ANB Beleggings 17 (Pty) Ltd v Le Roux (3508/2019) [2020] ZAMPMBHC 41 (9 July 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION

Case : 3508/2019

1. REPORTABLE: YES / NO

2. OF INTEREST TO OTHER JUDGES: YES/NO

3. REVISED : YES

9 July 2020

In the matter between

ANB Beleggings 17 (Pty) Ltd

Applicant

2018/411368/2007

And

J.F. le Roux

1st Respondent

Mbombela Municipality

2nd Respondent

JUDGMENT

JANSEN VAN RENSBURG AJ

INTRODUCTION

[1]. The present application by the 1st respondent consists of ‘’two interlocutory applications in one’’ which will be referred to and dealt in the following sequence –

[1.1.] Part A : An application for condonation of an application in terms of rule 35(12) and (14) as well as directing the applicant to join certain parties in the main proceedings. [1]

[1.2.].Part B : An application by the 1st respondent in terms of Rule 35(12) and (14) of the Rules of the Superior Court for discovery of documents and information held by the applicant and the Sheriff for White River and Nsikazi. The 1st respondent need discovery of information from the applicant to complete and serve its answering affidavit in the main application by the applicant for the eviction of the 1st respondent from the immovable property known as Portion 3[…] of the Farm P[…], Farm 1[…] Registration Division JU Mbombela Local Municipality Mpumalanga Province. [2]

BACKGROUND

[2]. From the papers file by the applicant and the 1st respondent, it is clear that there is a deep rooted dispute between the applicant and the 1st respondent and the circumstances which lead to the applicants main application for the eviction of the `1st respondent pertaining to alleged collusions and fraudulent actions by the applicant and other parties in the sale of immovable property of and the membership held by the 1st respondent in the Delkop Boerderye Beleggings CC (Reg number 1989/015059/23) respectively on 23rd November 2018, 19th March 2019 and 19th July 2019.

[3]. Following the sale of immovable property and the membership of the 1st respondent in Delkop Boerderye Beleggings CC (Reg number 1989/015059/23) on 29th November 2019 the applicant issued an application in terms of the Prevention of Illegal eviction from and Unlawful Occupation of Land Act 19 of 1998 (the main application) for the eviction of the 1st respondent from the immovable property known as Portion 3[…] of the Farm P[…], Farm 1[…] Registration Division JU Mbombela Local Municipality Mpumalanga Province. The 1st respondent entered a Notice to Oppose the applicants’ main application for eviction of the 1st respondent which is not before me to adjudicate.

[4]. For the purposes of the 1st respondents two interlocutory applications, the applicant (and not the 1st respondent) filed the papers before the court which consists of four bundles (bundle 1 to 4) referring to the 1st respondents two interlocutory applications. From the reading of the papers the information sought by the 1st respondent to be disclosed to him refers to allegations made by mr Potgieter in the founding affidavit [3] on behalf of the applicant in the main application for the eviction of the 1st respondent from the immovable property referred to in para [3] above. For the purposes of the 1st respondents two interlocutory applications it is necessary only to refer to the founding affidavit of mr Potgieter in the main application for eviction as the 1st respondent made reference to specific paragraphs in that founding affidavit of which the 1st respondent is seeking information.

[5]. In order to understand the timeline of the litigation between the applicant and the 1st respondent it is necessary to refer thereto –

[5.1.]. 23rd November 2018 : Public Auction and the sale and / or purchase of the membership of the 1st respondent and mr Pieter Daniel le Roux in Delkop Boerderye Beleggings CC (Reg 1989/015059/23).

[5.2.]. 19th March 2019 : Public Auction of immovable property of Delkop Boerderye Beleggings CC (Reg 1989/015059/23).

[5.3.]. 19th July 2019 : The registration and transfer of the immovable property of Delkop Boerderye Beleggings CC (Reg1989/015059/23) in the name of the applicant.

[5.4.]. 26th November 2019 : Applicants application for eviction of 1st respondent in terms of PIE.

[5.5.]. 10th December 2019 : 1st Respondent served its Notice to Oppose the applicants application in terms of PIE.

[5.6.]. 12th December 2019 : Ex parte order in terms of section 4(2) of PIE granted.

[5.7.]. 17th January 2020 : 1st Respondents opposing affidavit due.

[5.8.]. 20th January 2020 : 1st Respondents Notice in terms of Rule 35(12) and (14).

[5.9.]. 30th January 2020 : 1st Respondent serve its interlocutory application in terms of rule 35(12) and (14) and its application for condonation on the applicant.

[5.10]. 31st January 2020 : Applications postponed for case management and postponed to 28th May 2020 on the opposed roll.

[5.11.]. 2 July 2020 : The interlocutory applications enrolled but postponed to 7th July 2020 due to an incomplete court file.

