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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 071639/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
25/03/2025
In the matter between
GEMVEST 45 (PTY) LTD FIRST APPLICANT
NKHUMBULENI LESLEY RAMOLIF HO SECOND APPLICANT
PROGROUP ASSET MANAGE RS AND
FINANCIAL CONSULTANTS (PTY) LTD THIRD APPLICANT
And
NEDBANK LTD RESPONDENT
___________________________________________________________________
JUDGMENT
___________________________________________________________________
KEKANA AJ
INTRODUCTION
[1] This is an opposed interlocutory application in terms of rule 30A whereby the
applicants seek an order to compel the respondent to comply with the applicants’
notice in terms of rule 35(12) and (14).
BACKGROUND
[2] This application arises from action proceedings in which the respondent is
claiming payment of monies lent and advanced in respect of a Nedbond Loan
Agreement and a Term Loan Agreement to the first applicant . The second and third
applicants signed deeds of suretyship whereby they bound themselves jointly and
severally and as co -principal debtors in solidum with the principal debtor in favour of
the respondent. Upon receiving summons the applicants served a plea and a notice
in terms of rule 35(12) and (14) requesting the production of a list of documents. In
response thereto , the respondent filed a notice to inspect. The applicants, not
satisfied with the respondent’s response, served notice in terms of rule 30A which
led to this application.
[3] The documents requested in terms of rule 35(12) and (14) were as follows:
“3.3.2.1 All registration documents, licenses and permits to
establish whether the respondent is duly registered as a
bank as alleged in paragraph 1.1 of the particulars of
claim;
3.3.2.2 All registration documents, licenses and permits to
establish whether the respondent is duly registered as a
public company as alleged in paragraph 1.1;
3.3.2.3 All correspondence, memorandum, letters, minutes of
meetings, emails, SMSs and Whatsapp
conversations/documents regarding:
3.3.2.2.1 All agreements referenced by the respondents in
the particulars of claim;
3.3.2.3.2 The first, second and/or third applicant herein;
3.3.2.3.3 The business rescue proceeding of the first
applicant; and
3.3.2.3.4 The business rescue practitioner of the first
applicant.
3.3.3 Detailed ledgers and records of all transactions, payments, debits,
credits, or charges relating to the accounts referenced in the particulars
of claim.
3.3.4 Original and clear versions of the following documents/agreements
referenced in the particulars of claim:
3.3.4.1 The written Nedbank loan agreement (account number
2[...])
3.3.4.2 The covering mortgage bond referred to in paragraph 4.1;
3.3.4.3 The covering mortgage bond ( B[...]) and the deed of
transfer (T083906/03);
3.3.4.4 The suretyship agreement referred to in paragraph 5.1;
3.3.4.5 The suretyship agreement referred to in paragraph 6.1;
3.3.4.6 The term loan agreement referred to in paragraph 11.1
(account number: 2[...])
3.3.4.7 Annexure ‘A’ to the particulars of claim
3.3.4.8 The agreement attached from page 22 to 26
3.3.4.9 The document attached as annexure ‘D’
3.3.4.10 The document attached as annexure ‘E’
3.3.4.11 The document attached from page 60 to 66
3.3.4.12 The document attached from page 67 to 68.”
THE LAW
[4] Rule 30A provides 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 it seems meet.”
SUBMISSI ON
[5] The applicant s contended that although they have pleaded that there was
reckless lending and further that the respondent interfered with the business rescue
process, they required the listed documents to enable them to exercise their rights.
The applicant s argued that the required information would enable them to mount up
a proper plea. It was submitted that withholding the required information was
prejudicial to the applicants.
[6] The applicants submitted that although they had already filed their plea, they did
so with a caveat that upon receipt of the document requested , they would file an
amended plea. In the filed plea the applicants denied that the referenced
agreements in the particulars of claim are enforceable. They asserted that the
National Credit Act is applicable and that the agreement constitute d reckless lending .
[7] The applicant s further argued that the sureties should be released because of the
alleged conduct of the respondent which the applicant s considers prejudicial. The
applicant s alleged that the representatives of the responde nt ‘pressured, coerced
and/or unduly influenced the business rescue practitioners of the first applicant to
terminate the business rescue proceedings to the prejudice of the concursum
creditorum and sureties.
