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South Africa decisions
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Janse Van Rensburg v South African Legal Practice Council (5946/2024) [2025] ZAMPMBHC 11 (17 March 2025)
Urgent interlocutory application to compel disclosure was struck off for lack of urgency and because discovery in motion proceedings requires leave of court.
E39 Dolphin Beach (Pty) Ltd and Another v Gnefkow and Others (15326/24) [2025] ZAWCHC 103 (12 March 2025)
The High Court dismissed an interlocutory application to compel document production under Rule 35(12), finding non-compliance with Rule 30A and no basis to order impossible production.
Moeketsi v National Director of Public Prosecutions (1590/2023) [2024] ZAFSHC 136 (14 May 2024)
The court found that the respondent, through its discovery affidavit and subsequent conduct, did not claim privilege over any documents in the police docket, including the investigation diary. The respondent's failure to provide the complete docket and lack of opposition to the application entitled the applicant to the relief sought. The court held that the applicant is entitled to inspect the full police docket under rule 35(6), and the respondent must comply within ten days. Costs were awarded against the respondent due to its non-compliance and failure to oppose.
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Papadakis v Old Mutual Trust (Pty) Ltd NO and Others (16369/2022) [2023] ZAGPJHC 1072 (7 September 2023)
The High Court dismissed an interlocutory bid for discovery in motion proceedings, holding that no exceptional circumstances justified Rule 35(13) relief.
Pentagon Financial Solutions (Pretoria) (Pty) Ltd and Others v Pieter Willem Basson the Legare Business Trust and Others (13001/2021) [2023] ZAWCHC 122; [2023] 3 All SA 560 (WCC) (15 May 2023)
The court held that the shareholders' 'book' is a discoverable document under Rule 35, as it exists in electronic form and is referenced in the affidavits, making it relevant to the proceedings. The applicants' confidentiality concerns can be addressed by appropriate undertakings and limited access. Documents relating to the winding-up of APS International must be produced, as the applicants referenced compliance with requirements in affidavits and failed to establish lack of relevance or possession. Exceptional circumstances exist to order discovery under Rule 35(13), given the applicants' c…
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Ndala v Baloyi and Another [2023] ZAGPPHC 203; 5834/2022 (9 March 2023)
The court found that the applicant failed to make out a case for compelling further discovery under Rule 35(7). The second respondent had complied with the Rule 35(1) and Rule 35(3) notices by filing discovery affidavits and raising valid defences of relevance and non-existence of the requested documents. The applicant did not provide evidence of the existence of the documents sought, nor did she demonstrate falsehood in the respondent's affidavits. The application was further flawed by the inclusion of requests for documents not specified in the original Rule 35(3) notice. The court emphasiz…
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Derks v Du Plessis and Others (1876/2019) [2022] ZANCHC 18 (23 February 2022)
The court found that the financial statements and livestock documentation requested by the defendant were not relevant to the plaintiffs' claim, which was limited to damages for loss of natural grazing and replacement costs of fencing, and did not include loss of income. The quantification method used by the plaintiffs' expert was based on physical loss rather than financial impact, and the defendant failed to demonstrate how the requested documents would assist in calculating the claimed damages. The court held that relevance is determined by the pleadings and the issues raised therein, and…
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Advanced Valves CC v Electrolux South Africa (Pty) Limited and Others (20/18686) [2021] ZAGPJHC 545 (6 October 2021)
The court held that discovery in application proceedings is exceptional and only permitted where the interests of justice demand it. The applicant failed to demonstrate the relevance of the SABS October report to the main application, as the report was issued months after the sale of the products in question. The legality of the respondent's sales must be determined based on the certificates and permits existing at the time of sale, not on subsequent findings. The applicant's speculation that the report might retroactively affect the lawfulness of the sale was unfounded. Accordingly, the cour…
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African Dynamics Group (Pty) Ltd v Uptown Trading 492 CC (48448/18) [2019] ZAGPPHC 457 (27 August 2019)
The High Court dismissed an interlocutory application for discovery in liquidation proceedings, holding that Rule 35(13) leave was required and exceptional circumstances were not shown.
M v Member of the Executive Council for Health of the Gauteng Provincial Government (38426/14) [2018] ZAGPJHC 538 (15 August 2018)
The court found that while the respondent is statutorily obliged to maintain health records, Rule 35 only requires a party to declare the true state of affairs regarding discovery at the time it is demanded. The respondent provided affidavits stating that the documents could not be found despite diligent searches. There was no evidence to suggest that these affidavits were false or mistaken. The court agreed with the reasoning in Dube v Member of the Executive Council, holding that Rule 35 does not provide a remedy for poor record-keeping or breach of statutory duties, and that compelling pro…
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