IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

REPORTABLE					CASE NO:  3106/2008
In the matter between:				DATE:  2/4/2008
BREITENBACH, LYNETTE
 Applicant
And

BREITENBACH, RENIER
 Respondent

JUDGMENT

LEDWABA, J

[1]	The applicant filed an urgent application seeking an order in the following terms:
		‘1.	Condoning the Applicant’s non-compliance with the rules of 		this Honourable Court in terms of Rule 6(12) (a) in regard 		to time periods and the determination of this application.

  2.	Committing the Respondent to goal for a period of thirty 			(30) days (or such lesser period as to this Honourable 			Court may seem meet), and on such terms as this Honourable		Court deems just, which period of imprisonment is to be 			suspended on condition that the 	Respondent discovers the 			documents as set out in attachment “A” hereto, within three (3) 		days of the date of this order.

		3.	Ordering the respondent to pay the costs of this application 		on the scale as between attorney-and-own-client.’

[2]	The main reason why the application was brought on urgent basis, according to applicant, is that a second preferential trail date has been allocated and the matter has been set-down for hearing from the 5th to 20th June 2008. Applicant now wants further discovery documents listed in annexure “I” of the papers so that she can make preparation for the trial and determine if the forensic audit needs to be conducted by an expert. Applicant submitted that if this application is set-down for hearing in the normal cause, it will only be heard after the allocated trial date.

[3]	The respondent filed opposing papers wherein he further submitted that the urgency in the application is self created in that the applicant could have requested the document mentioned in annexure “I” earlier.

BACKGROUND:

[4]	The relevant background which in my view, is relevant to this application is as follows:
	4.1	The applicant and the respondent were married to each other in 	community of property and their marriage was dissolved by this 	court 	on 9th 	September 1999 under case number 33193/1997. 	An agreement of settlement which they entered into which dealt, 	inter alia, with the division of their joint estate was incorporated in 	the divorce order.

	4.2	The respondent issued summons against the applicant under 	case number 25683/2002 to enforce certain terms of the 	agreement dealing with how their joint estate was to be divided. 

	4.3	The applicant is defending the action and has filed a 	counterclaim. One of the defences she raised is that the 	respondent made some fraudulent misrepresentation which 	induced her to sign the aforesaid agreement of 	settlement.

	4.4	After the respondent filed a discovery affidavit, on 27th November 	2006, applicant served an extensive Rule 35(3) Notice on the 	respondent’s attorneys requesting respondent to discover 	documents mentioned in the notice. The respondent did not 	comply fully. The applicant thereafter launched an application to 	compel in terms of the rules compelling the respondent to comply, 	which 	application, was opposed by the respondent.

	4.5	After the aforesaid application was argued, Phatudi AJ, made 	the following order: 
	‘1.	The Respondent shall within sixty days from date hereof 	discover the documents set out in paragraphs 1 to 29 of 	the Applicant’s notice in terms of Rule 35(3) from 1 	January 2001 to 27 November 2006, whether such 		documents be in the Respondent’s personal possession or 	in the possession of his attorney, or agent, or other 	persons acting on his behalf.
	
2.	Pending the aforesaid discovery the Respondent, his 		attorney, or agent, or other persons acting on his behalf 	are directed to afford the Applicant’s accountant Mr. GERT 	VAN WYK access to the aforesaid documents.

		3.	The costs of the application are reserved for determination 		by the trial court.”

4.6		Despite the court order of Phatudi AJ, respondent failed to 	comply. Advocate R. Rosenberg SC, for the applicant, submitted 	that when the aforesaid application was argued, the respondent did not indicate that he could not discover the requested documents in his affidavit.

4.7		Applicant launched another application for committal under case 	number 50820/2007, (“the first committal application”). The 	respondent deposed to an affidavit in the “first 	committal 	application” wherein he stated that he would make full 	discovery of the documents requested by 20th November 2007.

