IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No : 15326 /24
In the matter between:
E39 DOLPHIN BEACH (PTY) LTD First Applicant
ARIE LEVY Second Applicant
and
THOMAS GNEFKOW First Respondent
SMITH TABATHA BUCHANAN BOY S (STBB) Second
Respondent
THE REGISTRAR OF DEEDS Third Respondent
Coram: NUKU J
Heard on: 24 February 2025
Delivered on: 12 March 2025
JUDGMENT
NUKU, J
[1] This is an opposed interlocutory application to compel production of certain
documents that were requested by the applicants from the first respondent in terms of
Rule 35 (12) of the Uniform Rules of Court. These documents are:
1.1 a copy of the shareholder s certificate reflecting that the Shalom Trust is
the sole shareholder of the First Applicant as referred to in paragraph 16
of the affidavit of Boni Levi ;
1.2 a copy of the shareholder s agreement in terms whereof the Shalom Trust
acquired all the shares in the First Applicant ;
1.3 Any and/ or all res olutions by the trustees of the Shalom Trust which
record the acquisition of the shares by the aforesaid trust including but not
limited to the amount paid for 100% shares in the first applicant by the
above trust ;
1.4 A copy of the resolution and/ or mandat e authorising Bony Levi to act on
behalf of the first applicant in the sale of E39 as referred to in paragraph
20 of the affidavit of Boni Levi;
1.5 A copy of the settlement agreement referred to in paragraph 22 of the
affidavit of Boni Levi ;
1.6 A copy of the s ettlement agreement referred to in paragraph 2 4 of the
affidavit of Boni Levi
1.7 A copy of the written mandate to act as agent granted to Ms Dorethea
Dossier on behalf of the first applicant to market E39 as referred to in
paragraph 37 of the affidavit of Boni Levi and paragraph 5 of the affidavit
of Ms Dorethea Dossier;
1.8 A copy of the proof of payment of the amount of R173 000.00 allegedly
made by the Body Corporate to the second applicant referred to in
paragraph 34 of Bony Levi’s affidavit ;
1.9 Copies of the WhatsApp communications referred to by Boni Levi in
paragraph 41 of his affidavit, specifically, for the periods 01 January 2020
to 28 February 2020; and
1.10 A copy of the entire document marked “BL 5” referred to in paragraph 49.5
of the affid avit of Bony Levi.
[2] The applicants had sought production of the above documents, together with
some other documents that the first respondent has since produced, in terms of the
applicant’s notice in terms of Rule 35 (12) and (14) dated 11 September 2024 . In terms
of this notice, the first respondent was required to either produce the documents so
requested or state if he objects to the production of the documents and set out the
grounds upon which he objects to the production of the documents or to state under
oath that he is not in possession of the documents requested and to state their
whereabouts, if known to him.
[3] The first respondent responded as follows to the appli cants’ notice in terms of
Rule 35 (12) and (14) :
3.1 He object ed to producing documents requested under Rule 35 (14) on the
ground that Rule 35 (14) does not apply in these proceedings in the absence of
an order made in terms of Rule 35 (13) ;
3.2 He object ed to producing the documents referred to below on the basis that
these documents had not been referred to in the answering affidavits and that in
any event they are not in his possession, and their whereabouts are unknown to
him. These documents are :
3.2.1 the shareholder certificate of the Shalom Trust ;
3.2.2 the shareholders agreement evidencing the acquisition by the Shalom
Trust of the shares in the first applicant ;
3.2.3 the resolution of the Shalom Trust recording the acquisition of the first
applicant’s shares by the Shalom Trust ; and
3.2.4 a copy of the written mandate authorising Ms Dorethea Dossier to market
E39
3.3 He stated that he is not in possession of the documents referred to below , and
their whereabouts are unknown to him. These documents are:
3.3.1 the resolution and/ or mandate authorising Bony Levi to act on behalf of
the first respondent in the sale of E39 ;
3.3.2 the settlement agreement s referred to in paragraphs 22 and 24 of affidavit
of Bony Levi ; and
3.3.3 a copy of the proof of payment of the amount of R173 000.00; and
3.4 He stated that he is not in possession of the WhatsApp communications as well
as the document marked “BL5” referred to in paragraph 49.5 of the affidavit of
Bony Levi which he believed to be in the possession of Bony Levi .
[4] The first respondent, in addition to the above response, deposed to an aff idavit
stating, inter alia, that “ I wish to confirm that I am not in possession of the documents
requested by the Applicants under paragraphs 1,2,3,4,5,6,10,11,12,13 and 15 in their
Notice in terms of Rule 35 (12), nor are the whereabouts of such documents known to
me, although I suspect that they are in the possession of both the Second Applicant
and/ or Mr Bonny Levi .”
