Louw v Grobler and Another (3074/2016) [2021] ZAFSHC 223 (28 September 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 3074/2016

In the matter between:

TILANA

ALIDA LOUW Applicant

and

DR

STEPHEN PAUL

GROBLER 1ST Respondent

NETCARE

UNIVERSITAS HOSPITAL 2ND Respondent

CORAM: I VAN RHYN, AJ

HEARD ON: 12 AUGUST 2021

DELIVERED ON: 28 SEPTEMBER 2020

This judgment was handed down electronically by circulation to the parties’ representatives by email, and release to SAFLII. The date and time for hand-down is deemed to be 14h00 on 28 September 2021.

INTRODUCTION.

[1] The applicant, who is the plaintiff in an action instituted against the first and second respondents for damages due to the alleged defamatory remarks made by the first respondent, gave the second respondent (the second defendant in the main action) proper notice in terms of the provisions of Rule 35(3) to make discovery of certain documents. Second respondent alleges compliance with the provisions of Rule 35(3) and raised objections to make discovery of certain documents. The issue for determination is whether the second respondent’s objections to make discovery of these documents on the basis of irrelevance and confidentiality ought to be upheld.

[2] The applicant is Tilana Alida Louw, a major female, previously employed as a theatre unit manager at Netcare Universitas Private Hospital (“the second respondent”) in Bloemfontein. The first respondent is Dr Stephen Paul Grobler a specialist surgeon and gastro- enterologist. The first respondent conducted a private practice situated at the premises of the second respondent and performed surgeries in its operating theatres. This application does not concern the first respondent.

[3] The applicant issued summons, under the above case number on 1 July 2016, for damages. She alleges that the first respondent, during the period 1 April 2005 to 7 April 2015, continually and with the intent to injure, verbally abused her by hurling profanities, insults and blasphemous language. These incidents occurred within the second respondents operating theatres while applicant was in the presence of the theatre staff. As a result of the first respondent’s abusive behaviour towards her, the applicant suffered damages in the amount of R627 000.00.

[4] The applicant’s claim against the second respondent is based on the allegation that the second respondent, as her employer, breached its legal duty towards her due to the hospital’s failure to create a work environment free from verbal abuse and intimidation and to take reasonable steps to protect and assist the applicant and preserve and protect her wellbeing. The claim is defended by both respondents. The first respondent denies that any insults or remarks were made with the intent to injure the applicant. The second respondent’s defence is on the grounds that the applicant failed to plead sufficient facts to disclose a cause of action against the second respondent and more specifically, that the element of unlawfulness does not appear ex facie the facts pleaded by the applicant in the particulars of claim. Furthermore, both respondents filed special pleas relating to prescription of the applicant’s claim.

THE SECOND RESPONDENT’S DISCOVERY.

[5] The relief sought by the applicant in this application is to compel compliance with the notice in terms of Rule 35(3). The second respondent served its discovery on the applicant’s attorneys and after considering such discovery, the applicant was of the view that such discovery was woefully inadequate. On 26 January 2021 the applicant served and filed her notice in terms of Rule 35(3) and required further documents to be discovered in addition to those which were discovered under the original discovery affidavit. No reply was received. On 2 March 2021 the second respondent was given notice in terms of Rule 30A(1) of its failure to respond to the applicant’s notice in terms of Rule 35(3). On 17 March 2021, in a letter addressed to the second respondent’s attorney, compliance with the notice in terms of Rule 35(3) was requested.

[6] The second respondent served and filed its supplementary discovery affidavit on 26 March 2021 (the “first Rule 35(3) affidavit”). Appended to the affidavit, were the documents referred to therein and which, according to the second respondent, were the only relevant documents in its possession. Again, the applicant expressed her dissatisfaction with the contents of the discovery. The second respondent was afforded until 9 April 2021 to comply with the Rule 35 (3) notice and provide the applicant with copies of the following documents:

(a) Exco (MANCO) minutes relating to meetings held during the period January 2013 to April 2015;

(b) Final written warnings written by Dr Richard Friedland to the first respondent;

(c) The incident report of 8th January 2015 submitted to the Regional H R Manager and to the Regional Nurse Manager (Merle Coopman) on 31st January 2015;

(d) Any communication from Dr Friedland to Mr. T J Ramanamane regarding the first respondent or the complaints against him;

(e) Any communication from Mr. J du Plessis to either Dr Friedland or Mr T J Ramanamane regarding the first respondent or the complaints lodged against him.

