Law Reports
Democratic Alliance and Others v Mkhwebane and Another …

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)

70 Reportability

Defamation Law

Brief Summary

Defamation — Interlocutory application — Production of documents — Uniform Rule 35(12) — Appellants sought to compel production of documents relevant to defamatory statements made against the first respondent, Advocate Busisiwe Mkhwebane, during a press conference — High Court dismissed the application and ordered costs against the appellants — Appeal upheld, with the court finding that the documents sought were relevant and compellable in relation to the issues raised, thus setting aside the High Court's order and directing the production of the requested documents.

Full Judgment Text (Click to expand)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2021
>>
[2021] ZASCA 18
|

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 OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1370/2019
In
the matter between:
DEMOCRATIC
ALLIANCE FIRST

APPELLANT
GLYNNIS
BREYTENBACH SECOND

APPELLANT
WERNER
HORN

THIRD
APPELLANT
and
BUSISIWE
MKHWEBANE FIRST

RESPONDENT
THE
OFFICE OF THE PUBLIC PROTECTOR

SECOND RESPONDENT
Neutral
citation:
Democratic Alliance and Others v Mkhwebane and Another
(1370/2019)
[2021] ZASCA 18
(11 March 2021)
Coram:
NAVSA ADP and DLODLO and NICHOLLS JJA and CARELSE and ROGERS
AJJA
Heard
:
24 February 2021
Delivered
: This
judgment was handed down electronically by circulation to the
parties’ legal representatives
by email. It has been published
on the Supreme Court of Appeal website and released to SAFLII. The
date and time for hand-down
is deemed to be 10h00 on 11 March 2021.
Summary:
Uniform Rule 35(12) – production of documents to which
‘reference is made’ in pleadings or affidavits –
meaning of – includes reference in annexures – not
reference to documents by inference – excludes supposition
–
document sought must be relevant in relation to issues that might
arise – different from relevance to issues that
are
circumscribed after the close of pleadings or after all affidavits
have been filed – onus discussed – document
material to
timeline in relation to defamatory statements relevant and
compellable.
ORDER
On
appeal from:
Western Cape Division of the High Court, Cape Town
(Papier J sitting as court of first instance):
1
The appeal is upheld, and the respondents are to pay the costs of
appeal jointly and severally, the one paying the other to be

capacity as a member of the first appellant, the Democratic Alliance,
a political party registered in terms of s 26 of the Electoral
Act 73
of 1998 (the DA), conducted a press conference where she published
the following media statement of and concerning the first
respondent,
Advocate Busisiwe Mkhwebane, the Public Protector in our country,
appointed to that position in terms of s 184 of the
Constitution read
with
s 1A
of the
Public Protector Act 23 of 1994
:
‘
Ahead
of the debate on the nomination of Adv Busisiwe Mkhwebane for the
Public Protector, the DA has decided to not support this
nomination.
This is on the grounds that her appointment would be unreasonable as
she was by no means the best candidate for such
a position and was
illogically preferred over other qualifying candidates.
Adv
Mkhwebane may turn out to be a capable candidate for the position of
the Public Protector and we wish her well if Parliament
and the
President confirm her nomination. However, we contend that her
qualifications and experience make her unsuitable for this
position.
It
is upon this basis that the DA will not support her nomination by the
Ad Hoc Committee for the Appointment of a new Public Protector
for
the following reasons:
She
has little or no practical experience to justify such an appointment
when compared with the experience of the other four candidates;
She
was employed by Home Affairs as a Director (salary level
approximately R1 million annually) immediately prior to this process

being initiated;
She
changed employment around June 2016, and went to State Security
Agency (SSA) as an analyst.
When
asked in the interview why she had changed jobs for what is
ostensibly a demotion, her reply was that she “
was
passionate about the Constitution”
. While this is noble
value to hold; it alone does not make her eligible for the position
or separate her from the other more qualified
candidates; and
We
have been advised that the time spent as an “immigration
officer” in China is also suspicious, having been informed
that
this is simply coded language for being on the payroll of SSA.
In
the absence of a logical explanation for what is seen as a demotion
the ineluctable conclusion is unfortunately that Adv Mkhwebane
is on
the payroll of the SSA. This situation is even more problematic in
the current climate in the country, where the justified
view is held
that President Jacob Zuma is abusing State departments, the SSA in
particular, to hang on to power at all costs. We
hold the view that
the Public Protector cannot be seen as even remotely connected to the
State Security Agency.
While
this doesn’t make Adv Mkhwebane the worst candidate, it does
not make her the best either. Further to this, the secrecy
around her
work at the SSA makes it almost impossible to ascertain whether or
not her role and conduct are beyond reproach and
befitting the office
of the Public Protector who is constitutionally mandated to be “
a
fit and proper person to hold such office
.”
Additionally,
Adv Mkhwebane could not confirm that she had “
acquired any
combination of experience … for a cumulative period of at
least 10 years
” as is demanded by the Constitution.
Other
issues that gave rise to concern and moved us to be unwilling to
support her nomination are the following:
Both
Judge Weiner and Prof Majola were stronger candidates, in terms of
experience and in terms of the quality of their interviews;
Prof
Majola as a candidate brings the bonus of his involvement in the
Special Tribunal in Rwanda over the last seven years, he,
unlike Adv
Mkhwebane, has been at a certain distance from Government in South
Africa.
Adv
Mkhwebane, on the other hand, has always been employed in and around
government and has already indicated that she wants to
have a more
“
friendly relationship with government”
;
Much
was made of the fact that she was a senior investigator at the office
of the Public Protector previously, but in our view,
the fact that
she served during the tenure of Lawrence Mushwana, when the office
showed little to no appetite to vociferously investigate
government
corruption.
As
such, with the ever present danger of state capture by the President,
and the fact that all independent institutions with an
investigative
capacity have already been captured leaving only the Office of the
Public Protector and Judiciary relatively untouched,
it is of
enormous importance to ensure that the appointment of the new Public
Protector is beyond any suspicion.
Given
the overall performance of the candidates at the interviews and a
comparison of their qualifications and experience, the single-minded

