Machingawuta and Others v Mogale Alloys (Pty) Ltd and Others (2011/12549) [2011] ZAGPJHC 197 (23 September 2011)

Machingawuta and Others v Mogale Alloys (Pty) Ltd and Others (2011/12549) [2011] ZAGPJHC 197 (23 September 2011)

The court held that Rule 35(12) does not require relevance or privilege as a limitation for production of documents referred to in pleadings or affidavits. The absence of an express relevance requirement in Rule 35(12), as opposed to other discovery subrules, indicates that any document referred to must be produced unless it is not in the party's possession. The court followed the precedent set by Magnum Aviation Operations v Chairman NTC, as it is binding within the division, and found that the respondents had not discharged their obligation to produce or account for all requested documents. The respondents' assertion of irrelevance or privilege was insufficient without factual...

Citation
[2011] ZAGPJHC 197
Parties
Applicant: Noel Chenjerayi Machingawuta, Johan Federick Oosthuizen, Shane Trevor Ferguson (in their capacities as trustees for the time being of the Mogale Alloys Trust); Applicant: PGR Manganese (Pty) Ltd; Respondent: Mogale Alloys (Pty) Ltd; Respondent: Ruukki South Africa (Pty) Ltd; Respondent: Dezzo Trading 184 (Pty) Ltd; Respondent: PGR 17 Investments (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 September 2011
Case Number
2011/12549
Procedural Posture
Urgent Application / Application to Compel Production of Documents Under Rule 35(12) and Rule 30 a
Outcome
Application to compel production of documents granted; respondents ordered to produce specified documents and pay costs.
Judges
Notshe
Legal Topics
Discovery of Documents, Rule 35 12, Rule 30a, Judicial Precedent, Privilege, Relevance of Documents
Civil Procedure Discovery of Documents Rule 35 12 Rule 30a Judicial Precedent Privilege Relevance of Documents

Case Brief

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Parties

Noel Chenjerayi Machingawuta, Johan Federick Oosthuizen, Shane Trevor Ferguson (in their capacities as trustees for the time being of the Mogale Alloys Trust)

Applicant

PGR Manganese (Pty) Ltd

Applicant

Mogale Alloys (Pty) Ltd

Respondent

Ruukki South Africa (Pty) Ltd

Respondent

Dezzo Trading 184 (Pty) Ltd

Respondent

PGR 17 Investments (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application to Compel Production of Documents Under Rule 35(12) and Rule 30 a

Legal Issues

  1. 1 Whether the applicants are entitled to compel production of documents referred to in the respondents' affidavits under Rule 35(12).
  2. 2 Whether Rule 35(12) requires relevance or privilege as a limitation to production of documents.
  3. 3 Whether the respondents have discharged their obligation to produce or account for the requested documents.

Ratio Decidendi

The court held that Rule 35(12) does not require relevance or privilege as a limitation for production of documents referred to in pleadings or affidavits. The absence of an express relevance requirement in Rule 35(12), as opposed to other discovery subrules, indicates that any document referred to must be produced unless it is not in the party's possession. The court followed the precedent set by Magnum Aviation Operations v Chairman NTC, as it is binding within the division, and found that the respondents had not discharged their obligation to produce or account for all requested documents. The respondents' assertion of irrelevance or privilege was insufficient without factual...

Court Disposition

Application to compel production of documents granted; respondents ordered to produce specified documents and pay costs.

Orders

  • The Respondents are directed to produce documents referred to in paragraphs 5, 6, 7, 11, 12, 13, 14, 15 and 16 of the Applicants' notice in terms of Rule 35(12) dated 27 June 2011.
  • The Respondents are directed to pay the costs of this application.