[7] On 5 May 2021, the second respondent filed its reply to the applicant’s notice in terms of Rule 35(3) (the “second Rule 35(3) affidavit”) and attached annexures, “TR1” to “TR8” consisting of certain extracts of the minutes of the Exco committee meetings. The second respondent contends that the Exco minutes, in its possession and relevant to the applicant and/or the dispute between the applicant and the respondents, were included. The second respondent contends that it has complied with the provisions of Rule 35(3).

[8] Redacted copies of the minutes of the Exco meetings held during September 2014, October 2014, November 2014, February 2015, March 2015 and April 2015 were attached to the second respondent’s affidavit in reply to the Rule 35(3) notice as annexures. The minutes for the period from January 2013 until August 2014 “do not contain information relating to the case and contain confidential information relating to other parties” and on that basis the second respondent objects to discovery thereof. The second respondent denies that it is in possession of a warning drafted by Dr Friedland and addressed to the first respondent and furthermore that the available warnings were drafted by Mr Ramanamane and Dr Billy van der Merwe and were discovered with the supplementary affidavit.

THE APPLICANT’S ARGUMENTS.

[9] The second respondent’s Exco committee conducted bi-weekly meetings apart from the periods from middle November until middle January each year and during holiday periods. Mr Ronnie Verhoeven was a member of the Exco committee during the relevant period and he regularly attended such meetings. These meetings were also attended by inter alia, Mr Ramanamane (the General Manager employed by the second respondent), the pharmacy manager and the human resources manager. It is the applicant’s contention that complaints lodged by her against the first respondent were continuously discussed during these meetings, as confirmed by Mr Ronnie Verhoeven. The applicant therefore argues that the annexures discovered by the second respondent are incomplete in that the documents discovered by the second respondent are extracts and are not complete copies of the minutes. Furthermore, only a few Exco minutes were provided and the majority of the minutes for the relevant period, were not provided.

THE APPLICALE LEGAL PRINCIPLES.

[10] Rules 35(1) and 37(1) provide for general discovery. The term ‘discovery’ is used to describe the process by which the litigants to a civil action are allowed to obtain, within certain defined limits, full information of the existence and the contents of all relevant documents or (tape) recordings concerning any matter in question between them and which are, or have been, in the possession of their agents, attorneys or any other persons on their behalf.[1] The object of discovery is to provide the parties with the relevant documentary or recorded evidence before the trial so as to assist them in appraising the strength and weakness of their respective cases, to narrow the issues and eliminate points which are incontrovertible.[2]

[11] Parties to litigation are required to make full and honest discovery. A discovery affidavit is taken to be prima facie conclusive, as to both the possession of the documents or (tape) recordings and the relevance of their contents. The requirement of relevance has been considered by the courts on numerous occasions. In Rellams (Pty) Ltd v James Brown & Hamer[3] the test for relevance was held to be as follows:

“The question remains whether the documents called to be produced are relevant to any matter in the action. The test for determining this, as laid down in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, has often been accepted and applied in our Courts. After remarking that it was desirable to give a wide interpretation to the words ‘a document relating to any matter in question in the action’, BRETT LJ stated the principle as follows:

‘It seems to me that every document relates to the matter in question in the action which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words 'either directly or indirectly' because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry which may have either of these two consequences’.”

[12] Relevance is a matter for the court to decide, having regard to the issues between the parties.[4] Relevancy is determined from the pleadings and not extraneously therefrom. The other only legally sustainable grounds upon which discovery can be refused is that the documents required to be discovered are protected from discovery by one of the grounds of privilege. Confidentiality is not one of the recognised grounds to avoid discovery. It is settled that the fact that documents contain information of a confidential nature does not per se confer on them any privilege against disclosure.[5]

[13] A discovery affidavit is taken to be prima facie conclusive as to both the possession of documents or (tape) recordings and the relevance or their contents. In Rellams[6] Van Heerden J (as he then was) held as follows:

‘It is generally speaking, no doubt true that, whilst the Court should not and would not go behind a party’s affidavit that the contents of a document are not relevant, such affidavit is nevertheless as far as the Court is concerned not conclusive. After an examination and consideration of the recognised sources as well as the pleadings and the nature of the case the Court may come to the conclusion that the party making discovery in all probability has other relevant and disclosable documents in his possession or power and may order further and better discovery or production in conflict with the claim in the affidavit”.