support for Adv Mkhwebane is unreasonable in our view.
We
hold the view that Judge Sharise Weiner had the best interview, but
that Professor Majola is the best candidate. We would be
very
comfortable nominating him for the post.
To
replace the fearless Adv Madonsela with a candidate who hasn’t
shown the necessary potential to pursue government corruption
would
be undermining our hard-won constitutional imperatives.
The
DA believes in the Rule of Law and stopping corruption. To this end
we have worked tirelessly during this process to appoint
the new
Public Protector, to ensure that the right woman or man is appointed
to serve the interests of the people instead of the
narrow interests
of a political cabal set on advancing their own self-interested
agenda.
We
simply cannot risk these principles with the nomination of Adv
Mkhwebane.’
(Emphasis
supplied by Ms Mkhwebane in her founding affidavit.)
[3]
At the press conference referred
to in the preceding paragraph the third appellant, Mr
Werner Horn,
also a member of the DA, made the following statement, which
allegedly was widely disseminated, including through
a national
television broadcaster:
‘
We
were reliably informed
that she indeed
during her 10 years as an immigration officer in China, was already
on the payroll of the State Security Agency.
I think, mindful of the
fact that by nature if you are indeed a spy it is of a secret
nature.’
(Emphasis
supplied by Ms Mkhwebane in her founding affidavit.)
[4]
The second respondent is the office of the Public Protector,
established in terms of s 181(1)
(a)
of the Constitution and
designated as a juristic person in terms of
s 5(1)
of the
Public
Protector Act. The
respondents’ complaint is that the
statements made by the appellants of and concerning Ms Mkhwebane were
defamatory, impinged
on her integrity and reputation, and had no
foundation in fact. Ms Mkhwebane complained that the statements were
intended and understood
by members of the public to convey:
‘
29.1
I was a spy of the State Security Agency at the time of my nomination
and would remain such subsequent to
my appointment at the office of
the Public Protector;
29.2
That I was on the payroll of the State Security Agency while I was
employed as an immigration officer
in China.
29.3
I am to be treated with suspicion as I continue to be on a payroll of
the State Security Agency, and
not independent as I am intricately
connected to the State President who is allegedly abusing the State
Security Agency.
29.4
That my appointment will lead to the state capture of the office of
the public protector by the State
President;
29.5
That I am not honest and have no integrity in that whilst I was
deployed by the Department of Home
Affairs to China, I was also on
the payroll of the State Security Agency.
29.6
That I have no integrity and honesty as it is expected from an
Advocate and a person applying for the
Public Protector’s post,
as I did not fully disclose material information about my past
employment by the State Security
Agency while in China to the
Committee, the National Assembly and the State President.
29.7
That I acted dishonestly by failing to disclose to my employer that I
received remuneration from other
state departments while in gainful
employment of the Department of Home Affairs.
29.8
That the information that I was a “spy” comes from
reliable sources and therefore it is
unquestionable.’
[5]
Ms Mkhwebane was adamant that
she had been deployed by the Department of Home Affairs on
7
September 2009 to the Beijing Foreign Office in connection with
Home Affairs related matters, which term came to an end
on 31
May 2014 and was during that time not employed by nor connected to
the State Security Agency (the SSA), which is a government
department
with overall responsibility for civilian intelligence operations, in
any way. The following is a pertinent part of her
founding affidavit
in support of the main application:
‘
.
. . I confirm I was deployed by the Department of Home Affairs in
Beijing, China, as Councillor: Immigration and Civic Services.
I
further confirm that whilst in Beijing, China, I was not on the
payroll of State Security Agency nor ever being in the payroll
of
State Security Agency whatsoever. I attach in support hereto a
confirmatory affidavit of Mr Arthur Fraser, the Director General
of
State Security Agency as annexure “
PPSA 4”
.
On
11
th
May 2016, I was appointed by State Security Agency,
as an Analyst: Domestic Branch, at P3 level. A copy of the
Appointment letter
is attached hereto as annexure “
PPSA 5”
.
The P3 position and salary level occupied by me at the time of my
employment in the State Security Agency was the equivalent of
a Chief
Director position and therefore higher than the position of
Director.’
[6]
It is necessary to record that in the confirmatory affidavit from the
Director General
of the SSA, Mr Arthur Fraser, on which the
respondents relied, he stated,
inter alia
, that he has read
the founding affidavit by Ms Mkhwebane and ‘confirm[s] the
correctness of facts thereof in so far as they
relate to her
employment and remuneration at the State Security Agency’. He
goes on to echo that she was never in the employ
of the SSA ‘in
any manner’ whilst deployed to the People’s Republic of
China by the Department of Home Affairs
and that she was subsequently
appointed as a member of the SSA on 11
May
2016 until she took up appointment as the Public Protector in
October 2016.
[7]
For present purposes it is
necessary to have regard to annexure ‘PPSA5’, referred
to
in para 5 above. It bears the letterhead of the SSA, is addressed to
Ms Mkhwebane, appears to be from the office of the General
Manager,
Human Resources at the SSA, and reads as follows:
‘
1.
I have pleasure in
informing you that your application for the abovementioned
post has
been approved.
2.
Your remuneration package is structured as follows:
Occupational
Band

: P3
Basic
Annual Salary

: R601 770.00 pa
Service
Allowance

: R 30 810.00 pa
Housing
Allowance

: R 23 910.00 pa
Annual
Bonus

: R 50 147.50 pa
Group
Assurance of 60% (State Contribution) :
R21 159.95 pa
VSSM

