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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)

Case Number: 045013/22




In the matter between:

In the matter between:
MP BORDER TRADING (PTY) LTD Plaintiff
and
TIGER BRANDS INTERNATIONAL LTD Defendant
In re:
TIGER BRANDS INTERNATIONAL LIMITED Applicant

and

MP BORDER TRADING (PTY) LTD Respondent

(1) REPORTABLE: Yes
(2) OF INTEREST TO OTHER JUDGES: Yes
(3) REVISED: No
_________________________
DATE SIGNATURE
2

JUDGMENT


Summary : Whether a party can apply for documents in terms of Rule 35(14) when it
has already pleaded. Interpretation of the Rule and how it should be applied. Court allow ing discovery of one type of document but not ano ther – reasons why
explained.
Manoim J,
Introduction 1. This matter concerns an application made by the defendant , which has
already filed its plea, to discover certain documents from the plaintiff by invoking
Rule 35(14) (the Rule) . The application is opposed by the plaintiff.
2. This case raises two issues; firstly, when can such an application be made;
secondly , is the request for documents one contemplated in the R ule.

3. The Rule provides as follows:
“35(14) After appearance to defend has been entered, any party to any action
may, for purposes of pleading, require any other party to — (a) make available for inspection within five days a clearly specified
document or tape recording in such party’s possession which is relevant to a reasonably anticipated issue in the action and to allow a copy or transcription to be made thereof; or
(b) state in writing within 10 days whether the party receiving the notice
objects to the production of the document or tape recording and the grounds therefor; or

3

(c) state on oath, within 10 days, that such document or tape recording is
not in such party’s possession and in such event to state its whereabouts, if
known” .

4. Rule 35(14) is a form of discovery that a party can utilize to obtain discovery
prior to close of pleadings. It is thus a departure from the general rule that discovery
takes place only after close of pleadings.1 Although the Rule says it can be relied on
by “any party to any action” it is presumably likely to be defendants who will invoke
the rule as in the present case.

The pleadings

5. The plaintiff had ordered a supply of goods from the defendant. They had had
previous dealings with one another. The plaintiff paid R 6 612 000 for the goods.
Some of this amount was to be held by the defendant in credit for the plaintiff. For
this reason, it was understood the defendant would deliver goods to the value of
R6,187,286.90, and thus not the full amount . It is common cause that the plaintiff
made this payment . The arrangement was for the goods to be taken by a third-party
transport company to be delivered to an address in Angola. The plaintiff claims that the goods were never delivered and claims the full amount it paid to the defendant.

6. The defendant filed a plea, albeit under bar. The defendant admits that it did
not deliver goods to the value of R6,187,286.90. But here is the difference between
the parties ; it says it delivered goods wor th R1 177 600 to the third party on behalf of
the plaintiff. This of course is substantially less than the plaintiff had paid it. But, says
the defendant , there were in addition transport costs of R 154 000 it paid
(presumably to the third party ).

7. But there is a further explanation about what happened to the remaining
balance and here is where the rule 35(14) application is relevant. The defendant
says it discovered that the goods had not gone to Angola but had landed up near Nelspruit . It accuses the plaintiff and the third -party distributor of colluding in this

1 Rule 35(1).
4

regard. Why were the colluding? Well, the defendant alleged, this was a VAT scam. If
the goods had gone to Angola as they should have, there would not have been VAT
of 15% levied on them.

8. But when the defendant found out the goods had landed up in South Africa it
raised a VAT charge of 15% and paid this over to SARS. This VAT payment it says
was not limited to the present instance with Angola but for all goods distributed under
the same contract. The defendant says it refunded the plaintiff the difference
between the amount it had been paid by the plaintiff (R 6 612 000) less these other
amounts i.e., the transport , the VAT it paid to SARS, and cost of goods it delivered to
the third party. The balance refunded was R1,361,684.85 which it says it paid to the
defendant’ s bank account. This is an account it has previously used for payments to
the defendant. Thus, the defendant alleges it is not indebted to the plaintiff.

9. The defendant has not replied to the plea. Its version on the defendant’s
repayment of the amount into its bank account is not known. Nothing of this repayment is mentioned in the particulars of claim. Instead, the plaintiff applied for
summary judgment. The defendant has opposed the summary judgment, but it is yet
to be heard. There was some confusion initially as to whether the defendant was
relying on its Rule 35(14) application for the purpose of opposing the summary
judgment, but it made clear at the hearing that this was required for solely for the
purpose of the action.
The documents sought .

