Democratic Alliance and Others v Mkhwebane and Another (1370/2019) [2021] ZASCA 18; [2021] 2 All SA 337 (SCA); 2021 (3) SA 403 (SCA) (11 March 2021)

Democratic Alliance and Others v Mkhwebane and Another (1370/2019) [2021] ZASCA 18; [2021] 2 All SA 337 (SCA); 2021 (3) SA 403 (SCA) (11 March 2021)

The Supreme Court of Appeal held that Rule 35(12) applies to documents referred to in affidavits and annexures, provided they are relevant, not privileged, and in the possession of the party. The application for the SSA Analyst post was clearly referenced in the annexure 'PPSA5' and was material to the timeline and facts at issue in the defamation claim. The respondent's denial of reference and relevance was rejected. The court clarified that relevance under Rule 35(12) is broader than under conventional discovery rules and is assessed in relation to issues that might arise, not only those crystallised after pleadings close. The respondent failed to provide an affidavit stating lack of...

Citation
[2021] ZASCA 18
Parties
Appellant: Democratic Alliance; Appellant: Glynnis Breytenbach; Appellant: Werner Horn; Respondent: Busisiwe Mkhwebane; Respondent: The Office of the Public Protector
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
11 March 2021
Case Number
1370/2019
Procedural Posture
Civil Appeal / Appeal From Interlocutory Application to Compel Production of Documents Under Uniform Rule 35(12)
Outcome
Appeal upheld. The order of the court below is set aside and substituted. Respondents ordered to produce the application for the SSA Analyst post and to pay costs.
Judges
Navsa, Dlodlo, Nicholls, Carelse, Rogers
Legal Topics
Uniform Rule 35 12, Discovery and Production, Relevance of Documents, Defamation Defence, Onus in Interlocutory Applications
Civil Procedure Uniform Rule 35 12 Discovery and Production Relevance of Documents Defamation Defence Onus in Interlocutory Applications

Case Brief

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Parties

Democratic Alliance

Appellant

Glynnis Breytenbach

Appellant

Werner Horn

Appellant

Busisiwe Mkhwebane

Respondent

The Office of the Public Protector

Respondent

Procedural Posture

Civil Appeal / Appeal From Interlocutory Application to Compel Production of Documents Under Uniform Rule 35(12)

Legal Issues

  1. 1 Whether documents referred to in annexures to affidavits are compellable under Uniform Rule 35(12).
  2. 2 Whether the application for the post of Analyst at the State Security Agency and acceptance thereof are relevant and must be produced.
  3. 3 What is the correct approach to relevance and onus in applications to compel production under Rule 35(12).

Ratio Decidendi

The Supreme Court of Appeal held that Rule 35(12) applies to documents referred to in affidavits and annexures, provided they are relevant, not privileged, and in the possession of the party. The application for the SSA Analyst post was clearly referenced in the annexure 'PPSA5' and was material to the timeline and facts at issue in the defamation claim. The respondent's denial of reference and relevance was rejected. The court clarified that relevance under Rule 35(12) is broader than under conventional discovery rules and is assessed in relation to issues that might arise, not only those crystallised after pleadings close. The respondent failed to provide an affidavit stating lack of...

Court Disposition

Appeal upheld. The order of the court below is set aside and substituted. Respondents ordered to produce the application for the SSA Analyst post and to pay costs.

Orders

  • The appeal is upheld, and the respondents are to pay the costs of appeal jointly and severally, the one paying the other to be absolved, including the costs of two counsel.
  • The order of the court below is set aside and substituted: The applicants in the main application under case number 19668/17 are directed to produce for inspection and copying the first applicant’s application for the post of Analyst: Domestic Branch: DBO1 in the State Security Agency, referred to in 'PPSA5', by no...