4.8		Subsequent to the launch of this application, (the second 	committal application), the respondent filed a supplementary 	discovery affidavit commissioned on 26th February 2008, 	(responding to the original Rule 35(3) Notice), wherein he 	discovered the documents mentioned in annexures D1, D2 and 	D3. In the supplementary discovery affidavit, he further mentioned 	that he also 	specifically refers to the notice of motion under case 	number 3106/2008 (the second committal application) and 	further said 	he noted annexure A of the second committal 	application. In paragraph 6 of the supplementary discovery 	affidavit he said:
		“Ek het geen verdere dokumentasie in my besit en/of onder my 	beheer as die dokumentasie wat ek hierin en in die vorige 	verklarings blootgelê het nie.”

[5]	It would be proper to refer to the provisions of Rule 35(3), (6) and (7), at 	this stage, which read as follows:
	‘35	Discovery, Inspection and Production of Documents
		(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 to 		make the same available for inspection in accordance with 			subrule (6), or to state an oath within ten days that such 			documents are not in his possession, in which event he shall state 		their whereabouts, if known to him.

		(6) Any party may at any time by notice as near as may be in 		accordance with Form 13 of the First Schedule require any party 		who has made discovery to make available for inspection any 		documents or tape recordings disclosed in terms of subrules (2) 		and (3).  Such notice shall require the party to whom notice is 		given to deliver to him within five days a notice as near as may be 		in accordance with Form 14 of the First Schedule, stating a time 		within five days from the delivery of such latter notice when 			documents or tape recordings may be inspected at the office of 		his attorney or, if he is not represented by an attorney, at some 		convenient place mentioned in the notice, or in the case of 			bankers' books or other books of account or books in constant 		use for the purposes of any trade, business or undertaking, at 		their usual place of custody.  The party receiving such last-named 		notice shall be entitled at the time therein stated, and for a period 		of five days thereafter, during normal business hours and on any 		one or more of such days, to inspect such documents or tape 		recordings and to take copies or transcriptions thereof.  A party's 		failure to produce any such document or tape recording for 			inspection shall preclude him from using it at the trial, save where 		the court on good cause shown allows otherwise.

		(7) If any party fails to give discovery as aforesaid or, having been 		served with a notice under subrule (6), omits to give notice of a 		time for inspection as aforesaid or fails to give inspection as 			required by that subrule, the party desiring discovery or inspection 		may apply to a court, which may order compliance with this rule 		and, failing such compliance, may dismiss the claim or strike out 		the defence.’ (own underlining).

[6]	I understand the nub of the applicant’s case being that the respondent 	should be committed to prison because of his failure to comply with the 	court order of Phatudi AJ. More particularly, in that he failed to 	discover documents in annexure “I”, (see paginated pages 99-101), 	being books and records of primary entry.

[7]	It is important to consider the provisions of Rule 35 and the object of 	discovery of documents. In Durbach v Fairway Hotel Ltd 1949 (3) SA 	1081 SR at 1083 Tredgold J said the following:	
	,The whole object of discovery is to ensure that before trial both parties 	are made aware of all the documentary evidence that is available. By 	this means the issues are narrowed and the debate of points which are 	incontrovertible is eliminated. It is easy to envisage circumstances in 	which a party might possess a document which utterly destroyed his 	opponent’s case, and which might yet be withheld from discovery on the 	interpretation which it is sought to place upon the rules. To withhold a 	document under such circumstances would be contrary to the spirit of 	modern practice, which encourages frankness and the avoidance of 	unnecessary litigation.,

[8]	Subrule 3 is an instrument to assist a party dissatisfied with the 	inadequate discovery of another party. Subrule 3 cannot be relied upon 	before provisions of subrule 1 are invoked and there was compliance 	with the rule in terms of subrule 2.

[9]	Subrule 7 should be utilised where a party is dissatisfied with the 	discovery or supplementary discovery that has been made and remedies 	under subrule 3 have been exhausted, see Tractor & Excavator 	Spares (Pty) Ltd v Groenedijk 1976 (4) SA 359 (W).
	