: R246 342. pa
Pension
(State Contribution)
R 96 283.20 pa
Total
Package

:R1 082 773.27 pa
Package
Range R884 245.36

– R1 194. 12 57 pa
3.
If the above offer is acceptable to you, you are requested to confirm
this as per attached
appendix A.
4.
Further please note that your salary is a personal matter between
yourself and
the employer and is regarded as confidential.
5.
If you do not accept the salary offer indicated above, please attach
your current
salary slip in your reply (Annexure A) so that this may
be considered.
6.
If your response is not received within 5 working days it would be
assumed that
you are no longer interested in the above-mentioned
position.’
[8]
Following on the defamatory
statements referred to in paras 2 and 3 above being published
and
widely circulated in the media, Ms Mkhwebane’s legal
representatives wrote to the appellants, demanding a retraction.
The
appellants refused to accede to the demand, asserting that the
statements complained of were true, in the public interest,
and
constituted fair comment. In her affidavit in the main application,
Ms Mkhwebane referred to a media interview Ms Breytenbach,
the second
appellant, had with a news outlet on 2 February 2017, during
which she allegedly stated that she was not bothered
in the least by
the threat of legal action because the statements complained of would
not have been made if the appellants did
not have proof to
substantiate them.
[9]
The appellants’ refusal to
accede to the demand for the retraction led to the main
application
by the respondents, launched in October 2017, in which the relief
referred to in para 1 above was sought. Ms Mkhwebane
eschewed any
claim to monetary compensation, stating that her main objective was
to vindicate her right to integrity and her right
to her reputation
as well as to ensure confidence in the office of the
Public Protector.
[10]
On 10 November 2017 the appellants filed a notice of intention to
oppose the main application.
On 1 December 2017, prior to filing
their answering affidavit, the appellants filed a notice in terms of
Uniform
rule 35(12)
, seeking the production by the respondents of
seven documents they considered they were, in terms of the subrule,
entitled to.
[11]
Rule 35(12)
reads as follows:
‘
Any
party to any proceeding may at any time before the hearing thereof
deliver a notice as near as may be in accordance with Form
15 in the
First Schedule to any other party in whose pleadings or affidavits
reference is made
to any document or tape recording to produce such document or tape
recording for his inspection and to permit him to make a copy
or a
transcription thereof. Any party failing to comply with such notice
shall not, save with the leave of the court, use such
document or
tape recording in such proceeding provided that any other party may
use such document or tape recording.’ (My
emphasis).
[12]
As recorded in the judgment of the court below, the respondents,
although they had initially
resisted providing any of the documents
sought, produced five of the seven items required by the appellants.
Many of the documents
sought were, in any event, in the public
domain. The refusal of the respondents to produce the remaining two
items led to the interlocutory
application in the court below during
June 2018 in terms of rule 30A of the Uniform Rules
[1]
.
It is those two items that were at the centre of the dispute in the
court below and are the focus of this appeal.
[13]
The two documents sought by the appellants are itemised in para 6 of
the judgment of the court
below:
‘
By
agreement between the parties, this application was limited to the
following two documents:
a.
the first respondent’s application for the post of Analyst;
Domestic Branch; DB01 in the
State Security Agency; and
b.
the first respondent’s confirmation of her acceptance of the
offer as per appendix A.’
[14]
The application by the appellants in the court below to compel
production of the two items was
premised on the assertions by Ms
Mkhwebane, in paras 18 and 19 of her affidavit, reproduced in para 5
above, namely, those concerning
the time during which she was
employed by the Department of Home Affairs in China and the date on
which she was appointed to her
post as analyst in the State Security
Agency and her attachment of annexure ‘PPSA5’ as her
letter of appointment. The
annexure, in turn, alludes, in its opening
line, to her application for the position and required an acceptance
form to be completed
and returned. It is the first respondent’s
application that the appellants sought as well as an assumed
completed acceptance
form, presaged in the annexure.
[15]

The appellants submitted that the documents
were indeed referred to
in Ms Mkhwebane’s affidavit, within the contemplation of
rule 35(12). In the court below it
was accepted on behalf of the
appellants that relevance was the touchstone for success in an
application to compel the production
of documents sought in terms of
rule 35(12). They contended that the documents sought were directly
relevant to the question of
whether Ms Mkhwebane was a spy at the
material times claimed in the statements complained of and were thus
compellable.
[16]
The respondents, in resisting the application to compel the
production of the documents, adopted
the position that Ms Mkhwebane’s
application for the post of Analyst at the State Security Agency was
not referred to at
all in her affidavit in the main application and
was adamant that she had not referred to a completed letter of
acceptance. Ms
Mkhwebane insisted that the appellants were on a
fishing expedition and that they were not entitled to the two items
sought. The
following passage of the response on her behalf to the
appellants’ notice in terms of rule 35(12) is instructive:
‘
The
applicant
did not need to refe
r to the documents relating to
her application and the applicants do not see the necessity of the
application requested as it is
not in dispute that the applicant
worked at SSA as an Analyst’. (Emphasis added).
[17]
I pause to note that it is uncontested that in heads of argument in
the court below and in correspondence
addressed to the appellants’
attorney, it was communicated on behalf of Ms Mkhwebane that the
documents sought in the application
to compel were not in her
possession but were in the hands of the SSA. She did not, however, at
that stage, or even belatedly before
us, place an affidavit to that
effect on record. It is against the background set out above that the
court below was called upon
to decide the application in terms of
rule 30A.
[18]
In adjudicating the application to compel, the court below (Papier
J), at the outset, held that
neither of the documents sought were
referred to or relied on by Ms Mkhwebane, as contemplated in rule
35(12). The court did, however,
go on to state the following:
‘
They
were both referred to in and are ancillary to annexure “PPSA5”.’
[19]
Papier J took the view that neither document was relied on in the
main application and, in line
with what was asserted on behalf of the
respondents, he held that they need not have referred to them at all.
The court had regard
to
Universal City Studios v Movie Time
1983
(4) SA 736
(D) at 750D, in which the following appeared:
‘
An
annexure to a pleading or an affidavit seems to me to be as much part
of the pleading or affidavit as the body itself. Many references
to
documents in annexures to pleadings are probably irrelevant to the
proceedings and would for that reason not have to be produced
but it
does not follow that the Rule does not apply to documents to which
reference is made in annexures.’
Papier
J considered that this
dictum
reaffirmed the relevance
requirement, which he then proceeded to deal with.
[20]
In considering the production of documents referred to in annexures
that may be compelled in
terms of rule 30A read with rule 35(12), the
court below held that the production of such documents must be
‘subject to some
limitation’, without which there would
be absurd results and it would encourage fishing expeditions. In this
regard Papier
J found support for this view
in the following
dictum
in
Gorfinkel
v
Gross, Hendler & Frank
1987 (3) SA
766
(C)
at 773H-774I, cited with approval in
Unilever plc
and Another v Polagric (Pty) Ltd
2001 (2) SA 329
(C), at
337E-338D:
‘
It
is nevertheless to my mind necessarily implicit in Rule 35(12) that
there should be some limitation on the wide language used
. . .
.
. .
With
regard to relevance there must also, in my view, be some limitation
read into Rule 35(12). To construe the Rule as having no
limitation
with regard to relevance could lead to absurdity. It would be absurd
to suggest that the Rule should be so construed
that reference to a
document would compel its production despite the fact that the
document has no relevance to any of the issues
in the case. It is not
difficult to conceive of examples of documents which are totally
irrelevant. Booysen J in the
Universal
City Studios
case gave one such
example. What is more difficult to decide is where the line should be
drawn. A document which has no relevance
whatsoever to the issue
between the parties would obviously by necessary implication be
excluded from the operation of the Rule.
. . .
.
. . [T]he Rule should, to my mind, be interpreted as follows:
prima
facie
there is an obligation on a party
who refers to a document in a pleading or affidavit to produce it . .
. That obligation is, however,
subject to certain limitations, for
example, if the document is not in his possession and he cannot
produce it, the Court will
not compel him to do so. Similarly, a
privileged document will not be subject to production. A document
which is irrelevant will
also not be subject to production. As it
would not necessarily be within the knowledge of the person serving
the notice whether
the document is one which falls within the
limitations which I have mentioned, the
onus
would be on the recipient of the notice to set up facts relieving him
of the obligation to produce the document.’ (Citations

