- September 9, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
CIVIL PROCEDURE – PLAINTIFF SEEKING POSTPONEMENT AMIDST HER TESTIMONY TO ‘CORRECT TRANSCRIPTION’ ATTACHED TO PARTICULARS OF CLAIM
This is an ongoing defamation matter between the parties where during trial and during plaintiff’s testimony, the plaintiff’s legal representative sought a postponement to allegedly attend to correcting the transcription which was attached to the particulars of claim. The respondents deny ever making defamatory remarks about the plaintiff or distributing a recording of such remarks. They further pleaded that ‘(i)n the entire annexure A to the Amended Particulars of Claim being the transcript of the audio, there is no mention of the Plaintiff’s name.’
The plaintiff filed a application for condonation of her failure to file additional discovery timeously, and for permission to file additional discovery and exchange additional discovery documents. In her founding affidavit, the plaintiff stated the following:
‘Upon receipt of the audio, Mr. Shivangulula transcribed the proceedings from the audio via Windows Media Player. When listening to the Media Player, he was simultaneously typing. He then listened again, and then edited the works. Due to the quality and speed of the audio, Mr. Shivangulula unfortunately missed some of the items and/or incorrectly types some of the items as per the audio. That led to the record being not recorded correctly. Thereafter, he transcribed the soft copy then translate it into the English language.’
Mr. Shivangulula filed a supporting affidavit in which other than confirming what was said by the plaintiff regarding himself, he did not deal with the reason(s) why the first transcription was not a full transcription of the recording.
The defendants’ argued that the plaintiff wished to amend her pleadings at that late stage of the proceedings as the transcription was attached to the summons. The plaintiff however insisted that it was not the case and that she only realized the shortcomings when she started her testimony.
RAKOW J considered the application and stated that:
The court in essence had a problem with the recording in that it was at no stage discovered. Although the transcript formed part of the pleadings, the recording was not discovered. The action was based on the said recording and as such, it would play a cardinal role. The function of discovery is to provide the parties with the relevant documentary or recorded material before the hearing in order to allow them to appraise their case and to provide a fair basis for the proceedings. The defendants never had an opportunity to listen to the recording and to challenge the transcript.
Having regard to Rule 28 of the High Court Rules which deals with discovery, it was found that the recording having not been disclosed and discovered could not be used in the trial by the plaintiff who failed to discover it.
In the result, the application was dismissed with costs.
Ashivudhi v Ashivudhi NAHCMD 9 September 2022