[8] The respondent submitted that the applicants’ founding affidavit fails to
demonstrate that the documents sought are relevant to a reasonably anticipated
issue in the main action. Further , that the applicants requested documents of a
general nature of which some may be irrelevant and/or privileged.
ANALYSIS
[9] The object of discovery is to ensure that before trial both sides are made aware of
all available documentary evidence. Ordinarily, the right to discovery arises only after
pleadings have been closed. However, under rules 35(12) and (14) discovery is
permitted before pleadings are closed.
Rules 35(12) reads as follows:
[10] “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 in any document or
tape recording to produce such document or tape recording for his inspection and to
permit him to make a copy or transcription thereof. Any party failing to comply with
such notice shall not, save with 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”.
[11] This subrule authorises the production of documents referenced in a party’s
pleadings or affidavits at any time before the hearing of the matter. The rights
hereunder may be exercised before the respondent or defendant has disclosed his
defence. The first step in the adjudication under this subrule is to consider whether
reference is made to a document. It is not a requirement that the document be
described in detail.
Rule 35(14) provides as follows:
[12] "After appearance to defend has been entered, any party to an action may, for
purposes of pleading, require any other party to make available for inspection within
five days a clearly specified document or tape recording in his possession which is
relevant to a reasonably anticipated issue in the action and to allow a copy or
transcription to be made thereof."
[13] The production of documents under rule 35(14) is limited to those documents
that have been clearly identified, that are required for purposes of pleading and are
relevant to a reasonably anticipated issue in an action. The right to information under
this sub -rule is narrower than the right under rule 35(12) in which the applicant may
request the production of documents referenced in general terms in a party’s
pleadings or affidavits.
[14] I now turn to the documents requested. I intend to deal with the documents in 4
categories.
FIRST CATEGORY: REQUEST FOR ORIGINAL AND CLEAR DOCUMENTS
[15] I start with the documents that are said to have been referenced in the
particulars of claim. The applicants requested the respondent to produce the ‘original
and clear’ version of the following documents that were said to have been referenced
in the particulars of claim:
“3.3.4.1 The written Nedbond loan agreement (account number
2[...])
3.3.4.2 The covering mortgage bond referred to in paragraph 4.1;
3.3.4.3 The covering mortgage bond ( B[...]) and the deed of
transfer (T083906/03);
3.3.4.4 The suretyship agreement referred to in paragraph 5.1;
3.3.4.5 The suretyship agreement referred to in paragraph 6.1;
3.3.4.6 The term loan agreement referred to in paragraph 11.1
(account number: 2[...])
3.3.4.7 Annexure ‘A’ to the particulars of claim
3.3.4.8 The agreement attached from page 22 to 26
3.3.4.9 The document attached as annexure ‘D’
3.3.4.10 The document attached as annexure ‘E’
3.3.4.11 The document attached from page 60 to 66
3.3.4.12 The document attached from page 67 to 68.”
[16] The applicants claimed that the documents attached to the particulars of claim
were illegible. In response to rule 35(12) and (14) the respondent provided the
applicants with other copies and invited the applicant s to inspect the documents. The
applicants did not attend to the inspection of the documents .
[17] The documents listed in this category have not only been referenced in the
particulars of claim but have all been provided by the respondent as annexures “A”
to “E” and “G” to the particulars of claim. The reason provided for seeking to compel
the production of these documents was that the documents provided by the
respondent in its reply to rule 35(12) and (14) were copies and were still illegible.
The respondent correctly objected to the production of the original documents as
same is not sanctioned by either subrule.
[18] What remains is the applicants’ assertion that the second batch of documents
provided by the respondent in response to the notice in terms of rule 35(12) and (14)
were still illegible. The applicants did not inspect the documents despite being invited
to do so , arguing that the notice to inspect limited the inspection to some documents
to the exclusion of others. In my view, the applicants failure or refusal to inspect the
documents is irrational. A reasonable approach under the circumstances would have
been to inspect the documents that were made available for inspection and;
thereafter, approach the court in respect of the documents that were requested but
not made available for inspection. Since t he documents listed in this category were
attached to the particulars of claim , there would be no reason for the respondent to
withhold these documents from the applicant s. In the circumstances, I find that there
has been adequate compliance on the part of the respondent.
