Court name
High Court
Case number
PA 8 of 2005
Case name
Kaukaaka and Another v St Phillips Faith Healing Church
Media neutral citation
[2007] NAHC 19



the matter between:









Heard on: 2007.04.24

Delivered on: 2007.05.02


HOFF, J: [1] This
is an interlocutory application in terms of Rule 35 (13). The order
sought by the applicants which appears in a notice of application in
terms of Rule 35 (13) reads as follows:

1. Directing that the
applicants discovery affidavit (annexed as “SK 15” – hereunder)
and documents sought to be so discovered be allowed and admitted for
purpose of the main application under case no. P (A) 8/2005 in terms
of Rule 35 (13) of the rules of this Honourable


  1. Costs of suit, in the event
    of the Respondent opposing this application.

  1. Further and/or alternative

[2] This application was
opposed by the respondent.

It is necessary in my view to
place this application in context by briefly referring to the
background to this application. I shall refer to the parties as they
were cited in this application.

The respondent instituted
application proceedings during January 2005 in which it sought the
cancellation of a deed of transfer of immovable property executed in
favour of second applicant on the grounds that such transfer was

Applicants opposed the
application and filed an opposing affidavit. Respondent subsequently
on 29 April 2005 filed its replying affidavit.

25 July 2005 the matter was postponed

in order for certain issues to be referred to oral evidence.

On 5 June 2006 this court
upheld an application filed in terms of Rule 30 by the respondent in
response to certain affidavits filed by applicants.

On 22 June 2006 applicants
instituted this interlocutory application in terms of Rule 35 (13).

[3] Mr
Strydom, who appeared on behalf of the respondent, raised a point

namely that this application is misconceived since the procedure
adopted by the applicants is not contemplated by the provisions of
Rule 35 (13), that the procedure employed by applicants is a guise to
introduce new evidence in a attempt to bolster a poor defence and
that such a procedure constitutes an abuse of court process.

[4] Mr Boesak who appeared on
behalf of applicants disagreed. He submitted that the grounds for
bringing this application were that the documents intended to be
discovered had been omitted due to an oversight by the erstwhile
legal practitioner of applicants, namely Mr Rodger Kauta, and that
the documents sought to be discovered are relevant to the
adjudication of the dispute between the parties. He further
submitted that since discovery of documents in application
proceedings is only ordered in exceptional circumstances, that this

should gauge the existence of
exceptional circumstances by having regard to factors such as the
nature of the defence, the relevance of the documentation requested,
whether the application was a fishing expedition, the timing of the
application, and that there was a reasonable apprehension that not
all the documentation was before the court for the just and fair
resolution of the dispute.

[5] For
authority of his submissions this court was
referred to
Components and Remouldign South Africa (Pty) Ltd v Concourakis 1979
(2) SA 457 (W) at 470 D

[6] The
issue raised by the point

is in essence whether the approach by the applicants to this court to
allow the discovery of documents in terms of Rule 35 (13) is
appropriate or put differently is sanctioned by the provisions of
Rule 35 (13).

[7] Rule 35 (13) provides as

The provisions of this
rule relating to discovery shall
apply, in
so far as the court may direct, to applications.”

[8] Rule 35 (1) provides that a
party to an action may by notice in writing require any other party
to make discovery of all documents and tape recordings relating to
any matter in question in such action which are or have at any time
been in the possession or control of such other party.

[9] It is common cause that the
respondent at no stage required, by notice, the discovery of any
documents or tape recording from the applicants.

[10] The applicants on their
own volition are eager to make discovery of certain documents and a
tape recording, whilst the respondent views this generosity as an
unwelcome offer.

[11] Mr
Boesak submitted that since Rule 35 (13) provides discovery
the court may direct,

that it does not follow that once the court has directed, that
discovery should be made, that Rules 35 (1), 35 (2) and 35 (3)
automatically apply. These sub-rules would only apply if the court
so directs, it was submitted.

It was further submitted that
the dispute in main application is whether or not there was merger
between the parties, and that the exceptional circumstances in the
present interlocutory application exist due to the

fact that the documents sought
to be discovered are relevant and crucial in the determination of the
dispute in the main application.

