IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case Number: 6497/2022
In the matter between:
STEVEN ERIC EWELS Plaintiff / Respondent
and
ZOE FRANCIS First Defendant / Applicant
GLENNS LOCK CC Second Defendant
EVELYN JOHAN PATRICK Third Defendant
________________________________________________________________
JUDGMENT
________________________________________________________________
MAGARDIE AJ:
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1. This is an interlocutory application in terms of Rule 35(7) of the Uniform Rules of
Court to compel further and/or better discovery. The Applicant is the First
Defendant in pending action proceedings (“the main action ”) brought by the
Plaintiff against all three Defendants. I shall refer to the parties as they are cited in
in the main action.
2. In the present application , the First Defendant seeks an order compelling the
Plaintiff to make further and better discovery of some 14 categories of documents
listed in a notice given by the First Defendant pursuant to the provisions of Rule
35(3) and (6) (“the Rule 35(3) Notice”). The Plaintiff resists the application primarily
on the basis that the documents sought by the First Defendant have either been
already discovered, are irrelevant or are not in his possession. The Plaintiff further
contends that the application is an abuse and amounts to an impermissible fishing
expedition.
Background and litigation history
3. The dispute between the parties has its genesis in a written agreement concluded
between the Applicant and the First Defendant on 23 September 2019. In terms of
that agreement, the Plaintiff sold to the First Defendant 100% of his members’
interest share in the Second Defendant, a close corporation which operated and
traded as a security services and locksmith business in Somerset West, Cape
Town. The purchase price to be paid by the First Defendant in terms of the sale of
members interest agreement was a n amount of R5 380.00.00. The agre ement
further provided that the Plaintiff agreed to finance the agreed adjusted stock value
of the business, which value was to be determined by a stock -take carried out on
the effective date of the agreement and a further amount of R630 000.00.
4. These amounts were to be secured by a separate agreement and against the
property of the First Defendant for a period of 3 years . The sale of members
interest agreement also provided that the Plaintiff agreed to a restrai nt of trade
outlined in detail in an annexure to the agreement, for a period of 3 years from the
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effective date of the agreement, being 1 November 2019. The agreement required
the First Defendant to service the amounts referenced in the agreement by at the
minimum paying the accrued interest portion on a monthly basis . Capital
repayments by the First Defendant were required to be made proportionately at
the end of each year of the three -year period provided for in the sale of members
interest agreement.
5. The separate agreement contemplated by the sale of members interest agreement
was concluded between the Plaintiff and the First Defendant o n 1 November 2019
(“the second agreement ”). In terms of the second agreement, the P laintiff granted
the First Defendant an opportunity to pay in installments the outstanding amounts
still owed in terms of the sale of members interest agreement. The second
agreement provided that the balance of the purchase price, amounting to a total
sum of R1 230 000.00, was to be paid by the First Defendant in three equal
installments of R410 000.00 payable on 1 November 2020, 31 October 2021 and
31 October 2022 respectively. The second agreement in addition provided for a
mortgage bond in the sum of R 1 230 000.00 to be registered ove r certain
immoveable property owned by the First Defendant.
6. The First Defendant duly paid an amount of R4.37 million towards the purchase
price between 1 and 4 November 2019. On 19 February 2021 the Plaintiff signed
the necessary documents transferring his members interest in the Second
Defendant to the First Defen dant. The members ’ interest was transferred to the
First and Third Defendants th at same day. The First Defendant thereafter and in
terms of the second agreement paid an amount of R420 000.00 in respect of the
agreed purchase price.
7. No further amounts wer e paid by the First Defendant in terms of the second
agreement in respect of the balance of R820 000.00 plus interest which was due
to the Plaintiff in terms of the second agreement. On 6 October 2021 and 5
November 2021, the Plaintiff directed corresponde nce to the First Defendant
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placing her on terms to rectify what the Plaintiff considered to be her breach of the
agreements concluded between the parties. T
8. The First Defendant responded through her attorneys on 23 November 2021 . In
her response, the First Defendant contended, for the first time and some two years
after concluding the agreements with the Plaintiff, that the second agreement was
unlawful and void because it amounted to a credit agreement as defined in the in
the National Credit Act 34 of 20 05 (“the NCA”) and the Plaintiff was not registered
as a credit provider in terms of section 40(1) and 89(2) of the N CA. The First
Defendant’s attorneys in addition alleged that the Plaintiff had been acting in
breach of the restraint of trade provisions o f the sale of members interest
agreement. The First Defendant proposed that that the parties enter into a fresh
agreement in terms of which all amounts already paid by the First Defendant
would be repaid by the Plaintiff , the First Defendant released from further
obligations in term s of the agreements and that the Plaintiff would undertake to
agree to what was described as an “enhanced restraint”.
