C of A
Appeal of :
OF DEVELOPMENT MANAGEMENT APPELLANT
B. TSOTSI RESPONDENT
Steyn J. A.
Browde J. A.
Court below Appellants defence was struck out because of his failure
to comply with a Court Order compelling discovery. It
relevant facts are the following. The pleadings in this matter were
closed on the 2nd of August, 1991.
8th of October 1991 Respondent served Appellant with a notice to
discover. Appellant failed to comply with this request.
17 1992 another notice of discovery was served on Appellant again
with no result.
23 1992 Respondent wrote a letter to Appellant's -Attorneys
requesting the immediate delivery of Appellants discovery affidavit.
On 21st July Respondents both filed of record and served on Appellant
a notice to compel it to deliver its discovery affidavit.
gave notice of an intention to oppose the application. On 24th July,
however Respondent made an application in chamber
for an Order on the
Appellant (a) to deliver its affidavit on or before 30th July 1992
Application would be made to strike out its defence in terms of Rule
34 (a) of the Rules of Court.
dispensing with the normal rules in regard to service of process the
presiding Judge ordered that the papers be served on
and that the application would be heard on August
postponed date, in open Court and with knowledge of applicants
Counsel the application was granted. The order specifically
that failure to comply might result in the striking out of its
again Appellant failed to respond, giving no reasons for such
14 the parties appeared before Mr. Justice Lehohla in open Court.
Appellant was represented by Mr. Nathane who filed an
the following terms:
the 3rd August, 1992 His Lordship Justice Kheola ordered Defendant
to file an affidavit of discovery on or before the 6th August,
affidavit of discovery had in fact been prepared and
sent to MR. EPHRAIM LEPETU SETSWAELO, the Regional Director of
Defendant, who is based in Botswana, for settling same as far back
June, 1992. I annex a copy of same hereto and mark it "HN1".
have on a number of occasions made reminders to Defendant to have
same settled soonest and returned to us for filing in Court.
the affidavit has not been returned to us despite our supplications.
want to bring it to the attention of this Honourable Court that
failure to comply with its order is not wilful but we are unable
comply with same. I therefore pray this Honourable Court to extend
the time limit within which the affidavit must be filed.
make this affidavit in opposition of the prayer sought."
Justice Lehohla after hearing argument granted the order striking out
34 (a) provides as follows:
any party fails to give discovery as aforesaid, or having been
served with a notice under sub-rule (8) omits to give notice
time for inspection as aforesaid or fails to give inspection as
required by that sub-rule, the party desiring discovery
inspection may apply to court which may order compliance with this
rule and, failing such compliance, may dismiss the claim
out the defence."
before us as well as in the Court below Appellant sought to attack
the validity of the Order of August 3 1992 directing Appellant
make discovery. He did so on the ground that there was pending an
application for an amendment to the further particulars filed
Respondent. Counsel for Respondent pointed to the fact that in the
event the amendment was granted by Kheola J on August 3 1992,
that the relevant order was interlocutory and no appeal lay against
it. Moreover, no application for recission was made.
overriding consideration in my view is that the amendments sought
were both formal, remedying an obvious error
and of no
significance. Certainly they would not have necessitated the
reopening of the pleadings nor would they ever have necessitated
need for further or better discovery.
for Appellant was unable to point to any misdirection on the part of
the Court a quo in exercising its discretion to strike
defence. Indeed it is our view that on the facts outlined above the
Court had no real alternative.
Why do I
say this? In the first place, whilst Appellant's attorney seeks to
exempt himself from all blame, no attempt whatsoever
is made to
explain Appellant's failure to comply with the order. Indeed the
averments made by the attorney that he had on a number
made reminders to Appellant and that "to date the affidavit has
not been returned to us despite our supplications"
exacerbate the degree of Appellant's blameworthiness. (My
underlining) It must also be noted that even at this late stage
offer was made committing appellant to compliance with the order.
Secondly, the history on record of the numerous requests for
discovery made by Respondent, over a period of some 10 months - all
to no avail - and without any reason for the failure to comply
such requests being
by Appellant, reinforced our view that the Court a quo was correct in
finding that it was obliged to exercise its discretion
in favour of
striking out the defence.
taken by the Court was indeed the invocation of an extreme remedy.
The Courts have held that such an order should only
be resorted to if
the failure to comply was due to the contumacy of the party in
v Die Afrikaanse Pers Publikasies (Edms) Bpk. 1971 (3) S.A. 455 at
463, the Court per Phillips A. J. held that:
"this grave step will be resorted to only if the Court considers
that a defendant has deliberately and contemptuously disobeyed
order . ..." (In the cited case, a failure to deliver further
facts in the instant case and in our judgment the Appellant was
clearly in contempt and his conduct cannot, in the absence
explanation, be construed as anything other than a deliberate refusal
to comply with the Court's order.
a quo cannot in the circumstances of this case be faulted in
exercising its discretion to strike out applicant's defence.
reasons the appeal is dismissed with costs.
I agree :
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