omitted.)
[21]
Papier J also had regard to
Protea
Insurance Co Ltd and Another v Waverley Agencies CC and Others
1994
(3) SA 247
(C), at 248G, where a litigant had referred to and placed
reliance on tape recordings, without describing them as such by name.

In that case the court held that they had been ‘referred to’
within the meaning of the rule 35(12). The court
below also
referred to the decision in
Penta
Communication Services (Pty) Ltd v King and Another
2007
(3) SA 471
(C), at 476, where it was held, at para 18, that where
there was a reference by a litigant to a bank account ‘without
more’,
it does not follow that it constituted a reference, for
the purposes of rule 35(12), to documentation relating to such bank
account.
[22]
After an examination of the authorities referred to above the court
below concluded as follows:
‘
[44]
The
answers to these questions are self-evident,
as expressed in my views
above. The respondent did not refer to the requested documents in her
founding affidavit, which documents
are, in my view, irrelevant to
the proceedings at this stage. Even if the documents were relevant,
the sanction for the respondent
is encompassed in the relevant rule,
and that is, the first respondent would not be able to use the
documents, without leave of
the court, in terms of rule
35(12).
[45]
In light of the authorities considered
above, I am of the view that the reference made to documents
in an
annexure to the first respondent’s founding affidavit, did not
constitute “reference” as envisaged for
purposes of Rule
35(12). I am also not persuaded of the relevance of the requested
documents, especially in the context of the
first respondent’s
claim that she does not rely on the documents referred to in an
annexure to her founding affidavit, which
she claimed to be
irrelevant to her claim, and the applicants’ claim that such
allegations would not have been made, “
if
they did not have evidence
”, and
that the publication of the statement “
was
true and in the public interest
”.
[46]
To the extent that the applicants alleged that the first respondent
was and is a spy, is
[sic]
not at all borne out by the letter
of appointment. Nor can the respondent’s acceptance of the
letter of appointment cast
any light on the allegations allegedly
made by the applicants. Both these ancillary documents are, in the
context of this specific
matter, and in my view, entirely
irrelevant.’
The
present appeal is directed against these conclusions and the
resultant order. I turn to consider whether they were well-founded.
[23]
Rule 35(12) is part of a set of rules regulating discovery,
inspection and production of documents
in relation to litigation. The
object of discovery is described in
Durbach v Fairway Hotel
1949 (3) 1081 (SR) at 1083 as follows:
‘
The
whole object of discovery is to ensure that before trial both parties
are made aware of all the documentary evidence that is
available.’
In
Erasmus
Superior Court Practice
[2]
the following, with reference to case law, is stated:
‘“
Discovery
has been said to rank with cross-examination as one of the mightiest
engines for the exposure of the truth . . . Properly
employed where
its use is called for, it can be, and often is a devastating tool . .
.
. . .
But
it must not be abused or called in aid lightly in situations for
which it was not designed or it will lose its edge and become

debased.”’
[3]
This
case is about whether rule 35(12) has properly been called in aid by
the appellants.
[24]
Rules 35(1), 35(2) and 35(3) read with 35(11) apply to discovery in
conventional terms, namely,
after the close of pleadings or the
filing of affidavits. Rule 35(12) is different. It is, as the cases
demonstrate, more often
than not resorted to in order to compel the
production of documents or tape recordings before the close of
pleadings or the filing
of affidavits, although its field of
operation is not restricted thereto. Its provisions are set out in
para 11 above, but I shall,
for the sake of convenience, restate it
here:
‘
Any
party to any proceeding may at any time before the hearing thereof
deliver a notice as near as may be in accordance with Form
15 in the
First Schedule to any other party in whose pleadings or affidavits
reference
is
made to any document or tape recording to produce such document or
tape recording for his inspection and to permit him to make
a copy or
a transcription thereof. Any party failing to comply with such notice
shall not, save with the leave of the court, use
such document or
tape recording in such proceeding provided that any other party may
use such document or tape recording.’
(My emphasis).
[25]
In
Erasmus v Slomowitz (2)
1938 TPD 243
, at 244, the purpose of rule 35(12) was said to be that
a party is entitled to the production of documents referred to in an
opponent’s
pleadings or affidavits to enable him to consider
his position.
See also
Gehle
v McLoughlin
1986 (4) SA 543
(W) at 546D. In
Unilever
at 336H-I the following, with reference
to
Slomowitz
,
appears:
‘
[A]
Defendant or respondent does not have to wait until the pleadings
have been closed or his opposing affidavits have been delivered

before exercising his rights under Rule 35 (12): he may do so at any
time before the hearing of the matter. It follows that he
may do so
before disclosing what his
defence
is, or
even before he knows what his
defence,
if
any, is going to be. He is entitled to have the documents produced
“for the specific purpose of considering his position”.’
See
also
Protea Assurance Co Ltd and Another v Waverley Agencies CC
and Others
1994 (3) SA 247
(C) at 249 B-D.
[26]
The language of rule 35(12) is very wide.
[4]
It does not have the requirement in rules 35(1) or 35(11), that the
document or tape recording has to be one ‘relating to
any
matter in question’, nor the requirement in rule 35(3), that
the document or tape recording must be ‘relevant to
any matter
in question’
[5]
.
Interestingly, in
Gehle
,
the court had regard to the Afrikaans text of rule 35(12), which it
described as being different
[6]
,
and which it considered to be wider in ambit than the English text,
especially insofar as it related to whether associated proceedings,