9. On 2 December 2021 the Plaintiff’s attorneys responded confirming that the
Plaintiff accepted what it contended was the First Defendant’s repudiation of the
agreements. The Plaintiff required the First Defendant to provide all financial and
other documents relating to the Second Defendant and effectively demanded that
the business be handed back to the Plaintiff.
10. In relation to the monies paid by the First Defendant in part payment of the
purchase price, the Plaintiff tendered to pay these funds to the Plaintiff’s attorneys
in trust pending a determination of a damages claim by the Plaintiff in respect of
damage caused by the First Defendant to the Second Defendant’s business. The
First Defendant’s attorneys replied on 9 December 2021 stating that the First
Defendant accepted the Plaintiff’s repudiation of the sale of members interest
agreement and that the agreement was cancelled.
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11. Following these events, the Plaintiff applied to the High Court for interim relief for
the return of the Second Defendant’s business to the Plaintiff and cancellation of
the agreements between the parties, pending the determi nation of an action to be
instituted by the Plaintiff against the defendants (“the interim relief proceedings”) .
On 24 June 2022 Goliath AJP dismissed the application for interim relief with
costs.
12. The Plaintiff had at th is stage instituted the main action against the Defendants. In
that action and by combined summons issued on 2 March 2022, the Plaintiff
sought orders for inter-alia the cancellation of the agreements and restitution
including restitutionary damages. The particulars of claim provide for the
restitutionary damages to be determined through the appointment of a valuer to
value the Second Defendant’s business as at the date of cancellation of the
agreements. In addition , orders are sought for the appointment of a forensic
auditor to calculate profits made by the business until the date of cancellation of
the agreements as well as an order that the First Defendant pay to the Plaintiff the
difference between the purchase price of the business and the sum set by an
appraiser in respect of the valuation of the Second Defendant’s business as at the
date of cancellation. In the alternative, the Plaintiff seeks an order for the payment
of contractual damages in the amount of R820 000.00 being the outstanding sum
in terms of the sale of members interest agreement.
13. On 7 March 2022 the Defendants filed a notice of exception contending , on the
basis of some seven listed grounds of complaint, that the Plaintiff’s particulars of
claim lacked averments necessary to sustain a cause of action, were bad in law
and vague and embarrassing. The exception was delivered on 8 July 2022. The
opposed exception proceedings came before Francis J , who dismissed the
exception with costs on 8 March 2023.
14. The First Defendant filed her plea in the main action on 3 April 2023 together with
a claim in reconvention. In her claim in reconvention, the First Defen dant s eeks
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inter-alia orders declaring the agreements unlawful and void in terms of the NCA
and an order which she pleads as “…a just and equitable order based on the facts
and circumstances pleaded in the First Defendant’s claim in reconvention ”. In the
alternative, the First Defendant pleads that in the event that it is found that the sale
of members interest agreement was not unlawful and void, that the agreement was
validly cancelled due to repudiation thereof by the Plaintiff. On this alternative
basis, an order is sought by the First Defendant tendering the return of the
members interest in the Second Defendant , payment of damages suffered by the
First Defendant. interest thereon and costs. The First Defendant’s claim in
reconvention does not specify t he damages allegedly suffered by the First
Defendant and instead seeks an order that the quantification of such damages are
to stand over for later determination.
15. Given the nature and tenor of the litigation which transpired at that stage, it came
as no surprise that the discovery process would not be smooth sailing.
16. On 4 July 2023 the First Defendant filed her discovery affidavit followed by the
Plaintiff who filed his discovery affidavit on 12 July 2023. On 2 August 2023 the
First Defendant filed a Not ice in terms of Rule 35(3) and (6) requiring the Plaintiff
to make further and better discovery of 14 categories of documents listed in the
notice.
