Matupula Hunters (Private) Limited v Lodzi Hunters (Private) Limited

### Preamble
1
HB 232/20
HC 1192/20
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MATUPULA HUNTERS (PRIVATE) LIMITED

Versus

LODZI HUNTERS (PRIVATE) LIMITED

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 20 October 2020 and 23 October 2020

Chamber application

Mr. D Tivadah, for the applicant

Ms P. Dube, for the respondent

DUBE-BANDA J: This is a chamber application in terms of rule 164 as read with rule 165 (1) of the High Court Rules, 1971 (Rules). It is contended that (a) applicant filed and served upon respondent a notice to make a further discovery in terms rule 162 on the 8th July 2020; (b) the respondent has not yet filed its notice of a time for inspection in terms of rule 164.  Applicant seeks an order drawn in the following terms:-

The Respondent shall file its Notice to Inspect in terms of Rule 164 (1a) within 5 days of the service of this order.

In the event that the Respondent fails to file it’s Notice in terms of paragraph (1), the Applicant shall be entitled, without notice to the Respondent, to file a further Chamber Application in terms of Rule 165 (2) of the High Court Rules to dismiss the Respondent’s defence to the Applicant’s claims and to claim judgement in its favour.

The respondent shall pay the costs of the Application

When this application was placed before me, I noted that it was opposed, I then directed that it be set-down for hearing.

Background facts

A brief background, as it is relevant to this application, is that on the 23rd September 2019, applicant as plaintiff sued out a summons (HC 2270/19 or main matter) against the respondent – as defendant. The summons matter is defended and has been set down for trial. I note in passing that case No. HC 2270/19 should not have been allowed to cross the pre-trial bridge with such disputes still outstanding. In general, a matter should not be referred to trial when there are issues, e.g. discovery of documents that are still pending a resolution. In such a case, the matter would simply not be ready for trial.

On the 15 January 2020, applicant in the main matter filed a notice to make discovery and served it on respondent. On the 16 March 2020, applicant filed a chamber application to compel discovery, and on the 22 May 2020, filed a discovery affidavit and a schedule of documents. On the 7 October 2020, respondent filed an additional discovery schedule. This discovery schedule was not filed under oath. Ms Dube, counsel for the respondent conceded that it was irregular and invalid.

On the 23rd July 2020, applicant launched this application. A notice of opposition and opposing affidavit were filed on the 6 August 2020. The opposing affidavit is deposed to by one Nqobani Sithole, a legal practitioner of the respondent. In the opposing affidavit, the application is opposed on two fronts, on a point in limine and on the merits. In her submissions, Ms Dube did not deal with the point in limine.A point in limine is a point of law which whenever successfully raised has the effect of disposing of the dispute or the proceedings before even the merits of the dispute can be adjudicated upon. I take the view that the point raised, as a point in limine in the opposing affidavit actually deals with the merits of the matter. That is the reason the deponent avers that “the respondent, did not effect discovery of the documents listed. The respondent, in fact positively declines to effect such discovery, for reasons that I will make clear below”. (My emphasis). The reasons that appear below, are under the sub-heading “on the merits.” I will proceed and deal with the merits of the application.

The law and then facts

Order 24 of the Rules deals with discovery of documents.  It sets out in some detail what should be discovered, the effect of non-disclosure of documents, further discovery of documents, inspection of documents and other related matters. Rule 160 provides that:

A party to a cause or matter may require any other party thereto, by notice in writing, to make discovery on oath within twenty-four days of all documents relating to any matter in question in such cause or matter which are or have at any time been in the possession or control of such other party, whether such matter is one arising between the party requiring discovery and the party required to make discovery or not. Such notice shall not, save with the leave of a judge, be given before the close of pleadings. (My emphasis).

A party is entitled to request that the other party disclose all the documents in itspossession as long as they are relevant to the dispute between them.  The requesting party need not know the form of the documentation or the content of such documents.  It is for the party who has been asked to effect discovery to swear on oath in an affidavit whether or not he does have such documents, whether he had them but no longer has them and whether they are protected in any way.The importance of discovery affidavits has been repeatedly stressed in the courts and particularly the need to discover all documents which are relevant to any matter between the parties.  In the case of Durban City Council v Minister of Justice 1966 (3) SA 529 at 531, it was held that discovery affidavits were very important documents in any trial and the party requesting discovery was entitled, in terms of the rules, to have full and complete discovery on oath. All documents relating to any matter in question in an action must be discovered if at any time they were in the possession or control of that party. SeeMorgan Tsvangirai versus Registrar General (Elections); Morgan Tsvangirai versus Registrar General (Elections): Morgan Tsvangirai versus Minister of Justice, Legal and Parliamentary Affairs HH 32/2003.

Applicant is entitled to request full and complete discovery by the respondent and the respondent is obliged to make full discovery. In casu, it is clear that the respondent has not made a full discovery of all the documents in its possession or power that are relevant to the dispute between the parties. This is apparent from the opposing affidavit, the respondent avers that it did not effect discovery of the documents listed, it in fact positively declines to effect such discovery. Respondent denies that it has any legal obligation to discover or produce any of the documents sought to be inspected by the applicant. It is said the applicant may not compel the production of documents that the respondent has no intention of relying upon. The deponent to the opposing affidavit contends that he denies, that the respondent has any legal obligation to produce the documents sought.

