VAATZ -v- METJE & ZIEGLER t/a AUDI CENTRE
Rule 35(3) notice required inspection of a large number of documents
of which only a few were relevant. Other party was entitled to ignore
such notice. Further, in an application to compel in such
circumstances the Court is under no obligation to pore over the list
of documents in an attempt to identify those which are relevant.
by a party to respond to a Rule 35(3) notice does not entitle the
other party to costs of an application to compel. It will suffice if
the party who receives the notice files an affidavit in the
application to compel.
THE HIGH COURT OF NAMIBIA
the matter between:
LTD t/a AUDI CENTRE DEFENDANT/RESPONDENT
J Heard on: 2001-04-23 Delivered on: 2001-04-30
This is an interlocutory application brought by the applicant, the
plaintiff in the trial action, against the respondent, the defendant
in the action, in which the applicant seeks an order directing that
the respondent replies to the applicant's notice delivered pursuant
to Rule 35(3) of the High Court Rules. The respondent opposes the
background to the application is as follows. By summons dated 8th
March, 2000 the applicant sought an order requiring the respondent to
deliver to him an Audi A4 2.4 manual silver metallic motor car with
tow bar against payment by the applicant of N$177 706,00.
basis for the applicant's claim for this relief, as set out in the
particulars of claim, is as follows. On 9th
June, 1999 the respondent made an offer in a written quotation to
sell to the applicant a new Audi A4 2.4 manual silver metallic motor
car with tow bar at a price of NS177 706,00. On or about 16th
June the applicant accepted this offer thus creating a contract.
However, despite demand the respondent has failed to deliver the Audi
A4 motor car to the applicant.
respondent's defence to the applicant's claim, as set out in its
plea, is two-fold. First, it denies that the written quotation was a
binding offer. It alleges that it was only an invitation to treat.
Alternatively, if the written quotation can properly be regarded as
an offer it alleges that it was made conditional on the manufacturer
of the motor car being able to supply a model fitting the description
set out in the quotation and at the price quoted and these conditions
could not be met.
October, 2000 the applicant delivered a notice in terms of Rule
35(1), (6), (8) and (10) of the High Court Rules and on 27th
November, 2000 the respondent filed a discovery affidavit in response
to this notice. The first part of the schedule to the affidavit
specified all correspondence between the parties' legal
representatives, all pleadings, the written quotation dated 9th
June, 1999 and correspondence between the applicant and the
respondent and the applicant and the manufacturer which took place
following the applicant's demand that the respondent performs its
contractual obligations. The applicant was not satisfied with this
affidavit and accordingly served a notice on the respondent's legal
representatives in terms of Rule 35(3) of the High Court Rules. That
notice required the respondent to make available for inspection:
All quotations (similar to quotation No: 1951 given to Plaintiff)
issued in respect of Audi vehicles to other interested purchasers, at
any time during the period 1 January 1998 to 31 December 1999.
Invoices relating to Audi vehicles, in the period 1 January
1998 to 31 December 1999.
orders, faxes, invoices and stock records between Defendant and the
South African supplier to Defendant, of Audi motor vehicles, for the
period 1 June 1999 to 31 December 1999.
contracts, agency contracts, or any other contracts regulating the
relationship between Defendant and Volkswagen South Africa (Pty) Ltd
and/or any company, supplying Defendant with Audi motor vehicles.
Any stock sheets, manufacturing schedules, advices of proposed
delivery schedules, delivery records, confirmation of orders, and
advices relating to the production of vehicles ordered, relating to
A4 Audis, manufactured by Volkswagen South Africa (Pty) Ltd,
alternatively the manufacturer of Audi motor vehicles in South Africa
in the period 1 June 1999 to 31 December 1999."
respondent failed to respond to this notice hence the present
application to compel.
his affidavit in support of the application the applicant gives as
his principal reason for requiring discovery of the documents listed
in the Rule 35(3) notice their relevance to establishing:
or not it is a business practice of the defendant,
give interested purchasers of motor vehicles a low quote, and when it
comes to delivering the vehicle, to suddenly claim that the vehicle
has increased in price and then claiming a substantially higher price
than that originally quoted."
according to the applicant, can be established by reference to the
documents referred to under items 1 and 2 of the notice.
for item 3, the applicant avers that these documents are required to
ascertain whether the order for the Audi motor car was placed
timeously by the respondent with the manufacturer and whether it was
followed up promptly.