17. The Plaintiff did not respond to the Rule 35(3) and (6) notice within the time period
of 10 days stipulated by the rule. The F irst Defendant then proceeded on 30
August 2023 with an application to compel compliance in terms of Rule 35(7) . The
application was served on 25 August 2023 and the matter set down for hearing on
11 September 2023.
18. On 25 August 2023 the Plaintiff served an affidavit in response to the Defendant’s
Rule 35(3) and (6) notice. The Rule 35(3) and (6) application came before Thulare
J on 11 September 2023 . An order was granted by agreement withdrawing the
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First Defendant’s Rule 35(7) application and directing the Plaintiff to pay the First
Defendant’s costs. The First Defendant remained dissatisfied with the Plainti ff’s
response to its Rule 35(3) and (6) notice.
19. On 4 October 2023 the First Defendant instituted a second Rule 35(7) application ,
this being the present application before the court, for orders directing the Plaintiff
to fully comply within 10 days with its Rule 35 (3) notice. On 6 December 2023 the
Plaintiff filed a supplementary discovery affidavit discovering an additional 44 listed
documents.
20. Before addressing the documents in respect of which the First Defendant
demands further and better discovery , it will be useful to restate some of the main
principles which apply to applications of this nature.
Further and better discovery in terms of Rule 35(3)
21. Rule 35(3) provides as follows:
“If any party believes that there are, in addition to documents o r 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 such party to make the same available for
inspection in accordance with subrule (6), or to state on oath within 10
days that such documents or tape recordings are not in such party’s
possession, in which event the party making the disclosure shall state
their whereabouts, if known.”
22. Rule 35(3) does not confer a party relying on the rule with an un restricted
entitlement to compel further disclosure of documents following discovery which
has already taken place. The scope of the rule is limited by three main
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requirements. The first is that there must be a proper identification of the
documents sought, the second requirement is specificity in the documents so
identified and the third is the relevance of the documents themselves. The purpose
of the rule was explained as follows in The MV Urgup: Owners of The MV Urgup v
Western Bulk Carriers (Australia) (Pty) Ltd and Others1:
“These subrules are both intended to cater for the situation where a party
knows or, at the very least, believes that there are documents (or tape
recordings) in his opponent's possession or under his control which may
be relevant to the issues and which he is able to specify with some degree
of precision. In the case of Rule 35(3) the intention is to supplement
discovery which has already taken place, but which is alleged to be
inadequate. Rules 35(3) and (14) do not afford a litigant a licence to fish in
the hope of catching something useful.”
23. A litigant relying on Rule 35(3) is not entitled to content itself with vague and
globular descriptions of documents which it purports to identify in a Rule 35(3)
Notice.
24. A maladroit approach to the identification of such documents will therefore not
pass muster. Specificity not generality is what is r equired. Joffe J put it thus in
Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic
of South Africa and Others:2
“…In particular, the degree of specificity of the documents that the party
dissatisfied with the discovery must comply with in the notice must be
determined. The importance of this requirement cannot be understated. A
party can clearly be severely prejudiced by a notice which does not exhibit
1 The MV Urgup: Owners of The MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd and Others 1999
(3) SA 500 (C) at 515.
2 Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and
Others 1999 (2) SA 279 (T) at 321.
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the necessary degree of specificity. Failure to comply with that
requirement can result in an order compelli ng compliance, and failure to
comply therewith can result in the claim dismissed or defence being struck
out in terms of Rule 36(7).”
25. The discove ry process is premised on honesty, good faith and requires parties
obliged to make discovery to do so on oat h. Where a party deposes to an affidavit
stating that he or she does not have additional documents in his possession other
than what has been discovered, such an affidavit is generally regarded as
conclusive. A court will consequently be loath to go behind a discovery affidavit
and order further or better discovery , except in limited and exceptional
circumstances. These include the existence of reasonable grounds for supposing
that the party has or had other relevant documents in its possession or control,
male fides or the party having misconstrued the principles on which a discovery
affidavit should be made.3
The documents sought by First Defendant in terms of Rule 35(3)
Communications between the Plaintiff, his agent and potential purchasers of the
business
26. The first category of documents sought by the First Defendant in terms of Rule
35(3) are described in paragraph 1 thereof as “…All written and electronic
communications between the Plaintiff on the one hand and Mr . Peter Tychsen on
the other hand.” Mr. Peter Tych sen is the agent and business broker who
represented the Plaintiff in the sale of members interest agreement.