[12] Regarding the question of
the applicability of Rule 35 (13) in the present application there is
authority for the view that where a party in application proceedings
seeks discovery in terms of Rule 35 (13) and is successful, the
provisions of sub-rules (1), (2) and (3) may be applicable.

[13] In
Afrisun Mpumalanga (Pty) Ltd v Kunene NO and Others 1999 (2) SA 599
TPD at 611 I – J

the following appears:

Rules 35 (1), (2) and (3)
are all discovery provisions and their applicability to applications
is clearly dependant on a direction in terms of Rule 35 (13) that
these discovery provisions shall apply. Even if such a direction has
been made, before a party can rely on Rule 35 (3) it must invoke the
provisions of Rule 35 (1) and receive a discovery affidavit in
accordance with Rule 35 (2)."

[14] The dilemma in which the
applicant finds itself in, is, that the respondent did not require
any discovery. This court was not referred to any other Rule which
provides that a party may voluntarily make discovery.

It appears to me that the
provisions of Rule 35 (13) are not applicable and that it has
correctly been submitted, by Mr Strydom, that this application is

[15] The applicant did not
approach this court in order to provide relief not covered in terms
of the provisions of the Rules of this Court.

[16] This court has in general
an inherent power to grant relief not specifically provided for in
the Rules but such a power should be exercised sparingly.

[17] In
Components and Rotomoulding South Africa (Pty) Ltd v Concourakis and
Another 1979 (2) SA WLD 457 at 462 H – 463 B

the following was said:

I would sound a word of
caution generally in regard to the exercise of the Court’s inherent
power to regulate procedure. Obviously, I think, such inherent power
will not be exercised as a matter of course. The Rules are there to
regulate the practice and procedure of the Court in general terms and
strong grounds would have to be advanced, in my view, to persuade the
Court to act outside the powers provided for specifically in the
Rules. Its inherent power, in other words, is something that will be
exercised sparingly. …I think

that the Court will exercise
an inherent jurisdiction whenever justice requires that it should do
so. I shall not attempt a definition of the concept of justice in
this context. I shall simply say that, as I see the position, the
Court will only come to the assistance of an applicant outside the
provisions of the Rules when the Court can be satisfied that justice
cannot be properly done unless the relief is granted to the

[18] I am of the view that is
important in this interlocutory application to have regard to the
grounds advanced by the applicant why discovery should be allowed.

[19] The applicants in their
founding affidavit, deposed to by Simeon Mutumbe Kauaaka, stated that
in their opposing papers in the main application one of the
contentions raised was that St Phillips Faith Healing Church
(respondent in this application) had merged with St Stephanus
Apostolic Mission Churc about 29 July 2000 at a convention held in
Windhoek and that no supporting documentation had been attached in
support of such contention. Paragraph 8 of the founding affidavit
reads as follows:

Upon discovery of the
above issue, and consultation with our legal practitioners of record
– Messrs Metcalfe Legal Practitioners – and

our counsel herein, we
insisted that we had the necessary proof and had provided same to our
erstwhile legal practitioners – Messrs Kauta, Basson &
Kamuhanga. However, we could not explain as to how the said
documentation had not been annexed to our opposing affidavit and that
the only reasonable conclusion that we could arrive at was that it
was due to an omission from our earlier legal practitioners.”

[20] In
paragraph 19 of this founding affidavit applicants stated that
failure to file the relevant documents timeously was due to an

[21] Mr Rodger Kauta, in a
supporting affidavit filed by respondent, denied the allegation by
the applicants. Paragraphs 5.2 and 5.3 of the supporting affidavit
read as follows:

5.2 I only saw these
documents for the first time when same were shown to me subsequent to
the bringing of this application. I therefore categorically deny
that I at any stage had insight into these papers and/or that same
were omitted at the time when the opposing affidavit were signed.

5.3 What I also find
peculiar is that the same applicants now before Court were also the
respondents then and the deponent Mr Kauaaka was also the person who
deposed to the main opposing affidavit and at that time, despite
reading the contents thereof and signing it before a Commissioner of
Oath, mentioned absolutely nothing about the existence of the
documents that have now surfaced.”