[14] The sources from which a court may infer that a discovery affidavit is wanting in certain respects has been held in Continental Ore Construction v Highveld Steel & Vanadium Corporation Ltd[7] to be:

"The test of discoverability or liability to produce for inspection, where no privilege or like protection is claimed, is still that of relevance; the oath of the party alleging non-relevance is still prima facie conclusive, unless it is shown on one or other of the bases referred to above that the Court ought to go behind that oath; and the onus of proving relevance, where such is denied, still rests on the party seeking discovery or inspection ... Rule 35(3) could never have been intended to mean that the mere subjective belief (or even that a mere statement as to the existence of such belief) by the party seeking further discovery, as to the relevance of additional documents, is by itself enough to require the other party on notice to make available for inspection such of those documents as are in his possession."

[15] The Court will go behind the affidavit only if it is satisfied -

(i) from the discovery affidavit itself; or

(ii) from the documents referred to in the discovery affidavit; or

(ii) from the pleadings in the action;

(iv) from any admissions made by the party making the discoveryaffidavit; or

(v) from the nature of the case or the documents in issue.

that there is a probability that the party making the affidavit has or has had other relevant documents in his or her possession or power or has misconceived the principles upon which the affidavit should be made.[8]

[16] In terms of the provisions of Rule 35 (2) the party required to make discovery shall within twenty days, or within the time stated in any order of a judge, make discovery of such documents on affidavit in accordance with Form 11 of the First Schedule, specifying separately-

(a) such documents and tape recordings in the possession of a party or such party’s agent other than the documents and tape recordings mentioned in paragraph (b);

(b) such documents and tape recordings in respect of which such party has valid objection to produce;

(c) such documents and tape recordings which a party or such party’s agent had, but no longer has possession of at the date of the affidavit.

[17] Form 11 requires that the documents be listed in two schedules, the first being in respect of documents still in the possession or power of the deponent. The first schedule is again to be divided onto two parts, the first part being in respect of which no claim for privilege or other objection to produce is made, and the second part in respect of documents to which such an objection attaches. Sub Rule 35(3) provides the procedure for a party dissatisfied with the discovery, including documents designated as part of a bundle of documents of a specified nature and consecutively numbered by the deponent,[9] of another party and the procedure to be followed to supplement the alleged inadequate discovery.[10]

THE PLEADINGS, CONTENTS OF THE DOCUMENTS AND DISCOVERY

AFFIDAVIT.

[18] Each application of this nature has to be considered on its own facts and circumstances and whether on the totality thereof an applicant has shown, on a balance of probabilities, that there are documents which require production. Mr Steyn, on behalf of the applicant, contends that the issues in her claim against the respondents are crystallised in the pleadings. The first claim is one against the first respondent for his abusive behaviour, as described in the particulars of claim, which occurred over a long period from 1 April 2005 to 7 April 2015. The further claim is against the second respondent, the applicant’s former employer, for its failure to take steps to protect her against the abusive behaviour of the first respondent. The second respondent in its plea denies any knowledge pertaining to the first respondent’s conduct during the period 2005 to 2015. In amplification, the second respondent pleaded that the applicant is put to the proof of each and every incident that allegedly occurred during the said period regarding each specific profanity, insult, blasphemous and/or obscene utterances by the first respondent.

[19] There is no dispute amongst the parties that the applicant’s objections in respect of the initial discovery was well founded in that Mr Ramanamane deposed to the first Rule 35(3) affidavit and supplied further documents. These documents were described as those “set forth in the first and second parts of the First Schedule hereto.” The second respondent objected to the said documents set forth in the “second part of the said schedule” being produced and stated the reason for such objection to be due to the confidential nature of the documents “brought into existence for the purpose of or in relation to obtaining professional legal advice in relation to contemplated or actual pending litigation”. Furthermore, it is stated that the second respondent “…has had, but is not now in possession or power, the documents or recordings to the matter in question in this action, set forth in the Second Schedule hereto”. No documents were identified in the second part of the First Schedule, however the words “PRIVILEGED” appear underneath the words “Schedule 1 Part 2”. The second respondent attached a further annexure with the heading “Annexure A to the First Schedule – Part 2” to the affidavit. A generic description of certain categories of documents, including the following, are listed:

“3. Documents which tend to prove or disprove either party’s case.