27. The First Defendant seeks in paragraph 2 of her Rule 35(3) notice, “all written and
electronic communications between the Pl aintiff on the one hand and any other
3 Federal Wine & Brandy Company Ltd v Kantor 1958 (4) SA 735 (E) 749H and the cases referred to in
Van Loggerenberg, Erasmus: Superior Court Practice (2023), D1- 472A, footnote 1.
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potential purchasers of the interest in the Second Defendant other than the First
Defendant on the other hand.” In his response to the Rule 35(3) Notice, the
Plaintiff contends that he has already discovered the reques ted information sought
in paragraphs 1 and 2 of the notice. The Plaintiff states in his answering affidavit
that all the communications with Mr . Tychsen in his possession are already in the
possession of the Defendants as they were attached to the affidavi ts filed in the
interim interdict proceedings and were in any event discovered in a later discovery
affidavit on 6 December 2023. The Plaintiff goes on to state that he does not have
any other communications with Mr. Tychsen in his possession that he is aware of.
28. In a somewhat unusual procedure, the First Defendant’s founding and replying
affidavits in the present application were deposed to by her attorney of record. The
First Defendant herself filed confirmatory affidavits. In the replying affidavit, th e
Plaintiff’s emphatic assertion that he was not in possession of additional
communications with Mr. Tychsen, was disputed.
29. The First Defendant in this regard sought to rely on an email exchange dated 18
August 2019 between herself and Mr . Tychsen, an email which the deponent to
the replying affidavit states “…relays a number of instructions from the Plaintiff in
response to queries raised by the First Defendant.”
30. Mr. Stelzner SC, who appeared on behalf of the Plaintiff, correctly pointed out t hat
the aforesaid email from Mr . Tyschen to the First Defendant in fact does no s o
such thing. The email makes no reference whatsoever to any “instructions” from
the Plaintiff, whether written, oral or in any other form. In reliance on the email
exchange o f 18 August 2019, the deponent to the First Defendant’s replying
affidavit states that is “…it is clear...that there are further communications between
the Plaintiff and Mr. Tyschen.”
31. Precisely how and on what factual basis the First Defendant states that the
existence of further communications between the Plaintiff and Mr. Tychsen is so
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“clear”, is not explained. The statement constitutes no more than speculation . It is
not only bereft of any factual basis but is based on a wholly incorrect description of
the evidence.
32. No reasonable grounds have in my view been shown from the pleadings or the
previously discovered documents which demonstrate that the additional
documents sought in paragraphs 1 and 2 of the Rule 35(3) Notice in fact exist and
are in the possession of the Plaintiff. I am therefore not persuaded that there are
any grounds to reject the Plaintiff’s statement on oath that he is not in possession
of the documents sought in paragraphs 1 and 2 of the First Defendant’s Rule 35(3)
notice other than those which he has already discovered.
33. Rule 35(3) requires a reasonable basis to be established for the existence of
documents sought by way of an order for further and better dis covery. None has in
my view been established in relation to the documents sought in paragraphs 1 and
2 of the First Defendant’s Rule 35(3) Notice.
34. That the First Defendant subjectively believes and speculates that such
documents may possibly exist and ha ve not been discovered by the Plaintiff, is
simply not good enough.
Documentation relating to Vengeance Security Solu tions and/or Evolution Supply
Chain (Pty) Ltd
35. The First Defendant in her Rule 35(3) Notice seeks document ation relating to
Vengeance Security Solutions (“Vengeance”), a security services business which
the Plaintiff states he opened after cancellation of the first agreement with the First
Defendant. The business of Vengeance was conducted through Evolution Supply
Chain (Pty) Ltd, a pre-existing property company owned by the Plaintiff.
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36. The First Defendant contends that Vengeance has unlawfully competed with the
Defendants during the period between the sale of members interest agreement
and the date of the First Defendant’s Rule 35(3) Notice. The Plaintiff denies this
and contends that Vengeance only opened shop in November 2022 after
cancellation of the sale of members interest agreement and at a time when the
restraint of trade clause no longer applied.