PART A : 1ST RESPONDENTS APPLICATION FOR CONDONATION [4]

PRAYER ONE

[6]. Rule 35(12) reads as follows –

Any party to any proceeding may at any time before the hearing thereof deliver a notice as near as may be in accordance with Form 15 in the First Schedule to

any other party in whose pleadings or affidavits reference is made to any document or tape recording to produce such document or tape recordings for his inspection and to permit him to make a copy or transcription thereof. Any party failing to comply with such notice shall not, save with the leave of the court, use such document or tape recording in such proceeding, provided that any other party may use such document or tape recording. [Sub-rule (12) substituted by GN R 2164 of 2 October 1987 and GN R 2642 of 27 November 1987]

[My underlining]

[7]. From the reading of the papers the applicant responded to the 1st respondents application for condonation and even served an answer thereto without taking any point in limine or served a Notice in terms of Rule 30 or 30 A of the Uniform Rules of the Superior Court.

[8]. In this regard it was not necessary for the 1st respondent to have applied for condonation for serving its interlocutory application in terms of Rule 35(12) and (14).

PART B : AN APPLICATION BY THE 1ST RESPONDENT FOR THE DISCOVERY OF DOCUMENTS AND INFORMATION HELD BY THE APPLICANT AND THE SHERIFF FOR WHITE RIVER AND NSIKAZI IN THE MAIN APPLICATION TO COMPLETE AND SERVE THE 1ST RESPONDENTS ANSWERING AFFIDAVIT IN THE MAIN APPLICATION FOR THE EVICTION OF THE 1ST RESPONDENT FROM THE IMMOVABLE PROPERTY KNOWN AS PORTION 3[…] OF THE FARM P[…], FARM 1[…] REGISTRATION DIVISION JU MBOMBELA LOCAL MUNICIPALITY MPUMALANGA PROVINCE. [5]

PRAYER TWO

[9]. Rule 35(12) of the Uniform Rules of the Superior Court clearly makes provision for discovery of information contained in affidavits such as being used in Motion Procedure. A court has the discretion to make an order in terms of rule 35(13) of the Uniform Rules of the Superior Court and direct / order a party to make discovery based on its discretion and the circumstances in any specific application.

[10]. The applicant submit that the information requested by the 1st respondent is ‘’not reasonably required’’. [6] The applicant does not state that the information required by the 1st respondent is privileged but merely gave its own view on the value and / or usage thereof by the 1st respondent. The applicant is not in a position to determine the value of information sought by the 1st respondent or its usage. In this regard it seems rather that the applicant does not want to engage with the 1st respondent in providing the evidence contained in the documents so requested to enable the 1st respondent to complete its answering affidavit regarding the main application for eviction.

[11]. The applicant submit that the 1st respondents application is a ‘’fishing expedition’’ in that it lacks a proper description of the documents required. [7] however the 1st respondent in its Notice in terms of rule 35(12) and (14) clearly indicate specific paragraphs of the founding affidavit by the applicant in the applicants main application for the eviction of the 1st respondent and which allegations and referred information was clearly deposed to by mr Potgieter. [8] Reference is also made to the founding affidavit by the 1st respondent and the annexures thereto in the interlocutory condonation application. Specific reference is made to specific information on which the 1st respondent requires an explanation and clarity from the applicant. [9]

[12]. Notwithstanding the 1st respondents notice in terms of rule 35(12) and (14) (of which sub-rule (14) is not applicable in motion court proceedings) Desire Koch, the applicants attorney in a document described as ‘’APPLICANTS REPLY TO THE FIRST RESPONDENTS REQUEST IN TERMS OF UNIFORM RULE 35(12) AND 35(14)’’ [10] replied to the Notice of the 1st respondent addressed to the applicant requesting information and the following is recorded by the attorney in that notice –

‘’1 AD ITEM 1 OF THE FIRST RESPONDENTS NOTICE [11]

1.1. The items requested by the first respondent are neither referred to nor mentioned in the applicants founding affidavit as alleged.

1.2. The first respondents request for the said documents therefore does not fall within the ambit of rule 35(12) of the above honourable court.

1.3. In addition the aforesaid the requested documents are wholly irrelevant to the current proceedings.’’

2. AD ITEM 2 OF THE FIRST RESPONDENTS NOTICE [12]

2.1. The attorney of the applicant refers to the title deed of the farm P[...] which is the immovable property in the main application and refers to annexure JLB 3. [13]

2.2. The attorney of the applicant alleges that the deed search was annexed to the founding affidavit by the applicant as annexure JLR 4. [14]

2.3. The attorney of the applicant alleges that remainder of the documents requested was neither referred to nor mentioned in the applicants

founding affidavit and does not fall within the ambit of uniform rule 35(12). [15]

2.4. The attorney of the applicant alleges that a copy of the title deed of the immovable properties mentioned in the founding affidavit was made available to the 1st respondent. [16]

3. AD ITEM 3 OF THE FIRST RESPONDENTS NOTICE

3.1. The documents requested by the first respondent are neither referred nor mentioned in the applicants founding affidavit and therefore does not fall within the ambit of rule 35(12). The first respondent is therefore not entitled to same.