such as summary judgment proceedings, fell within its ambit.
[7]
Compellability and whether and how relevance is to be tested under
rule 35(12), as distinct from the other rules and compellability
in
relation to them, is explored further hereunder.
[27]
Literally, rule 35(12) appears to indicate that where there is a mere
reference to a document
or tape recording in an opponent’s
pleadings or affidavits a defendant or respondent is entitled to call
for its production
and may compel compliance. That is not how our
courts approach an application to compel the production of documents
sought in terms
of rule 35(12). The first step in the adjudication
process is to consider whether ‘reference’ is made to a
document
or tape recording.
[28]
In
Penta Communication Services (Pty) Ltd v King and Another
2007 (3) SA 471
(C) at 475J the court referred, with approval, at
para 14, to the following passage in
Slomowitz
at 244 where
the following appears:
‘
An
essential is, of course, a reference by the opponent, in his pleading
or affidavit, to the documents whereof production is required,
but
the terms of the rule do not require a detailed or descriptive
reference to such documents, nor is any distinction made between

documents upon which the action or other proceedings is actually
founded and documents which possess merely evidentiary value.’
See
also
Harms
Civil Procedure in the Superior Courts
at B23.2.
[8]
It appears to me to
be clear that direct or indirect reference to a document will
suffice, subject to what is stated later about
relevance.
[9]
What will not pass muster is where there is no direct, indirect or
descriptive reference but where it is sought through a process
of
extended reasoning or inference to deduce that the document may or
does exist.
[10]
Supposition is
not enough.
[29]
In
Magnum Aviation Operations v
Chairman, National Transport Commission
1984
(2) SA 398
(W) there had been a reference by the deponent on behalf
of an applicant in the main application to its financial statements,
which
had not been attached. It was, however, implied that the
National Transport Commission in deciding to rationalise an air
transport
license had erred by not having regard to it. The court, at
the behest of a respondent in the main application, in an application

to
compel
production, ordered the financial
statements to be produced, to enable that respondent to consider its
position, before filing an
answering affidavit in the main
application. The court, in doing so, said the following in relation
to rule 35(12):
‘
In
my opinion the ordinary grammatical meaning of the words is clear:
once you make reference to the document, you must produce
it. Even
more it is so in this case where the implication in paras 19.4 and
19.6 is that, if the NTC had called for and looked
at the financial
statements of Operations, it might well have come to a different
conclusion.’
[11]
[30]
In
Gorfinkel
v Gross, Hendler & Frank
1987 (3) SA 766
(C), Friedman J, as did courts before him,
[12]
recognized that rule 35(12) was cast in wide terms. He contrasted
that subrule, as did prior decisions, with rule 35(1), which
deals
with discovery in the conventional sense, usually after the close of
pleadings, in relation to an action, in terms of which
a party is
obliged to make discovery of documents which are or have been in his
or her possession ‘relating to any matter
in question’.
Thus, the control for requiring discovery in terms of rule 35(1) is
that the document must relate to any matter
in question. That would
translate into any matter in question, as circumscribed by the
pleadings. So too, with rule 35(11), where
during proceedings,
necessarily after pleadings have closed, a court may order the
production of a tape recording or document in
the power or control of
a party, which relates to any matter in question. Friedman J, though,
at 774F, stated the following in
fairly emphatic terms:
‘
As
Rule 35(12) can be applied at any time, ie before the close of
pleadings or before affidavits in a motion have been
finalised,
it
is not difficult to conceive of instances where the test for
determining relevance for the purposes of Rule 35(1) cannot be
applied to documents which a party is called upon to produce under
Rule 35(12), as for example where
issues
have
not yet become
crystallised
.
Having regard to the wide terms in which Rule 35(12) is framed, the
manifest difference in wording between this subrule and the
other
subrules, ie subrules (1), (3) and (11) and the fact that a notice
under Rule 35(12) may be served at any time, ie not necessarily
after
the close of pleadings or the filing of affidavits by both sides, the
Rule should, to my mind, be interpreted as follows:
prima
facie
there is an obligation on a party who refers to a document in a
pleading or affidavit to produce it for inspection if called upon
to
do so in terms of Rule 35(12).’
[13]
[31]
Gorfinkel
had
regard to
Universal
City Studios
,
which was cited and discussed by the court below. In
Unilever
[14]
,
as indicated above, the court took the view that the reference on
which the request for documents or a tape recording was based
had to
be a reference relevant to issues between the parties. In
Universal
City Studios
an
example of how a lack of relevance would operate to control the wide
language of rule 35(12) and justify a denial of an order
compelling
production was given by Booysen J:
‘
So,
for example, if a wife seeking an interdict to prevent a husband from
assaulting her were to allege that he assaulted her shortly
after she
had read the evening newspaper, there being no relevance alleged of
the paper, one could hardly imagine that her husband,
the respondent,
would be entitled to production of that newspaper.’
[32]
In dealing with relevance in relation to rule 35(12), Friedman J, in
Gorfinkel
, after considering
Universal City Studios
and
other cases referred to above, said the following at 774A-C:
‘
With
regard to relevance they must also, in my view, be some limitation
read into Rule 35(12). To construe the Rule as having no
limitation
with regard to relevance could lead to absurdity. It
would be absurd
to suggest that the Rule should be so construed that
reference to a document would compel its production despite the fact
that
the document has no relevance to any of the issues in the case.
It is not difficult to conceive of examples of documents which are

totally irrelevant. Booysen J in the
Universal
City Studios
case gave one such
example. What is more difficult to decide is where the line should be
drawn. A document which has no relevance
whatsoever to the issues
between the parties would obviously, by necessary implication, be
excluded from the operation of the Rule.
But will the fact that a
document is not subject to discovery under Rule 35(1) 35 (3) or
35(11) render it immune from production
in terms of Rule 35(12)?’
[33]
Friedman J began to answer that question as follows:
‘
In
my view the parameters governing discovery under Rules 35(1), 35(3)
and 35(11) are not the same as those applicable to the question

