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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no : 171

PARTIES:

The Road Accident Fund Applicant / Defendant

And

Frank Lifson Respondent / Plaintiff

REFERENCE NUMBERS -

• Registrar: 2535/06

• Magistrate:

• High Court: EASTERN CAPE DIVISION

HEARD:

DATE DELIVERED: 28/06/07

JUDGE(S): Leach, J

LEGAL REPRESENTATIVES -

Appearances

• for the State/Applicant(s)/Appellant(s): Mr. Wolmarans

• for the accused/respondent(s):

Instructing attorneys:

• Applicant(s)/Appellant(s): N.N. Dullabh &Co.

• Respondent(s): Neville Borman & Botha

CASE INFORMATION -

• Nature of proceedings : Application to compel

• Topic:

Summary

Practice – rule 35(3) notice filed by a defendant not a properly considered one and amounting to an abuse of the court’s process – application to compel compliance with the notice dismissed.

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

	Case No.: 2535/06
	Date delivered: 28/06/07
In the matter between:
THE ROAD ACCIDENT FUND	Applicant / Defendant
and
FRANK LIFSON	Respondent / Plaintiff

REASONS FOR J U D G M E N T

LEACH, J:

The applicant, the defendant in the main action, served what purported to be a Rule 35(3) notice upon the respondent, the plaintiff in the main action, calling for discovery of a plethora of documents. The notice was served upon the respondent’s attorney of record on 22 February 2007, and called upon the respondent to make the documents particularised therein available for inspection or to state under oath that such documents are not in his possession – in which event he was required to state their whereabouts. Despite the lapse of several months, no response to this notice has been forthcoming. The applicant therefore launched an application for an order directing the respondent to comply with the Rule 35(3) notice within a period of 10 days. When the matter came before me, I dismissed the application indicating that my reasons would follow. These are those reasons.

In order to consider whether the applicant was entitled to the relief sought under rule 35(3) notice, it is necessary to have regard to the issues between the parties. The plaintiff was apparently the driver of a motor vehicle which came into collision with another motor vehicle on the road between Grahamstown and Port Elizabeth. In consequence of this collision, the plaintiff sustained severe bodily injuries and, in due course, instituted action against the applicant claiming the damages that he has allegedly suffered as a result. These damages have been particularised under a number of headings, including a claim of R200 000,00 in respect of estimated past loss of earnings and a similar sum in respect of estimated future loss of income/loss of earning capacity.

In support of these two claims, the plaintiff alleges that he was working for a company he owned, known as Acoustician Hearing and Technology in Digitone, and earned approximately R430 000,00 per annum at the time of the collision. He states that he was unable to work for a period of time, that his business suffered and his income declined and that, although he has not been able to accurately compute his claim, he estimates his past loss to be the amount of R200 000,00 as claimed. In respect of his future loss of earnings, he alleges that he has to travel to perform his work, that the requisite driving causes him pain and discomfort, and that he is therefore unable to work as efficiently as would have been the case had he not been injured. He also relies upon an allegation that he will have to reprocess and re-establish his business after the collision, and that he will be obliged to absent himself from work for a few months in order to undergo a future medical procedure. In respect of this claim as well, he alleges that he has been unable to accurately compute his claim but estimates his future loss of earnings or loss of earning capacity to be R200 000,00.

After the close of pleadings, the respondent filed his discovery affidavit in compliance with Rule 35(2). Presumably dissatisfied with the respondent’s discovery, the applicant proceeded to serve the Rule 35(3) notice which lies at the heart of this application. It is necessary to bear in mind that Rule 35(3) entitles a party who believes that, in addition to documents discovered under Rule 35(2), there are other documents in the possession of the other party which may be relevant to any matter in question, to give notice to require the other party to make such additional documents available for inspection in accordance with Rule 35(6) or to state under oath within 10 days that such documents are not in his possession – in which event he shall state their whereabouts, if known to him.