37. Paragraph 3 of the Rule 35(3) notice requires the production of “ All written and
electronic communication, including but not limited to correspondence, WhatsApp
communications, SMS’s quotes and invoices in respect of services rendered and
goods supplied by the Plaintiff, Vengeance Security Solutions and/or Evolution
Supply Chain (Pty) Ltd (“Evolution”) from September 2019 to date.” The same
generic description i.e. “All written and electronic communication, including b ut not
limited to…” is utilized in paragraph 4 of the notice but in that instance is directed
at all written and electronic documentation “…in respect of security equipment
purchased by the Plaintiff, Vengeance Security Solutions and/or Evolution from 23
September 2019 to date.”
38. The term “overbroad” is a misnomer when describing the veritable swathe of
unspecified documents sought by the First Defendant in paragraphs 3 and 4 of her
Rule 35(3) Notice. The First Defendant in effect seeks the production by the
Plaintiff of literally any and all conceivable known f orms of recorded written and
electronic communication by the Plaintiff and Vengeance over a three -year period,
limited only by the documents being in respect of “services rendered and goods
supplied” a nd “security equipment purchased”. Such documentation is sought
irrespective of when exactly during this three -year period and to whom such
documentation or communications were directed.
39. The nondescript formulation “services rendered and goods supplied” and “security
equipment purchased” scarcely assist s in determining precisely what
documentation is included or excluded by paragraphs 3 and 4 of the Rule 35(3)
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Notice. The specificity required by Rule 35(3) for the identification of documents
sought by way of further and better discovery, is entirely absent.
40. A few hypothetical examples illustrating the unrestricted scope of paragraphs 3
and 4 of the Rule 35(3) notice come readily to mind. Would an informal Whatsapp
exchange between the Plaintiff and an acquaintance regarding the type of services
offered by his new locksmith / security services business be included within
paragraph 2 of the notice and subject to further discovery? Or say a receipt for a
set of replacement batteries purchased by th e Plaintiff for a security gate access
remote at his home ? Would a Whatsapp exchange between a customer requiring
locksmithing services and one of the Plaintiff’s employees be subject to discovery
because it relates to “services rendered and good supplied”?
41. The possibilities and various permutations of what is possibly included and subject
to discovery in terms of the Rule 35(3) notice, are endless. It is however precisely
such an outcome which the requirement of specificity in a Rule 35(3) Notice is
meant to guard against.
42. It is in my view not consistent with principles of fair civil litigation for a party to
whom an overbroad broad and generalized Rule 35(3) notice is directed to have t o
effectively guess what is included within the scope of the notice and what is not.
43. There is a further fundamental difficulty with the First Defendant’s formulation of
paragraphs 3 and 4 of her Rule 35(3) Notice. In her replying affidavit in the current
application, the deponent confirms that the First Defendant’s pleaded case in her
claim in reconvention is that the Plaintiff’s alleged unlawful breach of the restraint
of trade provisions of the sale of members int erest agreement, occurred in the
period prior to the alleged cancellation of the agreement. In addition and on her
own version , in the letter from her attorneys dated 9 December 2021, the First
Defendant expressly accepted the Plaintiff’s repudiation of the sale agreement and
confirmed that the agreement was cancelled.
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44. That being the case, it is difficult to understand on what possible basis the First
Defendant maintains that she is legitimately entitled to request documents relating
to the Plaintiff’s Vengeance security business covering the entire period of 23
September 2019 to 2 August 2023, the latter being the date of her Rule 35(3)
Notice and a date some 20 months after the agreement had already been
cancelled. No argument of any degree of persuasion was advanced by the First
Defendant as to why the Plaintiff would be acting unlawfully in engaging in a new
security / locksmith business after 9 December 2021 when the agreement had on
the First Defendant’s own version already been cancelled and the restraint of trade
was no longer effective.
45. If the Plaintiff was no longer subject to a restraint of trade and lawfully entitled to
conduct such a business following the cancellation of the agreements on 9
December 2021, I see no conceivable legal basis why he would nonetheless be
obliged to discover and hand over to the First Defendant vast swathes of
documentation relating to his lawful operation of that business.
