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Swissborough Diamond Mines (Pty) Ltd and Others V Government of the Republic of South Africa and Others 1999 (2) SA 279 (T)
The matter dealt with below is highly complex, traversing through multiple aspects of law. However, the key focus of this article is related to the decisions of the Court on Affidavits, and the manner in which the facts contained therein are to be set out.
In proceeding to said decision however, brief notice and explanation of the matter at large is made. Whilst not strictly speaking necessary for the specific topic, knowledge of the matter as a whole will show how essential the Court’s comments were (and are) on Affidavits, and this furnishes us with a better appreciation for the Court’s work.
In this matter, a Discovery Application in terms of Rule 35 was opposed by the First Defendant, who launched an Application to strike out portions of the Discovery Applications Supporting Affidavit.
The Court noted that the Discovery Application requested inspection of all relevant documents, an impossibly broad categorisation.
At this point, the Court made directions as to how Affidavits should be drafted, and found the Plaintiff’s Application and Affidavits wanting and defective, resulting in it’s being dismissed, while the Defendant’s Application to strike out was upheld.
In this matter, the Plaintiffs had instituted action against the Defendants, claiming that there had been an interference with the mining rights they held in the Kingdom of Lesotho.
This alleged interference was borne from the implementation of a treaty between the First Defendant (the Government of South Africa) and the Government of the Kingdom of Lesotho (GOL), which centred around the creation of the Lesotho Highlands Water Project (LHWP).
This would see legal proceeding instituted, that ranged through multiple arguments.
From the Plaintiffs’ Particulars of Claim, it appeared that they alleged that the First Defendant controlled the LHWP, whilst in the reply to the Request for Further Particulars made by the Defendant, it seemed as though the Plaintiff purported that the First Defendant controlled the GOL entirely.
Given that the First Defendant is the Government of South Africa, this is no small accusation, and could have resulted in serious political ramifications.
The Plaintiffs would go on to make use of a Rule 35 Notice to Discover, serving it on the First Defendant. In response to this, the First Defendant delivered a Discovery Affidavit.
This Discovery Affidavit, referred inter alia, to documents which the First Defendant objected to producing on the basis of State privilege.
Following this, the Plaintiffs made another Application in terms of Rule 35 of the Uniform Rules of Court, seeking an Order that the First Defendant make further discovery of certain documents, and allow for inspection of others.
These documents to be inspected were those described as relevant. Such a description the Court considered incredibly broad, however the Plaintiffs argued that they were entitled to inspect and copy certain documents despite the State privilege which had been claimed, before further arguing that the documents in respect of which State privilege had been claimed were not privileged.
In launching their Rule 35 Application, and thereby attacking the First Defendant’s Discovery Affidavit, the Plaintiffs endeavoured to establish a conspiracy of silence or mala fides on the part of the First Defendant, to justify their matter.
Naturally, the Rule 35 Application had multiple lengthy Affidavits annexed thereto, as well as several other documents, in order to support their Application.
The First Defendant, as might have been expected, opposed the Application and made an Application to Strike Out certain paragraphs of the Affidavits and their supporting documents, while concurrently, the Plaintiffs argued that the new constitutional dispensation allowed for a departure from previous authorities.
These previous authorities in question would have seen the onus of proving the existence and relevance of documents not discovered, placed on the party requiring such additional documents, in this case, the Plaintiffs requesting said documentation.
In other words, the Plaintiff’s were further trying to argue that the Constitutional dispensation would have the Defendants prove the non-existence and non-relevance of the requested documents.
In order to determine if the constitutional dispensation allowed for a departure from the previous authorities, as the Plaintiffs claimed, the Court was forced to deduce whether or not either the ‘interim’ Constitution (the Constitution of the Republic of South Africa Act 200 of 1993) or the Constitution (the Constitution of the Republic of South Africa Act 108 of 1996) applied to the present matter.
Although the present Application had been launched during 1997, the Action had been instituted in 1993.
Additionally, the Court had to come to a conclusion as to whether or not the determination of the true Agreement between the first Defendant and the GOL was a justiciable issue.