3.2. In addition the requested documents are wholly irrelevant to the current position’’.

4. AD ITEM 4 OF THE FIRST RESPONDENTS NOTICE

4.1. The documents requested by the first respondent are neither referred nor mentioned in the applicants founding affidavit and therefore does not fall within the ambit of rule 35(12). The first respondent is therefore not entitled to same.

4.2. In addition the requested documents are wholly irrelevant to the current position.

In addition to the above and insofar as the first respondents notice requests any documents in terms of uniform rule 35(14) the applicant is not obliged to or produce same as the application of the said rule 35(14) is limited to action procedure’’.

[13]. The applicant constantly refer to the lack of the identification of the information that the 1st respondent lack in its founding affidavit. For the purposes of clarity in this case the 1st respondent has set out the circumstances in its founding affidavit with some annexures thereto. [17] The references to the annexures to that founding affidavit does not preclude the right of the 1st respondent to request disclosure of information directed to the applicant in terms of rule 35(12) of the Uniform Rules of the Superior Court.[18]

[14]. The applicant filed its founding affidavit in the main application for the eviction of the 1st respondent and made allegations in that affidavit which was at the time of deposing to the founding affidavit in the interlocutory affidavit unknown to the 1st respondent. In this regard the 1st respondent served its Notice in terms of Rule 35(12) and (14) of which the latter sub-rule is not applicable in the instance. The applicant argue that the 1st respondent did not identified or described the required information in its founding affidavit whilst requesting the applicant to make available information so referred to in the answering affidavit by the applicant in the name of mr Potgieter in the main application for the eviction of the 1st respondent. [19]

[15]. It is submitted by counsel for the applicant that the applicant has already provided information to the 1st respondent and that the application by the 1st respondent was premature. [20] In reading the papers I could get no evidence under oath to corroborate this allegation. The applicant confirmed the annexures attached to the founding affidavit in the condonation application; nothing else. [21]

[16]. From the bundle provided by the applicant, there are annexures attached to the founding affidavit for condonation which contain emails from the 1st respondent regarding information so required. [22] Included in the Notice requesting information, the 1st respondent specifically refers to the founding affidavit in the main application deposed to by mr Potgieter and specifically refer to answers / information required from the [23] applicant to complete the opposing affidavit of the 1st respondent in the main application. It is very clear from the section 35(12) Notice of the 1st respondent that there are specific references to allegations made by mr Potgieter in its founding affidavit in the main application which was not known to and only came about from that affidavit

deposed to by mr Potgieter. The 1st respondent has drafted its application in terms of rule 35(12) and (14) to obtain clarification and proof of such information from the applicant. The 1st respondent has referred to specific paragraphs in the founding affidavit by mr Potgieter in the main application for eviction of the 1st respondent. The 1st respondent has in no uncertain terms set forth and specifying the documents in the format and other information so required by the 1st respondent. I refer to the following paragraphs of the Notice [24] of the 1st respondent regarding the request for information contained in the founding affidavit by mr Potgieter in the application for eviction of the 1st respondent from the property Portion 3[...] of the Farm P[...], Farm 1[...] Registration Division JU Mbombela Local Municipality Mpumalanga Province.

[16.1.]. Para 1 and 2 of the Notice : All the documents specified in this paragraph relating to the sale, purchase, acquiring, transfer or registration of all 9 immovable

properties from the previous owner Delkop Boerderye Beleggings CC (Reg 1989/015059/23) on 19 March 2019 and 19th July 2019. [25] This paragraph specifically refer to paragraphs 1.5, 2.2, 2.3, 3.4, 7.2 to 7.4, 9.1 to 9.6, 10.9, 10.10, 12.5, 13.6 and 17.2 of the founding affidavit by mr Potgieter in the main application for the eviction of the 1st respondent from the property mentioned in paragraph [3] above. From reading the papers I could only find reference to information on paragraph 7.2. and some title deeds annexed to the notice of Desire Koch. No other information was provided as requested by the 1st respondent on the remaining information referred to in the remaining paragraphs.

