South Africa's rule 35(14) of the Uniform Rules of Court allows a litigant to request specific documents or tape recordings from another party for purposes of pleading. The question is, is rule 35(14) only available prior to filing a plea, or can it also be relied on by a party who has already filed a plea but intends to amend the plea? This was the question that the Johannesburg High Court (per Manoim J) was asked to determine in MP Border Trading (Pty) Ltd and Tiger Brands International Limited in re: Tiger Brands International Limited and MP Border Trading (Pty) Ltd.
In this case, MP Border Trading (Pty) Ltd (the plaintiff) instituted an action against Tiger Brands International Limited (the defendant). The defendant entered its appearance to defend and filed its plea thereafter, albeit under bar. Having filed its plea, the defendant served a Rule 35(14) notice on the plaintiff, calling for the discovery of certain documents.
Rule 35(14) provides that:
"After appearance to defend has been entered, any party to any action may, for purposes of pleading, require any other party to —
- make available for inspection within five days a clearly specified document or tape recording in such party's possession which is relevant to a reasonably anticipated issue in the action and to allow a copy or transcription to be made thereof;"
The plaintiff refused to discover the documents sought in terms of the defendant's Rule 35(14) notice. As a result, the defendant instituted an application to compel discovery. The plaintiff opposed the application on the basis that the defendant could only serve a Rule 35(14) notice prior to filing its plea. Relying on Kgamanyane and Another v Absa Bank Limited, the plaintiff argued that because the defendant had filed a plea in the main action, the documents it sought were not necessary to plead and would merely serve evidentiary purposes.
The defendant, on the other hand, relied on Capricorn Makelaars (Edms) Bpk v EB Shelf Investment No 79 (Pty) and argued that it could serve a Rule 35(14) for as long as it still retained its right to amend its pleadings, which right remains until judgment in the matter is given.
Judgment
In determining the application, the Court aptly observed that the formulation of rule 35(14) is problematic in that it indicates when a party may serve a rule 35(14) notice i.e. after such a party has entered an appearance to defend, but does not indicate the cut-off date after which a party may no longer serve such a notice.
The Court noted that the conundrum can be resolved by interpreting the phrase "for purposes of pleading" in rule 35(14). On this score, the Court noted that Kgamanyane endorsed a restrictive interpretation of the phrase in terms of which the court asks the question whether the documents sought to be discovered are necessary for a party to plead (the necessity test). The Court found that whilst Kgamanyane was correctly decided on the facts, the necessity test endorsed therein is too rigid in that a party intending to discover documents for purposes of amending a plea might be unsuccessful. The Court heeded the caution in Capricorn against a restrictive interpretation of the phrase.
In this regard, the Court held that a starting point to interpreting the phrase "for purposes of pleading" is contemplating the purpose of exchanging pleadings in litigation, which is to ensure the main issues between the parties are defined so that litigation is curtailed and focussed. A purposive interpretation of the phrase "for purposes of pleading" permits the discovery of documents that are reasonably required to allow a party to plead (the flexibility test). With this in mind, the Court found that a litigant who has already pleaded should not be precluded from serving a Rule 35(14) notice where the documents sought to be discovered are reasonably required to complete their plea. The Court found this to be especially true where a defendant was de facto under bar and serving a rule 35(14) notice would not have suspended the notice of bar. The Court noted that whilst the flexibility test introduced by a purposive interpretation may be abused by litigants, such abuse can be avoided by asking a party seeking discovery to justify its request.
Without ruling on the argument made by the defendant that it could serve a rule 35(14) notice for as long as it retained its right to amend its pleadings, which right remains until judgment in the matter is given, the Court found that the defendant's application to compel discovery was competent insofar as one of documents sought was relevant to the finality of its pleadings. Accordingly, the Court granted an order compelling the plaintiff to discover the document with costs.
Significance of the judgment
A purposive interpretation of the phrase "for purposes of pleading" instead of a restrictive interpretation, which can be overly formalistic, affords well-deserving parties (even after they have filed a plea) the right to request discovery of document(s) if such discovery is necessary to amend their plea. This approach is alive to the reality that it is incumbent on the parties to narrow the issues for determination by a court and that the narrowing of issues, sometimes cannot be done without recourse to discovery.
The Court declined to rule on the argument by the defendant that a Rule 35(14) notice can be served by a party for as long as the party retains its right to amend its pleadings, which is until judgment in the matter is given. It can, however, be argued that a purposive interpretation of the phrase "for purposes of pleading, does, at the very least permit parties to serve a Rule 35(14) notice until the close of pleadings in the matter.
*Reviewed by Douglas Molepo, an Executive in ENS' Dispute Resolution practice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