This Agreement, despite being an International Law Agreement between two sovereign States, has not been incorporated into South African law.
The First Defendant argued that the Court should be conservative in deciding on allegations that ascribed unlawful conduct to the GOL, or that the sovereignty of the GOL had been compromised.
The Court first dealt with the matter of the Discovery Application, and held, that the Plaintiffs had endeavoured to use their Rule 35 Notice in order to impose their definition of ‘relevant issues’ upon the First Defendant and the Court. The Court then held that relevancy was to be determined from the Pleadings, and not extraneously.
As a result, the Court held that the Plaintiffs were only permitted to inspect those documents that were relevant to the issues defined in the Pleadings, with no regard being given to requests for further particulars for the purposes of trial, and those further particulars furnished.
This is due to the request for further particulars for trial having been made but subsequent to the close of Pleadings, and as such, while the request for further particulars may have been related to the pleaded issues, it did not raise any new or further issues between the parties.
I went on to state that despite the interlocutory nature of the Application before the Court, it constituted ‘proceedings’ in itself, as the Plaintiffs’ Rule 35(3) Notice had been served and as the resulting Rule 35 proceedings had been instituted after the Constitution came into effect, the provisions of the Constitution were applicable to the proceedings.
However, the Court, then held that whilst due regard must be given to the requirements of openness, fair dealing and fair trial, in terms of s 32(1) and s 34 of the Constitution, there was no requirement for the onus to be shifted to the First Defendant and for them to prove the existence and relevance of the documents requested by the Plaintiffs.
The Court held that if a litigant elected to use Rule 35 in order to obtain access to documentation, in this case the Plaintiff, and was not satisfied with the discovery that was made, they bore the onus of proving on a balance of probabilities that the documents existed and were relevant. They continued that also, and when possible, that party should further describe the documents required for inspection, in such a manner that the documents may be identified.
This identification need not be a specific description however, it must be sufficiently accurate to identify it, including the genus it could be contained in.
Indeed, a Rule 35(3) Notice was not limited to a specific document, but may require the production of any number of documents.
Now having accepted that the onus lay on the party seeking to go behind the discovery Affidavit, the Court, in determining whether to allow such, would have regard to:
At this point, it should be mentioned that an exception exists, as the conclusiveness of a Discovery Affidavit can always be challenged, should it be shown that mala fides exists.
The Court’s Decision with Regard to Affidavits and Facts
It was stated in the case that when dealing with Applications and Motions, Affidavits were of key importance, far beyond merely placing evidence before the Court.
The Court held that an Applicant, in this case the Plaintiff, had to use the Founding Affidavit, in order to define the issues relevant to the matter at large, as well as set out the evidence it would use to prove its argument.
The Court held that such was to the benefit of not only the Court, but also the parties, as Founding and Answering Affidavits can be a form of discourse, and allow each Party to get some understanding of the arguments and salient points of the matter.
The Court further stated that these relevant issues should be established in the Affidavits from the matters’ outset, rather than being raised during argument by Counsel. This clearly showed a preference for the matter to be properly laid out in papers.
The Court went on to elaborate that naturally, as a case’s complexity developed, so would the requirement for greater precision in formulating the issues of the matter.
It is worth remembering at this point that, before the Hearing, the Presiding Officer must be given of the papers in order to familiarise themselves with the matter and perform their duties to their best ability in the favour of justice and the law. It is only natural that the Courts require that the facts and issues of the matter be laid out in the Affidavit in a certain way.
The Court required that where Founding Affidavits set out facts, this was to be done in a simple, clear and concise manner, with the facts appearing in a chronological sequence.
It should be commented that while the Court specified that facts be laid out in such a manner specifically in Founding Affidavits, there is no reason why facts cannot be presented in a similar fashion in Answering and Replying Affidavits, when it is possible to do so.
Fittingly enough, the Court reiterated that specifically in a Replying Affidavit, new matter could not be raised. Given the nature, and even the name, of a Replying Affidavit, one might have considered this too appear obvious to all – but apparently not.
Returning to the facts and according to the Court, the facts should further be laid out without argumentative matter clouding the Affidavit.