[16.2.]. Para 2 of the Notice : All documents referred to in this paragraph re the Consumer Protection Act 68 of 2008 and the regulations to the Consumer Protection Act pertaining to the auctions held on 23rd November 2018 for the sale of the membership / shareholding of the 1st respondent and his brother mr P.D. le Roux in the Delkop Boerderye Beleggings CC (Reg 1989/015059/23) proofing that the 1st respondent is an illegal occupier of the property on all 9 properties of the previous owner being Delkop Boerderye Beleggings CC (Reg 1989/015059/23). [26] This paragraph specifically refers to paragraphs 3.1. to 3.5., 6.1 to 6.3, 9.4. to 9.6., 10.1. to 10.10., 11.4. to 11.6., 12.4 to 12.5., 13.1. to 13.3, 13.6., 14.2 and 14.5 of the founding affidavit by mr Potgieter in the main application for the eviction of the 1st respondent from the property referred to in paragraph [3] above. From the reading of the papers I could only find reference to information

required in paragraphs 10.2 and 10.4. No other information was provided as requested by the 1st respondent on the remaining information referred to in the remaining paragraphs.

[16.3.]. Para 3 of the Notice : All documents specified in this paragraph showing / proofing that the 1st respondent is an unlawful and illegal occupier or trespasser of the 9 properties of the 9 properties of the previous owner being Delkop Boerderye Beleggings CC (Reg 1989/015059/23). [27] This paragraph specifically refers to paragraphs 3.1. to 3.5., 6.1. to 6.3., 9.4. to 9.6., 10.1. to 10.10., 11.1., 11.4, to 11.6., 12.4. and 12.5., 13.1. to 13.3., 13.6., 14.1. and 14.6. of the founding affidavit by mr Potgieter in the main application for the eviction of the 1st respondent from the property referred to in para [3] above. From the reading of the papers before me I could only find reference to information required in paragraphs 10.2. and 10.4. No other information was provided as requested by the 1st respondent on the remaining information referred to in the remaining paragraphs.

[16.4]. Para 4 of the Notice. All documents specified in this paragraph showing / proofing that the applicant is involved in large scale commercial farming of ClemenGold Mandarins and Macadamia farming on the 9 immovable properties previously held by Delkop Boerderye Beleggings CC (Reg

1989/015059/23). [28] This paragraph specifically refers to paragraphs 11.2. to 11.3. of the founding affidavit by mr Potgieter in the main application for the eviction of the 1st respondent from the property referred to in para [3] above. From the reading of the papers before me I could find no reference to information supplied by the applicant to the 1st respondent in terms of these paragraphs

PRAYER THREE : JOINDER OF RELEVANT PARTIES

[17]. The 1st respondent alleges that the applicant must join all relevant parties which have a direct and substantial interest in this matter.

[18]. The applicant submits that no ‘’other relevant parties’’ were identified by the 1st respondent and for that matter nobody else has to be joined in the eviction application of the 1st respondent.

[19]. From reading the papers the applicant is only instituting eviction proceedings against the 1st respondent and not any other person for that matter. The founding affidavit by the 1st respondent merely refers to the actions taken in the sale of the immovable property and the shareholding / membership in Delkop Boerderye Beleggings CC (Reg 1989/015059/23).

[20]. There is no obligation on the applicant to find the ‘’other interested or affected parties’’ in an application for eviction. It is for those affected persons to come forward and to ‘’intervene in eviction proceedings’’ or to claim any right or interest in the litigation between the applicant and the 1st respondent.

[21]. The mere allegations by the 1st respondent on behalf of mr Pieter Daniel le Roux (the brother of the 1st respondent) and the confirmation of these allegations by mr Pieter Daniel le Roux does not give effect to the requirements for the applicant to join mr Pieter Daniel le Roux in the application for the eviction of the 1st respondent from the property held by the applicant Delkop Boerderye Beleggings CC (Reg 1989/015059/23). To order the applicant to join the other ‘’unknown parties who might have an interest ‘’ in this matter would not be justifiable under the circumstances. The test for such order to join other parties would only be fair and in the interest of justice where such affected party could show and prove that it has a substantial interest in the proceedings before a court. I must refer to the

confirmation affidavit of mr Pieter Daniel le Roux which falls far short of explaining why he should be joined by the applicant in these proceedings and secondly why did mr Pieter Daniel le Roux not out of his own filed an application to be joined and set forth the reasons why he should be joined. Mere scant allegations based on ownership and shares and / or membership in Delkop Boerderye Beleggings CC (Reg 1989/015059/23) is not enough to warrant or placed a duty on the applicant to have joined mr Pieter Daniel le Roux in the litigation between the applicant and the 1st respondent.

PRAYER FOUR : THE 1ST RESPONDENTS REQUIREMENT FOR INFORMATION FROM THE SHERIFF FOR WHITE RIVIER AND NSIKAZI

[22]. The Sheriff of White River and Nsikazi is not a party to the application and for this reason the relief is inappropriate.