In the present case, however, the Rule 35(3) reads as follows:

“BE PLEASED TO TAKE NOTICE that the Defendant requires the Plaintiff within FIVE (5) days to make available for inspection in accordance with Rule of Court 35 (3), the undermentioned documents or to state under oath within TEN (10) days that such documents are not in his possession in which event the Plaintiff is required to state their whereabouts”

Below this, a long list of documents is particularised. The immediate difficult that I have is that it is nowhere stated that the applicant believes that the documents which are particularised are in fact in the respondent’s possession but were not discovered by the respondent. Moreover, documents which may be called for under Rule 35(3) are not to be made available for inspection in accordance with that sub-rule, but in accordance with Rule 35(6). In addition, if such documents are not in the respondent’s possession, the applicant was only entitled to call upon him to state their whereabouts if their whereabouts were known. This caveat, included in Rule 35(3), is not reflected in the notice as it should have been.

But despite the sloppy and inelegant preparation of the notice, the most fundamental difficulty I had related to the documents which the respondent was called upon to disclose. Bearing in mind that the claim in respect of past and future loss of earnings was founded upon the respondent’s ability to work having been compromised, his earnings derived from his company will be an issue at the trial. However, the respondent was called upon to disclose, inter alia, the following:

1. Copies of any partnership agreement in which he had an interest.

2. The annual financial statements for the past five financial years relating to any such partnership.

3. In respect of any business owned by or in which he has an interest, in particular the business Acoustician Hearing and Technology in Digitone,

1. All ledgers, cash books, journals and other books of account of whatever nature relating to the business of the past five years or from the date of inception of such business;

2. Wage registers reflecting the names of all persons in his employ including contracts of employment relating to such persons over the past five years or from the inception of the business;

3. Copies of all bank statements and accounts and financial statements relating to such business for the past five years or from the date of inception of such business;

4. Copies of all insurance policies relating to any such business or cheque books or other accounts relating to deposits credited and payments made in respect of such business for the past five years or from inception of the said business;

2. Copies of any life insurance policies, endowment policies and/or retirement annuities which he might have;

2. Copies of all documentation relating to any assets, movable or immovable, not registered in his name but in respect of which he has an interest or of which he has possession or occupation and/or paid for or is paying for;

3. Copies of all investment advices, savings books and other investment receipts and voucher of whatever kind and nature and in respect of all investments of whatever nature he has owned over the past five years;

2. All documentation relating to the purchase of an ownership of any vehicles he owns, including any hire purchase or instalment sale agreement in respect thereof;

2. Copies of any banking and/or savings and/or building society accounts operated by him over the past five years.

It is apparent from this that the documents sought relate to the respondent’s financial affairs, in detail, and are not limited to his earnings or earning capacity. However, details relating to his purchase of a motor vehicle on hire purchase, for example, could have no relevance to his claim for loss of earnings and future loss of earnings.

The applicant’s misconception as to the provisions of Rule 35(3) is clearly apparent from it also having requested the respondent in the notice to prepare two schedules – firstly, one reflecting the total amount of all premiums paid, the current surrender or cash value as well as the anticipated benefits on maturity in respect of all policies of insurance he has held over the past five years: and the second reflecting the total value of his estate at present and the full extent of his liabilities and the nature of each such liability. Not only does this request amount to an interrogatory – and not to an undiscovered document which the defendant believes the plaintiff has in his possession – but the information sought is clearly irrelevant. The value of the respondent’s estate is not in issue. All that is in issue is the extent to which his past and future earnings have been compromised by his injuries.

Somewhere in this mass of documents requested, there may possibly be one or two which might be relevant and which should have been discovered but were not. But it is not for this Court to attempt to pick them out from amongst all the other documents mentioned which are clearly of no relevance.

Mr Wolmarans, the attorney who appeared on behalf of the applicant, fell back upon the hardy annual of asking me not necessarily to grant an order that the respondent provide each and every item set out in the notice, but to order him merely to respond to the Rule 35(3) notice. However, the notice of motion does not seek to compel a response – instead it seeks an order directing the respondent “… to comply with the Notice in terms of Rule 35(3)” within ten days. But in any event, the Rule 35(3) notice was prepared without consideration of what was really required and which documents the applicant was entitled to have discovered. Instead, both barrels of a shotgun were let loose with the hope that, somewhere, some of the shotgun pellets might strike home. This, in my view, amounted to the abuse of the process of Court, with which I will have no truck.

For these reasons the application was dismissed.

__________________________

L.E. LEACH

JUDGE OF THE HIGH COURT

Summary

Practice – rule 35(3) notice filed by a defendant not a properly considered one and amounting to an abuse of the court’s process – application to compel compliance with the notice dismissed.

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