[5] On 10 October 2024, the applicants’ attorney wrote to the first respondent’s
attorney advising that he viewed the first respondent’s response to the applicants’ notice
in terms of Rule 35 (12) and (14) inadequate . He afforded the first respondent until 15
October 2024 to file an adequate response failing which the applicants would bring an
application to compel the first respondent to do so.
[6] The first respondent’s attorne y responded on 16 October 2024 denying that the
first respondent’s response was inadequate and complaining that the applicants’
attorney had failed to explain why he views the first respondent’s response as
inadequate . The first respondent’s attorney further explained that “the documents
requested are entirely unrelated to” the first respondent “and as a result could not, on
any reasonable basis, be within his possession .”
[7] The applicants , dissatisfied with the first respondent’s explanation regarding his
inability to produce the documents, brought this application seeking, in addition to costs,
order s that:
‘1. the first respondent being the first respondent in the main application is
compelled to adequately reply to the applicants’ notice in terms of Rule 35
(12) and (14) dated 11 September 2024 and to provide the documentation
and information s requested within Ten (10) DAYS from date of this Order
being granted; and
2. should the first respondent fail to comply with paragraph 1 above , the
applicants will be entitled to approach the honourable court on the same
papers, duly supplemented , for an order dismissing the first respondent’s
opposition of the application.
[8] The applicants’ attorney deposed to the affidavit in support of the application
stating , inter alia, that “ I shall indicate below that all the documents /information forming
part of this application are in (a) possession of the first respondent and/ or the
deponents to first respondent’s supporting affidavits to his opposition in the main
application (his witness and/ or both), (b) not privileged, and (c) relevant to issues in the
main application .” Thereafter he goes on to state that the documents requested are
referred to in Bony Levi’ s affidavit whereafter he castigates the first respondent for what
he refers to as an unusual approach of not relying on his own evidence but that of Bony
Levi.
[9] The applicant s’ attorney then refers to what was stated by Mr Bony Levi ( Mr
Levi) in the supporting affidavit in the main application wherein he had indicated his , as
well as the second applicant’s willingness or agreement to provide the first respondent
with information at their disposal in order to facilitate the first respondent’s intended
opposition of the main application. On the basis of what is stated in Mr Levi’s supporting
affidavit, the applicants’ attorney concludes that “ The Applicants aver that the aforesaid
assertions set out in the first respondent’s witness affidavit shows his witness is in
possession of the information/ documents expressly referred to in the witness affidavit .”
[10] Turning to the averments made by the first respondent in the answering affidavit ,
the applicants’ attor ney refers to the fact that the first respondent stated that he had
been advised by his legal representatives that Mr Levi, who has personal knowledge of
the history of the matter was willing to depose to an affidavit in support of the first
respondent’s opposition to the application. The applicants’ attorney lays particular
emphasis on what the first respondent stated in paragraph 11 of the answering affidavit
that “ My response is therefore largely based on the evidence he has provided in his
affidavit ” for the conclusion he draws that “ it is plain from the averments of the first
respondent’s witness that he (the witness) made the necessary information/ documents
available to the first respondent .” Based on all of this, the applicants’ attorney surmises
that “it does not avail the first respondent to now claim that he is not in possession of
the documents/information requested under Rule 35 (12) and (14) of the Rules .”
[11] The first respondent, in opposing the application , raised the following defences,
namely (a) a point in limine that the applicant s had failed to set out a cause of action, (b)
a point in limine regarding the applicants’ failure to obtain an order in terms of Rule 35
(13) in so far as they requ ested documents in terms of Rule 35 (14) , (c) that he is not in
possession of the requested documents , (d) that some of the documents are irrelevant
to these proceedings, and (e) that some of the docu ments have not been referred to in
the answering papers.
[12] Counsel for the applicants advised during the hearing that the applicants have
abandoned any reliance on the provisions of Rule 35 (14) as the request under the said
subrule had, in any event, been in the alternative to the request made under Rule 35
(12). This took care of the necessity to determine the first respondent’s second point in
limine relating to the applicants’ failure to ob tain an order in terms of Rule 35 (13) in so
far as they had requested documents in terms of Rule 35 (14) .
[13] Turning to the first respondent’s first point in limine , the first respondent made the
following averments in support of his claim regarding applicants’ failure to set out the
cause of action:
‘8. The Applicants have completely neglected to specify on what basis this
application is brought.
