BASIL
BLOCH V FIRST NATIONAL BANK

CASE
NO. (P) A 239/2000 2000/08/22

Maritz,
J.

CIVIL
PROCEDURE

R35
discovery - statement in discovery affidavit by a party that he or
she does not have any further relevant documents in his or her
possession is prima
facie conclusive
of that fact - party alleging the contrary to discharge onus
of
establishing facts that raise a strong possibility that there are
further documents which the other party is obliged to discover.

CASE
NO.: (P) A 239/2000

IN
THE HIGH COURT OF NAMIBIA

In
the matter between: BASIL BLOCH

versus

FIRST
NATIONAL BANK

v

CORAM:
MARITZ, J.

Heard
on: 2000.08.22

Delivered
on: 2000.08.22 (extempore)

JUDGMENT

MARITZ,
J.: This
is an application brought by the Plaintiff to compel the

Defendant
to discover the documents requested in paragraphs 1 to 7, 9 to 12, 14
to 17, 19, 21 and 22 of a notice filed by the Plaintiff in terms of
Rule 35(3) of the Rules of Court.

The
main action is one instituted by the Applicant (as Plaintiff) against
the Respondent (as Defendant) for payment of damages in the sum of
NS250 000 and for an order interdicting and restraining the
Respondent from distributing and publishing that the Plaintiffs trust
account held with the Defendant is a "risk 1 account".

The
facts on which that claim has been based may be summarized as
follows: The Plaintiff is an attorney practicing for his own account.
The Defendant is one of the largest commercial banks in Namibia. In
the course of his practice, the Plaintiff opened a trust account in
the books of the Defendant and he operated that account for a number
of years. In the course of his practice represented, amongst others,
a certain Mr. Preuss in a dispute the latter had with Commercial
Bank. Ltd. As I understand the papers fded of record, the Defendant
had an interest in the issues and outcome of that case. In the course
of the litigation between Preuss and Commercial Bank an order was
issued in the Magistrate's Court, Windhoek (in case no. 7086/99 on
the 14^th
of May 1999) in which the Plaintiff was interdicted and restrained to
pay an amount ofNS215 502,37 held for the credit of Mr Preuss in his
trust account with the defendant to either Preuss or any other third
party. The Messenger of Court was also authorized to attach that
amount in the Plaintiffs trust account.

The
Defendant changed the risk categorization of the Plaintiffs trust
account in its books from 0 to 1 on or about 14 May 1999 pursuant to
the issuing of that interdict. Plaintiff avers that, as a consequence
of that re-categorisation, he was defamed. He initially alleged that
by using the phrase "risk 1", the Defendant classified the
account as one carrying the highest degree of risk and that the
account required the most careful monitoring and scrutiny. That
allegation was apparently based on an incorrect understanding of the
defendant's risk classification of accounts. It is evident from the
documents discovered that a "risk 1" classification is one
of the lowest - if not the lowest - risk category that can be
attached to a customer's account. The particular risk classification
is discussed at length in the discovered documents. I find it
necessary for the findings I shall make in due course to cite parts
of the discovered documents relating to that classification. The
category 1 classification is explained as follows:

"Every
prospective borrower has a credit risk profile. Profits are earned
from lending to customers whose risk profiles have been evaluated and
found to be acceptable. It is acknowledged that every credit risk
profile is in a constant state of change and whilst these changes
remain within acceptable parameters there is no reason to feel
concerned about the safety of the account. It is expected of managers
that they recognize the signs which herald a change in this credit
risk profile. If it is a positive change then marketing opportunities
will present themselves. If it is a negative change then action must
be taken firstly to protect and then to improve the bank's position.
Category 1 has been designed to accommodate those borrowing accounts,
where a sign of possible negative change in the risk profile of a
customer has been detected. Managers are therefore expected to
categorize a customer category 1, whilst they investigate the
apparent deterioration. Detailed procedures for captures of risk
category codes is covered in the CIS procedures guide.... Movement
into and out of category 1 is within the branch manager's discretion
irrespective of the amount of the exposure. Should there be some
exceptional reason why branch wishes to retain a customer in category
1 for longer than the prescribed 3 months period, this may be done
only with written approval of higher authority.

