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2024
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[2024] ZAFSHC 293
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Batjes v Oppermangronde Communal Property Association (2025/2023) [2024] ZAFSHC 293 (19 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no: 2025/2023
In
the matter between
RENIER
LESTER BATJES
APPLICANT
And
OPPERMANSGRONDE
COMMUNAL PROPERTY
RESPONDENT
ASSOCIATION
In
re:
OPPERMANSGRONDE
COMMUNAL PROPERTY
PLAINTIFF
ASSOCIATION
And
RENIER
LESTER BATJES
FIRST
DEFENDANT
DIRECTO-GENERAL
OF THE DEPARTMENT OF
RURAL
DEVELOPMENT AND LAND REFORM
SECOND
DEFENDANT
Neutral
citation: Renier Lester Batjes v Oppermangronde Communal Property
Association
Coram:
Gusha, AJ
Heard:
29 August 2024
Delivered:
This judgment was handed down electronically by
circulation to the parties’ representatives by email and
released to SAFLII.
The date for hand-down is deemed to be 19
September 2024
Summary:
Rule 35(6) – discovery of documents –
application to compel further discovery where relevance is disputed.
ORDER
The
application is dismissed with costs including the costs of counsel on
scale B.
JUDGMENT
Gusha
AJ
[1]
This is an opposed interlocutory
application in terms of rule 35(3) of the Uniform Rules to compel the
respondent to make available
for inspection certain specified
documents.
The parties are embroiled in an
eviction action (the main action) and that dispute remains extant.
The parties shall be referred
to as cited herein.
[2]
The
applicant is a major male person alleged in the main action to be an
erstwhile member of the respondent, his membership in the
respondent
allegedly terminated on 18 August 2015, allegedly as a result of
breach of a lease agreement entered into between the
parties and an
alleged breach of the respondent’s constitution.
[1]
The respondent, in turn, is Oppermansgronde Communal Property
Association, duly registered in terms of the
Communal Property
Associations Act 28 of 1996
and the registered owner of the remainder
of the farm Oppermansgronde situated in Jacobsdal and held under Deed
of Transfer T7551/2002
(the property).
[3]
The respondent has launched eviction
proceedings coupled with a claim for damages against the applicant.
The action is premised
on a disputed lease agreement entered into
between the respondent as lessor and the applicant as lessee of
certain agricultural
premises situated within the property.
[4]
Truncated, the applicant’s case in
the main action is that he is a beneficiary, alternatively a
descendant and heir of a deceased
beneficiary in terms of a
settlement agreement entered into in terms of
s 42D
of the
Restitution of Land Rights Act 22 of 1994
and that the respondent is
a mere fiduciary land-holding body. He further asserts in the main
action that he is still a member
of the respondent and has vested
rights therein.
[5]
It is common cause that the respondent
already discovered certain documents as requested by the applicant.
In these proceedings
he asserts that in order to present his case in
the main action it is necessary to lead evidence that he is still a
beneficiary
of the respondent and that it is one of the respondent’s
objectives, if not the main objective, to subdivide the property
and
transfer common law ownership of the subdivided property to its
members or beneficiaries.
[6]
As such, and to this stated end, he asserts
that he still requires further discovery of the following documents:
(a) All
diagrams approved by the Surveyor General relating to the
subdivisions of agricultural land on any of
the properties registered
in the name of the respondent since the date of registration of said
properties in the name of the respondent;
(b)
All instructions by the respondent to
surveyors in order to subdivide agricultural land;
(c)
All applications made by the respondent to
any authority or ministry in terms of the Subdivision of Agricultural
Land Act 70 of
1970;
(d)
The agenda and minutes and resolutions of
the General Meeting held by the respondent on 25 February 2017;
(e) The
membership list of the respondent as annually updated since its
registration;
(f)
All the annexures to the settlement agreement that was reached with
the Department of Land Affairs and
the Commission on Restitution of
Land Rights.
[7]
The applicant asserts that the
aforementioned documents may prove or disprove its averments in the
main action regarding the respondent’s
constitutional
objectives. Further, the documents may prove or disprove the
applicant’s averments regarding the respondent’s
conduct
in general meetings and its overall attitude towards its members.
Lastly, with regards to the request for all the membership
lists
since registration of the respondent, the applicant asserts that same
will assist it to identify who its opponent is. The
respondent
objects to the further discovery and contends primarily that the
documents requested are irrelevant and
that there exists no
triable issue in respect of same.