46. The machinery of discovery provided by the Uniform Rules of Court does not exist
to enable or confer some form of broad and untrammeled pre-litigation right t o
trawl through a persons’ papers, correspondence and documents in the hope of
building a case against that person. A party is only entitled to discovery when the
litigation battle lines have already been drawn and the legal issues established.
The principle does not operate the other way around. Discovery is not a tool
designed to put a party in a position to draw the battle lines first and then later
establish the legal issues.4
Documentation relating t o the Plaintiff’s employees and Second Defendant’s
current or historic clients
4 STT Sales (Pty) Ltd v Fourie 2010 (6) SA 272 (GSJ) at paragraph [16] and [17].
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47. Paragraph 5 of the Rule 35(3) notice seeks discovery of “ All written and electronic
communication, including but not limited to correspondence, WhatsApp
communications, SMS’s between the Plaintiff and/or employees of the Plaintiff
and/or Evolution on the one hand and any current or historic clients of the Second
Defendant on the other hand.”
48. The Plaintiff in his answering affidavit objected to the request on the basis that no
time period was specified in the Rule 35(3) notice and that the failure to do so
rendered the notice overbroad.
49. In his replying affidavit, the First Defendant’s attorney expressly conceded the
point. He states that “…upon further consideration of the Notice read together with
the answering affidavit, I concede that, due to the fact that the dates are
unspecified, the request in respect of the item unde r reply is too broad . A further,
more specific, Rule 35(3) notice will be filed in due course to remedy the error.”
(emphasis added).
50. No such replacement Rule 35(3) notice was however filed by the First Defendant
to remedy its admitted overbroad request i n paragraph 5 of the Rule 35(3) Notice.
On the contrary and flying in the face of this plainly admitted concession in the
First Defendant’s replying affidavit, it was contended in the First Defendant’s
written argument that the First Defendant remained ent itled to further and better
discovery of the documents set out in paragraph 5 of the Rule 35(3) Notice.
51. When pressed on this aspect in the course of oral argument, Mr . Kulenkampff,
who argued the case for the First Defendant, adopted a novel approach . He
promptly abandoned the concession made on oath by his instructing attorne y,
contending instead that the concession had been incorrectly made and that the
court was not bound by it.
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52. It of course is so and it is trite that a court is not bound by an incorrect legal
concession. This however is subject to the proviso that the court must consider the
legal concession to have been wrong in law. The legal concession by the First
Defendant’s attorney that paragraph 5 of the Rule 35(3) notice was overbroad in
the absence of any qualification as to time, was however in my view , entirely
correct.
53. The overbroad formulation of paragraph 5 of the Rule 35(3) Notice suffers from an
additional flaw. In the Plaintiff’s answering affidavit, he states that he does not
know who the Second Defendant clients are and it is not clear who are the Second
Defendant’s “historic” clients. This statement by the Plaintiff is not addressed let
alone disputed in reply.
54. Paragraph 5 of the Rule 35(3) Notice has been correctly conceded by the First
Defendant to be overbroad. There is no basis to order to Plaintiff to discover
documents and communications with present and “historic” clients of the Second
Defendant when it is undisputed that the Plaintiff does not even know who these
persons are.
55. The purpose of further and better discovery in terms of Rule 35(3) is not to order
parties to undertake the impossible.
Lists of clients and suppliers
56. Paragraphs 6 and 7 of the Rule 35(3) Notice seeks discovery of lists of the clients
and suppliers of the Plaintiff and Vengeance “from 23 September 2019 to date”.
The reference “…to date” indicates that the time period for the documents sought
relates to the date of the present ap plication in April 2024. The Plaintiff disputes
that there is any legal basis for a competitor to obtain a list of suppliers or
customers of another competitor.
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57. I have earlier pointed out that it is common cause that the agreements were
cancelled on 2 alternatively 9 December 2021. The cancellation of the agreements
from that date rendered the restraint of trade provisions inoperative. The Plaintiff
was legally entitled and free to compete with the Second Defendant after the
agreements had been cancelled and the restraint of trade was no longer
applicable.
58. It is entirely unclear to me what legal basis would justify ordering the Plaintiff’s
current client and supplier documentation for his lawfully operated business, to be
provided to the Defendants, who are his competitors. The argument apparently
being advanced by the First Defendant, is that these documents, which she claims
would demonstrate unlawful competition, are “relevant” to her future claim based
on section 85(9) of the NCA and t he exercise of the Court’s just and equitable
powers under that section. I fail to see any such relevance.