whether a document is irrelevant for the purposes of compliance with
Rule 35(12). A party served with a notice in terms of Rule
35(1) is
obliged to make discovery of documents which may directly or
indirectly enable the party requiring discovery either to
advance his
own case or to damage that of his opponent or which may fairly lead
him to a train of inquiry which may have either
of these
consequences. Documents which tend
merely
to
advance the case of the party making discovery need not be
disclosed.’
[15]
The
court in
Gorfinkel
went on to conclude that where there is reference by a party to a
document in a pleading or affidavit there is prima facie an
obligation on that party to produce it for inspection if called upon
to do so, subject to certain limitations, namely if the document
is
not in that party’s possession and he or she cannot produce it,
or where the document is privileged or where it is irrelevant.
[34]
Reliance on a document by the party from whom the document or tape
recording is sought is a primary
indicator of relevance. That appears
clearly from what is set out above. Given the purpose of rule 35(12)
it cannot, however, be
the sole indicator. The document in question
might not be relied on by the party from which it is sought but might
be material
in relation to the issues that might arise or to a
defence that is available to the party seeking production.
[35]
In refusing production of the requested documents, Papier J appears
to have attached some significance
to the fact that the appellants,
prior to the launching of the main proceedings, claimed to have
evidence to substantiate their
allegations against Ms
Mkhwebane. To the extent that the judge held or implied that the
appellants,
in defending the main case, were limited to the evidence
at their disposal when the impugned publication was made, he erred. A
person defending a defamation claim on the grounds of truth and
public benefit or fair comment is entitled, after the launching
of
proceedings, to gather further evidence to support those defences and
to use the rules of court for that purpose, including
the rules
relating to the discovery and production of documents.
[36]
What about the compellability of documents that are not specifically
mentioned in affidavits,
but which are referred to in annexures to
the affidavits? In
Universal City Studios v Movie Time
1983
(4) 736 (D), Booysen J, in dealing with the submission that the
agreements sought had not been referred to in the affidavits
but
mentioned in a document which had been annexed to the affidavits,
said the following:
‘
It
seems to me that this would be giving too narrow an interpretation to
Rule 35(12). An annexure to a pleading or an affidavit
seems to me to
be as much part of the pleading or affidavit as the body itself. Many
references to documents in annexures to pleadings
are probably
irrelevant to the proceedings and would for that reason not have to
be produced but it does not follow that the Rule
does not apply to
documents to which reference is made in annexures.’
See
also
Protea
Assurance
at
248J,
Erasmus
Superior Court Practice
[16]
,
D Harms
Civil
Procedure in the Superior Courts
[17]
and
Herbstein
and Van Winsen
Civil
Practice of the High Courts and the Superior Courts of South Africa
5
ed (Juta 2009) at 788. This interpretation accords with the purpose
of the rule, as outlined above, and its application in this
manner
has for more than three decades not been called into question in any
of the judgments of the high court or by commentators.
I agree with
the submission on behalf of the appellants that this accords with the
objects of discovery and is consonant with Constitutional
values of
transparency and accountability. An affidavit usually states the
purpose of the document that is annexed, or it can be
gleaned or
deduced, as could the deponent’s knowledge of documents which
are referred to in the annexures.
[37]
Recently, however, in
Contango Trading SA and Others v Central
Energy Fund SOC Ltd and Others
[2019] ZASCA 191
;
2020 (3) SA 58
(SCA) at para 6, Cachalia JA stated that a reference has to be a
reference in pleadings and affidavits and not in annexures. The

statement appears near the commencement of the judgment, before the
law in relation to production in terms of rule 35(12) was discussed.

The statement was clearly
obiter
, without reference to what is
stated on this aspect by the cases and commentators referred to
above. The ratio of that case in
respect of one set of ‘documents’
sought, the existence of which was in any event denied, is contained
in para
27, where the following appears:
‘
However,
for a request to fall within the ambit of the sub-rule there must be
a reference to a specific document, not to a general
category of
documents, which is in effect what Contango’s and Natixis’
request for discovery of the legal review is.
An order of that kind
would perforce include within its scope irrelevant documents and
confidential communications that the respondents
are properly
entitled to withhold. In other words, it would have to include every
bit of paper generated during the process. That
is not what the
subrule envisages. It would amount to early discovery and rule 35(12)
is not directed at that purpose. So,
despite my reservations about
the manner in which the respondents dealt with the demand for the
production of the legal review,
I conclude that the reference to the
legal review in the affidavit was not a reference to a document as
contemplated in rule 35(12).
The court a quo therefore correctly
refused to order its production.’
See
also para 35. In relation to a second set of documents, production
was not ordered because the documents of Contango were privileged.
[38]
I now turn to deal briefly with the question of onus in relation to
an application to compel
the production of documents in terms of rule
35(12). In
Centre for Child Law v The
Governing Body of
Hoërskool
Fochville
[2015]
ZASCA 155
;
2016 (2) SA 121
(SCA) this court
pronounced on the provisions of rule 35(12). It dealt with the
question of onus in relation to applications to
compel the production
of documents sought in terms thereof. First, at para 18, it had
regard to the following
dictum
in
Universal City Studios
:
‘
[this]
being an application, I would say that the onus is to be discharged
on the usual basis, ie that the applicant bears the overall
onus
of satisfying the Court that the respondent is obliged to produce the
document . . . Where the respondent files an opposing affidavit
. . .
and either denies relevance or avers that he is on ground of
privilege not obliged to produce a document . . . the applicant

would, in order to succeed, have to satisfy the court on a balance of
probabilities that the document is indeed relevant or not

privileged.’
[18]
[39]
Ponnan JA in
Hoërskool Fochville,
at para 18, then went
on to consider the opposing view in
Gorfinkel
(at 774G), where
the following was said:
‘
As
it would not necessarily be within the knowledge of the person
serving the notice whether the document falls within the limitations