10. The defendant seeks the following two classes of documents i n its Rule
35(14) notice:

a. The Plaintiffs bank statement for an identified account held with First
National Bank for June 2020;
b. The Plaintiff's value added tax returns for the period March 2020 to
June 2020, alternatively, for the 2020/2021 tax year.

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Analysis of the Rule

11. In Quayside Fish Suppliers CC v Irvin & Johnson Ltd 2 Traverso J usefully
summarised the elements of a Rule 35(14) application as follows:

“It is apparent from wording of the Rule that before a party can invoke the
provi sions thereof :

(a) he/she must discharge the onus of persuading a Court that an order
should be made in terms of the Rule;

(b) an appearance to defend must have been entered;

(c) the document must be required for purposes of pleading;

(d) the documents must be clearly specified;

(e) the documents must be relevant to 'a reasonably anticipated issue in
the action” .

12. In the present matter it is common cause that two of those requirements have
been met. The defendant has put in an appearance to defend, and the documents
are clearly specified.

13. The remaining issues are contested. What distinguishes Rule 35(14) from the
general discovery right given to litigants under Rule 35(1), is that it permits discovery
requests to be made before the close of pleadings. The problem with the manner in
which the Rule is formulated is that it indicates when the right commences ( after an
appearance to defend has been entered) but does not specify for how long it can be exercised. The defendant suggests the right remains for as long as a party retains
the right to amend its pleadings which remains until judgment in the matter has been
given. Whether the right exists until then, is not a point I need to decide now.

2 2000 (2) SA 529 (C)
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14. The plaintiff on the other hand argues that the right exists only prior to the
applicant having filed its plea.

15. On this approach, the pur pose of the rule is to enable the party to plead. Once
the party has been able to plead, it follows that it did not require the discovery of the
documents sought in order to do so. This reasoning was the one adopted by Goodman AJ in Kgamanyane and another v Absa Bank Limited
3 where she held:

“In this instance, the defendants have pleaded their defence that Absa has
failed lawfully and properly to calculate the capital amount owing under the
current mortgage loan. That suggests, at least prima facie, that they do not require the documents in order to plead. The matter is put beyond doubt by
the terms of the founding affidavit in support of the application to compel. In it,
the defendants record that they seek the documents in order to "show" that
their defence is sound — that is, for evidentiary reasons rather than to plead.
They consequently do not meet the requirements of Rule 35(14).”

16. Goodman AJ ’s interpretation of the Rule turns on whether the document was
‘necessary ’ for the defendants to plead. There certainly is authority in the case law
for that approach as I go on to discuss. Nevertheless , more recent decisions suggest
that ‘necessary ’ is too rigid a requirement. But I consider that Goodman AJ had made
the correct decision on the facts of that case even though I consider the test is a
more flexible one.

17. This is because Goodman AJ noted that the defendants had required the
documents to show that their defence was ‘ sound.’ This distinguishes that case from
the present matter . Even on a more expansive reading of the Rule, using it to test
whether your defence is ‘sound’ goes too far, and I would agree with the learned
judge’s conclusion in that matter not to order discovery in terms of the Rule.


3 Unreported case number Case no: 15497/2020 22 January 2024
7

18. If the Rule is confined to a test of ‘ necessary ’ then the present defendant
would fail. It has after all filed a plea so it cannot have been necessary. But if the
Rule is susceptible to a more flexible interpretation, as I go on to discuss , then the
defendant might still succeed. Neverthe less, the Rule cannot be applied too
permissive ly, otherwise it becomes a backdoor to a party seeking early discovery.

19. The necessity test , and the case on which Goodman AJ relied on for her
approach, has its genesis in Cullinan Holdings v Mamelodi Stadsraad.4 There the
court held the rule could only be invoked if the document was essential not merely
useful for the purpose of pleading. What the court there was doing was equating the
term ‘require’ to mean ‘necessary .’5 But in a later decision in Unitas Hospital v Van
Wyk the court whilst agreeing that the rule does not apply when a document is
merely useful , also held that at the other end of the scale, the requester does not
have to establish that the document is necessary .

