The
applicant applied for directions after the parties attended a
pre-trial conference before me. On 25 November 2013 I granted the
application in which the following order was made;
“IT
IS ORDERED THAT:
1.
Respondent shall furnish all the further particulars, without
exception, that were requested by applicant in the request for
further particulars that was filed on her behalf on the 8th
July 2013, and such further particulars shall be furnished within 7
days of the date of service of this Order on the respondent's legal
practitioners by an employee of applicant's legal practitioners.
2.
Applicant is hereby granted leave to amend her plea and prayer in
accordance with the Notice of Amendment that was filed by her on the
1st
of August 2013.
3.
The respondent shall file a supplementary discovery affidavit which
refers both to all the documents listed in the schedule attached to
applicant's notice to make further discovery which was filed on the
4th
October 2013 and to whatever other documents are discoverable by him
but are not reflected in such schedule, and such supplementary
discovery affidavit shall be furnished within 7 days of the date of
service of this Order on his legal practitioners by an employee of
the applicant's legal practitioners.
4.
Respondent shall prepare three bundles of legible photocopies of all
the above documents and shall furnish one such bundle to applicant's
legal practitioners (against a tender of payment by them of the
requisite charges allowed in terms of the High Court tariff) within 7
days of the date of attestation of a respondent's aforesaid
supplementary discovery affidavit.
5.
Respondents shall meet the cost of this application.”
On
9 December 2013 the above order was duly served on the respondent's
legal practitioners.
It
is important to point out that prior to the pre-trial conference
before me, on 24 July 2013, the applicant had filed a request for
further particulars. That request called on the respondent to provide
information with regard to supposed improvements to the property, so
as to enable the applicant to prepare for trial as stipulated by
Order 21 Rule 143. This request was ignored. The respondent, however,
filed a discovery affidavit on 16 September 2013 referring to two
schedules but not attaching the schedules. When the omission was
pointed out to the respondent, the respondent's legal
practitioners, on 1 October 2013, filed their own schedule comprising
a single schedule with two parts on a one page document.
The
applicant's legal practitioners were not content with this schedule
as it failed to refer to a considerable number of vital documents
which, in their view, related to matters in question which are or
have at any time been in the respondent's possession or control
either directly or through an agent. Accordingly, counsel for the
applicant filed a notice to make further discovery in terms of Order
24 Rule 164 of the Rules of Court. Again, there was no response
within the requisite period. This led to the application for
directions which application was granted on 25 November 2013.
After
this, nothing was received from the respondent's legal
practitioners in the form of further particulars, discovery, or offer
of bundle of documents, letter, or telephone call.
The
respondent contends that there was no order for directions duly
served upon him or his legal practitioners. In the alternative, he
contends that he has substantially complied with the order if such
order is deemed to have been duly served upon him.
Dealing
with the first contention that there was no order served upon the
respondent, the contention is not substantiated with regard to
whether there was no physical service or delivery of the order dated
25 November 2013 or whether the order is an incompetent one. The
relevance of Rule 165(1) of Order 24, cited in the respondent's
heads of argument, is obscure. That rule requires the respondent to
comply with the order dated 25 November 2013. As for the substantial
compliance ground, I hold the view that there is nothing of such a
nature where a court issues a clear and unambiguous order as here.
The courts have repeatedly stressed the importance of discovery
affidavits.
In
Ferreira
v Endley
1966 (3) SA 618 (E) the court was dealing with a case where the
defendant's attorneys did all that could be required of them in
pressing for a discovery affidavit and when eventually one was
served, it transpired that it was by no means a full disclosure. At
621 A-E EKSTEEN J said:
“The
subsequent attempt formally to disclose the documents in letters to
defendant's attorneys and to claim privilege in respect of other
documents is still not a proper compliance with the Rules, and the
defendant cannot be required to content himself with that.
They
are entitled to have the statements testified to under oath. It is
not only because such statements made by untruthful that this is a
necessary, but also because parties are more careful to verify
information given to their legal advisers if they know it has to be
deposed to. (Wallis
& Wallis v Corporation of London Assurance
1917
WLD 116 at p 121). Discovery affidavits are very important documents
in any trial and the party requesting discovery is entitled, in terms
of the Rules, to have a full and complete discovery on oath. (Maxwell
and Another v Rosenberg and Others
1927
WLD 1 at p 8).
In
the present case, not only has the discovery affidavit been filed at
a very late stage, but when it was eventually served it was
incomplete in the respects set out above. At no stage has the
plaintiff sought to remedy these deficiencies by a supplementary
discovery affidavit, as he might have done, and the defendant would
consequently, to my mind, be entitled come to court to compel a
further and better discovery. He cannot, however, be obliged to go to
trial with plaintiff's discovery affidavit as it now stands
amplified by letters written to plaintiff's attorney in regard to
other documents not referred to in the affidavit.”
In
the present case, the respondent has filed a discovery affidavit
which clearly does not constitute full disclosure. This is in spite
of the order of court directing him, in clear and unambiguous terms,
the nature of the discovery he was required to make. The respondent
seems to suggest, in his heads of argument, that the applicant could
only have filed a notice to make further discovery upon my
sanctioning of such a step. Clearly, that cannot be the case. Even
assuming that the applicant needed an order of court for him to
comply, then the respondent ought to have complied with the order of
25 November 2013. He did not comply with that order.
The
whole object of discovery is to ensure that before trial both parties
are made aware of all the documentary evidence that is available. A
party is required to discover every document relating to the matters
in question - and that means relevant to any aspect of the case.
Durbach
v Fairway Hotel Ltd
1949 (3) SA 1081 (SR); Supiya
v Mutare Rural District Council & Ors
1985
(2) ZLR 53. Compliance with the order dated 25 November 2013 by the
respondent would have achieved that objective.
The
respondent's case against the applicant is based on claims that he
effected certain improvements to the applicant's property. It was
essential that the respondent discovers the documents listed in the
order granted in favour of the applicant in order to enable the
applicant, as well as the judge at the pre-trial conference stage, to
learn more of the nature and cost of the alleged improvements that
the respondent made to the property. That information, and whatever
documentation may substantiate it, goes the heart of the respondent's
claim.
Clearly,
the respondent would have some documentary evidence of the cost of
whatever renovations or improvements he effected to the property
which the applicant was entitled to inspect at some point before
trial. In my view, if these were made available, then, at the
pre-trial conference stage, my hand in assisting the parties to find
some basis of settlement or narrow down the issues, would have been
strengthened. The failure by the respondent to comply with an order
of the court is deliberate contumacy which cannot be tolerated. There
are consequences to this type of behaviour. In my view, the applicant
is entitled to seek a dismissal of the respondent's action against
her on that basis alone. In the result it is ordered as follows:-
“1.
The respondent's claims against the applicant in his action against
her, in case number HC10286/12, be and is hereby dismissed with costs
on the legal practitioner and client scale.
2.
The respondent shall meet the costs of this application on the legal
practitioner and client scale.”