I have mentioned the
onus
would be on the recipient of the notice to set up facts relieving him
of the obligation to produce the document.’
This
approach was favoured in
Unilever
.
[40]
Hoërskool Fochville
went on to say the following:
‘
For
my part I entertain serious reservations as to whether an application
such as this should be approached on the basis of an
onus
.
Approaching the matter on the basis of an
onus
may well be to misconceive the nature of the enquiry. I thus deem it
unnecessary to attempt to resolve the disharmony on the point.
That
notwithstanding, it is important to point out that the term
onus
is not to be confused with the burden to adduce evidence (for
example, that a document is privileged or irrelevant or does not

exist). In my view, the court has a general discretion in terms of
which it is required to try to strike a balance between the

conflicting interests of the parties to the case. Implicit in that is
that it should not fetter its own discretion in any manner
and
particularly not by adopting a predisposition either in favour of or
against granting production. And, in the exercise of that
discretion,
it is obvious, I think, that a court will not make an order against a
party to produce a document that cannot be produced
or is privileged
or irrelevant.’
[19]
I
support this approach. The court will have before it the pleading or
affidavit in question, the assertions by the party seeking
production
as to why it is required and why it falls within the ambit of the
rule and the countervailing view of the party resisting
production.
The basis for requiring the document, at the very least, has to be
provided. The court will then, based on all the
material before it,
exercise its discretion in the manner set out in
Hoërskool
Fochville
, in the abovementioned
paragraph.
[41]
To sum up: It appears to me to be clear that documents in respect of
which there is a direct
or indirect reference in an affidavit or its
annexures that are relevant, and which are not privileged, and are in
the possession
of that party, must be produced. Relevance is assessed
in relation to rule 35(12), not on the basis of issues that have
crystallised,
as they would have, had pleadings closed or all the
affidavits been filed, but rather on the basis of aspects or issues
that might
arise in relation to what has thus far been stated in the
pleadings or affidavits and possible grounds of opposition or
defences
that might be raised and, on the basis that they will better
enable the party seeking production to assess his or her position and

that they might assist in asserting such a defence or defences. In
the present case we are dealing with defamatory statements and

defences such as truth and public interest or fair comment that might
be raised. The question to be addressed is whether the documents

sought might have evidentiary value and might assist the appellants
in their defence to the relief claimed in the main case. Supposition

or speculation about the existence of documents or tape recordings to
compel production will not suffice. In exercising its discretion,
the
court will approach the matter on the basis set out in the preceding
paragraph. The wording of rule 35(12) is clear in relation
to its
application. Where there has been reference to a document within the
meaning of that expression in an affidavit, and it
is relevant, it
must be produced. There is thus no need to consider the submission on
behalf of the respondents in relation to
discovery generally, namely,
that a court will only order discovery in application proceedings in
exceptional circumstances.
[42]
In the present case it is clear that the timeline in relation to the
period of employment of
Ms Mkhwebane by the SSA, or her connection to
it, is material to each party’s case. Precisely when she took
up her employment
or whether she had any connection to the SSA while
employed by the Department of Home Affairs, especially when she was
deployed
by the latter to China, is essential in relation to the
issues that suggest themselves at this stage. That much is clear from
the
statements complained of and her own affidavit in the main case,
in terms of which she complained about the statements by the
appellants
and what they were intended to convey. The importance of
the timeline in relation to her employment by or connection to the
SSA
is given impetus by what she sets out in paras 18 and 19, which
appears in para 5 above. Annexure ‘PPSA5’ was clearly

intended by her to show that her letter of appointment supports her
denial of the statements made by the appellants and to prove
that her
appointment by and her connection with the SSA only commenced well
after her return from China. It was material to her
claim for a
retraction.
[43]
‘PPSA5’, in the context of paras 18 and 19 of Ms
Mkhwebane’s affidavit, appears
to have been intended to convey
that an application for a position as Analyst at the SSA was made
some time after her return from
Beijing to South Africa to continue
as Director: Refugee Affairs at the Department of Home Affairs. It
can safely be said that
Ms Mkhwebane relied on the letter of
appointment and its material terms in relation to when her employment
and connection
to the SSA commenced. That application for the post is
referred to at the commencement of ‘PPSA5’. There could
hardly
have been an appointment to the SSA without such an
application. That annexure follows on ‘PPSA2’ and
‘PPSA3’,
which are Ms Mkhwebane’s letter of
acceptance of her appointment as Director Refugee Affairs within the
Department of Home
Affairs addressed to Mr A Fraser, the then Deputy
Director-General in May 2005, and a notification by the
Director Foreign Office,
dated 12 May 2014, confirming her
repatriation, respectively. To my mind there is, within the meaning
of that expression in rule
35(12), a clear ‘reference’ to
Ms Mkhwebane’s application for appointment as an Analyst in
annexure ‘PPSA5’,
which it will be recalled contained her
occupational band, and the terms of her remuneration. Moreover, Mr
Fraser, the Director-General
of the SSA, who is able to speak
authoritatively about when and how she was employed by the SSA in his
confirmatory affidavit,
states that he read her affidavit and
confirms the facts insofar as they relate to her ‘employment
and remuneration’
with the SSA.
[44]
Ms Mkhwebane’s application for appointment is relevant in that
it is bound to contain details
of her employment history, including
those relative to the time when she was deployed to China. As stated
above, the timeline is
critical. In my view that document should be
produced by Ms Mkhwebane. The court below erred in concluding that
there was no reference
to the application for appointment to the post
of Analyst and that it was irrelevant. It misapplied the cases
referred to. It does
not behove the respondents to say that Ms
Mkhwebane need not have referred to her application for the post of
Analyst. She did
refer to it and relied on it in the principal case.
It was lost on her and her legal representatives that she appears by
that statement
to have admitted a reference to the document sought.
[45]
At this stage there is no affidavit before us informing us that she
is not in possession of the
document. Such an affidavit if it had
been lodged may have been dispositive, in favour of the respondents.
The court below rightly
had no regard to the statements in the heads
of argument or from the bar on this aspect.
[46]
I am rather less sanguine about the letter of acceptance mentioned in
‘PPSA5’. First,
we do not know whether it came into
being. The acceptance was in contemplation and the form yet to be
completed. We are in the
dark as to its completion and thus its
existence. We are left to supposition. In this regard communications
from the bar, either
in this court or in the court below, were
unhelpful and rightly not considered by the court below. I am
unpersuaded that there
is a reference within the meaning of rule
35(12) to the document sought to be produced. Counsel on behalf of
the appellants, although
persisting in seeking the production of this
document, was constrained to agree that their case was stronger in
relation to Ms
Mkhwebane’s application for the post of Analyst
at the SSA.
[47]
Lastly, there is the question of the order of the court below placing
the appellants on terms
to file their answering affidavits. Papier J
had regard to submissions on behalf of the respondents that there was
an inordinate
delay on the part of the appellants in filing their
answering affidavits. The court thus made the order referred to at
the beginning
of this judgment. In
Potpale Investments v Mkhize
2016 (5) SA 96
(KZN) Gorven J was called upon to consider whether a
notice in terms of rule 35(12) suspended the time limits in relation
to the
filing of further pleadings or in relation to any other rule.
He had regard to
Protea Assurance Society
at 249B-D where the
court said that a litigant cannot be told to draft and file his own
pleadings or affidavits before he will
be given an opportunity to
inspect and copy, or transcribe, a document or tape recording
referred to in his adversary’s pleadings
or affidavits. He
considered
Unilever
at 336C-I to the same effect. He also
considered DE
van Loggerenberg and E Bertelsman
Erasmus
Superior Court Practice
Vol 2 at D1-478
(Juta
electronic version, RS 13, 2020)
where, in commenting on these
cases, it was said that the time periods for the delivery of a plea
or opposing affidavits are suspended.
Potpale
, at para 18,
stated that one cannot anywhere in the rules find wording to that
effect. In the view of Gorven J a party confronted
with time limits
within which to plead or file affidavits could plead, or file
opposing affidavits, and then compel the documents
and, if thereafter
so advised, amend or supplement what he has already filed. Or such
party could apply to court to extend the
time limits pending the
production of the documents sought. Papier J did not deal with this
aspect and issued the order to file
its answering affidavit on the
basis of what he considered was an inordinate delay on the part of
the appellants.
[48]
There is much to commend the reasoning and the approach in
Potpale.
However, in this case, it was accepted on behalf of the appellants
that if we were to order the production of one or both of the