The
Manual then further discusses the criteria for categorization into
category 1 and it commences the citation of those criteria with the
following words:

"Listed
hereunder are some ideas as to what could form categorization of a
customer to this category. These are only guidelines and if such an
event occurs it does not necessarily mean that a customer must be
categorized. Managers must use their judgment in deciding whether or
not to categorize. No hard and fast rules are laid down and the
criteria are largely subjective. The presence of security should not
necessarily influence a decision to categorize a customer. Security
is only important if the customer is unable to re-pay and it is
therefore only important in deciding whether a customer should go
into category 3 or 4. Similarly, there is no maximum or minimum
balance, which governs with their customer should or should not be
relegated to this category. Any borrowing customer may be
categorized. And it then cites for example, the deterioration in the
quality of the management information and control system, strikes or
labour problems, the change of key management, the change of
strategic direction and alike as examples which may prompt
categorization of a customer on their category 1 risk.

The
Defendant admits in his plea that it categorized the Plaintiffs trust
account as a category 1 account on or about the 14^th
of May 1999. A number of particulars were requested as to why that
had been done. In the "Plaintiffs Request for Further
Particulars for purposes of Trial", he enquired about
particulars concerning the negative change in the risk profile of the
Plaintiff that was detected and which apparently caused the change in
categorization. The Defendant's response to request was quite clear:
"The Court order of 14 May 1999". Upon a further question,
i.e. what sign of change was identified in the Plaintiffs risk
profile for which prompted the change of the Plaintiffs category, the
answer was again: "The Court order of 14^th
May 1999".

It
is not necessary for purposes of this Application to further deal
with the issues on the pleadings in the main action. Suffice it to
say that whether or not the risk categorization was justified simply
on account of the Magistrate's Court Order in litigation between
Commercial Bank and Preuss and, to a lesser extent, the citation of
the Plaintiff as a second Respondent in the interdictory relief
sought, is a matter to be decided by the Court in the main action.

The
Plaintiff contended in the application to compel the documents
required (which I have already mentioned) under the Rule 35(3) Notice
were necessary to enable him to determine why his account had been
re-categorized as a "risk 1" account. When it was pointed
out to him in the course of legal argument that it was clear on the
pleadings what the reason for such categorization had been, the
Plaintiff, changing tack, added that it was also necessary for him to
determine the background of the circumstances under which the
Magistrate's Court Order had come to the attention of the Defendant
and why the Defendant, not being a party to the litigation in the
Magistrate's Court, had acted on account of the interdictory relief
granted to Commercial Bank?

It
is trite law that a statement on oath that a party does not have any
further documents relevant to the issues in his or her possession to
discover will be prima
facie conclusive.
Any person who seeks to compel another to make discovery of further
documents notwithstanding such a statement should discharge an onus
of establishing facts which raise a strong possibility that there are
further documents or tape recordings which such a party is obliged to
discover. It is within this context and against the background of the
issues I have referred to, that I must decide whether the Applicant
is entitled to the discovery of the documents mentioned in the Notice
of Motion. As the list of documents is extensive, it may be expedient
if sequential regard is to be had to the various paragraphs of the
Rule 35(3) Notice enumerating the documents in question.

In
paragraphs 1 and 2 of the Rule 35 Notice (to which I shall henceforth
simply refer to as the "Notice") the Plaintiff is seeking
discovery of the following documents:

"All
memoranda and/or manuals and/or computer data and/or computer
printouts and/or other documents and/or letters which relate to the
Defendant's practice of dealing with the types of risk categorization
and/ or credit risk profiles of clients in the ordinary course of
business of the Defendant."

It
is apparent that in describing the nature of the documents of which
discovery is being sought, the Plaintiff adopted a shotgun approach
rather than particularizing the documents with a degree of
preciseness from which it is apparent that those documents may be
relevant to the issues in the main action. The Plaintiff conceded
that much. As it is, the manner in which the paragraph has been
formulated, require discovery of the credit risk profiles of all the
clients of the Defendant with which the Defendant is dealing with.
That information, as Mr Bloch rightly conceded, has no bearing on the
issues in this case.