A distinction was then drawn by the Court between primary and secondary facts in Affidavits.
Primary facts are details that can be used as the foundation for inferences to be led as to the existence or non-existence of secondary, (also known as inferred), facts.
The Court stated that without the alleged primary fact, secondary fact is merely a conclusion of law.
The Court then returned to the function of Affidavits as a whole rather than simply the facts, and further held that in Affidavits, a party could not merely annex documentation to their Affidavit and request Court to allow and consider the documentation.
Rather, the parties would instead be required to identify portions of the annexed documentation, which they rely on in their argument, and further indicate the case they wish to make out on the basis of said Annexure, and the strength thereof. The Court went so far as to state that if this were not the case, the essence of legal practice would be destroyed, with the relevant parties not knowing what case is to be met.
The Court noted that in Motion proceedings, parties could advance legal arguments to claim defence or support relief, even where such arguments were not specifically mentioned in papers, provided they arise from facts alleged in the papers and conditional that there is no prejudice to party or parties. This alone shows the importance of properly setting out one’s facts in Affidavits.
The Court’s further Application of Law
The Court therefore held that as the Plaintiffs had not sought to attack the Discovery Affidavit, (a conventional basis), it would not be fair to consider these conventional bases in the event that the Plaintiffs failed to establish the conspiracy or mala fides, as this would prejudice the First Defendant.
As a result, the Plaintiffs either had to succeed or fail in their case that a conspiracy of silence or mala fides existed in the matter.
The Court went on to state that although inspection of the documents described as a genus might be obtained, the description of the documents in the Application was so wide and all-inclusive, that it would be practically impossible to determine what documents were (or were not) relevant, and to be inspected, on an objective basis. This made the Notice unenforceable, in the eyes of the Court.
The Court noticed that whilst it may have been possible to amend the notice in terms of Rule 35(3), and end with an enforceable notice as a result, the Plaintiffs had not attempted to do so.
The Court then held that it could consider the Agreements between the First Defendant and the GOL, and the contents thereof, as facts; just as it could take cognisance of any fact properly proved before it, but could not interpret or construe the agreements, nor the legal consequences arising therefrom. Further, the Court could not determine the true agreement concluded between the First Defendant and the GOL.
It was held that even if the issues related to the Agreements between the First Defendant and the GOL were raised in the Particulars of Claim, they were not relevant and consequently, the discovery of documents related to said Agreements did not have to be made.
Only in a very particular case, the Court held, would it be justified that a Court may interfere with a foreign Sovereign, noting the Separation of Powers, and that the judiciary should be careful not to venture into a judicial no-man’s land.
It was further noted that in an appropriate case, as the Court exercising its own inherent jurisdiction to regulate its own procedure, the Court could exercise judicial restraint and refuse to entertain a matter, despite it having the necessary jurisdiction to do so, in view of the involvement of foreign States therein.
The Court therefore held that decisions had to be made regarding the alleged unlawful conduct of the GOL, as well as the control of the GOL and its relationship with the First Defendant, but as far as control and relationship of the GOL were concerned, the Court held that there was little to no doubt that this was not an area for the judiciary.
The Court further held that the First Defendant was prejudiced, in the sheer vastness of the scandalous, vexatious and irrelevant matter to be found in proceedings. It was literally and figuratively overwhelming and thus prejudicial, and with parts of the papers having been made without regard to the Rules of Practice and Procedure, nor the laws of evidence. The Plaintiffs had simply tried to bury both the First Defendant and the Court beneath the sheer amount of paper.
The Court held that the Plaintiff had relied on speculative matter, treating it as primary fact, and then raised argument based on those speculations, and gone to inundate the First Defendant and the Court with irrelevant material.
This conduct was considered to merit condemnation, and the Court held that despite being challenged with the Application to Strike Out, which should have suggested to the Plaintiffs that they should exercise restraint when attending to the Replying Affidavits, the Replying Affidavit was even more replete with offensive matter.
The Court therefore held, that whilst the Plaintiff’s conduct had been that deserving of a special costs order, the circumstances were not as such that Attorney and own Client cost ought to be ordered.