4. Documents that would disclose the evidence of witnesses of the party making discovery.

5. Documents tending to incriminate the deponent of subject the deponent to punishment.

6. Documents which are communications protected by marital privilege.

7 Documents against public interest”

[20] No documents, the discovery of which the second respondent objected to, were identified in the second part of the first schedule. Neither were the grounds of objection in relation to any particular document or documents provided. Under Schedule 2, no documents requested by the applicant in terms of Rule 35(3) are listed which could not be supplied. On behalf of the applicant, it is therefore argued that the second respondent did not contend that it is unable to make discovery of any of the documents because it does not have the documents in its custody or possession.

[21] In the second Rule 35(3) affidavit deposed to by Mr Ramanamane, it is stated that the final written warnings by Dr Friedland to the first respondent are irrelevant to the matter and has no reference to the applicant. The second respondent furthermore objected to the discovery of the incident report from the 8th of January 2015 on the basis that same is irrelevant in that no mention is made of the applicant. Communication from Dr Friedland to Mr Ramanamane is also irrelevant to the matter in that no reference is made to the applicant. In this regard the applicant contends that Mr Verhoeven contradict what Mr Ramanamane deposed to under oath and argues that the Exco minutes are relevant and ought to be discovered. Furthermore, the first respondent seemingly misunderstands the import and admissibility of the evidence relating to the abusive behaviour by the first respondent brought to the attention of the second respondent and are therefore relevant to the present matter.

[22] Counsel on behalf of the second respondent, Me Bester contended that the application may be refused on the basis that an order compelling discovery would simply enable the applicant to go on a fishing expedition or that justice will not be done. The alleged conduct does not constitute a continuous wrong and due to the applicant’s failure to set out, with sufficient particularity, each and every occasion when, where and how the second respondent allegedly failed her, the present application is nothing more than an effort to obtain dates and information on which she can rely to substantiate her claim.

[23] Mr Steyn contends that the extracts from the Exco meeting minutes are clearly incomplete as they typically begin at item 6 or 7 and the page numbers are indicative of gaps e.g., annexure “TR1” consists of page 6 and then page 12. The contents of each such page are largely redacted. The second respondent admit that it is in possession of the documents requested by the applicant. Therefore, the question is whether the applicant is entitled to obtain discovery of the documents requested, or not.

[24] The second respondent objects to the discovery of the Exco minutes for the period from January 2013 until August 2014 on the basis that no information relating to this case are contained in the minutes for this period. From the contents of Schedule 1, part 1 of the first Rule 35 (3) affidavit, it appears that an “Incident Management Form” by Sr. T A Louw (the applicant) dated 14 April 2014 was discovered. A further “Incident Management Form” by Sr P Yekani and another, by M van Wyk, with the same date, were also discovered. The second respondent listed a letter by Mr Ramanamane addressed to the first respondent dated 14 April 2014 under Schedule 1, part 1 under the heading “correspondence”

[25] From the contents of a letter by Mr Ramanamane in his capacity as the General Manager of the second respondent, dated 20 February 2012 and addressed to the first respondent, it is evident that discussions were held with the first respondent regarding the staff’s unwillingness to “scrub” for him in theatre. From this letter it appears as if several meetings were held with the “Regional Team”, theatre staff and the first respondent in an effort to resolve the problem. In a letter, dated 3 October 2014, addressed to the first respondent the second respondent requested the first respondent to refrain from engaging in abusive and racist tirades against staff employed by the second respondent. The first respondent was requested to agree to seek professional help to assist in his inter-personal behaviour skills and diversity training.

[26] The contents of “TR4”, the minutes of the Exco meetings held on 10 September 2014 under the description “New Matters” item 7: under the heading: “THEATRE”, reads as follows: “Management is dealing with a theatre issue regarding Dr Grobler and Sr Phumeza (scrubs sister for Dr Grobler). Following the incident Sr Phumeza refuses to scrub for Dr Grobler. Mr Ramanamane and Matron met with Sr Phumeza and Dr Grobler. Dr Grobler apologised for his behaviour. An urgent solution must be found as we could face legal action from the parties”. One would therefore expect that the incident or incidents relating to 14 April 2014, which not only involved the applicant but also M van Wyk and Sr P Yekani, were discussed at a meeting of the executive committee members, if not the following week at least within the next month or two.