Furthermore,
the request also relate to types of risk categorization that are not
in issue in the main action. The main action is limited to risk
categorization of "category 1" only. Categories 2 to 5 are
not relevant for purposes thereof. As far as "category 1"
is concerned, there has already been extensive discovery dealing with
it, the meaning thereof, the circumstances under which such
categorization may take place, etc. There is no reason (and none has
been advanced) to believe that there exists in the possession of the
Defendant any documentation containing particulars about the content,
effect and impact of such categorization, other than those already
discovered (and from which I have quoted certain parts of). In the
premises, I am not inclined to grant any relief in so far as the
discovery of documents mentioned in paragraph 1 of the Notice is
concerned.

Paragraph
2 of the notice reads as follows:

"All
memoranda and/or manuals and/or instructions and/or computer data
and/or computer printouts and/or documents and/or lectures which
relate to the Defendant's practice of dealing with types of risk
categorization and/or credit risk profdes of the Plaintiff in the
ordinary course of business of the Defendant."

Much
of what I have already stated in relation to paragraph 1 also applies
to paragraph 2 - the difference being that in paragraph 2, the
Plaintiff limited the information sought to his own risk profde. It
seems to me that it will be relevant to the issues in the main action
for the Plaintiff to obtain discovery of memoranda, instructions,
documents or letters which relate to his credit risk profde and his
trust account with the Defendant kept by the defendant in the
ordinary course of its business. The other documents mentioned in
that paragraph appear, on the face thereof, to be irrelevant to the
issues and I am certainly not persuaded on the basis of the affidavit
filed in support of the application that the Plaintiff is entitled to
such discovery.

In
response to paragraph 2 (and bearing in mind that it was initially
formulated in a much wider manner), the Defendant stated that "the
request is for copies of the Defendant's procedural manuals covering
a number of disciplines. These guides are stored in an electronic
format only and are accessible to authorized employees at the bank.
The Plaintiff can view these manuals at the premises of the
Defendant. However, the Plaintiff would have to be subjected to
security clearance by our internal audit security division. Should
authorization be forthcoming the Plaintiff will furthermore be
required to enter into confidentiality undertaking with the
Plaintiff. Whereas that response was clearly formulated to protect
the confidentiality which exists between the bank and its other
clients and to protect the confidentiality attaching to the operating
procedures and policies of the bank, it does not in my view address
the legitimate demand for discovery of some of the documents to which
I have referred to on a disjunctive interpretation of some of the
words in paragraph 2. Inasmuch as I have held that the Plaintiff is
entitled to discovery of those documents, the demand of security
clearance by an internal audit security division is an unreasonable
one which the Plaintiff was entitled not to accept - so too, the
demand for a confidentiality undertaking.

Paragraph
3 requires discovery of "all correspondence and/or letters
and/or documents and/or telefax communications and/or communications
addressed to P F Koep & Co by the Defendant or its employees in
connection with or relating to the matter in the Magistrate's Court
of Windhoek, case no. 7898/99 between Commercial
Bank of Namibia and A R Preuss and/or
the Plaintiff during February 1999." Formulated along the same
lines paragraph 4, requires discovery of "all correspondence
and/or letters and/or documents and/or telefax communications and/or
communications addressed to the Defendant or its employees by P F
Koep & Co in connection with all relating to the matter in the
Magistrate's Court Windhoek, case no. 7986/99 between the Commercial
Bank of Namibia and A R Preuss and/or
the Plaintiff during or about February 1999."

The
Defendant declined to discover those documents and claimed privilege.
In an answering affidavit filed in opposition to the application to
compel, the Defendant avers that those documents are privileged as
between attorney and client. Mr Koep strenuously argued that such
privilege should be preserved and referred the Court to the case of
Euro
Shipping Corporation of Monrovia versus The Minister of Agriculture,
Economics and Marketing and Others 1979
(1) SA 637 (C) at 640H and a quotation from Herbstein & Van
Winsen "The Civil Practice of the Supreme Court of South Africa"
(4^th
Edition) pp. 595 and 596 in which learned author said the following:

"The
appellant division of South Africa has accepted that the privilege,
which exists between a client and his legal advisor is a mere
manifestation of the fundamental principle upon which our judicial
system is based and that justification is to be found in a fact that
a proper function of our legal system depends on the freedom of
communication between legal advisors and their clients which would
not exists if either could be compelled disclosed and what passed
between for the purpose of giving or receiving advice".

