S v BONIFATIUS KONSTANTINOS
SUMMARY
CASE
NO. (P) I 997/2006
RÜDIGER
POLZIN
Plaintiff/Applicant
and
PETER
WEDER t/a WEDER AND ASSOCIATES
Defendant/Respondent
SILUNGWE,
AJ
14/01/2009
DISCOVERY - Discovery
affidavit – Application to compel – Rule 35(7) of Rules
of Court – Court order requiring respondent to furnish
comprehensive affidavit – “Comprehensive” construed
to be synonymous with term “all” in context of Rule 35(1)
– Failure to file discovery affidavit does not mean failure to
file comprehensive discovery affidavit (disputed) – It means
non-discovery.
Discovery
affidavit – If discovery incomplete or insufficient –
Party requiring discovery may apply to Court for an order to compel
further and/or better discovery in terms of Rule 35(3).
Discovery
affidavit – Courts are reluctant to go behind discovery
affidavit which is prima
facie
taken to be conclusive unless probability shown to exist that
deponent is either mistaken or false in his assertion – Bases
on which Court ought to go behind oath: South
African Sugar Association v Namibia Sugar Distributors
1999 NR 241 at 244J-245A.
Discovery
affidavit – Test for discoverability or liability is still that
of relevance.
Discovery
affidavit – Importance of – Discovery ranks with
cross-examination as mighty engines for exposure of truth –
Discovery properly employed can be, and often is, a devastating tool
– Discovery should not be abused.
Discovery
affidavit – Drawing up of – Duty of legal practitioners –
Duty to ensure their clients fully appreciate significance of –
Duty to impress upon clients the prerequisite of conducting
investigations and searches to ensure that every client has made a
full (complete) and honest discovery – No legal practitioner
should allow client to make discovery affidavit unless satisfied that
client understands what is required of him or her and appreciates
that dire consequences may follow at trial in the event of an
inaccurate discovery affidavit.
CASE
NO. (P) I 997/2006
IN THE HIGH COURT
OF NAMIBIA
In
the matter between:
RÜDIGER
POLZIN
Plaintiff/Applicant
and
PETER
WEDER Defendant/Respondent
t/a WEDER AND ASSOCIATES
CORAM: SILUNGWE,
AJ.
Heard
on: 13/11/2007; 04/12/2007
Delivered
on: 14/01/2009
____________________________________________________________________________
JUDGMENT:
SILUNGWE, AJ: [1] This
is an interlocutory application in which the applicant (the plaintiff
in the main action) seeks an order against the respondent (the
defendant in the main action) in the following terms (paraphrased):
1. that the respondent’s
plea and counterclaim be dismissed with costs;
Alternatively:
2. that the respondent’s
Discovery affidavit dated 19th
September 2007, be set aside;
3. that the respondent be
ordered to file a new discovery affidavit that complies with Rule 35
and discovers all
documents required
to be discovered in terms of Rule 35 relating
to any matter in question in this action
…
[2] The applicant and the
respondent are represented by Mr A Vaatz of Andreas Vaatz and
Partners and Mrs E Angula of LorentzAngula Incorporated,
respectively.
[3] The history of this
application may be sketched as follows. The respondent is a
professional engineer, trading as a firm of civil engineers and the
applicant too is a professional engineer. On March 26, 1999, the
applicant and the respondent entered into a service agreement (in
writing) in terms of which the applicant was employed as a project
engineer entitling him, under clause 3.3 thereof, to receive ten per
cent (10 %) of the profit of all projects he was to be involved in.
The projects referred to above were essentially road building
projects.
[4] In the main action
instituted by the applicant (as plaintiff) against the respondent (as
defendant), the former claims that the 10 % of the profit on all the
projects that he executed, which allegedly amounted to N$859,003, has
not been paid to him, hence the claim for the said sum. However, the
respondent counters, inter
alia, that he paid
their 10% profit to the applicant and that the applicant was, in
fact, overpaid on certain projects, as set out in his (the
respondent’s) plea and counterclaim.
[5] After a pre-trial
conference had taken place, Mrs B Greyvenstein, the respondent’s
legal practitioner, addressed a letter to Mr A Vaatz on August 1,
2007, stating, inter
alia, that having
consulted counsel in relation to discovery, it was going to take a
considerable amount of time to extract all the required Documentation
but that a discovery affidavit would be filed as soon as possible. It
is not in dispute that thousands of documents were to be discovered.