9. No reference is made to any Rule which empowers the Applicants for an
order granting the prayers set out in the notice of motion and thus the
Applicants have failed to set out any cause of action entitling them to the
relief sought.
10. The Applicants ’ failure to do so renders the application fundamentally
defective and fatal. The application therefore falls to be dismissed on this
point alone .’
[14] The heads of argument filed on behalf of the first respondent explain th at the real
issue, in so far as this point in limine is concerned, is the applicants’ failure to have
complied with the provisions of Rule 30A , in so far as they considered the first
respondent to have failed to comply with their Rule 35 (12) request . This argument is
based on the reading of Rule 30A which requires a party that has failed to comply with a
request made in terms of the rules to be given a notice of ten (10) days within which to
comply before an application to compel is brought. The argument o n behalf of the first
respondent, thus, is that the applicants are not entitled to the relief because of their
failure to comply with the rule that would have entitled them to the relief , namely Rule
30A.
[15] The deponent to the answering affidavit, responded by den ying the applicants
failure t o set out a cause of action and stated that “ This application is founded on the
provisions of Rule 35 (12) and (14) of the rules .” Not much was said, on behalf of the
applicants, to demonstrate that t he relief sought in this application is the one provided
for in either Rule 35 (12) or Rule 35 (14). Having already disposed of the point in limine
relating to Rule 35 (14) above, I confine my further assessment of the first respondent’s
point in limine to Rule 35 (12).
[16] Mr De Abreu, who appeared for the first respondent did not point me to any
authority to support the proposition that the appli cants are not entitled to the relief they
seek for their failure to comply with the provisions of Rule 30A. For his part, Mr
Tsegarie , who appeared for the applicants, could not point me to any authority for the
proposition that a party may rely on the pro visions of Rule 35 (12) in seeking an order
compelling compliance with a request made in terms of the same rule.
[17] As a starting point , I think that the first respondent is correct that a party seeking
compliance with a request made in terms of the rules must do so in terms of Rule 30A,
unless a particular rule provides otherwise. An example of a rule that provides otherwise
is Rule 35 (7) that provides relief for non -compliance with a request for discovery in
general or a request made in terms of Rule 35 ( 6). In this regard , Rule 35 (7) provides
that “ If a party fails to give discovery as aforesaid, or having been served with a notice
under subrule (6), omits to give notice of a time for inspecti on as aforesaid or fails to
give inspection as required by that subrule , the party desiring discovery or inspection
may apply to a court, which may order compliance with this rule and failing such
compliance , may dismiss the claim or strike out t he defence .”
[18] Rule 30 A deals with non-compliance with rules and court orders and reads:
‘(1) Where a party fails to comply with these rules or with a request made or
notice given pursuant thereto, or with an order or direction made by a
court or in a judicial case management process referred to in rule 37A,
any other party may notify the defaulting party that he or she intends, after
the lapse of 10 days from the date of delivery of such notification, to apply
for an order –
(a) That such rule, notice, request or direction be complied with; or
(b) that the claim or defence be struck out
(2) Where a party fails to comply within the period of 10 days contemplated in
sub-rule(1), application may on notice be made to the court and the court
may make such order thereon as it deems fit.’
[19] The applicants’ Rule 35 (12) request is, in my view, a request made pursuant to
the rules and failure to comply with same should be preceded by a letter affording the
defaulting party, the first respondent in this case, a period of ten (10) days to comply
prior to the institution of an application to compel. This, the applicants failed to do.
Instead, the applicants’ attorney wrote to the first respondent’s attorney demanding
compliance within a period of 3 days and the application fo llowed 6 days from the date
of the demand. In this regard, even if one were to be generous and regard the
application as the one which had been properl y made in terms of Rule 30A, the
applicants’ failure to comply with the requirements laid down by the rule, without any
application for condonation for such failure, should disentitle the applicants to the relief.
[20] As Ponan JA stated, albeit obiter , in Centre for the Child Law1, failure by a party
to give notice in terms of Rule 30A that it intended, after the lapse of 10 days , applying
for an order that its rule 35 (12) notice be complied with , coupled with an application in
terms of rule 30A to compel production of the documents sought may, in and of itself be
fatal to an application. This, in fact was the case in Universal City Studios2 where
Booysen J declined to order compliance with a ru le 35 (12) notice ) on the basis that the
procedure laid down in rule 35 (5) (the predecessor to the current rule 30A had not been
followed stating that “ a party who deliberately chooses not to claim relief of a particular
nature, should in general , even if it were competent, not be granted such relief under
the general prayer of alternative relief ”.