[27] From the incidents and dates mentioned, it is clear that for more than two years since February 2012 to September 2014, the second respondent struggled to obtain a so called “scrubs sister” for the first respondent as other staff members also refused to assist the first respondent in theatre. On 18 February 2015 the issue regarding the grievance against the first respondent was again discussed at an exco meeting. It was noted that a meeting was facilitated between the hospital management, head office and the theatre staff at which meeting the theatre staff “hesitantly” accepted the apology from the management of the second respondent. During March 2015 and April 2015, the second respondent continued to search for a “scrubs sister” to assist the first respondent.

[28] According to the second respondent no incidents relating to the applicant were the subject of discussions at meetings held from January 2013 to August 2014. Obviously the second respondent experienced a problem to secure an assistant for the first respondent and this problem relating to the first respondent was escalated to the head office. This problem clearly persisted until 2015. Strangely the second respondent indicated that for a period of 18 months, no incidents involving the applicant and the first respondent were discussed at the Exco meeting.

[29] Furthermore, the second respondent discovered a letter from the first respondent addressed to the applicant dated 9 January 2014 as well as a letter dated 10 January 2014 from the first respondent addressed to Mr Ramanamane. On 20 February 2014 there was another letter, addressed to the first respondent. Evidently, something caused several incident reports to be lodged on 14 April 2014. Taking cognisance of the numerous letters sent prior to 14 April 2014 as well as the contents of the discussion as recorded in the minutes of the meetings regarding the problems relating to the first respondent’s behaviour, it begs the question, why the incident of 14 April 2014would not form the topic of further discussions during this period. It seems improbable.

[30] It is evident that several other incidents involving the conduct of the first respondent occurred. Incident reports were lodged, albeit from other complainants. In this regard Mr Steyn argued that the second respondent misunderstands the import and admissibility of evidence relating to the abusive behaviour of the first respondent brought to the attention of the second respondent. Similar fact evidence is evidence which refers to the peculiar or immoral or illegal conduct of a party on an occasion or several occasions other than the incident in contention, that are directed at showing that a person has behaved, on other occasions, in the same manner as he/she is alleged to have behaved in the circumstances being considered. [11]

[31] The purpose of presenting evidence during a trail is “…to establish the probability of the facts upon which the success of a party’s case depends in law”.[12] The meaning of relevance has been the subject of many cases and definitions. Relevance is a matter of degree and can be defined as follows:

“The word ‘relevant ’means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.”[13]

The facts and the issues in dispute of the particular case before court will decide the question of relevancy. Therefore, relevancy cannot be decided in vacuum.

[32] A party may validly object to the production of a document or tape recording if it is privileged. The grounds on which the privilege is claimed must, however, be fully set out and be stated sufficiently clearly for the court, if called upon, to decide whether or not the documents or tape recordings are in fact privileged from production. [14] The first respondent indicated that the contents of the Exco meeting held during the period from January 2013 to August 2014 do not contain information relating to this case but contain confidential information relating to other parties. The second respondent failed to fully set out its objection to the production of the documents that allegedly contain confidential information.

[33] Neither party has an absolute right to discovery. In this regard the second respondent contends that it should not be obliged to provide the applicant with information and evidence to sustain her cause of action. She should obtain same from her witnesses and/or the first respondent. In addition, it is contended that the topics discussed during the Exco meetings are in any event not relevant for “adequately dealing with grievances and/or disciplinary matters”.

[34] Mr Ronnie Verhoeven, in his confirmatory affidavit, explains that the complaints and grievances regarding the first respondent’s abusive behaviour, both in respect of the applicant as well as other staff members in the employment of the second respondent, were regularly discussed during the Exco meetings and included in the minutes of the meetings. Surprisingly Mr Ramanamane, in his second Rule 35(3) affidavit indicates that the final written warnings by Dr Friedland (the CEO of second respondent) addressed to the first respondent “… are irrelevant to the matter and has no reference to the plaintiff.” I agree with the argument on behalf of the applicant that the documents listed by the applicant are relevant to the matter. Clearly only a few Exco minutes were provided by the second respondent. The majority of the Exco minutes for the relevant period were not provided.

[35] The Exco minutes and the warning letters by Dr Friedland to Dr Grobler are relevant to the claims instituted by the applicant against the second respondent. Even in the event that these written warnings do not specifically bear reference to incidents involving the applicant, but relate to incidents that occurred between the first respondent and other members of the staff, the said letters are relevant to the abusive behaviour of the first respondent and the second respondent’s legal duty towards its employees as a result thereof.