59. Firstly, the First Defendant’s claim in reconvention is plainly not a claim for
delictual or contractual damages arising from unlawful competition. Secondly, the
agreements in respect of which an order is sought for voidness and just and
equitable relief under section 89(5) of the NCA, were concl uded in September
2019 and cancelled in December 2021. I am not persuaded that lists of the
Plaintiff’s cl ients and suppliers as at April 2024 have any relevance to the First
Defendant’s pleaded counter -claim, which is not a contractual claim but instead a
claim for declaratory relief relating to events and contracts which were concluded
in 2019 and 2021, some five and three years ago respectively. This applies more
so when there is no cognizable claim of unlawful competition advanced by the First
Defendant in respect of the period after the date of cancellation of the agreements
in December 2021. The absence of such a claim is hardly surprising given that any
restraint of trade previously binding on the Plaintiff became inoperative from 9
December 2021 when the First Defendant herself confirmed that the agreements
had been cancelled.
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PSIRA Registration documents
60. Paragraph 8 of the Rule 35(3) Notice requires the Plaintiff to discover “…The
Plaintiff’s and Evolution’s Private Security Industry (‘PSIRA’) registration
applications.”
61. The First Defendant claims in her founding affidavit that these documents relating
to the registration status of the Plaintiff and Evolution / Vengeance are “…central
to the dispute regarding whether or not the competition was unlawful on the basis
of a contravention of a statutory prohibi tion.” In paragraph 9, the First Defendant
seeks “… All written and electronic communication, including but not limited to
correspondence, WhatsApp communications, SMS’s between representatives of
PSIRA on the one hand and the Plaintiff, any representative s of Vengeance
Security Solutions and/or any representatives of Evolution on the other hand from
September 2019 to date.”
62. The Plaintiff has annexed to his answering affidavit the PSIRA registration
certificates in respect of the Plaintiff and Vengeance. T hese documents confirm
without a doubt that the Plaintiff has been lawfully registered with PSIRA as a
security services provider since 2 October 2006 and Vengeance has been lawfully
registered as a security services provider since 27 January 2023.
63. The F irst Defendant’s founding affidavit deposed to on her behalf purported to
justify the further discovery sought in paragraphs 8 and 9 of the Rule 35(3) Notice.
The First Defendant’s deponent in this regard state s that the pleadings allege that
the Plaintiff provided security services and represented that he was registered to
offer services for which he was not PSIRA registered . The allegation that the
Plaintiff was not so registered is demonstrably false. That aside, it is difficult to
understand wh at conceivable relevance historical documents relating to the
registration of the Plaintiff as a security services provider would have to the First
Defendant’s counter-claim for relief in terms of section 89(5) of the NCA.
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64. No sustainable legal grounds w ere advanced by the First Defendant in argument
to justify the further discovery sought in paragraphs 8 and 9 of her Rule 35(3)
Notice. None have in my judgment have been established.
Documentation relating to Plaintiff’s employees
65. At paragraphs 10 and 11 of the Rule 35(3) Notice, the First Defendant seeks
documentation and “communications” of virtually any conceivable and possible
description under the sun relating to the Plaintiff’s present employees, persons
previously employed by the Second Defendant, their employment contracts and
“any agreements with any contractors performing work on behalf of the Plaintiff
and or Vengeance.” The documents sought are stated to cover the period 23
September 2019 and 1 June 2022 to date.
66. The ostensible basis on which these documents are sought are allegations by the
First Defendant that the Plaintiff “enticed staff members of the Second Defendant
to abscond and work for him and/or Evolution” and “obtained confidential
information of the First and Second Defendant from the employees so enticed.”
67. The plainly overbroad description of documents sought in this regard is obvious.
They would for example notionally include within its scope an employment contract
between the Plaintiff and his domestic worker and any other agreement between
the Plaintiff and a contractor “performing work for the Plaintiff”, irrespective of
whether such work has anything to do with the Plaintiff’s security services
business. The First Defendant seeks documents and unspecified
“communications” between the Plaintiff and his staff members from September
2019 to the date of the notice. According to the Plaintiff, the security services
company Vengeance established by the Plaintiff was however only established in
late June 2022.