[10]	I need to mention that in this second committal application the 	respondent did not depose to an affidavit. The answering affidavit is 	deposed to by his attorney Mr. Braam Grove, who alleged that the order 	of Phatudi AJ has 	been complied with. He further referred to the 	respondent’s supplementary affidavit commissioned on 27th February 	2008 wherein the respondent alleged that he does not have further 	documents in his possession and control. He further submitted that an order for 	committal would not be appropriate since the respondent had no further 	documents to discover.

[11]	Advocat R. Rosenberg SC emphasised that the respondent did make a 	tender that documents referred to in the order of Phatudi AJ could be 	inspected and he never suggested that he was 	unable to make discovery of 	the documents in the court order.

[12]	Counsel further submitted that the respondent and/or 	his auditors were 	in terms of statute obliged to retain the documents that the applicant 	seeks to be discovered for a period of fifteen (15) years and failure to do 	so was a criminal offence.

[13]	Counsel argued forcefully that having regard to the contents of the 	respondent’s affidavits, the Court Order and the fact that there is no 	affidavit by respondent’s auditor regarding the whereabouts of the 	outstanding documents in annexure “I”,  the order prayed for in the 	Notice of motion and should be granted.

[14]	It is important to have regard to the provisions of Rule 35(7) which states 	that if a party fails to give discovery, the party desiring discovery may 	apply to a court which may order compliance and, failing such 	compliance, may dismiss the claim or strike out the defence.

[15]	Applicant’s counsel’s argument that the applicant did not pursue the 	provision of Rule 35(7) because they would not assist the applicant in 	preparing for her case has no merit in that it creates an impression that 	the said remedies in the rule are toothless and committal would be the 	only effective remedy to assist the applicant. In my view, even if a court 	may make an order of committal the requested documents may still not 	be discovered.

[16]	Civil contempt proceedings should not, in my view, be brought solely to 	bring about compliance with a court order and purely for the sake of 	punishment especially if there is a statutory remedy for non-compliance 	with such a court order. The High Court has discretion to make an order 	for committal. In my view, such a discretion especially in an application 	of this nature, should be exercised sparingly and in very exceptional 	circumstances, see Cape 	Times v Union Trades Directories and 	Others 1956 (1) SA 105 N at121. Due to serious consequences of 	incarceration, civil contempt proceedings should be used as a last resort, 	see Banmontyne v Banmontyne 2003 (2) SA 359 SCA at 362 F-263 	A.

[17]	There are other effective remedies that cannot be simply ignored. In this 	case it is clear that the provisions of Rule 35(7) in respect of applying to 	court for the dismissal of the respondent’s claim and or striking of his 	defence, was not utilised. 	

[18]	The applicant can also pursue the punitive committal through criminal 	proceedings if the respondent failed to retain the documents that the 	applicant needs in terms of the Regulations for the Retention, 	Preservation of Company Records 1983. I have carefully considered 	the requisites in an application for contempt as enunciated in 	Facie N.O. v CCII Systems (Pty) Ltd 2006 (4) SA 326, and having 	regard to other relevant authorities I am not satisfied that it would be 	appropriate to grant an order prayed for in terms of the notice of motion.

[19]	As far as the costs are concerned, it is clear that the applicant has 	previously made demand for discovery of documents in her Rule 35(3) 	notice. The respondent was ordered by the court to make discovery of 	the said document. It was 	only after this application was filed that the 	respondent is saying he does not have the said documents in his 	supplementary affidavit. The respondent has not been honest in my 	view.

[20]	Despite the order I am going to make and having regard to the manner 	in which the respondent dealt with the issue of discovery further 	documents, this is a classical case that warrants that I should not make 	an order of costs against the applicant.

[21]	I therefore, make the following order:
	(i)	The application is dismissed;
	(ii)	Respondent is ordered to pay the costs of this application.

_______________
A. P. LEDWABA
JUDGE OF THE HIGH COURT

Date of hearing: 13 March 2008
Counsel for Applicant: Advocate R. Rosenberg
Instructed by: Botes Jafta Kyle (PTA) Inc.
		     ℅ Morris Pokeroy Attorney.
Counsel for First Respondent: Advocate:  Advocate Greyling
Instructed by: Grové, Deysel & Partners