ANALYSIS OF THE EVIDENCE

[23]. I have mentioned that there is an ongoing legal battle between the applicant and the 1st respondent of which the eviction application is but one of the actions between the applicant and the 1st respondent.

[24]. The eviction application is not before me as I had to deal with the two interlocutory applications brought by the 1st respondent which first is an application for condonation and secondly a Notice for discovery of information in terms of Rule 35(12) and (14) that came about in the founding affidavit by mr Potgieter who deposed to an affidavit on behalf of the applicant in the main application for the eviction of the 1st respondent from the property previously held by Delkop Boerderye Beleggings CC (Reg 1989/015059/23) and which now is the alleged lawful owner of the property mentioned in paras [3] of the judgment.

CONDONATION APPLICATION

[25]. Condonation application. It is clear from the rule 35(12) of the Uniform Rules of the Superior Court that the 1st respondent did not have to apply for condonation. The applicant engaged in a lengthy opposing of this application instead of serving a Rule 30 or 30A notice in terms of the Uniform Rules of the Superior Court.

RULE 35 NOTICE

[26]. Notice in terms of Rule 35(12) and (14) of the Uniform Rules of the Superior Court. The request for information from the applicant contained in its founding affidavit in the main application in terms of PIE for the eviction of the 1st respondent from the property known as Portion 3[…] of the Farm P[…], Farm 1[…] Registration Division JU Mbombela Local Municipality Mpumalanga Province.

[26.1.]. The Notice in terms of Rule 35(12) and (14) by the 1st respondent has been served on the applicant prior to the hearing of the main application by this court set down for 31st January 2020. The 1st respondents’ interlocutory applications was then set down for 28th May 2020 but then re-enrolled for 30th June 2020. On 30th June 2020 the interlocutory applications was postponed to 7th July 2020 due to the incomplete court file. The court has been provided with a completed file and was in the possession of founding affidavit by mr Potgieter on behalf of the applicant in the application for the eviction of the 1st respondent from the property mentioned in para [3] of this judgment.

[26.2.]. From the reading of the papers the applicant opposed the discovery of the information requested by the 1st respondent in that the 1st respondent should have referred in detail to the required information required in the founding affidavit deposed to by mr le Roux (the 1st respondent). The applicant dispute the relevance of rule 35(14) and its effect on the discovery of information. For the purposes of the argument rule 35(14) is not applicable under the circumstances and would serve no prejudice to the applicant.

[26.3.] What is important is that the Notice in terms of rule 35(12) has the effect that any litigant, whether it is the applicant or the respondent may at any time request discovery of information from anybody without applying for condonation. This notice is specifically included in the Uniform

Rules of the Superior Court to enable a litigant to request information of the other party and does not form part of the contents

of the founding affidavit. The basic principle is that discovery of information will enable the requesting party to formulate a response or to prepare for its case. In this application I am of the view that the 1st respondent needs the requested information to draft the opposing / answering affidavit in response to the applicants’ founding affidavit which forms part of the main application for the eviction of the 1st respondent from Portion 3[...] of the Farm P[...], Farm 1[...] Registration Division JU Mbombela Local Municipality Mpumalanga Province. [29]

[26.4.] The request by the 1st respondent to the applicant to be supplied and provided with the information requested in the Notice in terms of Rule 35(12) is further supplemented by section 26 (3) of the Constitution of the Republic of South Africa Act 108 of 1996 in that -

‘’(3). No one may be evicted from their home….without an order of court after considering all the relevant circumstances……..’

[30]

[28.5.]. Section 32 of the Constitution of the Republic of South Africa Act 108 of 1996 reads as follows –

‘’32. (1). Everyone has the right of access to –

(a) …………

(b) Any information that is held by another person and that is required for the exercise or protection of any rights

(c) ……………’’ [31]

[26.6.]. Section 33 and 34 of the Constitution of the Republic of South Africa Act 108 of 1996 provides for the protection of the 1st respondents right to just administrative action and access to a court of law.

[26.7.] It follows that the 1st respondent in this matter, does not have to serve his answering affidavit in the main application for eviction before having had the opportunity to receive, inspect and copy documents referred to by the applicant in its founding affidavit in the main application for its eviction. The SCA held that a respondent (such as in the present circumstances) would not know what its defence would be without having to inspect the documents of the applicant in terms of rule 35(12) of the Uniform Rules of the Superior Court. Rule 35(12) of the Uniform Rules of the Superior Court clearly and univocally state that the 1st respondent could have access and be provided with any information and documents requested and not just to a portion thereof. [32] It is not required from the 1st respondent to prove that the required documents is ‘’related to any matter in question or that the document must be relevant to any matter in question’’. [33]

