- October 4, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Order:
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- The interlocutory applications are dismissed with costs, including costs of one instructing counsel and two instructed counsel, and the costs are capped in terms of rule 32(11) of the rules of court.
- Counsel and the parties (if unrepresented by counsel) are called upon to attend a status hearing at 08h30 on 18 October 2023 to determine the conduct of the main applications.
- The interlocutory applications are finalised and removed from the roll.
Reasons:
PARKER AJ:
There were presently two interlocutory applications – interlocutory to two review applications (‘the main applications’). For good reason and by agreement between the parties, the main applications were set down and to be heard together. The purpose of the interlocutory applications is said by Mr. Bhana to be to seek ‘a complete record of two decisions of the Competition Commission’ (the first respondent).
[3] The discovery rule applicable in the instant proceeding is rule 28 of the rules of court. Rule 28 provides for discovery and rule 70(3) makes rule 28 applicable to discovery in motion proceedings. In motion proceedings, an application for discovery must satisfy the court that exceptional circumstances exist.
[4] It is important to note this: Unlike the provision in the repealed rule 35(1) of the rules of court where the document sought should be a document merely ‘relating to any matter in question’ in such action or motion, in rule 28(1), the provision is that the document sought should be ‘relevant to the mater in question’ and they should be ‘proportionate to the needs of the case’. There is a wide and deep yawning gap between the requirements in the repealed rules and the current rules of court. A greater burden is now placed on the applicant who must now establish that the documents he or she requires are documents ‘that are not only relevant to the matter in question’ but also ‘that (they) are proportionate to the needs of the case’, and not merely that they are documents ‘relating to any matter in question’. These are onerous and peremptory requirements.
[7] Thus, the applicants bear the burden of satisfying the court that the documents they now seek are not only relevant to that matter in question, that is, the main applications, but also that they are proportionate to needs of the case concerned.
[8] I find that the notice of motion filed on 2 August 2022 under Case No. 2022/00355 indicate that the applicants elected to approach the court in terms of rule 65 of the rules of court. It is the same with the notice of motion under Case No. 2022/00357, filed on 29 July 2022. Thus, the applicants brought both applications in terms of rule 65 and not rule 76 of the rules of court. The applicants were entitled to make that election, so we are told by the Supreme Court. Having made that election, the applicants were not entitled to the procedural largesse granted by rule 76 of the rules of court. The applicants waived their procedural right under rule 76.
[9] Therefore, what they are entitled to is their procedural right under rules 28 and 65. In that event, under rule 28, they must satisfy the court that the documents sought are not only relevant to the review application concerned but are also proportionate to the needs of the case concerned.
[10] Unlike the applicant who has brought a review application under rule 76, the applicants in Case No. 2022/00355 and Case No. 2022/00357 are not entitled to any record – complete or incomplete – as aforesaid. The fact that the applicants filed notices in terms of rule 76(6) matters tuppence. The applicants’ effort is met with the maxim ex nihilo nihil fit. It is labour lost.
[12] Doubtless, the applicable rule on discovery in the applications must be rule 28. It follows irrefragably that the applicants bear the onus of establishing to the satisfaction of the court that the documents sought are not only relevant to the matter in question, but also that they are proportionate to the needs of the case in hand. The respondents bear no burden – none at all – to establish to the satisfaction of the court that the documents are not relevant to the matter in question and are not proportionate to the needs of the case concerned. Therefore, to succeed, the applicants must establish to the satisfaction of the court that the documents sought are not only relevant to the matter in question but are also proportionate to the needs of the case concerned. Accordingly, in respect of the two applications, I shall consider whether the applicants have established to the satisfaction of the court that the documents they seek are relevant to the matter in question and are proportionate to the needs of the case concerned.
Case No. 2022/00355
[14] The needs of the case are proof that-
(a) the Commission acted unlawfully and irrationally when it ‘re-initiated’ into the property transfers at Osona when the Commission ‘appears to have come to its decision in 2020 that there was no contravention of the Competition Act.
(b) the ‘WKH Form 4 and Form 5 notices are so ‘facially incomprehensible’ that WHK cannot be expected to make sense of the demand for documents and information from WKH.
[15] I have considered the matter in question as laid out in the notice of motion and referred to in para 13 above and the needs of the case as set out in para 14 above. Having done that, I do not see in what manner the documents sought are relevant to the matter in question. Similarly, I do not see in what way the documents sought have any tendency in reason to prove any material facts in the main application, considering what the applicants must prove, as laid out in para 14 above.
[16] Consequently, I conclude that the applicants have failed to establish that the documents sought are relevant to the matter in question and are proportionate to the needs of the case, within the meaning of rule 28 of the rules of court, as discussed in paras 3-7 above. The ineluctable conclusion is that the applicants have failed to discharge the onus cast on them by rule 28(1), as discussed above, and so they cannot succeed. I proceed to consider Case No. 2022/00357.
Case No. 2022/00357
[17] The matter in question (that is the main application) is laid out succinctly in para 45 of the founding affidavit. The challenge by judicial review is that the ‘Form 5 Summons’ that the Commission served on the applicant is materially different from the statutory Form 5 that is provided under s 33(4) of the Competition Act 2 of 2003 (‘Competition Act’) and rule 16(2) of the Rules Made under the Competition Act, 2003. The Form serves as a notice to a person who was required by the Commission to furnish a specified information to the Commission and to appear before the Commission to give evidence or to produce a specified document to assist the Commission in the carrying out some investigations.
[19] I do not see in what way the documents sought are relevant to the matter in question, as explained in para 17 above, that is, considering the relief sought in the notice of motion. In my view, the documents sought are not relevant to the matter in question. Consequently, I find that the applicant has failed to establish that the documents sought are relevant to the matter in question.
[21] I do not see in what manner the documents sought are proportionate to the needs of the case which are set out in para 20 above, and the applicant has failed to show in what manner the documents are proportionate to the needs of the case. Consequently, I hold that the applicant has failed to discharge the onus cast on it by rule 28(1) of the rules of court, as discussed above, and so it cannot succeed.
Conclusion: Case No 2022/00355 and Case No. 2022/00357
[22] Based on these reasons, I find that the applicants have failed to make out a case for the relief sought in the interlocutory applications. Indeed, if the applicants were minded to being honest with themselves, they would graciously admit that because of their misreading of Rule 65 and Rule 76, they failed to satisfy the requirements of Rule 28 (1) of the rules of court.