In
the original discovery affidavit the Defendant stated that amongst
the documents which it declined to discover, were the communications
between attorney and client. In a supplementary discovery affidavit
filed of record earlier today, it's representative stated that
amongst those documents were the correspondence between the Defendant
and its attorney P F Koep & Co relating to the action instituted
by Commercial Bank of Namibia Ltd against Preuss and matters relating
thereto. Given the privilege based on the attorney/client
relationship between the Defendant and Messrs P F Koep & Co, the
Defendant was entitled to refuse discovery of those documents. Mr
Bloch argued that in as much as those documents were exchanged long
before the issues in the main action had come about, no privilege
could attach to them. That submission does not appear to me to be
sound in law. Privilege of communications as between attorney and
client, once established, remains to be a bar against disclosure. In
the circumstances I decline to grant any order in so far as the
discovery of the items mentioned in paragraphs 3 and 4 of the Notice
are concerned.

In
paragraph 5 of the Notice the Plaintiff called for "all computer
printouts and/or data and/or documents of the Defendant relating to
or in connection with the Plaintiff and the handling or the dealing
with any of the Plaintiffs accounts held with the Defendant for the
entire period that the Plaintiff has been a customer of the
Defendant." In response to that request the Defendant stated
that the documents germane to the matter were already in the
Plaintiffs possession. Defendant would however, have no objection to
the Plaintiff making arrangements to view its documentation at its
offices, subject to appropriate security measures being put in place.

Again,
the formulation of the demand for discovery is unnecessarily wide.
There is no need for the Defendant to discover documents relating to
all the other accounts of the Plaintiff to determine the issues
relating to the re-classification of the Plaintiffs trust account. In
so far as the Defendant stated on oath that the documents germane to
the matter have already been discovered and are in the possession of
the Plaintiff, it appears to me to be the end of the enquiry. I
remind myself that, as was pointed out in the case of Federal
Wine and Brandy Company versus Kantor, 1958
(4) SA 735 (E) at 749G, an affidavit of discovery is normally
conclusive - except "where it can be shown either (i) from the
discovery affidavit itself or (ii) from the documents referred to in
the discovery affidavit or (iii) from the pleadings in the action or
(iv) from any admissions made by the party making the discovery
affidavit, that there are reasonable grounds for supposing that the
party has or has had other relevant documents in his possession or
power, or has misconceived the principles upon which the affidavit
should be made." It appears to me that full discovery of the
documents demanded in this paragraph has taken place. In the
premises, I am also not inclined to grant discovery of the further
documents mentioned in paragraph 5 of the Notice.

In
paragraph 6 of the Notice, discovery is sought of "all messages
and/or correspondence and/or documents and/or communications on
computer printout or otherwise of the Defendant addressed by Mr Horn
during May 1999 to August 1999 of and concerning the Plaintiff and of
any accounts of the Plaintiff held with the Defendant." Also
those "addressed by Mr A E Joubert during May 1999 to August
1999 of and concerning the Plaintiff and/or any accounts of the
Plaintiff held with the Defendant". The Defendant stated in
response to that request that, other than the correspondence
addressed by the Defendant to the Plaintiff (which has been
discovered), there is no further documentation to be furnished. Mr
Bloch strongly contended that the deponent who made the discovery
affidavit on behalf of the Respondent was not privy to the documents
contemplated in the request and, was thus not qualified to state that
such documents, other than the ones already discovered, do not exist.
He argued that the answer of the Respondent was "misleading in
the extreme".

Whilst
it is so that the consequences which may arise from inadequate
discovery of documents may be serious and that parties are expected
to make discovery in a responsible manner, it is inevitable that, in
the case of a big corporation, a person in authority who has the
documents contemplated in the discovery affidavit under his or her
control, would normally depose to a discovery affidavit. That being
the case, the opposing party is not entitled in law to insist that
only the persons who have been the authors of the documents in
question should make the discovery. The insistence of the Applicant
that Mr Horn and Mr Joubert should have made the discovery affidavits
and the submission that Mr Sparrow (who had sworn to the affidavit)
was not qualified to do so, is in my view without substance. Hence, I
decline to grant the relief prayed for in paragraph 6 of the Notice.