[21] Rules of court are made for a purpose and to achieve an orderly administration of
justice. Non -compliance thereof should be explained where it occurs, and it is not for
litigants to simply ignore them at will and with impunity. In my view, there is merit in the
submissions made on behalf of the first respondent that the applicants are not entitled
to the relief for their failure to comply with th e provisions of Rule 30A . The point was not
elegantly pleaded but the applicants’ non -compliance with the provisions of Rule 30A is
glaring.
[22] Rule 30A makes provision for the defaulting party to be called upon not only to
remedy non -compliance but al so for the defaulting party to be forewarned of the
consequences of failure to remedy the non -compliance. In this matter , the letter
addressed to the first respondent’s attorney complaining about non -compliance with the
applicants’ rule 35 (12) notice that the applicants’ attorney had instructions to compel
compliance . In this application , the applicants seek an order that the first respondent’s
opposition of the application shoul d be dismissed in the event of him failing to comply
with the order directing him to produce the requested documents. The first respondent
was, however, never forewarned of these drastic consequences which should have
been brought to his attention as the r ule requires. This, however, is not the only difficulty
1 Centre for the Child Law v Hoerskool Foschville And Another 2016 (2) SA 121 (SCA) at 13 1H-132B
2 Universal City Studios v Movie Time 1983 (4) SA 736 (D) . at 746H -I
that the applicants have, and I consider next whether the applicants had made out a
case for an order compelling compliance with their rule 35 (12) notice.
[23] The first respondent, in his reply to the applicants’ notice in terms of Rule 35 (12)
and (14), an affidavit he deposed to in response to the applicants’ notice in terms of
Rule 35 (12) and (14), the correspondence that followed prior to the launch of this
application as well as in his answeri ng affidavit in this application, has repeatedly stated
that the documents requested by the applicants are not in his possession and that their
whereabouts are unknown to him. In respect of some documents, he has stated that he
suspects that they are either in the possession of Mr Levi and /or the second applicant
and/ or both . He stated this, however, whilst maintaining that the whereabouts of the
documents are unknown to him.
[24] It was submitted on behalf of the first respondent that the fact that the documents
sought are not in possession of the first respondent or under his control should be the
end of the matter because the first respondent has complied with the applicants ’ rule 35
(12) notice when he stated under oath that the documents are not in his possession as
this is what the applicants’ rule 35 (12) notice required him to do in respect of
documents not in his possession.
[25] The issue having narrowed to the question whether it is competent for a court to
direct a party to produce a document where the said party has stated under oath that it
is not in possession thereof, I requested counsel for the applicants to file a post hea ring
note with reference to some authorities for the proposition that the court may grant an
order compelling a party not in possession of a document to produce same.
[26] The post hearing note commences with an acknowledgment of the general
principle, with reference to Moulded Component s3 that “ where a party seeks
documents in terms of Rule 35 (12) and those documents are not in the other parties’
possession , a court will generally not make an order against such a party to produce the
3 Moulded Components & Rotomoulding SA (Pty) Ltd v Coucarkis And Another 1979 (2) SA 457 (W) at
461A to B
documents .” It was suggested, however, that this is not an immutable position but
depends on the particular facts of the matter. Reference was made to two decis ions of
this court , Van Zyl4 and Pentagon5, where parties claiming not be in possession of
documents were , nevertheless , ordered to produce those documents .
[27] The ratio for this court’s decision in Van Zyl was that a party which refers to a
document in its pleading needs to set up facts to support its claim that it is not in
possession of the documents sought .6 In addition , at least a reasonable attempt should
be made to find the document and produce it , where such an attempt was made, but
unsuccessfully, this should be confirmed by affidavit.7 It was, thus, upon the
respondent’s failure to meet these two requirements that the court ordered production of
documents which the respondent claimed were not in its possession.
[28] One of the documents whose production was sought in Pentagon related to a
Mauritian company , which was not a party to the litigation but whose director was. The
claim by the director of the Mauritian company that he was not in possession of the
documents was found by the court to be a red herring .8 Inherent in that finding was t he
court’s rejection of the claim that the document was n ot under the control of the party
obliged to produce it. Thus, the court ordered the production of the document because it
was satisfied that it was under the control of the party claiming that the document was
not in his possession or under his control.