20. More recently in Capricorn Makelaars (Edms) Bpk & others v EB Shelf
Investment No 79 (Pty) Ltd & others Froneman J , (as he was then) , cautioned
against what he termed any preconcei ved historical bias in favour of a restrictive
interpretation of Rule 35(14). He cited a passage from Clutchco (Pty) Ltd v Davis6
where the court , albeit interpreting a statute not Rule 35(14) , held that:

“’required’ does not mean necessity, let alone dire necessity. I think that
reasonably required in the circumstances is about as precise a formulation as
can be achieved, provided that it is understood to connote a substantial
advantage or an element of need."7

21. Froneman J went on to say after citing this passage that:

“It seems to me that there is nothing in the wording of rule 35(14) which
precludes a similar interpretation, namely that clearly specified documents or

4 1992( 1) SA 645(T ).
5 Supra, at 647 E to F.
6 Clutchco (Pty) Ltd v Davis [2005] 2 All SA 225 (SCA) Note 16 para [13] at 230b -c.
7 [2005] JOL 14784 (E) at paragraph s 10-11.
8

tape recordings in the possession of any party which is relevant to a
reasonably anticipated issue in the action, required (in the sense explained
above) for purposes of pleading, must be discovered upon a request to that effect under the rule. There seems to me to be no compelling countervailing interests, at this stage of the proceedings, to protect the other party's right to
privacy beyond this. To the contrary, it appears to me that there are
compelling reasons not to do so. The trend in current civil procedure is, as far
as I can discern, away from secrecy and withholding of information until the last moment. Pre -trial procedure is Increasingly geared towards laying one's
cards on the table before actually going to trial. The purpose is to ensure a
quicker and more effective resolution of the real disputes between the parties.
If discovery is indeed a "mighty engine for exposing truth" then the purpose of
rule 35(14), to expose the truth earlier rather than later, would be undermined
by restricting its a mbit to "necessity" instead of "reasonably required in the
circumstances" as explained in the Clutchco case. ”
22. This distinction between ‘necessity’ and ‘reasonably required’ is important to
this case. If the R ule is limited to only cases where the document is necessary – then
a fortiori if the requester could plead, then clearly it was not necessary. But if the
Rule contemplates a wider meaning – somewhere on the continuum between being
necessary and being merely useful , then a wider interpretation of the R ule is
justified.
23. In considering why such an approach is justified it is worth returning to first
principles and to contemplate why pleadings exist in the first place. The purpose of
pleadings as was held in oft cited case of Imprefed (Pty) Ltd v National Transport
Commission :

“…is to bring clearly to the notice of the court and the parties to an action the
issues upon which reliance is to be placed” (Durbach v Fairway Hotel
Ltd 1949 (3) SA 1081 (SR) at 1082.)”
This fundamental principle is similarly stressed in Odgers’ Principles of
Pleading and Practice in Civil Actions in the High Court of Justice 22ed at 113:
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‘The object of pleading is to ascertain definitely what is the question at issue
between the parties; and this object can only be attained when each party
states his case with precision.’ 8

24. Inherent in the purpose of Rule 35(14) is that with the aid of the document the
pleader can more properly plead to a fact in issue. It follows if this is its primary
purpose, the fact that a litigant has already pleaded should not be fatal to a reliance
on this Rule. I readily accept that this can lead to abuse.

25. But t his can be avoided in those cases where the requester has already
pleaded by requiring that it justify why it did not rely on the Rule prior to pleading.

26. In the present case the defendant allege d that it elected to file a plea at a time
when it was already under bar. The plaintiff argued that this was not a valid excuse,
and that the defendant could have applied for condonation. 27. But as the defendant explained the matter is not that simple. The defendant
explain ed that it pleaded out of an abundance of caution as the law is uncertain on
this point. Rule 26 states that any party which fails to deliver its plea within five days
of service of a notice of bar is ipso facto barred. In Potpale Investments v Mkhize,
Gorven J as he was then, observed that the service of a Rule 35(14) notice does not
suspend the period set down in Rule 26.
9

28. But in Caxton and CTP Publishers and Printers Limited v Novus Holdings
Limited the SCA put the emphasis in such a situation instead on Rule 27 when it
observed of the Potpale decision that:

“Whilst there is much to be said for the view expressed by the learned Judge,
sight should however not be lost of the fact that it is open to the court, in the exercise of its discretion, to extend the time peri ods prescribed in terms of the
rules whenever a proper case therefor has been made out by the party

8 1993 (3) SA 94 (A) at 107 C–F.
9 2016 (5) SA 96 (KZP) at paragraph 18
10

seeking such indulgence. Indeed, this is what Uniform Rule 27 itself
contemplates.”10
29. Whilst Caxton does not expressly overrule Potpale, it leaves a litigant who
seeks to rely on Rule 35(14) , and who has been served with a notice of bar , with a
difficult election. It can choose to withhold its plea until the Rule 35(14) application is resolved and apply for condonation simultaneously. But that entails an element of
risk. The court might turn it down on both grounds. O r it can reluctantly , as in this
case , remove that element of risk and file a plea and bring its Rule 35(14) application
subsequently. I see no reason to penalise a litigant for opting for the more cautious
option.