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68. The documentation sought in paragraphs 10 and 11 of the Rule 35(3) Notice is in
my view overbroad, unspecified and furthermore irrelevant to the First Defendant’s
pleaded cause of action based on section 89(5) of the NCA.
Plaintiff’s financial statements, credit applications and bank statements
69. The Rule 35(3) Notice seeks at paragraphs 12 to 14 discovery of all of the
Plaintiff’s and Ve ngeance’s financial statements, credit applications and bank
statements for the period 23 September 2019 to the date of the notice in April
2024.
70. The Plaintiff’s pleaded cause of action in her counter -claim is for a declaratory
order that the agreements between the parties are unlawful and void and for a just
and equitable order in terms of section 89(5) of the NCA. No contractual or
delictual claim for damages whether due to unlawful competition or otherwise is
advanced by the First Defendant.
71. I am unable to agree with the argument that in making a just and equitable order
under section 89(5) of the NCA, the remit of the court is entirely unrestri cted and
would include an assessment of any evidence whatsoever relating to complaints
by the First Defendant, claims of alleged unlawful competition, allegations
regarding enticement of employees and conduct post the cancellation of the
agreements. The conduct of the Plaintiff following the cancellation of the
agreements, which is in any event dis puted, is in my view entirely irrelevant to a
determination of what may be just and equitable by virtue of a declaration of
voidness in respect of those agreements.
72. The order sought for discovery of the Plaintiff’s personal bank statements in terms
of paragraph 14 of the Rule 35(3) Notice is entirely unsupported in the founding
affidavit, save for a bland statement that “…it is submitted that the documents
sought are both relevant and sufficiently particularised.”
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73. No attempt whatsoever is made to demonst rate why the Plaintiff’s personal bank
statements for a period of some five years, are relevant to the First Defendant’s
pleaded counter-claim. It must be made clear to First Defendant that the right to
privacy under section 14 of the Constitution exists f or a reason. It is for the Court
to ensure that privacy rights are respected in discovery processes and that only
relevant documents are subject to discovery in terms of the Uniform Rules.
Costs
74. I am of the view that the First Defendant’s application to compel further and better
discovery is without merit and fails on each of the bases on which it has been
advanced.
75. The First Defendant’s conduct in th is litigation warrants comment. The First
Defendant has on numerous instances in this application contended, without any
sustainable factual or legal basis to do so, that the Plaintiff has lied under oath and
acted male fide . Where alleged evidence of the apparent existence of additional
documents in the possession of the Plaintiff has been referred to by the First
Defendant, for example the email exchange between the First Defendant and Mr
Tychsen on 18 August 2019, such evidence has been wrongly described . Indeed
this a charitable description of the First Defendant’s conduct in this specific regard.
76. Allegations are made by the First Defendant that the Plaintiff illegally operated as a
security services provider without being registered to do so, which allegations were
shown to be demonstrably false. The demand for further discovery embodied in
the Rul e 35(3) notice has been cast in virtually all instances in an overbroad
manner with no regard for the important requirement of precision and specificity for
such notices.
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77. Concessions are made by the First Defendant ’s attorney on oath regarding the
overbroad nature of certain requests for discovery, only for the concession, which
was rightly made, to be purportedly withdrawn by the First Defendant’s counsel at
the last minute and in the course of oral argument. The Court has been saddled
with a slew of irrelevant documents annexed to the First Defendant’s founding
affidavit, including a 32 page affidavit by the First Defendant in unrelated
harassment proceedings in the Somerset West Magistrates Court.
78. This application and the manifestly overbroad terms of the further discovery sought
by the First Defendant, is in my judgment a classic case of a fishing expedition and
an abuse of the discovery process.
Order
79. For these reasons I made the following order on 12 August 2024:
1. The Application in terms of Rule 35(3) is dismissed.
2. The Applicant / First Defendant is to pay the costs on Scale C.
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S G MAGARDIE
Acting Judge of the High Court
APPEARANCES
For Applicant / First Defendant: D Kulenkampff
Instructed by:
Kulenkampff & Associates
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For Respondent / Plaintiff: R Stelzner SC
Instructed by:
Hannes Pretorius, Bock & Bryant
Date of hearing: 24 April 2024
Date of Judgment: 21 November 2024 (electronically)