In his reply of August 2, Mr Vaatz demanded that the respondent’s
discovery affidavit be filed by August 8, 2007. The very next day,
Mrs Greyvenstein responded that it would not be possible for the
respondent to file his discovery affidavit by August 8, but she
undertook to have the affidavit filed by the end of that month. Mr
Vaatz granted the respondent an extension of time up to August 20
only. As the job could not be done within the time frame provided,
notwithstanding the deployment of full time personnel, Mrs
Greyvenstein addressed another letter to Mr Vaatz on August 23 in
which the latter’s indulgence was sought to grant a further
extension. Mr Vaatz wrote back on the same date indicating that
enough extension of time had already been given and that he would
proceed with an application to compel discovery, which had in fact
been filed on August 22, 2007.
[6] The application to compel
discovery, pursuant to Rule 35(7) of the Rules of the Court, was
heard on August 31, 2007, before Damaseb, JP, who granted the
application in terms of which the respondent was ordered to furnish
the plaintiff with a “comprehensive discovery affidavit”
by not later than September 19, 2007. Further, the applicant was
given leave to apply to the Court on the same papers, duly amplified,
for an order to strike off the respondent’s defence in the
event of his failure “to furnish the discovery” affidavit
by September 19.
[7] On September 19, 2007, the
respondent filed the discovery affidavit which, according to my
reckoning, comprises about 10,859 documents. Such is the affidavit
which Mr Vaatz not only alleges consists of more than 11,000
documents but also challenges.
[8] In his written and oral
argument, Mr Vaatz contends that the discovery affidavit gives rise
to two issues, namely:
1. whether the respondent has
complied with the Order of the Court in filing comprehensive
Discovery by the 19th
of September 2007; and
2. whether the respondent’s
affidavit of 11000 documents covering 323 pages complies with the
rules and practice of discovery or constitutes an irregular
proceeding in terms of Rule 30 of the Rules of the Court which may
be set aside by the Court.
[9] With regard to the first
issue, it is contended, on behalf of the applicant, that the ground
for alleging that the respondent did not comply with the order of the
Court to file a comprehensive discovery affidavit by the specified
date is briefly that, although the discovery affidavit is very
voluminous, it fails to make discovery of 55 out of 78 projects
(contracts). Such failure, Mr Vaatz continues, includes the
non-discovery pertaining to project number (No.) 0004 which is
allegedly one of the most important projects in issue. Mr Vaatz
acknowledges in his Answering affidavit filed on October 31, 2007,
that at least 150 documents relating to project No. 0004 have since
been discovered through the respondent’s supplementary
affidavit filed on October 25, 2007. I pose here to observe that,
besides the discovered documents concerning project No. 0004, the
supplementary affidavit also shows that eleven documents relating to
project No. 01085 have equally been discovered. As it will shortly
become apparent, the respondent takes issue with the applicant
regarding the allegation that the said discovery affidavit fails to
make discovery of 55 projects.
[10] It is further contended,
on behalf of the applicant, that the fact that at least 150 documents
in respect of project No. 0004 had not been discovered initially
shows that the respondent’s previous discovery affidavit was
not comprehensive and, therefore, not in compliance with the Order of
the Court.
[11] According to Mr Vaatz’s
averment and submissions, about 90 % of the discovered documents in
the matter are irrelevant. But Mrs Greyvenstein’s averment and
Mrs Angula’s submissions on the issue are quite the contrary.
[12] The Court order that the
applicant seeks to enforce consists of two parts the first of which
requires the respondent to furnish the applicant with a
“comprehensive discovery affidavit” by not later than
September 19, 2007. The second part grants the applicant leave to
approach the Court, on the same papers duly amplified, for an order
to strike off the respondent’s defence in the event of his
failure to furnish the discovery by the due date.
[13] It follows that the only
basis upon which the applicant could have brought these proceedings
is the respondent’s failure to furnish him with the discovery
affidavit by the appointed date. The respondent ardently claims that
he duly rendered the discovery affidavit and that he thus complied
with the Court order. According to my understanding, it is not the
applicant’s case that no discovery was ever furnished by the
respondent; his case, as forcefully contended by Mr Vaatz, is
firstly, that about 90% of 11,000 documents discovered are
irrelevant; and secondly, that relevant documents in respect of 55
out of 78 projects have not been discovered. Consequently, argues
Mr Vaatz, the respondent has failed to comply with the order to
provide a comprehensive discovery affidavit.
[14] It seems to me that the
second part of the order relates to the effect of the respondent’s
failure to file the discovery affidavit by the prescribed date. In my
view, there was no such failure as the affidavit was filed timeously.
Whether the affidavit was comprehensive or contained some irrelevant
documents is a bone of contention between the parties and, therefore,
constitutes a separate issue.