[26.8]. In the light of the contents of the Notice by the attorney acting on behalf of the applicant , I find that the contents thereof is inappropriate and not adequate to satisfy the requests by the 1st respondent for the information requested in the rule 35(12) notice. I am of the view that the attorney was not in a position to have acted on behalf of the applicant as that notice is not evidence under oath and for that reason the 1st respondent could not oppose the answer by the applicant in any reply. From reading the papers it is clear that there is a deliberate and intentional effort by the applicant, and its attorney of record, not to produce or to supply the information required by the 1st respondent to the 1st respondent to draft its answering affidavit in the main application for eviction. The remarks by the applicant and its attorney that the information is ‘’irrelevant and refer to other litigation’’ has no bearing on the meaning and interpretation of rule 35(12) of the Uniform Rules of the Superior Court. In this regard there is no objection to any discovery in terms of Rule 35 of the Uniform Rules of the Superior Court which indicate that any of the required information is privileged or not in the possession of the applicant.

[26.9]. Any applicant (like the 1st respondent in the present matter) in an application in terms of rule 35(12) does not have to secure a directive from a court to have access to documents of the other party. The mere fact that the document was referred to in the affidavit by mr Potgieter entitles the 1st respondent to seek or request that those documents be produced. [34]

[26.10.]. Rule 35(13) of the Uniform Rules of the Superior Court finds its application in applications [35] where discovery are sought by one of the parties -

The provisions of this rule relating to discovery shall mutatis mutandis apply, in so far as the court may direct to applications.

[27]. A court must consider the case of all the parties which appear before it on its own unique merit.

[27.1.]. ‘’Procedural fairness’’ is concerned with giving litigants an equal opportunity to participate in the decisions that will affect them, and crucially, a chance of influencing the outcome of those decisions. Such participation is vital and serves as a safeguard that not only signals respect for the dignity and worth of the participants but is also likely to improve the quality and rationality of administrative decision-making and to enhance legitimacy. [36]

[27.2.]. In the present application based on an interlocutory application by the 1st respondent in terms of rule 35(12) of the Uniform Rules of the Superior Court, the applicant is adamant that the 1st respondent should have file its answering affidavit in the main application for eviction without being afforded insight into the

information as required by the 1st respondent.

[27.3.]. In terms of Rule 35(12) the 1st respondent has the right to see, inspect and copy the whole of any document or tape recording and not just the portion of it upon which the applicant has chosen to rely. That entitlement unlike the entitlement to general discovery for which rule 35(1) provides does not arise only after closing of pleadings in a trial action, or after both answering and replying affidavits have been filed in motion proceedings; it arises as soon as reference is made in the pleadings or affidavit to a document or tape recording. It is inherent in that a litigant cannot ordinarily be told to draft and file his own pleadings or affidavits before he is given an opportunity to see, inspect and copy, or transcribe or handed a document or tape recording referred to in his adversary’s affidavits. [37]

[27.4.]. Based on the above the applicants refusal to produce the documents sought by the 1st respondent cannot be justified on the grounds forwarded by the applicant.

[28]. The applicant did not allege that any of the information requested by the 1st respondent is confidential or privileged; there is no allegation in this regard in the answering affidavit by mr Potgieter or by the attorney of the applicant. The applicant did not take a point in law for that matter.

[30]. The applicant or its attorney does not allege that the requested document are not in their possession. The 1st respondent clearly set forth the request for documents for disclosure of essential documents required in its rule 35 Notice which was properly served on the applicant. It is clear that the applicant failed not to discover the documents to the 1st respondent. Its reasons are merely that ‘’the information is irrelevant and refer to other matters between the parties’’. The reluctance by the applicant and its attorney not to discovered the information to the 1st respondent leaves much to desire. In essence the applicant is deliberately and intentionally without a valid reason withholding information and thereby preventing the 1st respondent to exercise its Constitutional rights not to be able to draft its response to the applicants’ main application for eviction and thereby severely prejudice the 1st respondent. It would be unfair and not in the interest of justice to expect the 1st respondent to file an answering affidavit in the main action for eviction, whereby the 1st respondent should not be able to rely, refer and to contradict allegations in its answering affidavit of allegations made by the applicant (mr Potgieter) in its founding affidavit in the main application for eviction. This would not enable a court hearing the main application to have available all the information and all the circumstances to be judicially considered in reaching its judgment. [38]

[31]. Read with the protection of the 1st respondents Constitutional rights and the requirements and precedents referred to, the 1st respondent is entitled to the information as required in the Notice in terms of Rule 35(12). [39]

JOINDER OF AFFECTED PARTIES BY THE APPLICANT

[32]. I refer to the evidence in paragraph [17] to [21] above.

