---

NOT REPORTABLE

1IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAALSE PROVISIONAL DIVISION)

Case number: 10705/2006

Date: 5 June 2007

In the matter between:

FIXTRADE 1241 CC Applicant

and

WITKOP FLUORSPAR MINE (PTY) LTD Respondent

JUDGMENT

______________________________________________________________

PRETORIUS J,

The applicant launched a liquidation application against the respondent.

The respondent opposes the liquidation application and has launched a counterclaim against the applicant. The applicant submits that it is necessary to discover these documents to reply, to respondent’s opposing affidavit in the liquidation application.

The respondent relies in his opposition to the liquidation application on the written contract entered into by the applicant and the respondent. He refers to the written contract in his opposing affidavit to the liquidation application as follows:

“26. Persuant to the terms of a written agreement entered into by and between the applicant and the respondent on or about 15 September 2005 and at Witkop, Zeerust, both parties being duly represented, the applicant undertook, inter alia:

1. To drill a minimum of 10 000 metres per month (clause 3.2);

2. If either party to the agreement were to commit a breach of any of the provisions of the agreement and fail to remedy such breach within 14 (fourteen) days of receiving written notice by registered post from the other party then such other party would be entitled forthwith and without further notice and without prejudice to its rights to, inter alia, claim damages (clause 10.1);

3. A copy of the said agreement is annexed hereto marked Annexure “IM2”, and the contents thereof incorporated herein by reference.”

The applicant filed a rule 35(12) notice on 26 May 2006 requesting the following documents in the liquidation application:

“1.1 The monthly drilling and blasting program for the period June 2005 until 31 January 2006 (paragraph 2.2);

2. The production requirements for the period June 2005 until 31 January 2006 (paragraph 2.3.2);

3. The measured and mutually agreed drill hours including documentation referred to as annexure 1 for the period June 2005 until 31 January 2006 (paragraph 2.4);

4. All signed blast reports for the period June 2005 until 31 January 2006 (paragraph 3.4)

5. All notifications or insistences to work longer shifts and/or to bring additional plant and equipment onto site to the contractor/applicant for the period June 2005 until 2 April 2006 (paragraph 4.1)”

The respondent argued in limine that the application to compel the respondent to comply with the rule 35(12) notice was not preceded by the requisite notice in terms of rule 30A. Counsel for the applicant conceded that the applicant had not complied with this rule. The sanction in the subrule is the prohibition of the use of the said document by the party failing to comply.

In Moulded Components v Coucourakis and Another 1979(2) SA 457 (WLD) at 459 G-H Botha J found:

“The sanction provided for in Rule 35 (12) is, in my view, quite different in nature and effect from the kind of sanction envisaged in Rule 30 (5). The sanction in Rule 35 (12) is of a negative nature, being to the effect that the party failing to comply with the notice shall not, save with the leave of the Court, use the document in question, provided that any other party may use such documents. It is a sanction that comes into operation automatically upon non-compliance with the provisions of the Rule. Rule 30 (5), on the other hand, operates in an entirely different manner. Under that Rule a party making a request, or giving a notice, as the case may be, to which there is no response by the other party, may give a further notice to the other party that after the lapse of seven days application will be made for an order that the notice or request be complied with, or that the claim or defence be struck out, as the case may be. Failing compliance within the seven days mentioned, application may then be made to Court and the Court may make an appropriate order.”

and at 460 D-E

“I do not consider that there is sufficient basis for ascribing an intention to the framers of the Rules that the sanction of Rule 35 (12) should operate to the exclusion of the procedure of Rule 30 (5).”

In Erasmus Superior Court Practice at p B1-262 the learned authors hold that the provisions of rule 30A should apply to a failure to comply with a notice.

Mr Harms, for the applicant, requested the court to condone the non-compliance and to sanction the applicant with a cost order. In Universal City Studios v Movie Time 1983 (4) 736 (D and CLD) at 764 A Booysen J held:

“It seems to me quite clear that the most obvious course for a respondent, desiring to contest an application on its merits, to adopt in circumstances where he has given a notice in terms of Rule 35(12) which has not been complied with, is to give notice, in terms of Rule 30(5), that he intends, after the lapse of seven days, applying for an order that the Rule 35(12) notice be complied with.”

