IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, C APE 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
(LEAVE TO APPEAL)
________________________________________________________________
MAGARDIE AJ
1. This is an application for leave to appeal against the judgment and order of this
Court handed down on 21 November 2024 (“the order”). The order dismiss ed with
costs an applicat ion by the Applicant to compel further and better discovery in
terms of Rule 35( 7) of the Uniform Rules . The Respondent opposes the granting of
leave to appeal.
2. Two main issues arise for determination. The first is whether the order is
appealable. The sec ond is whether an appeal would have reasonable prospects of
success , even were the order to be appealable.
Appealability
3. This Court may only grant leave to appeal if the order sought to be appealed is a
“decision ” within the meaning of section 16(1)(a) of the Superior Courts Act 10 of
2013 ( “Superior Courts Act ”).1 There is no difference between the meaning of the
term “decision ” in section 16(1)(a) of the Superior Courts Act and the phrase
“judgment or order ” in section 20 of repealed former Supreme Courts Act 19 of
1959. In Neotel (Pty) Ltd v Telkom SA Soc Ltd and Others2, Coppin AJA (as he
then was) stated:
“If a decision di d not constitute a ‘judgment or order’ the decision was not
appealable under the Supreme Court Act. Since there is no conceptual difference
between such a judgment or order and the ‘decision’ contemplated in s
16(1) (a) of the Superior Courts Act, the same would hold true under the Superior
Courts Act. The ‘judgment or order’ was held to refer to a substantive judgment
or order in terms of which the court granted or refused the relief sought. The
1 Section 10 of the Superior Courts Act: “Subject to section 15(1), the Constitution and any other law -
(a) an appeal against any decision of a Division as a court of first instance lies, upon leave having been
granted …”
2 Neotel (Pty) Ltd v Telkom SA Soc Ltd and Others (605/2016) [2017] ZASCA 47 (31 March 2017)
(“Neotel”).
same meaning has to be given to the ‘decision’ contemplat ed in s 16(1) (a) of the
Superior Courts Act. ”
4. It is common ground that th is Court’s order dismissing the Applicant’s application
for further and better discovery is an interlocutory order in pending action
proceedings . The trial of the Respondent’s claim i n those proceedings and the
Applicant’s claim in reconvention, is yet to commence. Interlocutory orders or
rulings of the nature sought to appealed in this matter were traditionally considered
non-appealable by virtue of their inconsistency with the “triad of attributes for
appealability ” determined in Zweni v Minister of Law and Order .3 Following a
comprehensive review of the authorities, Harms AJA (as he then was) said the
following :
"In the light of these tests and in view of the fact that a ruling is the antithesis of a
judgment or order, it appears to me that, generally speaking, a non -appealable
decision (ruling) is a decision which is not final (because the Court of first
instance is entitled to alter it), nor definitive of the rights of t he parties nor has the
effect of disposing of at least a substantial portion of the relief claimed in the
main proceedings."4
5. The advent of the Constitution has however significantly impacted on the common
law requirements for appealability of orders established in Zweni . The
classification of an order as “interim ” or “interlocutory ” is no longer regarded as
either exhaustive or determinative of its appealability. The constitutionally required
standard i s instead whether an appeal against an interlocutory or interim order
would be “in the interests of justice ”. The common law test for appealability
articulated in Zweni is thus no longer decisive , irrespective of any other
considerations. The Constitutional Court ha s held that t he interests of justice
3 Zweni v Minister of Law and Order [1992] ZASCA 197; 1993 (1) SA 523 (A) ( “Zweni ”).
4 Zweni at 532J –533A.
standard relativiz es the final effect of the order or the disposition of the substantial
portion of what is pending before the court, in determining appealability.5
6. The application of th e interests of justice standard is a fact specific enquiry
involving a careful balancing and weighing up of all relevant factors .6
7. In TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd7,
the Supreme Court of Appeal however confirmed that the Zweni triad remain s
releva nt and ha s not been supplanted by the development of our jurisprudence.
The interests of justice standard , the Court held, must also be considered in the
context of two other principles, legal certainty and finality in litigation, which are
themselves key components of the rule of law. Unterhalter AJA observed that
“…courts should be cautious to adopt standards for their decisions so po rous that
a litigant cannot be advised, with any reasonable probability, as to the decision
that a court is likely to make. ”8 The learned Judge went on to say the following:
“I do not here essay a general account of appealability. I do affirm, though, that
the doctrine of finality must figure as the central principle of consideration when
deciding whether a matter is appealable to this Court. Different types of matters
arising fr om the high court may (I put it no higher normatively) warrant some
measure of appreciation that goes beyond Zweni or may require an exception to
its precepts. Any deviation should be clearly defined and justified to provide
ascertainable standards consist ent with the rule of law.
5 Philani -Ma-Afrika & others v Mailula & others [2009] ZASCA 115 ; 2010 (2) SA 573 (SCA) at para 20 ;
City of Tshwane Metropolitan Municipality v Afriforum and Another (; 2016 (9) BCLR 1133 (CC) at para
40.
6 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6 ; 2012 (4)
SA 618 (CC) at para 55.
7 TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boe rderybeleggings (Pty) Ltd 2023 (5) SA 163 (SCA)
(“TWK Agriculture ”).
