The third respondent
The third respondent is Byron Coetzee. In the evidence he was sometimes referred to as "Byron". He is an expert
computer programmer.
Discovery
Discovery turned out to be a "long and troubled process" (as it is called in the papers) but the disputes were
resolved before the start of the trial. Any questions
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of costs which may arise from these disputes will, in so far as it may be necessary, be considered at the end of this
judgment.
A further dispute regarding discovery flared up during the course of the hearing. On the morning of 27 October
2003 the applicant in terms of a notice under Rule 35(3) sought discovery of certain further documents. With
reference to matter that had been published in the Financial Mail of 5 September 2003 and on the second
respondent's
View Parallel Citation
website on 4 September 2003, the applicant sought discovery of documentation pertaining to a transaction entered
into between the first and second respondent on the one hand, and Interactive Marketing Systems on the other,
and documentation pertaining to a new company styled Brewers Interactive Market Systems (Pty) Ltd.
In the Financial Mail the transaction is described as follows:
Interactive Market Systems (IMS) has bought 100% of Brewers Market Intelligence. The new company will be
called Brewers Interactive Market Systems.
In the website the transaction is described as follows:
Brewer's Marketing Intelligence and Interactive Market Systems (IMS) have concluded negotiations where IMS will
acquire a 100% shareholding in Brewers and the combined assets of both companies will be amalgamated into a
new company, Brewers Interactive Market Systems (Pty) Ltd.
Mr Roux submitted that the applicant needs access to the documentation in order to determine the effect of the
transaction on the position of the applicant. The applicant, it was submitted, needs to know the fate of the first
respondent, whether the applicant is now litigating against an empty shell and whether he needs to join another
party to these proceedings.
Mr Acton described the request for further discovery as an attempt to uncover the financial dealings of the first
and second respondents with a third party. He has offered to make available to the applicant a copy of the one
clause in terms of which, he says, the computer program which is the subject of dispute in this matter, was
expressly excluded from the transaction between first and second respondents, and Interactive Marketing Systems.
In the Financial Mail and in the website, the transaction is variously described as a purchase "of 100% of the first
respondent", as an acquisition of a 100% shareholding in the first respondent, as a "buyout", as a "takeover" and
as a "merger". These various descriptions of the transaction do not emanate from lawyers, but from a financial
journalist and from a businessman. Whatever the nature of the transaction between first and second respondent,
and Interactive Marketing Systems, it did not affect the existence of the first respondent as a separate legal entity.
As such, it remains a party to these proceedings. The position of the second respondent as a party to these
proceedings also remains unchanged.
Rule 35(3) provides the procedure for a party dissatisfied with the discovery of another party. Under the subrule,
a party can seek discovery of documents "which may be relevant to any matter in question". The "matter in
question" is determined from the pleadings, and to decide the question of relevancy, the issues raised by the
pleadings must be considered (Swissborough Diamond Mines (Pty) Ltd and others v Government of the Republic of
South Africa and others 1999 (2) SA 279 (T) at 316J317A). In this matter, the affidavits stand as pleadings in other
words, the issues between the parties are defined in the affidavits. The
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documentation which the applicant seeks to be discovered is not relevant to any of the issues raised in the
affidavits.
View Parallel Citation
I accordingly dismissed the applicant for the discovery of the documentation.
The background
The advertising industry