Court name
Harare High Court
Case number
HC 10286 of 2012
Case name
Stevenson v Sibanda
Law report citations
Media neutral citation
[2015] ZWHHC 113
Judge
Hungwe J

1

HH 113-15

HC 10286/12

 

GWYNNE ANN STEVENSON                                                      

versus

MAXWELL MATSVIMBO SIBANDA

 

 

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE,   10 February 2015

 

 

Chamber application for dismissal for want of prosecution

 

 

N M Wilsmer, for the applicant

K Musimwa, for the respondent

           

 

            HUNGWE J:  The applicant applied for directions after the parties attended a pre-trial conference before me. On 25 November 2013 I granted the application in which the following order was made.

 

            “IT IS ORDERED THAT:

 

  1. Respondent shall furnish all the further particulars, without exception, that were requested by applicant in the request for further particulars that was filed on her behalf on the 8th July 2013, and such further particulars shall be furnished within 7 days of the date of service of this Order on the respondent’s legal practitioners by an employee of applicant’s legal practitioners.

 

  1. Applicant is hereby granted leave to amend her plea and prayer in accordance with the notice of amendment that was filed by her on the 1st of August, 2013.

 

  1. The respondent shall file a supplementary discovery affidavit which refers both to all the documents listed in the schedule attached to applicant’s notice to make further discovery which was filed on the 4th October 2013 and to whatever other documents are discoverable by him but are not reflected in such schedule, and such supplementary discovery affidavit  shall be furnished within 7 days of the date of service of this Order on his legal practitioners by an employee of the applicant’s legal practitioners.

 

  1. Respondent shall prepare three bundles of legible photocopies of all the above documents and shall furnish one such bundle to applicant’s legal practitioners (against a tender of payment by them of the requisite charges allowed in terms of the High Court tariff) within 7 days of the date of attestation of a respondent’s aforesaid supplementary discovery affidavit.

 

  1. Respondents shall meet the cost of this application.”

 

 

On 9 December 2013 the above order was duly served on the respondent’s legal practitioners.

It is important to point out that prior to the pre-trial conference before me on 24 July 2013, the applicant had filed a request for further particulars. That request called on the respondent to provide information with regard to supposed improvements to the property, so as to enable the applicant to prepare for trial as stipulated by Order 21 r 143. This request was ignored. The respondent however, filed a discovery affidavit on 16 September 2013 referring to two schedules but not attaching the schedules. When the omission was pointed out to the respondent, the respondent’s legal practitioners, on 1 October 2013, filed their own schedule comprising a single schedule with two parts on a one page document.

The applicant’s legal practitioners were not content with this schedule as it failed to refer to a considerable number of vital documents which, in their view, related to matters in question which are or have at any time been in the respondent’s possession or control either directly or through an agent. Accordingly, Mr Wilsmer, for the applicant, filed a notice to make further discovery in terms of Order 24 r 164 of the Rules of Court. Again there was no response within the requisite period. This led to the application for directions which application was granted on 25 November 2013.

After this nothing was received from the respondent’s legal practitioners in the form of further particulars, discovery, or offer of bundle of documents, letter or telephone call.

The respondent contends that there was no order for directions duly served upon him or his legal practitioners. In the alternative, he contends that he has substantially complied with the order if such order is deemed to have been duly served upon him. Dealing with the first contention that there was no order served upon the respondent, the contention is not substantiated with regard to whether there was no physical service, or delivery, of the order dated 25 November 2013 or whether the order is an incompetent one. The relevance of rule 165(1) of Order 24 cited in the respondent’s heads of argument is obscure. That rule requires the respondent to comply with the order dated 25 November 2013. As for the substantial compliance ground, I hold the view that there is nothing of such a nature where a court issues a clear and unambiguous order as here. The courts have repeatedly stressed the importance of discovery affidavits.

In Ferreira v Endley 1966 (3) SA 618 (E) the court was dealing with a case where the defendant’s attorneys did all that could be required of them in pressing for a discovery affidavit and when eventually one was served, it transpired that it was by no means a full disclosure. At 621 A-E EKSTEEN J said:

 

“The subsequent attempt formally to disclose the documents in letters to defendant’s attorneys and to claim privilege in respect of other documents is still not a proper compliance with the Rules, and the defendant cannot be required to content himself with that. 

They are entitled to have the statements testified to under oath.  It is not only because such statements made by untruthful that this is a necessary, but also because parties are more careful to verify information given to their legal advisers if they know it has to be deposed to. (Wallis & Wallis v Corporation of London Assurance 1917 WLD 116 at p 121).  Discovery affidavits are very important documents in any trial and the party requesting discovery is entitled in terms of the Rules to have a full and complete discovery on oath. (Maxwell and Another v Rosenberg and Others 1927 WLD 1 at p 8).  In the present case, not only has the discovery affidavit been filed at a very late stage, but when it was eventually served it was incomplete in the respects set out above.  At no stage has the plaintiff sought to remedy these deficiencies by a supplementary discovery affidavit, as he might have done, and the defendant would consequently, to my mind, be entitled come to court to compel a further and better discovery.  He cannot, however, be obliged to go to trial with plaintiff’s discovery affidavit as it now stands amplified by letters written to plaintiff’s attorney in regard to other documents not referred to in the affidavit.”

 

            In the present case the respondent has filed a discovery affidavit which clearly does not constitute full disclosure. This is in spite of the order of court directing him in clear and unambiguous terms the nature of the discovery he was required to make. The respondent seems to suggest in his heads of argument that the applicant could only have filed a notice to make further discovery upon my sanctioning of such a step. Clearly that cannot be the case. Even assuming that applicant needed an order of court for him to comply, then the respondent ought to have complied with the order of 25 November 2013. He did not comply with that order. The whole object of discovery is to ensure that before trial both parties are made aware of all the documentary evidence that is available. A party is required to discover every document relating to the matters in question, and that means relevant to any aspect of the case. (Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR); Supiya v Mutare Rural District Council & Ors 1985 (2) ZLR 53). Compliance with the order dated 25 November 2013 by the respondent would have achieved that objective.

The respondent’s case against the applicant is based on claims that he effected certain improvements to the applicant’s property. It was essential that respondent discovers the documents listed in the order granted in favour of the applicant in order to enable the applicant as well as the judge at the pre-trial conference stage to learn more of the nature and cost of the alleged improvements that the respondent made to the property. That information and whatever documentation may substantiate it, goes the heart of the respondent’s claim. Clearly, the respondent would have some documentary evidence of the cost of whatever renovations or improvements he effected to the property which the applicant was entitled to inspect at some point before trial. In my view, if these were made available, then at the pre-trial conference stage, my hand in assisting the parties to find some basis of settlement or narrow down the issues, would have been strengthened. The failure by the respondent to comply with an order of the court is deliberate contumacy which cannot be tolerated. There are consequences to this type of behaviour. In my view the applicant is entitled to seek a dismissal of the respondent’s action against her on that basis alone. In the result it is ordered as follows:-

 

“1.       The respondent’s claims against the applicant in his action against her in case number HC 10286/12 be and is hereby dismissed with costs on the legal practitioner and client scale.

 

2.         The respondent shall meet the costs of this application on the legal practitioner and client scale.”

 

 

 

Wintertons, applicant’s legal practitioners

Musimwa & Associates, respondent’s legal practitioners