SECOND CATEGORY: REGISTRATION DOCUMENTS, LICENCES ETC.
[19] In this category, the applicants requested “All registration documents, licenses
and permits to establish whether the respondent is duly registered as a bank as
alleged in paragraph 1.1 of the particulars of claim;” and “All registration documents,
licenses and permits to establish whether the respondent is duly registered as a
public company as alleged in paragraph 1.1”. In response, the respondent provided
the applicant s with an Annual Business Licence to Conduct the Business of a Bank
and a CIPC document indicating that the respondent is registered as a public
company.
[20] The applicant argued that this reply was inadequate as the respondent did not
provide all the requested documents. Since the documents referred to herein were
not referenced in the particulars of the claim , the applicants needed to indicate the
reason for requesting all the other documents in this category which the applicants
failed to do.
THE THIRD CATEGORY
[21] In the third category the applicants requested the following documents:
“3.3.2.2 All correspondence, memorandum, letters, minutes of meetings, emails,
SMSs and Whatsapp conversations/documents regarding:
3.3.2.2.1 All agreements referenced by the respondents in the particulars of
claim;
3.3.2.3.2 The first, second and/or third applicant herein;
3.3.2.3.3 The business rescue proceeding of the first applicant; and
3.3.2.3.4 The business rescue practitioner of the first applicant.”
The respondent objected to the production of these documents on the basis that they
were privileged.
THE FOURTH CATEGORY
[22] The applicants requested the following documents: “3.3.3 Detailed ledgers and
records of all transactions, payments, debits, credits, or charges relating to the
accounts referenced in the particulars of claim.”
[23] The respondent’s response to this request was that the applicants may inspect:
“Statement of account for account number 2[...] and statement of account for
account number 2[...], which indicates a full record of all transactions, payments,
debits, credits and charges relating to the accounts, as requested by the Defendants
at paragraph 4 of their notice in terms of rule 35(12) and (14)”. In addition thereto,
the respondent provided the applicant with a copy which the applicants objected to,
on the basis that the reply was inadequate as they were only provided with a two -
page document.
[24] The documents listed in the second, third and fourth category have not been
referenced in the particulars of claim and therefore rule 35(12) is not applicable. To
succeed under rule 35(14) the applicants have to meet the following requirements :
(a) the documents must be clearly specified, (b) required for purposes of pleading (c)
must be relevant to a reasonably anticipated issue in an action.
Clearly specified documents
[25] The first requirement under rule 35(14) is that the documents must be clearly
specified . Under the third category the applicants requ ire the respondent to produce
amongst other s (a) the minutes of meetings, every correspondence , email ,
WhatsApp and SMS conversation regarding all the agreements referenced by the
respondents in the particulars of claim; (b) every correspondence , memorandum,
email , WhatsApp and SMS conversation regarding the business rescue practitioner,
first, second and/or third applicant and (c) the minutes of meetings, every
correspondence , email , WhatsApp and SMS conversation regarding the business
rescue proceeding of the first applicant . Similarly , under the fourth category , the
applicants did not indicate the specific ledgers or records required .
[26] Essentially, the applicants seek an order that affords the applicants unlimited
access to all communications regarding the applicants , the agreements in question,
the business rescue proceedings, and the business rescue practitioner. An order
that will allow them to trawl through the se unspecified documents with the hope of
finding evidence that (a) the transaction constituted reckless credit and (b) that the
respondent interfered with the business rescue proceedings.