The Court went on to state that on their papers, the Plaintiffs had proved neither mala fides nor a conspiracy of silence involving the First Defendant. As a natural result, their attack on the First Defendant’s Discovery Affidavit was doomed to failure.
Regarding the claim of State privilege and the Plaintiffs’ use of the Constitution as to disclosure of said privileged documents, the Court held that they were to balance the necessity to disclose the evidence against the public interest in its non-disclosure.
Accordingly, the interest in non-disclosure clearly outweighed the interest in disclosure and the claim to the documents in respect of which State privilege had been raised had to fail.
Order
Given the expansive and lengthy nature of proceedings, a number of orders were made, however, given the brief nature of this article, we shall focus on those most specific to the content covered.
Relevance and Conclusion
Despite the various fields and topics which this matter covers in its entirety, the focus in this article rests on Affidavits, and how the facts contained therein are to be laid out.
It was stated in the case that when dealing with Applications and Motions, Affidavits had importance beyond placing evidence before the Court. Affidavits were to be used to raise issues relevant to the matter, and further set out the evidence that would be relied upon in the arguments for said matters.
This benefits the Court in allowing them to become familiar with the matter and perform their duties, but also the parties in allowing key issues to be isolated to be proven, and what evidence exists to prove those matters.
Affidavits should further contain the matter’s relevant issues should be contained in from the outset, rather than only seeing the relevant issues raised during argument by Counsel.
Naturally, as a case’s complexity develops, so too does the requirement for greater precision in formulating the issues of the matter.
It is worth remembering at this point that the presiding officer has sight of the papers before the hearing in order to familiarise themselves with the matter and perform their duties to their best ability in the favour of justice and the law.
Consequently, the Courts require that the facts and issues of the matter be laid out in the Affidavit in a certain way, namely that said facts were to be laid out in a matter that is simple, clear and concise, with the facts appearing in a chronological sequence.
As a result, it might be advised that all legal representatives lay out their Affidavits in such a manner, containing their issues as well as evidence, in a clear and concise manner.
Chronological seems obvious, but do try do this as well. Irritating your presiding officer with poor drafting is not going to go well.
It should be commented that while the Court in the matter above specifically referred to facts in Founding Affidavits, there is no reason for facts cannot be laid out in a similar fashion in Answering and Replying Affidavits, when it is possible to do so.
Fittingly enough, the Court reiterated that in a Replying Affidavit specifically, new matter could not be raised. Given the nature, and even the name, of a Replying Affidavit, one might have considered this obvious. Apparently not.
Returning to the facts, the facts should further be laid out without argumentative matter clouding the Affidavit, according to the Court above.
Cold, clear cut facts, without emotion should therefore be used whenever possible.
Regarding the distinction between primary and secondary facts in Affidavits, primary facts are facts that can be used as the foundation for inferences to be led as to the existence or non-existence of secondary, also known as inferred, facts.
In essence if you have solid facts grounded in proof, make use of those first, as an inferred fact may not withstand argument, or form basis for it.
Further when compiling Affidavits, a party cannot merely annex documentation to their Affidavit, but rather identify portions of the annexed documentation to be used in argument, and further indicate the case they wish to make out on the basis of said Annexure, and the strength thereof.
The Court above noted that in motion proceedings, parties could advance legal arguments to claim defence or support relief, even where such arguments were not specifically mentioned in papers, provided they arise from facts alleged in the papers and provided there is no prejudice to party. This alone shows the importance of properly laying out one’s facts in Affidavits, and it is advised tat all drafting them do so, so Counsel may stand the best possible chance of presenting a winning argument and obtaining a favourable outcome.
Other relevance can be found in that where one is dissatisfied with a Discovery Affidavit, the party who made the Application must prove the existence and relevance of such. As a sidenote, a subpoena may prove a useful tool at this point.
Further when requesting said information, one should describe the documents one is requesting, at least to allow for identification thereof.
Finally, it would be advised that you don’t try to bury the Court or your opponent in paper, especially if it’s irrelevant or speculative as you rightly could find yourself on the wrong end of a punitive Cost Order.
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