HIGH COURT OF SWAZILAND
DEVELOPMENT COMPANY (PTY) LIMITED
Case No. 2744/2001
MAPHALALA - J
the Plaintiff MR. P. DUNSEITH
the Defendant MR. P. FLYNN (Instructed by
application in terms of Rule 35 (4))
determination presently in is an application by the Plaintiff in
terms of Rule 35 (4) of the High Court Rules. Plaintiff requires the
Defendant to make available for inspection and copying, all
documents, records, vouchers and accounts pertaining to and/or
recording the payment of pension to the Plaintiff by the 3rd
Defendant during the period from 1st July 1996 to 30th June 1998, or
to state on oath within 14 days that such documents, records,
vouchers and accounts are not in their possession, in which event
they shall state their whereabouts, if known to them.
brief history of the matter is as follows: Plaintiff is Eunice Edna
Darney, who has issued summons against the 1st, 2nd and 3rd
Defendant. The 1st Defendant is Giora Goldblatt N.O, an adult male
director of the 3rd Defendant, who is sued herein in his capacity as
Executor in the estate of the late Kal Grant. The 3rd Defendant is
Township Development Company (Pty) limited, a company duly registered
with limited liability according to the Laws of Swaziland and having
its principal of business at Highlands View, next to the Mountain Inn
Hotel, Mountain Drive, Mbabane.
late Kal Grant died on the 20 July 1998. The late Kal Grant was
during his lifetime the beneficial and controlling owner of the
entire share capital of the 3rd Defendant. In terms of Clause 3.4.2
of his last will and testament, the late Kal Grant provided for the
Plaintiff as follows:
to retirement of Eunice Edna Darney from her employment by Township
Development Company (Proprietary) Limited which I control, I hereby
direct that she shall have a pension of E7, 464-00 (seven thousand
four hundred and sixty four emalangeni) per month gross for life to
escalate at 20% (twenty percent) per annum as from the 1st of January
1999, and also that a double cheque should be given to her each
Christmas if business is going well".
issue which gives rise to the Us between the parties is that on or
about 6th July 2000, the then Executors of the estate of the late Kal
Grant notified the Plaintiff in writing that the escalation of the
Plaintiffs pension at 20% per annum as provided in the will is a
simple increase of 20% per annum and not compound. The Plaintiff
therefore approaches this court to declare that Clause 3.4.2. of the
last will and testament of the late Kal Grant entitles the Plaintiff
to annual compound increases of her pension, such increases to be
effected on the 1st day of January of each succeeding year as from
1st January 1999 and calculated as to 20% of monthly pension payable
in December of the previous year. Payment of the sum of E13, 135-72.
Payment of such further sum as may be found to be due and payable in
respect of the under payment of the Plaintiff's pension from 1st
November 2001, to date of payment. Interest at tempore morae at 9%
per annum from date of service of summons to date of payment, and
cost of suit.
to the matter at hand that is, the application in terms of Rule 35
(4) it was submitted on behalf of the Plaintiff that notice in terms
of Rule 35 (4) was served on the Defendant's attorneys on the 18th
February 2002, but Defendants refuse to make the documents in
question available for inspection on the grounds that they are not
relevant to any matter in question in the case. The defendant has not
stated on oath that the documents in question are not in its
possession. The Defendant has not claimed any priviledge in respect
of the said documents.
to Mr. Dunseith for the Plaintiff the only issue for determination is
whether the documents in question are relevant to any matter in
question in the action. The
in question are all documents, records, vouchers and accounts
pertaining to the pension paid to Plaintiff by the 3rd Defendant
during the period from 1st July to 30th June 1998. Such document, so
the argument ran, are clearly relevant to the main issue in dispute
in the main action.
Flynn on the other hand argued in opposition that annexure "H"
to the Particulars of Claim viz, the letter of demand states that the
Plaintiff was receiving a pension for a number of years prior to the
death of the late Kal Grant. The letter alleged that the will
confirmed a prior pension agreement. This allegation was not
subsequently pleaded in this manner and the issue in this matter does
not relate to a prior agreement. In any event Mr. Flynn cited Kerr on
the Law of Contract (3rd ED) at 236 that there is no ambiquity that
attaches to the word "escalate" for the court to look at
surrounding circumstances the will in casu is clear and ambiguous.
Plaintiff specifically states, in further particulars, that annexure
"H" has not been incorporated into Plaintiff's Particulars
of Claim. It was for this reason together with the reason that the
particulars sought were said to be matters of evidence that the
Plaintiff declined to provide the particulars. It was contended
further that the Plaintiff does not rely on the prior agreement and
whatever prior agreement there was with the 3rd Defendant is not
relevant to an interpretation of the written provisions of the will.