documents sought, the order issued by the court below in relation to
the filing of an answering affidavit could remain in place.
It is in
everyone’s interest, including that of the Office of the Public
Protector, that this litigation be expedited and
finalised. In light
of the appellants’ acceptance as noted above, there is no need
for a final word in relation to
Potpale
.
In any event, the practice in the court below, where a respondent
fails to file an answering affidavit, is that an applicant can
apply
through the chamber book for an order requiring the respondent to
file such an affidavit within five days, failing which
the applicant
can set the matter down on the unopposed roll.
[20]
If that course had been followed at the outset, the appellants in
this case would have been put to a choice, namely whether to
file an
answering affidavit without the document sought or to seek an
extension of time, pending the finalisation of an application
to
compel production of the document, or it could have contended that
Potpale
should not be followed. In light of the appellants’ acceptance
that the order of the court below on this aspect remain in
place
there is no need to dwell on it any further.
[49]
Considering that the appellants ought to have succeeded in the court
below in relation to at
least one of the documents sought they are
entitled to have costs in that court awarded in their favour. In
light of the conclusions
set out above the following order is made:
1
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.
2
The order of the court below is set aside and substituted as
follows:
‘1. 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 later than 1
st
April 2021.
2.
The respondents in the main application are to file their answering
affidavit by no later than the 16
th
April 2021.
3.
The respondents in this application are ordered to pay the
applicants’ costs, including the costs of two counsel
where so
employed, jointly and severally, the one paying the other to be
absolved.’
__________________________
M
S NAVSA
ACTING
DEPUTY PRESIDENT
Appearances:
For
appellants:              S
Budlender SC, with him J Bleazard
Instructed
by:                 Minde
Schapiro
& Smith Inc, Cape Town
Symington
& De Kok, Bloemfontein
For
respondents:            M
Mphaga SC, with him S Jozana
Instructed
by:
Boqwana Burns c/o
Mfazi Kose Inc, Cape
Town
Mphafi Khang,
Bloemfontein
[1]
Rule
30A reads as follows:
‘
(1)
Where a party fails to comply with these rules or with a request
made or notice given pursuant thereto, any other party may
notify
the defaulting party that he or she intends, after the lapse of 10
days, to apply for an order that such rule, notice
or request be
complied with or that the claim or defence be struck out.
(2) Failing compliance
within 10 days, application may on notice be made to the court and
the court may make such order thereon
as to it seems to meet.’
[2]
Originally
by
DE
van Loggerenberg and E Bertelsman
Erasmus
Superior
Court Practice
Vol 2
at
D1-458 (Juta electronic version, RS 13, 2020).
[3]
See
The
MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia)
(Pty) Ltd and Others
1999
(3) SA 500
(C) at 513G-I.
[4]
See
Gorfinkel
v Gross, Hendler & Frank
1987 (3) SA 766
(C) at 773I and
Unilever
v plc and Another v Polagric
2001 (2) SA 329
(C) at 337B.
[5]
Unilever
at
337B-C.
[6]
The relevant part of the Afrikaans text reads as follows
:
‘‘n Party tot ŉ geding kan te eniger tyd voor die
verhoor ŉ kennisgewing . . . aan ‘n ander party
aflewer,
in wie se pleitsukke of beëdigde verklarings na ‘n stuk
verwys word om dit ter insae voor te lê, en
om hom toe te laat
om ŉ afskrif daarvan te maak
.’
[7]
See
Gehle
v
McLoughlin
1986 (4) SA 543
(W) at 544I-J, 545C and 546D-E.
[8]
D Harms
Civil
Procedure in the Superior Courts
(electronic
version, 2020, SI-50).
[9]
See
Penta
Communication Services (Pty) Ltd v King and Another
2007
(3) SA 471
(C) para 15.
[10]
Ibid.
[11]
Magnum
Aviation Operations v Chairman, National Transport Commission
1984
(2) SA 398
(W) at 400C.
[12]
See
Moulded
Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and
Another
1979
(2) SA 457
(W) at 461B-D and
Gehle
v McLoughlin
1986
(4) SA 543
(W) at 546D-E.
[13]
Subrule
3 is related to subrules 2 and 11, ie in relation to discovery in
the conventional sense after the close of pleadings
and the filing
of affidavits.
[14]
See
para 20 above.
[15]
At
774D-774E.
[16]
DE van Loggerenberg and E Bertelsman
Erasmus
Superior
Court Practice
Vol 2
at
D1-458 (Juta electronic version, 2020)
.
[17]
D
Harms
Civil
Procedure in the Superior Courts
(electronic version, 2020, SI-50) at B23.2.
[18]
Universal
at
748A.
[19]
Hoërskool
Fochville
para
18.
[20]
Practice
Note 37 of the Western Cape Consolidated Practice Notes – the
practice note does not contain the five-day limit
but is usually
ordered.

Back to Law Reports