In
paragraph 7 of the Notice, the Applicant sought discovery of "all
memoranda and/or documents and/or articles and/or directors and/or
manuals including but not limited to computer printouts of the
Defendant which deal with or relate to how to deal with transactions
or dealings on an attorney's trust account held with the Defendant."
In its response the Defendant again invited the Plaintiff to view
those documents at the premises of the Defendant, subject to security
clearance and a confidentiality undertaking. It avers that those
documents are stored in an electronic format only. However, in its
answering affidavit, filed of record in this application, the
Defendant further states that there are no specific documents in
possession of the Respondent, which deals specifically with the
Respondent's treatment to attorney's trust accounts, and that there
are therefore no further documents of that nature that can be
discovered. Those accounts are treated like any other account. As far
as the latter was concerned, it refers to the general procedure
manuals covering a number of disciplines (earlier referred to in the
Respondent's answer) and points out that those documents can be
accessed at the premises of the Defendant.

Inasmuch
as the formulation of the demand for discovery in this paragraph is
premised on special procedures applying to the operation of an
attorney's trust account in the books of the Defendant (and none
other) and that premise has been shown to be wrong, it appears that
the Respondent correctly pointed out that there were no documents
specifically relating to a trust account which could be discovered.
As far as the manuals relating to the management of all other
accounts are concerned, the only real issue pointed to by Mr Bloch,
relates to the circumstances under which and reasons why the
categorization of such an account could be changed from 0 to 1. Those
documents have already been discovered. In the circumstances, it does
not seem appropriate, to make any further Order about the discovery
of documents mentioned in paragraph 7 of the Notice.

In
paragraph 9 of the Notice, the Plaintiff referred to a letter of the
Defendant, dated the 25^th
June 1999 in which it was stated that: "Upon being informed that
an Order had been obtained against you in respect of monies which
were in your trust account, the bank thought it prudent to react
thereto with caution which involved, as previously stated, ensuring
that those funds would be treated differently from other funds in
your trust account. The N$215 000.00 at all times formed part of your
trust account and we are satisfied that under these circumstances
that was the correct procedure to adopt." Based on the contents
of that letter, the Plaintiff required all documents used by the
Defendant or its employees in regard to the "reaction"
referred to and "all documents which the Defendant and/or its
employees used and which formed part of the procedure so adopted".
In it's response, the Defendant enclosed a number of letters and a
copy of the relevant Court documentation pertaining to the Court
Order that initiated the Defendant's reaction.

It
is evident, from its reply, that those documents are the only ones of
that nature in its possession. For the reasons that I have already
mentioned, that Court will accept that statement in the absence of
any indication or facts from which it may find that there are strong
indications that there are further documents of that nature in
existence. I also decline to Order the further discovery sought in
paragraph 9 of the Notice.

In
paragraph 11 and 12 of the Notice, the Plaintiff requires "all
documents and/or cards and/or notes and/or memoranda and the computer
printouts and/or data relating to the individual customer profile of
the Plaintiff throughout the period he banked with the Defendant and
all computer printouts regarding the accounts, remarks screened
relating to all accounts held by the Plaintiff with the Defendant
including but not limited to Plaintiffs trust account; all documents
and the computer printouts and the memorandum which show the date
upon which the Plaintiffs trust account was placed and recorded as
risk 1 account on the Defendant's banking system". In response
to that, the Defendant attached the customer information system
printed out. The Plaintiffs complaint is, however, that the Defendant
has failed to comply with the Rules of Court because it attached the
documents to the affidavit instead of making discovery thereof in the
manner contemplated by Rule 35 (3). It seems to me that, although a
party attaching documents to a discovery affidavit may well not be
entitled to recover the costs of having done so, the objection is
highly technical. It certainly serves the convenience of the other
party and it expedites the proceedings if the documents are attached.
In the absence of any indication that the discovery made in response
to that request was inadequate or incomplete or, for that matter that
the plaintiff has suffered any prejudice as a consequence thereof, I
also decline to make any Orders as far as paragraphs 11 and 12 of the
Notice are concerned.