[33]. I refer to the test for joiner of a party which clearly state that a party must have a ‘’direct and substantial interest in the subject matter’’ and that non-joiner would lead to prejudice to the party who was not joined. Parties may only be joined as a matter ‘’necessity and not convenience’’. [40] Any party who want to intervene must show cause to intervene and permission must be grated for intervention of any party to litigation. [41]

[34]. In the light of the above there was and is no obligation on the applicant to have joined the brother of the 1st respondent as he was not the subject of the applicants’ main application for eviction.

MIS-JOINER OF THE SHERIFF OF WHITE RIVER AND NZIKAZI

[35]. The 1st respondent cannot claim any relief or disclosure of any documents from the Sheriff of White River and Nsikazi. From the papers it seems as if the interlocutory applications were not served on the Sheriff of White River and Nsikazi.

COST

[36]. The applicant sought a cost order on a punitive scale against the 1st respondent.

[37]. I am of the view that the 1st respondent had the right to request the information referred to in his Rule 35 Notice on which the applicant relied in the founding affidavit in the main application for the eviction of the 1st respondent from the property Portion 3[…] of the Farm P[…], Farm 1[…] Registration Division JU Mbombela Local Municipality Mpumalanga Province.

[38]. After the 1st respondent served its Notice for disclosure, the applicant elected for no valid reason not to disclose the information as required in prayers 1 and 2 of the Notice to the 1st respondent. The 1st respondent had to approach a court to enforce the applicant to comply to discover the information so sought by the 1st respondent in the Rule 35(12) Notice.

[39]. At no stage did the applicant alleged that the 1st respondent does not comply with the Uniform Rules or served a rule 30 or 30A Notice or took a point in limine in this regard.

[40]. Even from the papers before the court, the only reasoning by the applicant for non-discovery of the information is that it is ‘’ irrelevant and refer to other matters’’. It is not for the applicant to make that decision as Rule 35(12) make provision for disclosure of information without the 1st respondent having to specify further qualifications or reason, therefore.

[41.]. Under the circumstances I am of the view that –

[41.1.]. The applicant caused the 1st respondent to incur unnecessarily legal cost which could simply have been avoided by merely discover the information requested by the 1st respondent to the 1st respondent. The purported argument that the 1st respondent did not mention the required information in its founding affidavit stands to be dismissed.

[41.2.]. The applicant deliberately and without any merit withheld information from the 1st respondent to exercise his Constitutional rights read with the audi alteram partem rule and in the interest of justice in a proper and fair manner to the court which stand to hear the main application for the eviction of the 1st respondent from the property mentioned in para [3] of this judgment.

[41.3.]. The reluctance by and the flimsy reasons forwarded by the applicant and / or its attorney for the non-discovery of the requested information in terms of the 1st respondents request in terms of Rule 35(12) of the Uniform Rules of the Superior Court stand therefore to be dismissed.

ORDER

The following order is made –

PART A : THE NOTICE IN THE CONDONATION APPLICATION

[43]. The following order is made regarding Part A –

[43.1.]. The relief sought in prayers 1 and 2 of Part A of the 1st respondent application is granted.

[43.2.] The relief sought in prayers 3 and 4 of Part A is dismissed.

[42.3.] The applicant is ordered to pay the cost of the 1st respondent on a party-and-party scale.

PART B : THE 1ST RESPONDENTS RULE 35(12) AND (14) NOTICE

[44]. The following order is made –

[44.1.]. The applicant is ordered to provide the information requested in terms of rule 35(12) which is applicable on the applicant, excluding information so required from the Sheriff of White River and the Auctioneer.

[44.2.]. The applicant is ordered to pay the cost of the 1st respondent in Part B on an party-and-party scale.

[45]. The applicant to pay the wasted cost for the postponement of 30th June 2020 on a party-and party scale.

[46]. The information so required and referred to in orders above must be provided to the 1st respondent or before the 30th July 2020.

[47]. Should the applicant fail to deliver, furnish and / or produce the information so requested to the 1st respondent by the 30th July 2020, the 1st respondent is authorised to approach this court on an urgent basis on the same or supplemented papers to compel the applicant to provide the information requested in paragraph 1 to 4 of the Notice in terms of Rule 35(12) of the Rules of the Superior Court..

[44]. That the relief sought in prayers 3 and 4 of the notice for Condonation is dismissed.

[47]. There is no order for cost regarding prayers 3 and 4 of the Notice for Condonation.

SIGNED AND DATED THIS 9th day of July 2020.

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MBOMBELA DIVSION [MAIN SEAT]

Date : 7th July 2020

Judgment : 9th July 2020

APPLICANT

Desire Koch Attorneys

Ref : D.KOCH/D0182

Email: dkattorneys@gmail.com

Email : office@dkatt.co.za

1ST RESPONDENT

Adv S Herbst

E mail : sakkieh@gmail.com

Peet du Plessis Attorneys

Johan le Roux : johanleroux@mweb.co.za

[1] See Notice of Motion bundle 1 page 1 to 3 para 1 to 3.