4, according to the applicant, is required to establish whether, for
example, the respondent can require the manufacturers to honour
orders placed and item 5 is needed in order for the applicant to
check whether the vehicle which he ordered was listed in advices of
vehicles on order given by the manufacturer to the respondent.
respondent's grounds of opposition to the application , as set out in
its answering affidavit, are three-fold. Firstly, it contends that
the applicant is on a fishing expedition which is an impermissible
exercise. Secondly, it contends that the documents listed in the Rule
35(3) notice are not relevant to the issues in dispute. And thirdly
it contends that the notice casts a net so wide that it would be
impossible for the respondent to comply with any order which may be
African Sugar Association v
Sugar Distributors (Pty) Ltd (Case
(P) I. 989/98) (unreported) this Court cited with approval the
following two passages from Continental
Ore Construction v
Steel & Vanadium Corporation Ltd 1971(4)
SA 589 (WLD) at 598 D-F and 597 H - 598A respectively:
test of discoverablility or liability to produce for inspection,
where no privilege or like protection is claimed, is still that of
relevance; the oath of the party alleging non-relevance is still
unless it is shown on one or other of the bases referred to above
that the Court ought to go behind that oath; and the onus
proving relevance, where such is denied, still rests on the party
seeking discovery or inspection ... Rule 35(3) could never have been
intended to mean that the mere subjective belief (or even that a mere
statement as to the existence of such belief) by the party seeking
further discovery, as to the relevance of additional documents, is by
itself enough to require the other party on notice to make available
for inspection such of those documents as are in his possession."
Court will go behind the affidavit only if it is satisfied -
the discovery affidavit itself; or
the documents referred to in the discovery affidavit; or
the pleadings in the action;
any admissions made by the party making the discovery
the nature of the case or the documents in issue.
there is a probability that the party making the affidavit has or has
had other relevant documents in his possession or power or has
misconceived the principles upon which the affidavit should be made."
Wine and Brandy Co Ltd v
SA 735 (E) at 749 H.
those principles in mind I turn to a consideration of the arguments
advanced by the applicant who appeared in person. With regard to the
documents referred to under items 1 and 2 of the notice the applicant
relied on what was stated in his affidavit and in addition referred
the Court to what is set out in paragraph 7 of the respondent's
answering affidavit. In that paragraph the respondent admits that
during the period from 1st
January, 1998 to 31st
1999 it sold approximately two hundred Audi motor vehicles and issued
many more quotations. It also admits that during that period price
adjustments were for various reasons made by both itself and the
manufacturer. The applicant sought to spell out from these admissions
a further admission that the respondent has not strictly honoured its
quotations and contended that he is entitled to ascertain whether
giving incorrect quotations forms a regular pattern of the
confess to having difficulty in giving paragraph 7 the same
interpretation as that espoused by the applicant but, in any event,
his contention, in my view, begs the real question. The real question
is not what the respondent did in other transactions over the two
year period or whether it has applied unfair business practices to
its customers but whether its quotation in the case of the applicant
constituted an offer and, if so, whether such offer was subject to
the conditions set out by the respondent in its plea and whether
those conditions could be met or not. Those are the only questions
which are raised in the action and I am unable to see how the
documents required under items 1 and 2 of the notice are relevant to
those questions. What happened in other transactions cannot advance
the applicant's case or damage that of the respondent. I agree with
Mr Botes, who appeared for the respondent, that the applicant is not
entitled to have access to those documents.
