IN
THE HIGH COURT OF SWAZILAND
CIVIL
CASE NO.1419/96
In
the matter between:
SWAZILAND
CONSULTING ENGINEERS INC : PLAINTIFF
and
SAXON
(PTY) LTD : DEFENDANT
CORAM
: MAPHALALA AJ.
FOR
THE PLAINTIFF : MR. MASUKU
FOR
THE DEFENDANT : MR. SIMELANE
RULING
(RULE 30(5))
13/07/97
The
Defendant opposes the application made by the Plaintiff to compel
discovery The Defendant's counsel argued that the application was
ill-founded because there had been a non-compliance with Rule 30(5)
of the High Court Rules. The said Rule reads as follows:
"Where
a party fails to comply timeously with a request made or notice given
pursuant to this Rule.
The
party making the request or giving the notice may notify the
defaulting party that he intends, after the lapse of seven days to
apply for an order that such notice or request be complied with, or
that the claim or defence be struck out. Failing compliance within
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the
seven days, application may be made to Court and the Court may make
such order thereon as to it seem fit."
He
submitted that the effect of this Rule is to preclude an application
of the present kind unless and until a notice in terms of the Rule
has been given. Plaintiff has not given such a notice.
Mr.
Masuku for the Plaintiff argued that the Plaintiff has no duty to
comply with Rule 30(5) of the High Court Rules. He referred the Court
to a number of decided cases on this point. He argued that Rule 30(5)
is not mandatory and thus not preemptory (see KHUNON'S OTHER VS
FIHRER'S SON 1982(3) S.A. 353 PAGE 360). Further, that Rule 30(5) is
of general application and applies in all those cases where a
particular rule does not itself provide for a special sanction for
non-compliance with a notice or request. (REF. ERASMUS' COMMENTARY ON
SUPERIOR COURT PRACTICE, NORMAN'S COMPANY LTD VS HANSELLA CONSTRUCT
PLUMBING (PTY) LTD 1968(1) S.A. 503.
In
my view Mr. Masuku's contention is correct. Rule 30(5) is a general
one and does not override the provisions of other rules which make
provision under those rules. Thus, where a party has failed to comply
timeously with a request for a further particular his opponent can
resort to the provisions of Rule 35(11) without the giving of the
notice contemplated in Rule 30(5). Rule 35(11) reads as follows.
"If
any party fails to give discovery as required under sub-rule (2) or
having been served with a notice under sub-rule (7), omits to give
notice of a time for inspection as required under sub-rule 8 or fails
to give inspection as required by sub-rule (10), the party desiring
discovery or
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inspection
may apply to a court, which may order compliance with the Rule and,
failing such compliance, may dismiss the claim and strike out the
defence.
See
HERBSTEIN AND VAN WINSEN - THE CIVIL PRACTICE OF THE SUPERIOR COURTS
OF SOUTH AFRICA (3 ED.) AT PAGE 382).
In
the instant case, this is what the Plaintiff did. The Plaintiff
proceeded in terms of Rule 35(11) as it is entitled to do so by the
rules. Rule 35(11) has no application in the present circumstances.
The
application to compel discovery is granted with costs.
S.
B.
MAPHALALA
ACTING
JUDGE
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