[36] It is clear that the party in possession or custody of relevant documents carries the duty to make those documents available for both the benefit of his adversary and the court. For the consideration of a fair trial, the court needs to ensure that a litigant is entitled to present his or her case without unfair limitations. From the contents of the Schedule 1, part 1 delivered by the second respondent, it is evident that the items were not listed according to the date of the documents or letters. It was done in a disorganized, random fashion. Regarding the correspondence listed under schedule 1, part 1, a letter from Pieter Burger (Solidarity) to Tefo Ramanamane dated 25 September 2014 was listed as item 15 and again as item 42. Seemingly, the second respondent did not take particular care in drafting the discovery affidavits and annexures thereto.

[37] The applicant is a former employee of the second respondent who has instituted a delictual claim against a medical practitioner and a hospital. She carries the onus of proving her case against the respondents in a matter where the second respondent, prima facie, appears to be in possession of the necessary documentary proof to assist the applicant in either discharging her onus or alternatively, in causing her to realise that she does not have a claim against either or both the respondents.

[38] For the reasons set out above, this is an appropriate case where the court ought to go beyond the founding affidavits filed by the second respondent and find in favour of the applicant. The interests of a litigant, to be placed in a position to present his/her case fully during the course of litigation, are a serious matter. The scope of discovery is wide. It extends to documents having only a minor or peripheral bearing on the issues and to documents which may not necessarily constitute evidence, but which may fairly lend to an enquiry relevant to the issues at hand.

[39] In my view, the documents required by the applicant relate to the claims instituted against the respondents and “may be relevant” to the action having regard to the issues as defined in the pleadings. I am satisfied that the documents requested will assist the parties as well as the trial court in determining the truth and eventually to make a just determination of the issues between the parties. There is no reason why the costs should not follow the event.

ORDER:

[40] In the result it is ordered that:

1. The second respondent/second defendant is directed to comply with the applicant’s/plaintiff’s notice in terms of the provisions of Rule 35(3) of the Uniform Rules of Court, dated 25 January 2020, which particulars must be furnished within five (5) days from the date of delivery of a copy of this court order to the second respondent;

2. In the event of the second respondent/second defendant failing to comply with paragraph 1 of this order, the applicant/plaintiff is granted leave to approach the above Honourable Court on the same papers, duly amplified, if necessary, for an order in terms of which the second respondent/second defendant’s plea, under case number 3074/2016 is dismissed and judgment be granted in favour of the applicant/ plaintiff with costs;

3. The second respondent/second defendant is ordered to pay the costs of this application on the party and party scale.

I VAN RHYN, AJ

On behalf of the Applicant: Adv J W STEYN

Instructed by:

KRAMER WEIHMANN ATTORNEYS

BLOEMFONTEIN

On behalf of the Second Respondent: Adv R BESTER

Instructed by:

WESSELS & SMITH ATTORNEYS

[1] Rule 35(2).

[2] Durbach v Fairway Hotel Ltd 1949 (3) SA1081 (SR) at 1083.

[3] 1983 (1) SA 556 (N) at 563H-564B.

[4] ST v CT 2018 (5) SA 479 (SCA) at 488B: “Discovery is not dictated by a litigant’s view of what is relevant- it is a matter for the court, with reference to the pleadings.”

[5] Rutland v Engelbrecht 1956 (2) SA 578 (C) at 579; Van der Linde v Calitz 1967 (2) SA 239 (A) at 260

[6] 1983 (1) SA 556 (N) at 560F.

[7] 1971(4) SA 589 (WLD) at 598 D-F and 597 H - 598A respectively; Federal Wine and Brandy Co Ltd v Kantor 1958(4) SA 735 (E) at 749 H.

[8] Federal Wine and Bandy Co. Ltd v Kantor 1958(4) SA 735 (E).

[9] Erasmus; Superior Court Practice, Vol 2 D1-472.

[10] MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd 1999 (3) SA 500 (C) at 515D.

[11] S v M and Others 1995 (1) SACR 667 (BA at 684 d-e.

[12] Murphy, A Practical Approach to Evidence 10ed (2008) at 25.

[13] Holtzhauzen v Roodt 1997(4) SA 766 (W) 776D-E

[14] Ferreira v Endley 1966 (3) SA 618 (E) at 620H – 621A.