IN
THE HIGH COURT OF SWAZILAND
CIVIL
CASE NO. 869/98
In
the matter between:
DUMISA
SUGAR CORPORATION (PTY) LTD 1ST APPLICANT
DUMISA
MBUSI DLAMTNI 2ND APPLICANT
and
SWAZILAND
SUGAR ASSOCIATION 1ST RESPONDENT
SWAZILAND
CANE GROWERS' ASSOCIATION 2ND RESPONDENT
SWAZILAND
SUGAR MILLERS' ASSOCIATION 3RD RESPONDENT
SWAZILAND
SUGAR INDUSTRY QUOTA BOARD 4TH RESPONDENT
MINISTER
OF ENTERPRISE & EMPLOYMENT 5TH RESPONDENT
ATTORNEY
GENERAL 6TH RESPONDENT
CORAM: MATSEBULA
J
FOR
THE APPLICANTS: MR. B.G. SIMELANE
FOR
THE RESPONDENTS: MR. HENWOOD
RULING:
APPLICATION IN TERMS OF RULE 35
(20)
The
first and second applicants have brought an application to compel
first, second, third and fourth respondents to furnish certain
documents which were referred to in an answering affidavit filed by
the deponent one Petrus Frederick de Beer on behalf of the
respondents. The applicants in their notice of application refers to
specific paragraphs wherein the said de Beer mentions the documents
required by applicants in their application. These are set out in the
application and numbered 1-6.
1. Each
of the amendments to the SUGAR ACT, the agreement and the documents
comprising and embodying such amendments referred to in paragraph
21.2 of de Beers
1
affidavit.
2. Each
of the notices referred to in paragraphs 21.4.1. and 21.4.2. of de
Beers affidavit.
3. Each
of the Government Gazettes and Notices referred to in paragraphs
21.6.1 to 21.6.7 of the de Beers affidavit.
4. The
notices referred to in paragraph 21.7.
5. Each
of the amendments to the agreement and documents comprising and
embodying such amendments referred to in paragraph 21.8 including the
resolution of the meetings of Millers' Association, the Growers
Association and Sugar Association in terms of Clause 3 of the Sugar
Agreement pertaining to such amendments.
6. The
notice referred to in paragraph 35.2.
Rule
35 of the HIGH COURT ACT deals with the subject of discovery,
inspection and production of documents and tape recordings.
Subsection (2) stipulates the time limit and manner of discovery of
the documents under Rule 35.
There
is no doubt in my mind that the applicants are within their rights in
invoking the provisions of Rule 35(20). The only question that arises
for the court is to decide whether or not the applicants are entitled
in terms of Rule 35(20) to call upon the respondents to produce the
class of documents the applicants are asking the respondents to
produce.
Rule
35(20) provides: "Any party to any proceeding may at any time
before the hearing thereof deliver a notice as near as may be in
accordance with Form 16 in the first schedule to any other party in
whose pleadings or affidavits reference is made to any document or
tape recording to produce such document or tape recording for his
inspection and to permit him to make a copy or transcription
thereof." It seems quite clear that the applicants are entitled
in terms of subsection (2) to call upon the respondents to produce
the documents. There is no question about this. What remains to be
decided is the class of documents applicants require respondents to
produce. Rule 35 does not assist in defining the class of documents a
party may and/or may not produce.
The
respondents resisted the call by the applicants to produce these
documents. This resisting emerges from correspondence handed in by
Mr. Simelane during his argument before me. The
2
first
letter dated 11th June 1998 was directed to applicants' attorneys and
was in response to a letter which applicants' attorneys had written
to respondents' attorneys in terms of Rule 35(20). In that letter the
respondents' attorneys informed the applicants' attorneys that they
were still liaising with their clients and counsel about the
documents required in terms of Rule 35(20). They suggested that the
parties should agree that the dies will not run until the applicants
receive a letter from them informing them of their attitude towards
the request in terms of Rule 35(20).
Another
letter handed in by Mr. Simelane dated 18th June 1998 clearly sets
out the attitude of the respondents to the notice in terms of Rule
35(2). Paragraph (2) of that letter states that the documents
required by the applicants are legal notices published in the
Government Gazettes in respect to the amendments to the Sugar Act
Agreement. They contend that these are public documents which they,
the applicants, can easily lay their hands on.
In
paragraph 3 of the letter, respondents' attorneys state they are not
obliged to discover publications of the nature of documents
requested. However in their paragraph 4 of the letter they say they
have nevertheless provided the said documents on entirely without
prejudice basis. Paragraph 5 of their letter warns the applicants'
attorneys that should they proceed with their application
notwithstanding, order for appropriate posts will be sought.
I
have already said that Rule 35(20) does not define the class of
documents which may and/or may not be produced. Mr. Flynn has
referred me to the Statute of Swaziland, Section 41(1) under the
heading Gazette evidence in certain cases provides:-
(1) If
proof is required for the contents of any law, or of any other matter
which has been published in the Gazette, judicial notice shall be
taken of such law, or other matter.
(2) Section
41(2) reads as follows; "A copy of the Gazette, or a copy of
such law, or any other matter purporting to be printed under the
suprentendence or authority of the government printer of Swaziland or
of the Republic of South Africa, shall, on its mere production be
evidence of the contents of such law, or other matter, as the case
may be."
It
seems to me therefore, that the class of documents referred to by Mr.
de Beer in his affidavit
3
whose
production applicants seek are public documents and cannot be said to
be in the possession of the respondents for the purposes of the
provisions of an application under Rule 35(20). It follows that the
application must fail and is hereby dismissed.
The
question of costs is a very sensitive one in contested matters. The
courts should not easily grant costs which are of a punitive nature
as this would tend to discourage litigants from engaging freely in
litigation. However, in cases where a party ought to have realised
the risk it was taking in persisting in bringing an application which
borders on being of a vexatious nature and therefore abuse of the
Rules of Court it only has itself to blame for the costs which
follow.
In
this matter there was correspondence which drew the applicants
attention that the respondents were not obliged to produced the
documents, but nevertheless provided them on a without prejudice
basis and the applicants went ahead and applied the provisions of
Rule 35(20). The court is of the view that costs be granted on an
attorney and client scale. The court so grants the costs.
J.M.
MATSEBULA
JUDGE
4
