PRINSLOO DJP:
Introduction
This is an application for leave to appeal against the court’s refusal to compel the respondent to discover documents.
In the notice in terms of Rule 28(8)(a), the applicants sought further discovery of documents in the following terms:
‘1. All documents that indicate exactly what discounts were received by the plaintiff when the defendant bought merchandise at authorised Shoprite Wholesalers or distributors.
2. All documents indicating how much of such discount, as envisaged in paragraph 1 above, was used by Shoprite on operational expenses.
3. All documents indicating how the amounts in paragraphs 1 and 2 above were treated in the plaintiff's annual financial statements.'
Having heard the arguments, Miller AJ delivered a concise ruling on 26 November 2024 and made the following order:
‘1. The application is dismissed. 2. The plaintiff is entitled to costs, which will be capped as provided for in Rule 32(11). 3. The interlocutory is finalised and removed from the roll.’
The applicants aggrieved by the outcome of the application filed their application for leave to appeal, as the applicants are of the view that it is clear from the pleadings that the documents sought to be discovered are available.
The parties
The applicants are as follows:
The first applicant is Amarula Investment CC, duly registered and incorporated in accordance with the applicable laws of Namibia, with principal place of business situated at Shop No. 1, Erf 3296, Maroela Mall, Mandume Ndemufayo Road, Ongwediva, Namibia. The first applicant was a franchisee of the respondent and operates a supermarket retail store.
The second and third applicants are Gerome Meshawn Schmidt and Amalia Maxine Schmidt, residing in Ongwediwa.
The fourth applicant is Schmidtco. Property Development Company (Pty) Ltd, a private company with limited liability, duly incorporated in terms of the laws of the Republic of Namibia with its registered address at Erf No. 3507, Ongwediva, Namibia and at Shop No. 40, Erf 3296, Maroela Mall, Mandume Ndemufayo Road, Ongwediva.
The respondent is Shoprite Namibia (Pty) Ltd, a private company with limited liability, duly incorporated and registered in accordance with the applicable laws of Namibia, doing business as a wholesale franchisor and central purchasing agency, with principal place of business situated at 32 Moses Tjitendero Street, Olympia, Windhoek, Namibia.
Background
In the main action, the plaintiff claims payment from the defendants in the sum of N$8 189 040, 82; N$6 051 438, 93; N$1 926 134, 77, together with ancillary relief.
The amounts claimed arise from a franchise agreement concluded between the parties in terms whereof, inter alia, the first defendant acquired the right to trade under the name and style of 'OK Foods'.
The business of the plaintiff as a central purchasing organisation entails, among other things, that the plaintiff purchases commodities in bulk from suppliers and manufacturers on behalf of its members. The plaintiff's members are general retail dealers, such as supermarkets like the first defendant, conducting business throughout Namibia. The retail dealers achieve membership from the plaintiff. A member's membership enables them to obtain favourable credit facilities for purchasing stock from suppliers through the plaintiff. The suppliers invoice the plaintiff directly for supplies provided to a member, and the plaintiff pays the suppliers directly. In return, the member pays the plaintiff. The plaintiff provides the member with a statement of account reflecting the amount due, which is payable within 30 days of the date of the statement.
The first defendant allegedly failed to make payment in terms of the respective agreements between the parties.
Issues for determination
Two issues arise in the determination of this application. The first is whether the order is appealable. The second is whether an appeal would have reasonable prospects of success, even if the order were appealable.
Appealability of the order
The applicants argued that a refusal to compel discovery is appealable with leave under certain factual circumstances. In this case, the order refusing to compel discovery severely restricts and limits both the applicants’ defence and counterclaim. Without the requested documents, the applicants will not be able to demonstrate to the court how much the respondent benefited from rebates and discounts at the expense of the applicants.
The applicants further aver that the court made an order on facts not pleaded and that the court erred in dismissing the application to compel.
The respondent’s case is that the order that the applicant sought to appeal against is interlocutory in nature and is not appealable as none of the required attributes, consisting of a) the order must be final in effect and not susceptible to alteration by the court of first instance, b) it must be definitive of the rights of the parties, c) and it must have the effect of disposing at least a substantial portion of the relief claimed in the main proceedings, are present.
Discussion
In Central Technical Supplies v Paragon Investment JV China Huayun Group, Angula AJA (as he then was) stated as follows:
‘[31] The test of whether a judgment or order is appealable was laid down by this Court in Vaatz & others v Klotsch & others with reference and approval of Erasmus: Superior Court Practice where the learned author reviewed the South African jurisprudence and concluded that an appealable judgment or order has three attributes: namely that (i) the decision must be final in effect and not susceptible to alteration by the court of first instance; (ii) it must be definitive of the rights of the parties, ie it must grant definitive relief; and (iii) it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. [32] This Court in Shetu Trading v Tender Board of Namibia observed, with reference to the view expressed by the SCA, that the question of appealability is ‘intrinsically difficult’ and ‘a vexed issue’ and that the principles set out in Zweni v Minister of Law and Order are not ‘cast in stone’ but are illustrative, and ‘not immutable’. The court further pointed out that there are cases where courts have held that a judgment or order is appealable when one attribute is missing, while there are cases where the judgment or order is unappealable despite all three attributes being present.’ Applying the criteria to the current facts, I must agree with the respondent’s position that Miller AJ’s ruling does not possess any of the three attributes set out above.
In my view, all the applicants have to do, is file a Rule 28(8)(a) notice in which they specify the documents in such detail that there is certainty and the plaintiff is able to identify the documents.
The notice seeking the specific discovery is overbroad. The applicants sought a smorgasbord of documents, but their notices lacked specificity. When seeking discovery, specificity is crucial. Discovery requests should clearly and precisely identify the information or documents sought. This includes specifying the items to be produced, either by individual item or category, and describing each with reasonable particularity. The respondent would only be able to properly respond to a notice in terms of rule 28(8) once properly specified.
Therefore, in my view, the ruling dated 26 November 2024 is not appealable and the leave sought stands to be struck from the roll.
Prospects of success
It is well established that there must be reasonable prospects of success on appeal, but given the circumstance of the matter, I am of view that the appeal in casu, would have no reasonable prospects of success as another court, more specifically the Supreme Court, would not take a different view and compel discovery on the current facts.
Costs
The costs must follow the result. Costs are thus, awarded to the respondent. Such costs to include the costs of one instructing and one instructed counsel. The costs are limited to rule 32(11).
My order is set out above.
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