[29] The soundness of the above decisions referred to by the applicants is beyond
question. A party claiming not to be in possession of documents referred to in his or her
pleading must set up facts to support his or her claim and must make reasonable
attempts to find the documents, where possible. This is so that the court is able to
4 Bertie Van Zyl (Pty) Ltd v Up To Date Tomatoes (Pty) Ltd (13329/14) [2016] ZAWCHC 105 (28 July
2016)
5 Pentagon Financial Solutions (Pretoria) (Pty) Ltd and Others v Pieter Willem Basson the Legare
Business Trust and Others (13001/2021) [2023] ZAWCHC 122; [2023] 3 All SA 560 (WCC) (15 May
2023)
6 Van Zyl a t para [2 8]
7 Van Zyl at para [29]
8 Pentagon ap para [79]
assess for itself whether indeed the documents are not in the party’s possession or
under his control. These authorities do not, by any stretch of imagination, suggest that a
court may order a party not in possession of a document to produce it. Instead, a party
claiming not to be in possession of a document may be ordered to produce it when the
court is not satisfied with the explanation that the document is either not in th e
possession of that party or under that party’s control. To hold otherwise would be to
suggest that it is competent for a court to order the performance of the impossible.
[30] Turning back to the facts of the present case, and by way of background, the
first respondent is a German national who bought a property that was owned by the first
applicant. The second applicant is the sole shareholder of the first applicant . Mr Levi is
the son of the second applicant and from time to time , they have conducted business
together utilising various corporate structures.
[31] Mr Levi , ostensibly having been duly authorised by the second respondent, sold
the property known as E39 Dolphin Beach ( the property ) to the first respondent. The
applicants in the main application seek an order cancelling the agreement of sale and
reclaiming the property from the first respondent on the basis that the sale of the
property was not authorised by the second applicant , the sole director of the first
applicant.
[32] The first respondent, having only dealt with Mr Levi when he purchased the
property , reached out to Mr Levi when he received the application. This was because he
had no knowledge of the background facts and authorisations relating to the sale of the
property. Mr Levi, who is not a party to these proceedings, in explaining that the sale of
the property was authorised, referred to some of the documents sought to be produced.
From this , it must be clear that the documents are not in the possession of the first
respondent.
[33] The applicants, however, take issue with Mr Levi and the second respondents’
indication or agreement that they would provide the first respondent with the necessary
documents to assist him in the opposition of the application. Neither Mr Levi nor the
second respondent has, however, indicated that they have provided the first respond ent
with any of the documents sought by the applicants. There is, thus, no basis to gainsay
the first respondent’s claim that he is not in possession of the documents sought to be
produced.
[34] The first respondent does not just stop at claiming not to be in possession of the
documents sought to be produced. He goes further to explain the attempts that his
attorney has made which have resulted in him producing a further document that he
was unable to initially produce. His attorney, he explains, requeste d Mr Levi to provide
certain documents, but Mr Levi provided only one document and offered no explanation
for his failure to provide the remainder of the documents that had been requested by the
first respondent’s attorney.
[35] The authorities referred to by the applicants are, in my view, distinguishable, and
as such cannot assist them. As already stated, in Van Zyl the court was not satisfied
with an explanation relating to the claim of not being in possession of the document
sough t as well as whether reasonable attempts had been made to find the documents.
In Pentagon , the court was satisfied that the document sought to be produced was
under the control of the party obliged to produce it.
[36] That a party claiming not to be in possession of a document whose production is
sought needs to set out facts in support of such claim accords not only with the
decisions of this court but also with what was stated in Tracklot9 by Olivier AJ that ‘ if a
party resists the delivery of a particular document, he should adduce evidence why he is
resisting. It is only with this evidence that the court would be in a position to exercise its
discretion properly and appropriately. ’ This is what , in my view, the first respondent has
done in this matter and he should , accordingly, be released from an obligation to
produce the documents.
9 Tracklot General Trading (Pty) Ltd v Sethole and Another (7406/2015) [2016] ZAGPPHC 214 (23 March
2016) at para 24
[37] For all the above reasons, I am of the view that the application should fail and
that the first respondent, as the successful party , should be awarded costs .
Order
[38] In the result , I make the following order:
The application is dismissed, and the applicants are ordered to pay the costs ,
jointly and severally, one paying the other to be absolved.
______ ___________________
LG NUKU
JUDGE OF THE HIGH COURT
APPEARANCES :
For the App licants : Adv. C Tsegarie
Instructed by : Bossr Inc, Durbanville
C/O : Robert Charles Attorneys, Cape Town
For the First Respondent : Mr J P De Abreu
Instructed by : De Abreau Essop Inc , Cape Town