1

C of A (CIV) 17/92

In the Appeal of :

INSTITUTE OF DEVELOPMENT MANAGEMENT APPELLANT

and

BANGANI B. TSOTSI RESPONDENT

Held at Maseru

Coram: Mahomed J.P. Steyn J. A. Browde J. A.

JUDGMENT Steyn J.A.

In the Court below Appellants defence was struck out
because of his failure to comply with a Court Order compelling
discovery. It
appeals against this Order.

The relevant facts are the following. The pleadings in
this matter were closed on the 2nd of August. 1991.

2

On the 8th of October 1991 Respondent served Appellant
with a notice to discover. Appellant failed to comply with this
request.

On March 17 1992 another notice of discovery was served
on Appellant again with no result.

On June 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. Appellant
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 failing which

(b) Application would be made to strike out its defence
in terms of Rule 34 (a) of the Rules of Court.

Whilst dispensing with the normal rules in regard to
service of process the presiding Judge ordered that the papers be
served on the
Appellant and that the application would be heard on
August

3 3. 1992.

On the postponed date, in open Court and with knowledge
of applicants Counsel the application was granted. The order
specifically
stated that failure to comply might result in the
striking out of its defence.

Once again Appellant failed to respond, giving no
reasons for such failure.

On August 14 the parties appeared before Mr. Justice
Lehohla in open Court. Appellant was represented by Mr. Nathane who
filed an
affidavit in the following terms:

"3

On the 3rd August. 1992 His Lordship Justice Kheola
ordered Defendant to file an affidavit of discovery on or before the
6th August,
1992.

4
An affidavit of discovery had in fact been
prepared and

4

sent to MR. EPHRAIM LEPETU SETSWAELO. the Regional
Director of Defendant, who is based in Botswana, for settling same as
far back
as June. 1992. I annex a copy of same hereto and mark it
"HN1".

5

I have on a number of occasions made reminders to
Defendant to have same settled soonest and returned to us for filing
in Court. To-date
the affidavit has not been returned to us despite
our supplications.

6

I 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
to comply with same. I therefore pray . this Honourable
Court, to extend the time limit within which the affidavit must be
filed.

7
I make this affidavit in opposition of the prayer
sought."

Mr. Justice Lehohla after hearing argument granted the
order striking out Appellants defence.

The rule 34 (a) provides as follows:

5

(9) If any party fails to give discovery as aforesaid,
or having been served with a notice under sub-rule (8) omits to give
notice
of a lime for inspection as aforesaid or fails to give
inspection as required by that sub-rule. the party desiring discovery
or inspection
may apply to court which may order compliance with this
rule and failing such compliance, may dismiss the claim or strike out
the
defence."

Both before us as well as in the Court below Appellant
sought to attack the validity of the Order of August 3 1992 directing
Appellant
to make discovery. He did so on the ground that there was
pending an application for an amendment to the further particulars
filed
by Respondent. Counsel for Respondent pointed to the fact that
in the event the amendment was granted by Kheola J on August 3 1992.
also that the relevant order was interlocutory and no appeal lay
against it. Moreover, no application for recession was made.

An overriding consideration in my view is that
the amendments sought were both formal, remedying an obvious error

7

furnished 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.

The step 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 question.

In Wilson v Die Afrikaanse Pers Publikasies (Edms) Bpk,
19 7]. (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
its order . ..." (in the cited case, a failure to
deliver further particulars.)

On the facts in the instant case and in our judgment the
Appellant was clearly in contempt and his conduct cannot, in the
absence
of any explanation, be construed as anything other than a
deliberate refusal to comply with the Court's order.

8

The Court a quo cannot in the circumstances of this case
be faulted in exercising its discretion to strike out applicant's
defence.

For these reasons the appeal is dismissed with costs.
Signed :

J.H. STEYN

JUDGE OF APPEAL

I agree :

I. Mahomed
PRESIDENT OF APPEAL

I agree :

J. BROWDE
JUDGE OF APPEAL