30. Having decided that the application is competent at this time I now turn to
whether the document request credibly relates to an issue in the pleadings. This is a
monetary claim. One of the issues is whether the defendant refunded a certain amount to the plaintiff. If it has, the amount outstanding is greatly reduced. Th us, if
the defendant can ascertain from the bank statement that the amount was paid by it
into the plaintiff’s account , as it alleges it did , then this will be a matter it may want to
plead, further in turn requiring a response from the plaintiff.
31. The plaintiff if it has received the payment might well want to file amended
particulars of claim. If it received the money in its banking account , why is the
amount claimed not reduced. Perhaps it has a reason for why it is not being reduced. Perhaps given that the parties have had prior dealings this was put to repay a past debt? Whatever that reason might be it is a relevant issue for the pleadings and will
focus the dispute for the trial.
32. Convers ely, if the payment is not reflected in the plaintiff’s bank account, the
defendant may have to reconsider this part of its plea . For instance, the defendant
might want to make a tender of this amount and hence file an amended plea.


10 Caxton and CTP Publishers and Printers Limited v Novus Holdings Limited [2022] 2 AII SA 299
(SCA) at paragraph 85.
11

33. Thus, on either outcome, this document has relevance to the finality of the
pleadings . It is not merely an attempt to ascertain premature discovery. It has the
potential to significantly alter the manner in which the case might need to be
pleaded.

34. A similar issue arose in the Capricorn case , where the applicants who were
the defendants in the main action, sought Rule 35(14) discovery of certain invoices.
Froneman J allowed the discovery of these documents for two reasons. They would
determine whether the goods the plaintiff was claiming from them were the plaintiffs and second, their value.
11
35. The overarching purpose of pleadings is to define the issues so that litigation
is curtailed and focussed . This supports giving the text of the Rule a purposive
interpretation that does not confine it to instance of necessity. Nor does such an
interpretation strain the language of the text .
36. That said whilst a good case has been made for the inspection of the bank
statement the same has not been made for the production of the VAT returns. It does
not seem to be disputed that the goods in question were to be delivered to Angola –
in which case VAT would not have been levied. Nor is it in dispute that the goods
were located in South Africa in the agent’s truck. The dispute here is whether that third party was the agent of the plaintiff with whom it colluded or the defendant.
37. Whatever the VAT receipt s might show they are not likely to alter the
pleadings on this point. That they may be discoverable for trial is another matter .
38. For this reason, I find that the defendant is entitled to exercise its rights in
terms of Rule 35(14) at this time, given the circumstance of this case, and secondly ,
that the bank statement sought meets the requirement s that it (i) it has been clearly
specified( this was not contested – the defendant seeks a bank statement for one
month from a specified bank account) and (ii ) that it is relevant to 'a reasonably
anticipated issue in the action'.

11 Caprico rn, supra, paragraph 13.
12


39. As far as costs are concerned, I consider although it was not wholly
successful the defendant should still get its costs, with those of counsel on Scale B.

40. I have not granted prayer 2 of the Notice of Motion, which relates to the
defendant being able to approach the court for a dismissal of the summary judgment
if the documents are not furnished. This would be interfering with the discretion of
the court that hears that application. ORDER

Having heard the parties and considered the matter, it is ordered that:

1. The Respondent (Plaintiff) is directed to produce for the Applicant's
(Defendant ’s) inspection t he Plaintiffs bank statement for the account held with First
National Bank under account number 6[ …] within 10 (ten) days of this order.
2. The Respondent is ordered to pay the costs of this application including the
costs of counsel on Scale B.

MANOIM J
JUDGE OF THE HIGH COURT
JOHANNESBURG

For the Applicant: Adv. K.K Gwaza instructed by Edward Nathan Sonnenbergs Inc.
For the Respondent: Adv. T Mokhethi instructed by Soomar & Malik Attorneys
Date of hearing: 24 February 2025
Date of Judgement:25 March 2025