[15] It is averred and argued
on behalf of the respondent that some of the projects in respect of
which non-disclosure of relevant documents is alleged have in fact
been disclosed; that some projects were not put in dispute by the
applicant; that no projects listed below Luderitz in Annexure “A”
to the applicant’s founding affidavit (at page 9 of the record)
were concluded and that calculations of expenses incurred in
connection with those projects “were never disputed”,
apart from the applicant’s liability which was put in dispute.
But Mr Vaatz maintains that projects 00014, 01029, 02038, as well as
the projects listed below Luderitz in Annexure “A”, plus
all projects on the second page of that annexure (see pages 29 and 30
of the record) are in dispute and that relevant documents thereof
need to be discovered; he adds that the only documents that are not
in dispute (and hence no discovery thereof is necessary) are those
agreed to between the parties’ legal representatives at the
pre-trial conference which, seemingly, relate to projects: 96012,
96100A, 96097, 97059, 00043, 01070, 05010, 05022, 05026 and 05322.
[16] It is apparent that Rule
35(7), under which the order of the Court was made, applies only
where there has been failure to comply with subrules (1) to (6)
(Herbstein & Van Winsen, The
Civil Practice of the Supreme Court of South Africa,
4th
ed. at 613). The term “comprehensive” which appears in
the order of the Court aforesaid is, in my view, synonymous with the
word “all” contained in Rule 35(1) which requires
discovery of “all documents and tape recordings relating to any
matter in question in such action …” Hence, the term
“comprehensive” in the order could only have been used in
the context of Rule 35(1).
[17] If the discovery made is
incomplete or insufficient, the party requiring discovery may apply
to the Court in terms of Rule 35(3) for an order to compel further
discovery (See: Herbstein & Van Winsen, The
Civil Practice of the Supreme Court of South Africa,
op. cit., at 602-603). Rule 35(3) provides better machinery for
applications for further (and, in some cases, better) discovery and
inspection in respect thereof. The rule stipulates that –
“35(3) If
any party believes that there are in addition to documents or tape
recordings disclosed as aforesaid, other documents (including copies
thereof) or tape recordings which may be relevant to any matter in
question in the possession of any party thereto, the former may give
notice to the latter requiring him or her to make the same available
for inspection in accordance with subrule (6) or to state on oath
within 10 days that such documents are not in his or her possession,
in which event he or she shall state their whereabouts, if known to
him or her.”
[18] In any event, it is well
established that Courts are reluctant to go behind a discovery
affidavit, which is prima
facie taken to be
conclusive as to discoverability of documents or tape recordings as
well as the relevance of their contents. Hence, the Court will not
reject such affidavit unless a probability is shown to exist that the
deponent is either mistaken or false in his or her assertion
(Continental Ore
Construction v Highveld Steel & Vanadium Corporation Ltd
1971 (4) SA 589 [W.L.D] at 598B-C; Swissborough
Diamond Mines (Pty) Ltd & Others v Government of the Republic of
South Africa 1999
(2) SA 279 [T.P.D] at 317E-F; South
African Sugar Association v Namibia Sugar Distributors
1999 NR 241 at 244J-245A). It is apparent from these cases that they
had to do with Rule 35(3) applications. In the last case cited above,
it was observed, at 245B-C (quoting from Continental
Ore Construction v Highveld Steel & Vanadium Corporation Ltd,
supra)
that -
“The bases
on which the Court ought to go behind the oath were set out as
follows at 597H-598A:
‘The Court
will go behind the affidavit if it is satisfied (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 or (v) from the nature of the case or the documents in
issue, that there is a probability that the party making the
affidavit has or has had other relevant documents in his possession
or power or has misconceived the principles upon which the affidavit
should be made’.”
[19] It suffices to say that in
the present case, I find one specific technical aspect disquieting
in the affidavit of the respondent’s legal practitioner of
record. That aspect relates to Mrs Greyvenstein’s avowal that,
due to time constraints, she was unable to “peruse” the
respondent’s discovered documents before the discovery
affidavit could be filed. Paragraphs 3.1.12 and 3.1.15 of her
affidavit read in part:
“3.1.12 …
I however never had time to peruse the documents so listed by client
and forwarded to our offices under cover of e-mails and compact discs
from defendant … In order to comply with the order of the
Court timeously we could only attach the lists of documents provided
by client as attachments to his discovery affidavit …
3.1.15 … As
stated above, I did not, due to time constraints, have time to
consider the items discovered before filing the discovery affidavit
…”
[20] I pose here to underscore
the fact that discovery affidavits are indeed very important
documents in any trial (Ferreira
v Endley 1966 (3) SA
618 at 621C). Discovery has been said to rank with cross-examination
as one of the two mightiest engines for the exposure of the truth
ever to have been devised in the Anglo-Saxon family of legal systems.