Respondent does not deny that it has in its possession or power of documents sought to be inspected by the applicant. In fact, the opposing affidavit shows that respondent has in its possession or power such documents. Respondent labours under a misconception that it can pick and choose which documents to discover. Respondent believes that it can only discover documents that support its case, put differently, that it has no duty to discover documents that supports the case of the applicant. It is not so. A litigant has a legal duty or obligation to make a full and honest discovery under oath, of all documents which are or have at any time been in its possession or control relating to any matter. Form 18 of the Rules is clear about what a litigant making a discovery must do, it must discover all the documents in its possession or power relating to the matters in question; and if they are documents protected by privilege, it may then object to produce such documents; and it must disclose the documents it had, but no longer has in its possession or power. I take the view that the fact that such a discovery is made under oath, emphasises that it must be a full, honest and truthful discovery. It is clear that respondent did not comply with rule 160 of the Rules.

Applicant believes that respondent has not made full discovery. Respondent’s opposing affidavit confirms applicants belief, that there are documents which are relevant to the matter between the parties, which have not been discovered. The notice filed by applicant, in terms of rule 162 to make further discovery, served on the respondent reads, in full as follows:

Take notice, that the plaintiff believes that there are, in addition to the documents previously disclosed by Defendant, documents, including copies thereof, which are relevant to the matter in question in the Defendant’s possession and, accordingly, Plaintiff requires Defendant to make these available for inspection in accordance with rule 164 or to state on oath within six days of receipt of this Notice that such documents are not in Defendant’s possession, in which event Defendant shall, if known to it, state their whereabouts.

Rule 162 caters for a scenario where after discovery of documents in terms of rule 160, a litigant still believes that there are documents, which have not been discovered, in the possession of the other party, which may be relevant to the matter.In such a case, he may give notice to such party to make the same available for inspection in accordance with rule 164.  If such party does not have the documents in issue, he must state on oath within six days that such documents are not in his possession, in which event he shall, if known to him, state their whereabouts. Rule 162 says:

If a party believes that there are, in addition to documents as disclosed as aforesaid, documents, including copies thereof, which may be relevant to any matter in question in the possession of any other party thereto, the former may give notice to the latter requiring him to make the same available for inspection in accordance with rule 164 or to state on oath within six days that such documents are not in his possession, in which event he shall, if known to him, state their whereabouts.

If such party has the documents required for inspection, he must make them available for inspection in terms of rule 164. If he does not have such documents, he must state on oath with six days that such documents are not in his possession, in which event he shall, if known to him, state their whereabouts. If he has the documents, he shall make them available for inspection in terms of rule 164. A party required to deliver the documents, shall file a notice in accordance with Form 20, specifying the following: a place where the documents may be inspected; and a period of not less than five days, beginning not later than three days from the delivery of the latter notice, during which the documents may be inspected; and any documents which the party concerned refuses to produce for inspection.

It is apparent that respondent has misunderstood the purpose of this application. First, in the opposing affidavit, respondent avers that it declines to produce the documentation on the ground of lack of legal obligation, and also on the grounds of confidentiality and privilege.Second, counsel argued at length about why respondent objects to submitting the documents sought by applicant for inspection. It was contended that in respect of some of the documents,the request lacks particularity. It was argued that defendant does not know with sufficient detail which documents must be availed for inspection. The requests in respect of some of the documents was attacked on the grounds of irrelevance to the dispute between the parties. It was further argued that all the documents sought to be inspected are confidential documents. It was argued that confidentiality is a constitutional imperative. It was contended that respondent is merely carrying out a “fishing expedition,” trying to make a case on the basis of respondent’s confidential documents.

I take the view that respondent does not understand the import or purpose of this application. Respondent has jumped the proverbial gun as it were, this is not the stage to raise these objections. The order of inspection of documents in terms of rule 162 does not override rule 164. Rule 162 says the inspection must be accordance with rule 164. An inspection must be conducted in terms of rule 164.

First, what respondent is required to do, is to look at the schedule of the documents sought to be inspected by the applicant, and state on oath the documents that are not in its possession, andif known to it, state their whereabouts.  Second, respondent has to file a Form 20 notice, specifying the following: a place where the documents may be inspected;the time of inspection; and any documents which it refuses to produce for inspection.In fact Form 20 has a portion which says “I object to produce the following documents for the reasonsstated, namely:” It is at that stage that respondent may raise the issues of confidentiality, privilege, lack of particularity, relevance etc. Respondent still has a remedy against makingavailable for inspection documents on which it has a lawful objection. The proceedings have not reached that stage at this point.

The applicant has succeeded to obtain the relief it sought from this court. There are no special reasons warranting a departure from the general rule that costs should follow the result. Applicant is therefore entitled to its costs of suit.

Disposition

In the result, I order that:

The application is granted.

The respondent shall file, in terms of rule 164 of the High Court Rules, 1971 a Notice to Inspect in Form 20, of the following documents:

Defendants hunting clients in the relevant period

All documentation generated by Defendant in relation to their hunts

Defendant’s invoices

The clients’ Proof of Payment

Bank accounts(s) where payments for hunts was received;

Authorization letter from Tsholotsho Rural District Council to National Parks and Wildlife Management Authority for hunts

Proof of payment for Tsholotsho Rural District Council Hunting Permits

National Parks Special Hunting Permit

TRAS2 forms

Ivory Registration Certificates

Proof of Payment to Tsholotsho Rural District Council to prove fulfilment of contractual obligations for Elephant shot

Export documentation and shipping details for shipments of trophies;

Hunting Contracts and Quotations;

Clients Information Forms;

Email correspondence with clients related to the hunt

within 5 days of the service of this order.

In the event that the respondent fails to file its Notice in terms of paragraph (1) the applicant shall be entitled, without notice to the respondent, to file a further chamber application in terms of Rule 165 (2) of the High Court Rules to strike out the respondent’s defence in case No. HC 2270/19 and to claim judgement in its favour.

The respondent shall pay the costs of the application

Kevin J. Arnott, applicant’s legal practitioners

Ncube Attorneys, respondent’slegal practitioners