CASE
NO.: I 2848/2009
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
WALDI-BEATE
KUBIRSKE (born HEINS)
….....................................APPLICANT/PLAINTIFF
and
ERNST
AUGUST KUBIRSKE
…..............................................RESPONDENT/DEFENDANT
CORAM:
UNENGU, AJ
Heard
on: 01 February 2011 Delivered: 18 February 2011
JUDGMENT
UNENGU,
AJ: [1]
Applicant has instituted divorce proceedings against respondent and
the matter is set down for trial in this Court from 15 to 18 March
2011.
[2]
After the pleadings have been closed and both applicant and
respondent have filed their discovery affidavits, applicant served a
Notice in terms of Rule 35(3) of the rules of the High Court in which
she wanted respondent to discover additional documents to her.
Respondent did not comply with the notice. Because of the
non-compliance by the respondent to the notice aforesaid, plaintiff
decided to approach the court to compel respondent to discover the
additional documents. Respondent is now opposing this application,
which, as a result thereof, a trial was held on the 1st
of
February 2011.
[3]
Rule 35(3) of the High Court provides that "is
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 "
[4]
Rule 35(3) basically provides for an additional remedy to any party
involved in a litigation with another to ask for additional documents
or tape recordings which may be relevant to any matter in question.
The party asking such documents must believe that such documents are
in possession of the other party. As previously indicated, applicant
and respondent are engaged in a divorce action, now, applicant wants
respondent to discover additional documents like his bank statements
from the day of their marriage until present, his payslips, also from
the month of marriage until the month when these payslips are
discovered and other documentations relating to immovable properties
owned by him. These documents according to the applicant, are
relevant in establishing the respondent's financial standing
currently and in the past which in turn will show that respondent was
able to make the contributions he alleges; that he indeed made such
payments, what amounts, if any, respondent expended towards the
common household and the minor children as opposed to what the
applicant expended and what amount of maintenance for the minor
children will be justified.
[5]
Respondent is opposing this application and took a point in
limine on
the authority of the deponent to the founding affidavit. However,
respondent abandoned the point in
limine later.
When the application was heard, the grounds for opposition of the
application by the respondent were as set out on pages 13 - 16 of the
opposing affidavit. For the sake of clarity I shall list them
hereunder as follows:
"1.
The additional documents required by the applicant are irrelevant to
the disputes in the pending main action for divorce;
2.
The documents pertain to the respondent's finances and estate, and
the parties are married out of community of property;
3.
In his counterclaim, the respondent has claimed custody and control
over the minor children and currently it is only the custody and
control (including payment of maintenance) of the child, Nicholas,
which is still in dispute and the latter is currently the subject of
an investigation by psychologists from both parties;
4.
The historic financial statements required by the applicant -going as
far back as 20 (twenty) years - have thus no relevance to the matter
of custody, control and maintenance;
5.
He states under oath that he does not have his bank statements and
salary slips from 1991 in his possession and states that the request
for further discovery is aimed at harassing him."
[6]
Both applicant and respondent submitted written Heads of Argument
which they amplified with oral submissions on the date of hearing. At
the beginning of the trial Ms Bassingthwaighte counsel for the
respondent applied for condonation for the late filing of the Heads
of Argument which application was not opposed by Ms Van der
Westhuizen, counsel for the applicant as the delay was not prolonged
and the applicant did not suffer any prejudice as a result thereof.
Condonation was granted. This was due to the explanation given by
respondent which I found to be acceptable in the circumstances. The
reason for the delay was also acceptable.
[7]
Ms Van der Westhuizen emphasized that documents requested from
respondent were relevant and necessary to advance plaintiff's
argument that respondent did not make the contributions he claims to
have made. Therefore, she argued, the contents of these documents
will cast light as to the payments, if any, made by the respondent.
She further submitted that such documents are directly relevant to
the disputes between the parties. In addition, the applicant is
claiming maintenance for the minor children from the respondent,
which maintenance he is disputing. In order to fully canvas the
issues of maintenance, the documents required are not only relevant,
but also necessary, counsel said. In support of her submissions, Ms
Van der Westhuizen referred the Court to various cases from different
jurisdictions. One such case is Compagnie
Financiere et Commercials du E Pacifique v
Peruvian
Guano Co (1882)
11 QBD 55, wherein Brett LJ laid down the following
principle
relating to rule 35(3):
"It
seems to me that every document relates to the matter in question in
the action which, it is reasonable to suppose, contains information
which may - not which must - either directly or indirectly enable the
party requiring the affidavit either to advance his own case or to
damage the case of his adversary. I have put in the words 'either
directly or indirectly' because, as it seems to me, a document can
properly be said to contain information which may enable the party
requiring the affidavit either to advance his own case or to damage
the case of his adversary, if it is a document which may fairly lead
him to a train of enquiry which may have either of these two
consequences."
[8]
This case and other authorities cited, Ms Van der Westhuizen wanted
to
persuade
the Court to agree with the contention of plaintiff that the
documents she
wants
respondent to discover are relevant to the issues to be resolved in
the divorce
action
between herself and the respondent. In conclusion, counsel argued
that sub-
rule
(3) does not give respondent a discretion to discover or not to
discover the
documents
requested. She expressed the view that respondent who is claiming
more
than
N$700 000.00 should not refuse to discover documents which may
support such
a
claim. The only reason, she thinks, why respondent is refusing to
discover the
documents
is, the fear that these documents may humper his case if discovered.
Consequently,
counsel prayed for an order in the following terms:
"1.
THAT the Defendant be directed, to make the documents listed in the
Plaintiff's Rule 35(3) Notice available for inspection within FIVE
(5) DAYS of granting of the order, alternatively to state on oath
within FIVE (5) DAYS of the granting of the order that such documents
are not in his possession, in which event he shall state its
whereabouts, if known to him, and failing compliance therewith;
2.
