South Africa: North West High Court, Mafikeng
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[2008] ZANWHC 24
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Otto v Valtrac (Pty) Ltd and Others (539/2006) [2008] ZANWHC 24 (14 August 2008)
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CASE NO.: 539/2006
OTTO : ANNERI
Applicant
VALTRAC (PTY) LTD
First Defendant
NOORDWES VALTRAC CC Second Defendant
WAYNE ELLIOT PREECE Third DefendantWALTER HEINRICH BADENHORST Fourth Defendant
and
HARDUS OTTO First Third Party
MARIE OTTO Second Third Party
WAYNE ELLIOT PREECE Fourth Third Party
WALTER HEINRICH BADENHOST Fifth Third Party
LANDMAN J:
1. On 11 August 2008 I made an order in terms of paragraphs 1 and 2 of the notice setting down an application to compel discovery. I indicated that reasons for the order would follow. These are the reasons.
2. The plaintiff, Anneri Otto, instituted action against Valtrac (Pty) Ltd, Noordwes Valtrak CC, Wayen Elliot Preece and Walter Heinrich Badenhorst (first to fourth defendants) for damages following the fatal accident which her husband sustained when a bean harvester was demonstrated to him by the defendants. The first defendant pleaded and delivered a third party notice to Hardus Otto, Marie Otto, Noordwes Valtrak CC, Wayne Elliot Preece and Walter Heinrich Badenhorst (the first to fifth third parties).
3. On 22 August 2007 the plaintiff delivered a notice to discover on the defendants. The first defendant has submitted its discovery affidavit. The second, third and fourth defendants have not reacted to the notice and an application to compel discovery in terms of Rule 35(7) has been launched. It is this application which serves before me. The trial, restricted to the issue of liability, has been enrolled for hearing from 18 to 29 August 2008.
4. The service of the third party notice has the effect of making the third party a party to the action. Third parties are not obliged to participate in the exchange of pleadings and thus the trial. If the third party files a notice of intention to defend and a plea the third party may become a plaintiff or defendant or be regarded as a plaintiff in respect of some matters and a defendant in respect of other issues.
5. A third party who enters appearance to defend must, generally, be barred from pleading if the pleadings in the action are to close. See MCC Contracts (Pty) Ltd v Coertzen and Others 1998 (4) SA 1046 (SCA).
6. Mr H Lever SC, who appears for the plaintiff, submits, in view of the parties agreement that the issues be separated as recorded in the pre-trial minutes, that this is tantamount to a closure of the pleadings and that the second to fourth defendants should be compelled to respond to the notice requiring discovery.
7. Mr Lever points out that some third parties overlap with the defendants eg the third, fourth and fifth third parties are the second, third and fourth defendants. Hardus and Marrie Otto (the first and second third parties) are heirs in the estate of the deceased and have not entered appearance to defend. The allegations of negligence are made only against the third, fourth and fifth third parties. An additional third party notice has not changed the situation.
8. Ms C Zwiegelaar, who appears on behalf of the second to fourth defendants, submits that they need not respond as the pleadings were not closed when the notice to discover was delivered and no order has been made for premature discovery.
9. Rule 29 defines when pleadings are considered closed. It reads:
“Pleadings shall be considered closed-
(a) if either party has joined issue without alleging any new matter, and without adding any further pleading;
(b) if the last day allowed for filing a replication or subsequent pleading has elapsed and it has not been filed;
(c) if the parties agree in writing that the pleadings are closed and such agreement is filed with the registrar; or
(d) if the parties are unable to agree as to the close of pleadings, and the court upon the application of a party, declares them closed.”
10. It is permissible for parties to agree that the pleadings are considered to be closed. The pre-trial minute is a written agreement by all the parties including the third parties. It was filed with the registrar and appears in the bound papers. Paragraph 6 of the pre-trial minute reads:
Die partye is met mekaar eens dat die vraag of enige van die verweerders en/of Derde partye teenoor die Eiseres aanspreeklik is, vooraf afsonderlik bereg sal wees en dat enige orige geskilpunte sine die uitgestel moet word.”
11. The parties do not use the phrase “die pleitstukke word as gesluit, geag” (”the pleadings are deemed to be closed”) in the minutes. But what did they intend by agreeing to a set down in respect of liability only? In my opinion it is clear that they meant that the pleadings, in so far as they relate to the issue of whether the defendants or third to fifth third parties were negligent and caused the damages suffered by the plaintiff, were complete, and such that a court could decide this issue. As Melius de Villiers observed in Law of Injuries on page 236 (cited in Potgieter v Sustein (Edms) Bpk 1990 (2) SA 15 (T) at 20): “A relation was created resembling an agreement between the parties to submit their differences to judicial investigation…”.
12. Rule 13 intends and that parties may agree to separate issues. The parties have done this. They have not considered it necessary that the entire pleadings be closed before the issue of liability is set down for adjudication. I am of the opinion that if the parties are free to decide when the pleadings are considered closed that this allows them to do just that. They may depart from the norms set by subrules (a) and (b) of Rule 29. This being so, they may close the pleadings, or consider them to be closed at an earlier stage of the pre-trial process, and for a specific issue.
13. Subsequently the first defendant discovered its documents. The matter was enrolled for hearing. Nothing further was required by way of pleadings regarding the issue of liability. Even at this stage the second, third and fourth defendants do not say that they wish to file further pleadings relating to this issue. A great many notices for purposes of the trial, on the issue of liability, have been exchanged.
14. The opposition to the application is a technical one. To grant it, to use Holmes JA’s words in Milne NO v Shield Insurance Co Ltd 1969 (3) SA 352 (A) at 358H,: “would be to entrench, not to abate, the law’s delays.” There will be no prejudice save that the trial ought to commence. This can hardly qualify as prejudice.
15. Justice will be served by ordering discovery. In the circumstances I granted the relief sought.
____________________
A A LANDMAN
JUDGE OF THE HIGH COURTDate of hearing: 07 August 2008
Date of judgment: 14 August 2008
Advocate for the Applicant/plaintiff: Adv Henry Lever SC
Advocate for the Respondents/second to fourth defendants: Adv C Zwiegelaar.