Mr Harms submits that the court should order the respondent, although rule 30A had not been followed, to comply with the notice in terms of rule 35(12).

Mr Smit, for the respondents, on the merits argued that the only document referred to is “the agreement marked “IM2” and the contents thereof.” No reference is made to any other document and it is clear that no documents are annexed to “IM2”.

The applicant assumes that these documents exist, but do not know if they do exist. Furthermore, the applicant did not describe or identify the documents, but made reference to paragraphs in the written agreement which read as follows:

“2.2 The execution of the drilling and blasting shall be done under the instruction of the mine. The mine shall determine where and when the drilling will be carried out and shall on a monthly basis furnish the contractor with a drilling and blasting program.”

“2.3.2 The production requirements for the following four weeks with a view to monitor the progress of the drilling, to plan extended shift hours where necessary and to arrange additional machines, if considered necessary.”

“2.4 Each day drill hours shall be measured and mutually agreed in writing between the mine Mining Manager and the Contractors Site Manager (or failing them, the appointed representatives of each party), by no later than 16h00 of the following day. This will be recorded on the form attached as Annexure 1, and will be signed by both aforementioned parties.”

“3.4 For each blast a blast report is to be submitted by the Contractor to the mine for checking and approval. The drilling is to be signed by both aforementioned parties as an acknowledgement of the accuracy, depth, number of holes drilled and therefore the linear meters drilled, the amount of explosives and accessories used as well as the drill hours.”

“4.1 The mine will have right to insist that the contractor at no extra cost to the mine shall work longer shifts than standard 8(eight) hour shifts, or bring additional plant and equipment onto site, should the contractor’s production over the previous week not meet the previously mutually agreed targets, as per 2.3, read with 3.1.5

-The mine reserves the right to bring on site additional contractors and/or equipment necessary to achieve production requirements, should the contractor not meet the required production for any consecutive 14 days period. The cost to contract such contractors/ equipment will be for the cost of the contractor, and will therefore be deducted from any amounts payable to the contractor.”

These documents pertain to the operational requirements of the mine. It is clear that the applicant is applying for these documents, which may or may not exist, as a consequence of the counterclaim. The question is, however, whether these documents are relevant in the liquidation application. The applicant cannot aver that it needs these documents to reply to the opposing affidavit of the respondent, as it knows exactly what the counterclaim entails, as action was instituted by the respondent in 2006 and the applicant has pleaded in August 2006.

In Gorfinkel v Gross; Hendler v Frank 1987(3) SA 766 (CPD) at p 774 Friedman J found:

“It would be absurd to suggest that the Rule should be so construed that reference to a document would compel its production despite the fact that the document has no relevance to any issues in the case.”

The applicant has already pleaded in the action during August 2006, without requiring these documents to be discovered. The only issue between the contracting parties is what linear metereage the applicant was obliged to drill according to the agreement and the quantum of damages, if any, resulting from the applicant’s failure to drill the required linear metres.

In Gorfinkel’s case (supra) the court held at p 774 E-F:

“...it is not difficult to conceive of instances where the test for determining relevance for the purpose of Rule 35(1) cannot be applied to documents which a party is called upon to produce under Rule 35(12), as for example where the issues have not yet become crystallised.”

It is clear that the issues in this matter have “become crystallised”

The applicant contends that the applicant requires these documents to respond to the counterclaim.

I find that the applicant had not complied with Rule 30A and on that ground the application should be dismissed. Although the application is dismissed for not complying with Rule 30A. I have also considered the applicant’s application on the merits as set out above and find that the applicant is not entitled to the said documents, if they should exist, in the liquidation application as the applicant has already pleaded to the counterclaim and cannot aver that these documents are necessary to compile a replying affidavit.

I therefore make the following order:

The application is dismissed with costs.

______________________

C Pretorius

Judge of the High Court

Case number : 10705/2006

Heard on : 30 May 2007

For the Applicant / Applicant : Adv C Harms

Instructed by : Serfontein & Swart

For the Respondent / Respondent: Adv J Smit

Instructed by : Rouledge Modise Moss Morris

Date of Judgment : 5 June 2007

---