[27] This is impermissible under rule 35(14). Rule 35(14) provides an opportunity for
the applicant to obtain an inspection of documents that he is aware of but which are
not filed. Therefore , a certain level of specificity is required from the applicant. The
subrule entitles the applicants to anticipate normal discovery provided for in rule
35(1) , only where the applicant can give a precise description of the document he
seeks. A generic description of semi -known documents is not allowed. (see Cullinan
Holdings Ltd v Mamelodi Stadsraad 1992 (1) SA 645 (T) at 648F )
[28] In MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (AUST) 1999 (3)
SA 500 at 515 C - referring to rule 35(3) and (14) Thring J said that “These rules 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 specificity . He went on further to s ay that rule 35(3) and
(14) do not afford a litigant a license to fish in the hope of catching something useful
and concluded that the request regarding invoices and receipts that had been
described in general terms fell outside the scope of rule 35(14) . (See also Contango
v Central Energy Fund Soc Ltd 2020 (3) SA 58)
[29] In Contango v Central Energy Fund Soc Ltd 2020 (3) SA 58 it was stated that for
a request to fall within the ambit of rule 35(14) there must be a reference to a specific
document, not to a general category of documents . Cachalia JA found that the court
a quo correctly refused the order sought for a general category of documents on the
basis that an order of that kind would have included every bit of paper generated
during the process of review and that would have been contrary to what rule 35(14)
envisaged.
[30] The authorities are clear that t he documents required under rule 35(14) must be
described precisely and explicitly. The applicants in this matter have cast their net so
wide that their request falls outside the ambit of rule 35(14). On this basis alone the
application ought not to succeed.
Are the documents required for the purposes of pleading?
[31] It is a requirement that the documents sought by the applicants must be required
for purposes of pleading. In this matter , the applicants first filed their plea on the 22nd
February 2024 . Thereafter, on the 9th July 2024 , the applicants filed their amended
plea. In their amended plea the applicants denied that the referenced agreements
are enforceable. They pleaded that the National Credit Act is applicable and the
agreements constitute reckless lending . They denied that the first applicant’s asset
value or annual turnover at the time of the agreement equaled or exceeded the
threshold set out in the NCA.
[32] The applicants submitted that they require the documents to disclose ‘fully the
nature of the defence and the material facts relied upon therefor e. Rule 22 requires
the pleader to state the material facts on which reliance is made and not the
evidence that the pleader will adduce in support of those facts. The applicants have
pleaded and set out facts upon which they rely. In support of their plea that the
second and third applicants should be released from being surities , the applicants
alleged that the respondent pressurized the business rescue practitioner to terminate
the business rescue proceedings to the detriment of the first applicant and the other
creditors. To support the allegation that the agreement constituted reckless lending ,
the applicants relied on the following facts amongst others that the respondent failed
to conduct an assessment, the first applicant fell into financial difficulty within a year
of entering into the agreement. What the applicants require is the evidence to prove
the alleged facts.
[33] The applicants have already pleaded and they have also disclosed the facts
upon which their defence is based. It is evident from the above that they do not
require the documents to plead but rather to substantiate the ir pleaded case . In
Business Partners Ltd v Trustees, Riaan Botes Family Trust 2013 (5) SA 514 SA
514 (WCC) Schippers J stated that rule 35(14) require d a clearly specified
document to be made available for the purpose of pleading, and ‘then only if it is
necessary for that purpose ’. (own emphasis) In their founding affidavit, the applicants
contended that the y would not be able to mount a proper defence and further the
court would not be in a position to adjudicate the real issues properly . This is not
what the subrule was intended for. Since the applicants have pleaded, they cannot
rely on rule 35(14).
CONCLUSION
[34] Rule 35(12) and (14) were not intended to provide the applicant with an
unlimited right of disclosure before the pleadings are closed. These subrules were
meant for specific circumstances alluded to herein above . The applicants have
requested a general category of documents which they would still have an
opportunity to request under other subrules of rule 35. Consequently , this application
stands to be dismissed .
I make the following order:
The application is dismissed with costs.
P D KEKANA
ACTING JUDGE OF THE HIGH COURT
Date of hearing: 18th February 2025
Date of judgment: 2 5th March 2025
Appearances
For the Applicant: Adv R Schoeman
reimer.schoeman@gmail.com
0833907058
Instructed by: Ramolifho Attorneys Incorporated
molebogengmang@gmail.com
012 993 5324
For the Respondents: Adv I N Kruger
advkruger.law@gmail.com
079 506 0400
Instructed by: Stegmanns Incorporated
tracy@stegmanns.co.za
isaura@stegmanns.co.za
0861333202