In
paragraph 14 of the Notice, the Applicant is seeking discovery of
"all computers printouts and documents which show the date upon
which the Plaintiffs trust account was accessed on the Defendant's
computer system or otherwise by employees of the Defendant during the
period in 1997 to date". The Defendant, whilst was conceding
that it is in possession of some data relating to the access by
employees states that the period for which the data is required
exceeds the warehousing lifespan of the record, which if obtained,
will be incomplete. The system upon which the data resides is
inordinately expensive and usage thereof is charged in a
proportionate rate. In the Defendant's opinion, the requested
information does not have bearing on the matter and all employees of
the First National banking group are bound by duty of secrecy and
clients' information is kept in the strictest confidence. That
notwithstanding, the defendant contends, the risk 1 category status
merely denotes a cautionary state for internal purposes and in that
instance it was triggered by a restraint having been placed on the
account, which has no bearing on the account holder's financial
capacity.

Whereas
criticism leveled by Mr Koep on behalf of the Respondent against the
wide and sweeping formulation of this request is undoubtedly
justified, it seems to me that information regarding the number of
persons who have accessed the Plaintiffs trust account on the
Defendant's computer system since the classification of that account
as a category 1 account on the 14^th
of May 1999 may be relevant for purposes of determining the quantum
in
the main action. Given the extraordinary expense to obtain such data,
Mr Koep, referring to the case of Continental
Ore Construction v Highveld Steel and Vanadium Corporation Ltd, 1971
(4) SA 589 (W) at 593 to 595 urged the Court not to make an Order as
far as the discovery of the documents contemplated in paragraph 14 of
the Notice is concerned until such time as the Applicant has proven
that the classification of the trust account as a category 1 account
was in fact defamatory of him. Whilst I appreciate that there may be
some costs involved in the recovery of the documents referred to,
that is a matter which can be dealt with by an appropriate Order of
Costs to be made at the end of the trial. What this Court cannot do
in the application currently before it, is to make an Order which
will in due course force the trial Court to separate the issues
relating to the merits and the quantum
and
to deal with the case on a piecemeal basis. If the costs of obtaining
that documentation will be so prohibitive (as the Defendant seems to
suggest), that may have given it good cause to have moved timeously
in a separate application an order that the merits of the case be
adjudicated separate of and before the quantum of the claim. In the
absence of such an application and given my earlier remarks about the
relevance of those documents, I find that the Plaintiff is entitled
to discovery of computer printouts and/or documents which show the
date upon which the Plaintiffs trust account was accessed on the
Defendant's computer system (or otherwise) by employees of the
Defendant from the 14^th
of May 1999 until the date on which the action was instituted.

In
paragraph 15 and 16 of the Notice, the Plaintiff is seeking discovery
of "all documents which are used by the Defendant in its
procedures for the capture of risk category codes and the Defendants
CIS procedures guide". The documents required by those
paragraphs simply relate to the technical means by which such a
capture takes place on the computer system of the Defendant. The
manner in which the date is so captured is irrelevant to the issues
at hand and so too, the CIS procedures guide. The premises, I am not
persuaded that those documents are relevant to the issues in the main
action - especially if regard has being had to what counsel for the
Plaintiff advanced as the reason why such discovery was being sought?

In
paragraph 17 of the Notice, the Plaintiff is seeking "the
written approval from the higher authority to retain the Plaintiffs
trust account in the category 1 classification for a period longer
than 3 months". Defendant responded to say that a written
approval was not a requirement and no such approval was not on
record. Claiming that the manner in which that response was
formulated was rather disingenuous, the plaintiff contended that the
statement that "the approval was not on record" did not
bear any meaning or impact on the question as to whether or not such
written approval existed or of its whereabouts.

The
answer made on behalf of the Defendant by Mr Sparrow is quite clear:
He firstly stated that it was not a requirement that such approval be
in writing and, secondly, that it was not on record. Inasmuch as he
stated that it was not on record, it by necessary implication means
that there is no written recordial of such an approval. From that it
follows in logic no such a written approval exists or existed at any
point in time. The application for the document in paragraph 17 must
therefore also fail.