[22] This explanation is
disputed by the applicants who in their replying affidavit stated
that the explanation was given by Mr Kauta, with the view to cover
his tracks and for him not to seem as if he dealt incompetently
and/or negligently with this matter.

[23] Mr Boesak in his heads of
argument submitted that the dispute regarding the question whether or
not documents had been provided to Mr Kauta should be referred to
oral evidence.

[24] It is not necessary for me
to decide whether or not oral evidence should be heard at this stage.

It is sufficient to state that,
as a rule, it is inappropriate in interlocutory proceedings to refer
a dispute to oral evidence.

The Civil
Practice of the Supreme Court of South Africa by Herbstein an Van
Winsen 4
Ed. 388

and the authorities referred to)

[25] The applicants deals with
Mr Kauta’s denial in paragraph 19.2 of its replying affidavit as

It is clear that Mr Kauta
states that a request was made for all the documentation to be
furnished to them and that same had been done. However, he seems to
rely solely on the documentation annexed to the applicants answering
affidavit (in the main application) as the basis of the documentation
that had been supplied, whilst clearly forgetting that certain
documentation had been excluded since he regarded such documentation
as irrelevant to the issues before this court. He continues to state
that all relevant documents and material to the case were attached
and that nothing was attached, whilst, and the applicants reiterate
this fact, numerous documentations had been set aside and that he
advised us to keep certain documents since he did not find those
documents to be relevant to the issues before the court or to be
annexed with the answering affidavit of the applicants in the main

[26] It appears from applicants
replying affidavit (paragraph 19.6) that it was due to the apparent
delay of Mr Kauta in properly dealing with the

amendment or an application to
have the documents and tape recordings and tape recording adduced
that a decision was taken by the respective members of the applicant
to instruct new legal practitioners.

[27] If
it were true that applicants on the legal advice of their former
legal practitioners failed to attach the documents now sought to be
discovered, then applicants should have mentioned it in its founding
affidavit in this application. Instead applicants in its founding
papers ascribe the failure to attach the relevant documents and tape
recording as
inexplicable oversight”

and remissness on the part of their former legal practitioners.

[28] There is in my view a
material contradiction between the reason advanced in the founding
affidavit and the subsequent reason advanced in the replying
affidavit regarding the explanation why the relevant documentation
and tape recording could not have been filed at the stage the
founding affidavit (in the main application) had been filed.

[29] It is further significant
that the issue of the introduction of further documentation had been
raised for the first time sixteen months after the filing of
applicants opposing affidavit in the main application.

A litigant cannot indefinitely
find solace in an alleged remissness of his or her legal
representative. A line must be drawn somewhere and I am of the view
that applicants have crossed that line a long time ago. In spite of
the explanation given by applicants why documents had not been filed
at the stage they should have been filed it is clear to me that
applicants failure to act timeously can only be described as dilatory

[30] The
conduct of applicants in their endeavour to discover the relevant
documents is in my view opportunistic, not

and an abuse of court process.

if it may be accepted, for the sake of argument, that the documents
and tape recording may be relevant to the dispute in the main
application, then in view of the conduct of applicants mentioned
supra, no
exceptional circumstances are present which could be considered by
this Court in the exercise of its discretion in terms of the
provisions of Rule 35 (13).

[31] The
lack of exceptional circumstances together with my finding
that the present interlocutory application in misconceived compel me
to uphold the point

[32] The award of costs is a
matter wholly within the discretion of the Court and this discretion
should be exercised judicially. The general rule that the successful
party is entitled to his or her costs is in my view applicable in
this application.

An order for costs on an
attorney-and-client scale will normally be given where there is a
special prayer for it or where notice has been given that such an
order will be asked for.

However the absence of such a
notice is not necessarily fatal.

[33] The respondent in this
application has specifically prayed for a cost order on an
attorney-and-client scale.

[34] I am of the view that in
this matter a punitive cost order should be made against applicants
as a stamp of the disapproval by this Court of the conduct of

[35] In the result the
following orders are made:

1. The application is

2. Applicants are ordered to
pay the costs occasioned in respect of this application on an
attorney-client scale.