34 is misplaced. It is clear on a reading of the Rule, in particular subrules (1) to (4), that it applies only to offers made by a defendant. It does not apply to offers made by a plaintiff.
An unconditional offer made under Rule 34 is, moreover, an offer under which a defendant admits liability on the plaintiff’s claim, in whole or in part. [2] The offer the plaintiffs have made in the present matter does not relate to the admission of part of their claim. It is an offer to compromise on terms that differ from their claim. This can be seen from a comparison of the proposals contained in paragraphs 12.1 to 12.3 of the letter with the relief set out in the particulars of claim.
2023 JDR 3185 p4
Van Zyl AJ
The plaintiffs’ offer in the letter is therefore not an offer under Rule 34. Rather, it is an offer of compromise made outside of the parameters of Rule 34, and to which the usual common law rules of evidence apply.
May the letter be disclosed under the common law?
In the context of a defendant, an offer...
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