Penta Communication Services (Pty) Ltd v King and Another (6580/06) [2006] ZAWCHC 61; 2007 (3) SA 471 (C) (22 December 2006)

Penta Communication Services (Pty) Ltd v King and Another (6580/06) [2006] ZAWCHC 61; 2007 (3) SA 471 (C) (22 December 2006)

The court held that Rule 35(12) does not oblige a party to produce documents whose existence is merely inferred from statements in affidavits; there must be a direct or indirect reference to the document. The applicant was justified in refusing production of documents for items where no such reference existed. However, for items 4 and 13, the applicant had clearly referred to specific documents in its founding affidavit and was therefore obliged to produce them, regardless of their bulk or whether the second respondent already possessed copies. The second respondent, although not a substantive target of relief, was entitled to invoke Rule 35(12) as he was cited as a party and faced...

Citation
[2006] ZAWCHC 61
Parties
Applicant: Penta Communication Services (Pty) Ltd; Respondent: Brenda Eleanor King; Respondent: Martin Richard Hutchinson King
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 December 2006
Case Number
6580/06
Procedural Posture
Civil Application / Interlocutory Application to Compel Production of Documents Under Rule 35(12)
Outcome
Application to compel production of documents granted in respect of items 4 and 13; refused for other items.
Judges
LJ Bozalek
Legal Topics
Uniform Rule 35 12, Discovery of Documents, Sequestration Application, Abuse of Process
Civil Procedure Uniform Rule 35 12 Discovery of Documents Sequestration Application Abuse of Process

Case Brief

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Parties

Penta Communication Services (Pty) Ltd

Applicant

Brenda Eleanor King

Respondent

Martin Richard Hutchinson King

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether Rule 35(12) obliges a party to produce documents merely inferred to exist, or only those directly or indirectly referred to in pleadings or affidavits.
  2. 2 Whether the applicant can refuse production of documents on grounds of irrelevance, bulk, or prior possession by the requesting party.
  3. 3 Whether the second respondent, against whom no substantive relief is sought, is entitled to invoke Rule 35(12) for documents relevant to allegations made against him.

Ratio Decidendi

The court held that Rule 35(12) does not oblige a party to produce documents whose existence is merely inferred from statements in affidavits; there must be a direct or indirect reference to the document. The applicant was justified in refusing production of documents for items where no such reference existed. However, for items 4 and 13, the applicant had clearly referred to specific documents in its founding affidavit and was therefore obliged to produce them, regardless of their bulk or whether the second respondent already possessed copies. The second respondent, although not a substantive target of relief, was entitled to invoke Rule 35(12) as he was cited as a party and faced...

Court Disposition

Application to compel production of documents granted in respect of items 4 and 13; refused for other items.

Orders

  • Applicant is ordered to produce the documents called for in paragraphs 4 and 13 of second respondent's notice in terms of Rule 35(12), served on 25 August 2006, by not later than 15 January 2007.
  • The costs of this application will stand over for later determination.