Finally, Mr. Flynn submitted that the Plaintiff has not shown that
the documents relate to any question in the action and the
application should be dismissed with costs.
above are the arguments for and against the application in terms of
Rule 35 (4)
35 on discovery, inspection and production of documents reads as
(1) Any party to any action may require any other party thereto, by
notice of writing, to make discovery on oath within twenty-one days
of all documents and tape recordings relating to any matter in
question in such action (whether such matter is one arising between
the party requiring discovery and the party required to make
discovery or not) which are or have at any time been in the
possession of control of that other party, and such notice shall not,
save with the leave of a Judge, be given before the close of
party required to make discovery shall within twenty-one days or
within the time stated in any order of a Judge make discovery of such
documents and tape recording on affidavit as near as may be in
accordance with Form 12 of the First Schedule, specifying separately:
documents and tape recording in his possession or that of his agent
other than the documents and tape recordings mentioned in paragraph
documents and tape recordings in respect of which he has a valid
objection to produce;
documents and tape recordings which he or his agent had but no longer
has in his possession at the date of the affidavit.
document shall be deemed to be sufficiently specified if it is
described as being one of the bundle of documents of a specified
nature, which have been initiated and consecutively numbered by the
deponent but statements of witnesses taken for purposes of the
proceedings, communications between attorney and client and between
attorney and advocate, pleadings, affidavits and notices in the
action shall be omitted from the Schedules.
any party believes that there are, in addition to documents or tape
recordings disclosed as required under sub-rule (2) other documents
(including copies thereof) or tape recordings which may be relevant
to any matter in question in the possession of any party thereto, the
former may give notice to the latter requiring him to make the same
available for inspection in accordance with sub-rule (6), or to state
on oath within fourteen days of the notice that such documents or
tape recordings are not in his possession, in which event he shall
state their whereabouts, if known to him.
object of discovery was stated in Durbach vs FairwayHotel Ltd 1949
(3) S.A. 1081 (SR) at 1083 to be "to ensure that before trial
both parties are made aware of all the documentary evidence that is
available. By this means the issues are narrowed and the debate of
points which are incontrovertible is eliminated".
to Erasmus, Superior Court Practice, at Bl - 250 "relating to
matter in question" the subrule requires a party to make
discovery of "all documents ...relating to any matter in
question in such action". A long line of decisions, however, has
established that in superior court practice there is only an
obligation to make discovery which may - not must - either directly
or indirectly enable the party requiring the affidavit of discovery
either to advance his own case or to damage the case of his adversay.
Documents which tend to advance only the case of the party making the
need not be disclosed provided that such a party dos not intend using
the document at the trial.
above is the legal basis in which the present dispute ought to be
decided. The law vis a vis the arguments advanced in casu.
is common cause that the Plaintiff was an employee of the 3rd
Defendant and she received monthly pension from the latter. It is
also common cause that when Kal Grant died on the 20th July 1998, he
had made a will where he had bequethed his assets to certain people
including the Plaintiff. It is also not in dispute that the documents
that are being sought in terms of the Rule are in the possession of
the Defendant. The only point of divergence between the parties is
whether the documents are relevant to the determination of the
dispute on trial. This is the only question I have to decide in this
case. Mr. Flynn for the Defendant heavily relied on what is said by
the writer Kerr, The Law of Contract that courts can only seek for
extrinsic evidence where there is an ambiquity not when the issues
are clear like in casu. In this regard, though I tend to agree with
the compelling argument advanced by Mr. Dunseith and further being
fortified by the dicta in the English case of Doe's Hiscocks (1839) 5
M & W 364 at 367 that the document being sought in casu are
relevant. In that judgment Lord Abinger C
remarked: and I quote:
object in all cases is to discover the intention of the testator. The
first and most obvious mode of doing this is to read his will as he
has written it, and collect his intention from his words. But as his
words refer to facts and circumstances respecting his property and
his family, and others whom he names and describes in his will, it is
evident that the meaning and application of his words cannot be
ascertained without evidence of all those facts and circumstances
...All the facts and circumstances, therefore, respecting persons or
property to which the will relates are undoubtedly legitimate and
often necessary evidence to enable us to understand the meaning and
application of his words".
stressed in Lello vs Dales NO. 1971 (2) S.A. 330 (AD) at 335 as
intention of the testator may be sought by reasoning or conjecture
not founded upon the scheme and terms of the will ...It is in the
will itself that the indications and pointers must be sought, but it
is permissible and sometimes essential to read and interpret the will
in the light of the relevant circumstances existing at the time of
the above-mentioned dictum I would rule that the Plaintiff has made a
case to sustain an application in terms of Rule 35 (4).
to the issue of annexure "H" annexed to the Plaintiff's
Particulars of Claim my view is that the letter was written before
the present action was launched. The issues in this matter are
defined in the Plaintiff's combined summons and the Defendant's plea
and certainly not in a letter of demand which was prepared prior to
the issuance of the summons. It would appear to me that annexure "H"
was attached in the summons because it was a letter of demand.
conclusion, therefore, I find that the documents being sought by the
Plaintiff are relevant and that the Plaintiff has satisfied the
requirements of Rule 35 of the High Court Rules.
the result, I grant the application in terms of Rule 35 (4) and costs
to follow the event.