Properly employed, where its use is called, it can be, and often is,
a devastating tool. But it must not be abused or called in aid
lightly in situations for which it was not designed, otherwise it
will lose its edge and become debased (The
MV Urgup Owners of the MV Urgup v Western Bulk Carriers (Australia)
(Pty) Ltd and Others
1999 (3) SA 500 [C.P.D] at 513G-H). The test for discoverability or
liability to produce for inspection, where no privilege or like
protection is claimed, is still that of relevance. As legal
practitioners are responsible for the technical side of litigation,
it is their clear duty to ensure that their clients fully appreciate
the significance of a discovery affidavit before it is drawn up and
to impress upon every deponent the prerequisite of conducting such
investigations and searches as are necessary to ensure that the
deponent has made a full (complete) and honest discovery, not only of
documents which are in his possession or power, but also of documents
which were, but no longer are, in his possession or power, relating
to the matter in issue. No legal practitioner, needless to say,
should allow a client to make such an affidavit unless he or she is
satisfied that the client understands what is required of him or her
and appreciates that dire consequences may follow at the trial if an
inaccurate affidavit is made (Natal
Vermiculite (Pty) Ltd v Clark
1957 (2) SA 431 at 431H-432A).
[21] In the case of complicated
business transactions, it is desirable that the information should,
where this is practicable, be compiled by an official or person who
is cognizant of the matters in dispute, who knows what is, or is not,
relevant. In any event, the deponent’s legal representative is
expected to ascertain that relevant documents are discovered.
[22] With regard to the case
under consideration, it is clear from the contents of paras. [18] and
[19], supra,
that Mrs Greyvenstein did not satisfy herself that the respondent’s
discovery affidavit was properly drawn up in the sense that she was
unable, due to “time constraints”, to peruse the
discovered documents. Inescapably, the respondent’s legal
practitioner of record will be required to ensure that the respondent
has made a full discovery of documents relevant to the issue in the
matter by perusal thereof. This exercise will obviously entail making
appropriate amendments to the respondent’s principal discovery
affidavit, not only by the inclusion of relevant undiscovered
documents, if any, relating to any projects in dispute that may be
outstanding, but also by the incorporation of the contents of the
supplementary affidavit for the purpose of making available one
composite discovery affidavit only.
[23] It is most likely that,
had the respondent’s legal practitioner perused the discovered
documents and detected some anomalies therein, she would and could
have taken appropriate steps to dislodge such anomalies and to ensure
that a full and proper discovery affidavit was drawn up and filed. In
such circumstances, if the applicant needed further and/or better
discovery to be made, it would have been appropriate for him to
approach the Court for relief in conformity with the provisions of
Rule 35(3).
[24] The second question posed
by Mr Vaatz (see: para. 8, supra)
is: whether the respondent’s affidavit comprising 11,000
documents and covering 323 pages complies with the rules of the Court
and the practice of discovery, or constitutes an irregular proceeding
in terms of Rule 30, which may be set aside by the Court.
[25] In a case involving
multiple business transactions (as in
casu: road
construction projects) carried out over a period of approximately six
years, and covering many parts of the country, it would hardly be
surprising to see a large volume of documentation in a discovery
affidavit. Indeed, it is apparent from the pleadings that both
parties anticipated that thousands of documents would be discovered.
If a full discovery entails thousands upon thousands of documents,
then, so be it. In such circumstances, the question of irregular
proceedings pursuant to Rule 30 would not arise. Such is the
situation in the present matter.
[26] In my view, the
application should succeed but only to the extent of the order that
follows.
[27] For the reasons given, the
following order is made:
1. The respondent is directed
to appropriately amend his discovery affidavit of September 19, 2007,
by, inter alia,
incorporating therein all relevant documents in respect of the
projects that may not have been fully discovered, or those that may
still be outstanding, as well as the contents of the supplementary
discovery affidavit.
2. The respondent is directed
to comply with the provisions of paragraph 1 of this order within
fifteen days of the commencement of the forthcoming term, namely,
January 16, 2009.
3. The respondent is directed
to pay the costs of this application.
_____________________
SILUNGWE, AJ
COUNSEL
ON BEHALF OF THE PLAINTIFF/APPLICANT:
Mr
A Vaatz
Instructed
by: Andreas
Vaatz and Partners
COUNSEL
ON BEHALF OF THE DEFENDANT/RESPONDENT:
Mrs
E Angula
Instructed
by: LorentzAngula
Inc.