regard to the documents required under item 3 the applicant seeks, in
his affidavit, to limit the documents to those which relate to his
particular transaction but that, of course, is not what is set out in
the notice. The notice goes much wider than that and covers what must
be a huge amount of documentation. Whilst the documents relating to
the applicant's own transaction may be relevant to the issues in the
case I cannot see how those relating to other transactions can be.
a party delivers a notice in terms of Rule 35(3) requiring inspection
of a large number of documents of which only a small number are
relevant I do not consider that there is any obligation on the other
party to sift through the documents referred to in the notice in
order to identify those which are or may be relevant. In my view, he
is entitled, in such circumstances, to adopt the stance that he need
not comply with the notice and leave the other party, if he so
wishes, to pursue the remedy afforded by Rule 35(7). However, in such
circumstances the Court will also be under no obligation to pore over
the list of documents in an attempt to identify those which are or
may be relevant. Accordingly, I will refuse to make an order in
respect of the documents required under item 3.
have already stated the applicant's reasons for requiring inspection
of the documents referred to under items 4 and 5. Again, I am unable
to regard those reasons as having any validity. If the quotation was
conditional in the manner pleaded by the respondent then the only
issues are whether the manufacturer of the motor car was able to
supply a model fitting the description set out in the quotation and
at the price quoted. The documents required are not relevant to those
last point advanced by the applicant concerns the costs of this
application in the event of the Court finding against the applicant
on the merits. The applicant submitted that the respondent was under
an obligation to react to the Rule 35(3) notice by filing an
affidavit giving its reasons for failing to make the required
documents available for inspection. This the respondent failed to do
and it should therefore bear the costs of this application.
applicant sought to support the foregoing submission by reference to
the following comment on Rule 35(3) in Erasmus: Superior
Court Practice at
subrule concerns documents not yet discovered and contemplates an
affidavit other than and additional to one made under subrule (1)."
is then made to Rellams
(Pty) Ltd v
Brown & Hamer Ltd 1983(1)
SA 556 (N) at 559 C.
concerned with an application to compel in terms of Rule 37(7) in
circumstances where there had not only been no response to a Rule
35(3) notice but no response to the application itself by any
official or servant of the defendant. It was in this context that Van
Heerden J said at 559 C:
35(3) concerns documents not yet discovered and clearly contemplates
an affidavit other than and additional to one made under Rule 35(1).
There is as yet no such affidavit by the defendant nor any acceptable
explanation for the omission. The plaintiff is at least entitled to
be informed in proper fomi if the documents called for are in the
defendant's possession and if their relevance is being disputed. This
has not yet been done and the application calling upon the defendant
to comply with Rule 35(3) should accordingly have been granted."
do not understand the learned judge to have said that an affidavit
must be filed before an application to compel is brought. Indeed, in
my view it is implicit in the language used that all he was saying
was that an affidavit should be filed by the time the application to
compel is heard. That, of course, has been done in the present
application. I can therefore see no merit in the applicant's
submission on costs.
the foregoing reasons the application is dismissed with costs.
the respondent: Instructed by:
L C Botes
Engling, Stritter & Partners
No.: Case No. Case No.: Case No.: Case No.: Case No.: Case No.
1731/2000 I. 485/2001
1773/2001 1732/2000 1343/2000 1342/2000
WINDHOEK LTD vs UWE KESSLER
APPLICATION FOR SUMMARY JUDGMENT Parties confined to summary
may however have regard to extrinsic evidence properly before court.
attempted to have an additional affidavit filed as extrinsic
evidence by referring to it as a "discovery" or "replying"
affidavit- such not permissible. Applicant must stand or fall by
his/her verifying affidavit.
of prescription raised.
of phrase "debtor is outside Republic". Not to be
interpreted literally. The word impediment as it appears in section
13(l)(i) of Act 68 of 1969 not to be taken too literally.
Impediments range from the absolute to the relative.
was no absolute bar to issue summons against respondent even where
respondent was outside the Republic for two short periods. Defence
good in law. Application not granted.