[2] See Notice of Motion bundle 1 page 4 para 4.

[3] See founding affidavit in the main application for the eviction of the 1st respondent pages 5 to 23.

[4] See Notice of Motion bundle 1 page 1 to 5 and affidavit page 11 to 24.

[5] See Notice of Motion bundle 1 page 4 para 4

[6] Answering affidavit bundle 4 page 190 para 14.3; See applicant’s Heads of Argument page 7 para 11.

[7] Answering affidavit page 192 para 14.10 read with para 14.11.

[8] See page 54 to 57 of bundle 1..

[9] See annexure JF 2 to JF 10 from page 30 to 96 of bundle 1; Annexure JF 12 A to JF 12 C page 146 to 171.

[10] See page 226 to 229 of bundle 3.

[11] See page 226 of bundle 3 para 1.

[12] See page 227 of bundle 3 para 2.

[13] See page 227 of bundle 3 para 2.1.

[14] See page 227 of bundle 3 para 2.2.

[15] See page 227 of bundle 3 para 2.3.

[16] See page 231 to 258 of bundle 3

[17] See pages 6 to 40 of bundle 1.

[18] See Notice for discovery bundle 1 at page 54 to 58.

[19] See bundle one pages 49 to 96 and page 214 of bundle 3 para 50.6.

[20] See applicants Heads of Argument para 33.

[21] See page 198 para 30 referring to JF 08; Page 199 para 32.2 referring to JF 9A, Page 202 Para 35.4.1. referring to JF 10 A onwards; Page 209 para 43.3. and para 44.1.

[22] See bundle one pages 33 to 51.

[23] See paragraphs 1 to 4 in bundle 1 page 55 to 56

[24] See page 50 to 54 of bundle 1.

[25] See paragraph 1 on page 50.

[26] See paragraph 2 on page 52 of bundle 1.

[27] See paragraph 3 on page 51 of bundle 1.

[28] See page 52 of bundle 1.

[29] Owners of the MW Urgrup v Western Bulk Carries (Australia) and others 1999 (3) SA 500 at 513H; Independent Newspapers (Pty) Ltd v Minister of Intelligence Services 2008 SA 31 (CC) at para 25.

[30] See Standard Bank of South Africa v Jan Hendriks & Hendrina Hendriks unreported case 11294/2018 in the WCHC

[31] Premier Freight (Pty) Ltd v Breathtex Corporation (Pty) Ltd 2003 (6) SA 190 (SE) at para [8]

[32] Unilever and Another v Polagric (Pty) Ltd 2824/96 and 9647/96 ZASCA (15 December 1977); Protea Assurance Company Ltd v Waverley Agencies CC and Another 1994 (3) SA 247 (C) at 249 B – D; Erasmus and Slomowitz (2) 1932 TPD 242 at 244.

[33] Gorfinkel v Gross handler & Frank 1987 (3) SA 766 (C) at 771 D; Magnum Aviation Operations v Chairman National Transport Commission and Another 1984 (2) SA 398 (W).

[34] Minister of Safety and Security v Tembop Recovery (006/2015) [2016] ZASCA 52 (1 April 2016) at [1]; Machingawuta& others v Mogale Alloys (Pty) Ltd & others 2012 (4) SA 113 (GSJ); Moulded Components & Rotomoulding South Africa (Pty) Ltd v Courourakis & another 1979 (2) SA 457 (W) at 460 H – 461 E

[35] Rule 35(13); Krygkor Pensioenfonds v Smith 1993 (3) SA 450 (A) 470; Saunders Valve Co Ltd v Insamcor (Pty) Ltd 1985 (1) SA 146 (T); The MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia) Pty Ltd 1999 (3) SA 500 (C) 511.

[36] Dendy v University of the Witwatersrand and Another 2005 (5) SA 357 (W).

[37] Protea Assurance Company Ltd v Waverley Agencies CC and Another 1994 (3) SA 247 (C) at 249 B – D; Unilever P/C and Another v Polagric (Pty) Ltd 2001 (2) SA 329 (C) at 336 G – J; Gehle v McLoughlin 1986 (4) SA 543 (W) at 546 D – E.

[38] Clara Phillips v Willem Grobler & John Venter NO & Heidelberg Municipality unreported judgment case A 291/2017.

[39] Michael Daniel Burger & 5 Others v Land and Agricultural Development Bank of South Africa in the WCHC unreported judgment 324/2018 and 409/2018.

[40] Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) (2012 (11) BCLR 1239 at para 12; Bowring NO v Vrededorp Properties CC and Another 2007 (5) SA 391 (SCA).

[41] SA Riding for the Disabled Association v Regional Land Claims Commissioner 2017 (5) SA 1 (CC) at para 5 A – D.