Paragraph
19 of the Notice, the Plaintiff is seeking the documents evidencing
the change of the Plaintiffs trust account category into the Hogan
system. In response thereto the Defendant referred the Plaintiff to
the customer information system screen-dumps which were attached to
its response. In the absence of any allegation that there exist any
other documents (that is, over and above the screen-dumps), the
application for the discovery of the documents mentioned under
paragraph 19 must also fail for the reasons I have mentioned earlier.

Lastly,
discovery is also being sought in paragraphs 21 and 22 of the Notice
of "all documents evidencing action taken to prevent a two
categorization of the Plaintiffs trust account held with the
Defendant and all documents and/or printouts and/or Notices, which
were used to record the categorization and the risk reasons in the
Defendant's computer system, relating to the Plaintiff and/or his
trust account held with the Defendant". In response thereto the
Defendant referred to the remarks on the restraints starter-sheet,
which was attached as part of the "screen-dumps" and
"online maintenance audit journal", to the affidavit.

Given
the earlier statement that other than those documents there were no
further documents relevant to the issues at hand, there is no factual
basis on which I can find that other documents of that description
exist. Hence, discovery of the further items contemplated in those
paragraphs are also declined.

As
to the question of costs in this application Mr Koep argued that the
applicant's success, if any would be very limited. As it is, only the
documents referred to in two of the approximately 14 paragraphs will
be ordered - and in respect of those 2 paragraphs on a limited basis.
He further argued that if the plaintiff had limited its request to
the documents relevant to the issues on the pleadings, the defendant
might well have responded differently. On the other hand, as Mr.
Bloch pointed out, even though a request for discovery of documents
may be formulated wider than those to which a party may be entitled
to, it does not derogate from the obligation on the part of the other
party to discover the documents to which the one giving the notice is
entitled to. In as much as the plaintiff can be criticised for making
an overbroad demand, the defendant's sweeping refusal is also not
beyond reproach.

In
the premises, and, also to express my displeasure about the personal
attacks make about the motives of both parties in the affidavits
filed of record, it will be ordered that each party shall pay his or
its own costs in this application to compel.

As
far as the Application to Strike Out certain portions of paragraph 12
of the replying affidavit is concerned, Mr. Koep argued that it
constituted new matter which should have been incorporated in the
Plaintiffs founding affidavit. It is unnecessary to cite those
allegations for purposes of this judgment. Suffice it to say that the
objection to the facts contained therein was well taken. Virtually no
time was spend in argument on that application and the taxing master
should take cognisance thereof for purposes of taxation.

In
the result, the following order is made:

5. 
   The
   plaintiffs non-compliance with the forms and service provided for in
   the Rules of Court are condoned (in so far as need be, given the
   interlocutory nature of the application) and leave is granted for
   this application to be heard as one of urgency as contemplated in
   Rule 6(12);

   
   

6. 
   The
   defendant is ordered to discover, make available for inspection and
   allow the plaintiff to make copies of the following documents by no
   later than 28 August 2000:

   
   

5. 
   All
   memoranda, instructions, documents and/or letters relating to the
   credit risk profde of the plaintiffs trust account kept in the
   ordinary course of its business with the defendant; and

   
   

6. 
   all
   computer printouts and/or documents which show the date upon which
   the plaintiffs trust account was accessed on the defendant's
   computer system (or otherwise) by employees of the defendant during
   the period 15 May 1999 until the date on which the action was
   instituted;

   
   

5. 
   Each
   party shall bear his/its own costs in this application;

   
   

6. 
   The
   defendant's application to strike out is granted with costs, but,
   for purposes of taxation it is recorded that virtually no time was
   spend in argument on that application;

   
   

7. 
   The
   plaintiff and the defendant shall hold a Rule 37 conference in the
   main action at a mutually convenient time by no later than 16:00 on
   the 31^st
   of August 2000;

   
   

8. 
   Written
   notice of all the factual issues to be canvassed and questions to be
   asked during the Rule 37 conference shall be given by the one party
   to the no later than noon on 29 August 2000;

   
   

9. 
   Duly
   signed minutes of the Rule 37 conference shall be fded of record by
   no later than noon on 4 September 2000.