[8]
Rule 35(3) provides;
‘
If
any party believes that there are, in addition to documents or tape
recordings disclosed as aforesaid, other documents (including
copies
thereof) or tape recordings which may be relevant to any matter in
question in the possession of any party thereto, the
former may give
notice to the latter requiring him to make the same available for
inspection in accordance with subrule (6), or
to state on oath within
ten days that such documents are not in his possession, in which
event he shall state their whereabouts,
if known to him.’
[9]
In
order to properly adjudicate the present issue, I must have regard to
the long-established principles as laid out in
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
:
[2]
‘
The
requirement of relevance, embodied in both Rule 35(1) and 35(3), has
been considered by the Courts on various occasions. The
test for
relevance, as laid down by Brett LJ in
Compagnie
Financiere et Commerciale du E Pacifique v Peruvian Guano Co
(1882) 11 QBD 55
, has often been accepted and
applied. See, for example, the Full Bench judgment in
Rellams
(Pty) Ltd v James Brown & Hamer Ltd
1983
(1) SA 556
(N) at 564A, where it was held that: “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.” . . . The broad meaning ascribed to
relevance is circumscribed by the requirement in both subrules
(1)
and (3) of Rule 35 that the document or tape recording relates to
(35(1)) or may be relevant to (35(3)) “any matter in
question”.
The “matter in question” is determined from the
pleadings. See in this regard
SA Neon
Advertising (Pty) Ltd v Claude Neon Lights (SA) Ltd
1968 (3) SA 381
(W) at 385A-C;
Schlesinger
v Donaldson and Another
1929 WLD 54
at
57, where Greenberg J held “In order to decide the question of
relevancy, the issues raised by the pleadings must be considered.
. .
”, and
Federal Wine and Brandy Co
Ltd v Kantor
1958 (4) SA 735
(E) at
753D-G.’
[10]
It
is trite that the intention of the rule 35(3)
provides
for the production of further documentation which has not been
discovered, but which a party believes is relevant and in
the
other party's possession. It does not entitle that party to engage in
a fishing expedition.
[3]
It
is further established that where a party denies the relevance of
documents on oath, the onus of proving such documents are in
fact
relevant rests upon the party claiming discovery or inspection
thereof.
[4]
[11]
I now turn to the requested documents. In
my view it is fatal to the applicant’s case that they sought to
couch their request
in such wide and all-encompassing terms. With
regards to the documents as listed in para 6 (a-c and f
supra
),
I cannot see how all the documents since the registration of the
respondent could be relevant. The dispute in the main action
relates
to an alleged breach of a lease agreement and an addendum thereto,
which the applicant in terms of his amended plea is
in possession of
and admits to signing but only disputes the validity and
enforceability thereof. The dispute also relates to the
alleged
termination of the applicant’s membership in the respondent
which according to the pleadings allegedly occurred 18
August 2015.
Furthermore, the relevance of the agenda and minutes of the meeting
held on 25 February 2017 when the applicant’s
membership was
allegedly terminated by then escapes me. In my view the applicant is
either already in possession of the documents
he requires for trial
purposes in the main trial or same has already been discovered by the
respondent. Relevance is linked to
the pleadings and must not be
determined outside of the four corners of the pleadings.
[12]
In conclusion, discovery is not a tool
designed to put a party in a position to draw battle lines and
establish the legal issues.
Rather, it is a tool used to identify
factual issues once legal issues are established, it is not designed
to assist a party to
hunt for facts to support its defence. It seems
to me that the applicant decided to cast his proverbial net so wide
and without
any specificity and accuracy in the hope of catching
something useful
[13]
In my view what the applicant has already
been furnished with is adequate to enable it to prepare for trial in
the main action.
[14]
In the result I issue the following order;
The application is
dismissed with costs including the costs of counsel on scale B.
NG
GUSHA, AJ
Appearances
For
the Applicant
Mr
JHD Bloem
Instructed
by:
Spangeberg
Zietsman & Bloem
Bloemfontein
For
the Respondents:
Adv
WJ Groenewald
Instructed
by:
Bezuidenhouts
Inc
Bloemfontein
[1]
The
status of the applicant and his current possession of portions of
the property forms part of the disputed issues in the main
action.
[2]
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
1999 (2) SA 279
(T) at 316E-317B.
[3]
The
MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia)
(Pty) Ltd
1999
(3) SA 500
(C) at 515D,
Antonsson
and others v Jackson and others
2020 (3) SA 113 (WCC).
[4]
Continental
Ore Construction v Highveld Steel and Vanadium Corporation Ltd
1971 (4) SA 589
(W).