Authorising the Plaintiff to apply on the same papers, duly amplified
(if necessary), for an order striking out the Defendant's defence and
dismissal of the Defendant's counterclaim with costs;
3.
Directing the Defendant to pay the costs of this application, which
costs to include the costs of one instructing and one instructed
counsel."
[9]
As indicated previously, the point in
limine was
abandoned and the application for condonation of the late filing of
the Heads of Argument was also granted. Ms Bassingthwaighte kicked
off by reminding the Court that the onus of proving the application
was on the applicant. She quoted the case of Santam
Ltd and Others v Segal 2010(2)
SA 160 (N) at paragraph (9) as authority for her point, and argued
further that the applicant has the onus to prove that the documents
requested may be relevant to the matter. Although the Santam
case
referred to by Ms Bassingthwaighte also dealt with an application to
compel further discovery, the relevant part of which counsel referred
to is distinguishable from the issues in the application in
casu. In
the Santam
case
supra
the
Court dealt with an order dismissing the application for the further
discovery where it held that such an order was appealable. Ms
Bassingthwaighte was of the view that the relevancy of such documents
was to be decided now not at a later stage. She referred the court to
a Namibian case of Kanyama
v Cupido 2007(1)
NR 216 (HC) at 221 D-E and said that the Court should look at the
pleadings to be sure whether documents are relevant or not. According
to her, parties were married in 1991 out of community of property and
indeed respondent contributed more than 50% to the common household.
Accordingly, she continued, defendant was asking for maintenance in
the amount of N$5000.00 per month and custody and control of the
minor children. Ms Bassingthwaighte, further submitted that bank
statements of one year or six months will do, not earlier than that.
She however, conceded that the application should succeed to some of
the documents but for bank statements and payslips be limited to six
months starting from July 2010. She agreed that respondent be ordered
to discover and asked the court to apportion the costs of the
application.
[10]
In reply Ms Van der Westhuizen was of the view that all documents
requested are relevant as from date of marriage and indicated that
there was no basis for costs to be reduced. Even though, counsel for
the respondent initially argued that the applicant bore the onus
to
prove the relevance of the documents requested, it would appear that
the respondent is no longer opposing the granting of the order
directing the discovery of the documents requested. The only issue
left to be decided, is whether the Court should order the discovery
from the inception of the marriage or from a shorter period, as
submitted by Ms Bassingthwaighte. From what I have observed during
arguments of counsel is, that respondent did not only concede that
the application should succeed but also indicated, though not in so
many words, that if she were involved in the matter at an earlier
stage, she would have advised respondent not to oppose the
application. This is the impression I gained from what she said
towards the end of her submissions.
[11]
Be that as it may. It is no longer an issue between the parties that
the documents requested in this application are not relevant to the
main action and that they should not be discovered. Counsel for
respondent said that they are relevant and they can be discovered.
She only asked for the period to be reduced which applicant is
opposing.
[12]
Relevancy of a document is determined from the pleadings and not
extraneously and a party may only obtain inspection of the documents
relevant to the issues on the pleadings. (See Kanyama
v Cupido 2007(1)
NR 216 at 219 I-J. and cases cited therein.)
[13]
Rule 35(3) amongst other provides that the former may give notice to
the
latter
requiring him or her to make the same (documents or tape recordings)
available for inspection in accordance with sub-rule (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.
(Emphasis added).
[14]
It is therefore, clear from the aforesaid that the law does provide
an alternative remedy to a party who is not in possession of the
documents requested to state under oath within 10 days of the notice
that such documents are not in his or her possession and state their
whereabouts, if, known to him or her. This option was available to
the respondent but opted to oppose the discovery. That being the
case, applicant was compelled to approach the court to force
respondent to discover. The conduct of respondent in this regard did
not only result in wasted costs for applicant but also unnecessary
delay in the finalization of the matter. Respondent knew or at least
was advised that the additional documents requested by applicant were
necessary and relevant to the matter between them. For respondent to
counterclaim the request and to contend that the request for further
discovery was aimed at harassing him is misleading and a waste of
Court time.
[15]
That being so, I come to the conclusion that applicant has proved
that the additional documents requested in the notice are relevant to
the main action, in particular to the issue of maintenance of the
minor children and also to the claim of the respondent. Therefore,
any order to be made in respect of the documents, time will not be
limited to one year or six months, as requested by counsel for the
respondent. Similarly, the court is not prepared to reduce the costs
to be granted.
[16]
In the result I make the following order:
That
the defendant is directed to make the documents listed in the
Plaintiff's Rule 35(3) Notice available for inspection within five
(5) days of granting of this order, alternative to state on oath
within five (5) days of the granting of this order that such
documents are not in his possession in which event he should state
its whereabouts, if known to him, and failing compliance therewith;
The
Plaintiff/Applicant is authorised to apply on the same papers duly
amplified (if necessary) for an order striking out
Defendant's/Respondent's defence and dismissal of the
Defendant's/Respondent's counterclaim with costs;
The
Defendant/Respondent is directed to pay the costs of this
application. Costs to include one instructing and one instructed
counsel.
UNENGU,
AJ
ON
BEHALF OF THE APPLICANT/PLAINTIFF
Adv.
Van der Westhuizen
Instructed
by:
Etzold-Duvenhage
ON
BEHALF OF THE RESPONDENT/DEFENDANT
Adv.
Bassingthwaighte
Instructed
by: Francois
Erasmus & Partners
Kubirske v Kubirske (I 2848/2009) [2011] NAHC 40 (18 February 2011);