8 TWK Agriculture at para 20.
Recent decisions of this Court that may have been tempted into the general orbit
of the interests of justice should now be approached with the gravitational pull of
Zweni .”9
8. It was urged by Mr . Kulenkampff, who appeared on behalf of the Applicant, that
the S upreme Court of Appeal has in a number of judgments developed the Zweni
test for appealability in line with the interests of justice standard. The argument is
in general terms correct. It does not however take full account of the continued
importance of the Zweni attributes of an appealable order and the circumscribed
application of the interests of justice standard cautioned in TWK Agriculture and a
number of judgments of the Supreme Court of Appeal handed down subsequent
thereto.
9. In HJ v PJ10, a judgment delivered on 19 April 2024, the Supreme Court of Appeal
warned against Courts other than the Constitutional Court adopting the standard of
the interest of justice as the foundational basis upon which they decide whether
the matter is appealable or not .11 Notably, HJ v PJ concerned an appeal against
an interlocutory discovery order compelling the delivery of further particulars for
trial. Kgoele JA held that the High Court had erred in entertainin g the appeal as it
was in relation to a discovery order which was purely interlocutory , lacked final
effect and was consequently not appealable.12
10. Six months later and in Minmetals Logistics Zhejiang Co Ltd v The Owners and
Underwriters of the MV Smart a nd Another13, the Supreme Court of Appeal again
emphasized the avoidance of piecemeal litigation and continued relevance of the
Zweni triad. Koen AJA said:
9 TWK Agriculture at para 30 .
10 HJ v PJ [2024] ZASCA 55 (19 April 2024) .
11 HJ v PJ at para 10 .
12 HJ v PJ at para 16.
13 Minmetals Logistics Zhejiang Co Ltd v The Owners and Underwriters of the MV Smart and Another
(573/2023) [2024] ZASCA 129; [2025] 1 All SA 60 (SCA); 2025 (1) SA 392 (SCA) (1 October 2024)
(“Minmetals ”).
“If one of the attributes in Zwen i is lacking, an order will probably not be
appealable, unless there are circumstances which in the interests of justice,
render it appealable. The emphasis has moved from an enquiry focused on the
nature of the order, to one more as to the nature and effec t of the order, having
regard to what is in the interests of justice.’
It is not in the interest of justice to have a piecemeal adjudication of litigation, with
unnecessary delays resulting from appeals on issues which would not finally
dispose of the lit igation. As the Constitutional Court has held, albeit in a different
context , it is undesirable to fragment a case by bringing appeals on individual
aspects of the case prior to the proper resolution of the matter in the court of first
instance, and an app ellate court will only interfere in pending proceedings in the
lower courts in cases of great rarity – where grave injustice threatens, and,
intervention is necessary to attain justice.”14
11. The present approach to appealability as it emerges from Government of the
Republic of South Africa v Van Abo15, applied most recently by the Supreme Court
of Appeal in Eskom Holdings Soc Ltd and Another v Sonae Arauco (Pty) Ltd16 may
be summarized thus:
“It is fair to say that there is no checklist of requirements. Several considerations
need to be weighed up, including whether the relief granted was final in its effect,
definitive of the rights of the parties, disposed of a substantial portion of the relief
claimed, aspects of convenience, the time at which the issue is considered,
delay, expedience, prejudice, the avoidance of piecemeal appeals and the
attainment of justic e.”17
14 Minmetals at para 32.
15 Government of the Republic of South Africa v Von Abo [2011] ZASCA 65; 2011 (5) SA 262 (SCA) at
para 17 (“Von Abo ”).
16 Eskom Holdings Soc Ltd and Another v Sonae Arauco (Pty) Ltd (1018/2023) [2024] ZASCA 177 (18
December 2024) at paras 35 – 37.
17 Von Abo at para 17.
12. As to whether the relief granted was final in nature, it was held by the
Constitutional Court in United Democratic Movement and Another v Lebashe
Investment Group (Pty) Ltd and Others18, that the form of the order and
predominantly, its effect must be conside red when deciding whether an order is
appealable. An order which in form appears to be purely interlocutory, may
nonetheless be appealable if its effect is such that it is final and definitive of any
issue or portion thereof in the main action.19
13. The orde r in the present instance is an interlocutory order dismissing an
application for further and better discovery in pending action proceedings where
the trial has yet to commence. Counsel for the Applicant, in his heads of argument,
did not submit that the o rder was final in effect, definitive of the rights of the
parties, that it disposed of a substantial portion of the relief claimed and thereby
met the triad of attributes of an appealable order articulated in Zweni . It was
instead submitted that the order was appealable under the broad rubric of
“interests of justice ”, for a variety of reasons relating to what was argued to be the
prejudicial effects of the order . Relying on Santam v Segal20, M v M21 and
Taskflow (Pty) Ltd v Aluxium (Pty) Ltd and Others22, it was contended by the
Applicant that discovery orders have been recognised to be appealable in the
interests of justice.
14. I will deal first with the submission that the effect of the order was to incorrectly
limit and exclude evidence which the trial court hearing the Applicant’s claim in
reconvention would be entitled to take into consideration . The evidence excluded
by the order, so the argument went, was relevant to the exercise of the trial court’s
discretion in terms of section 89(5) of the N ational Credit Act ( “NCA”) to grant the
relief sought in the Applicant’s claim in reconvention in the main action.
18 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others 2023 (1)
SA 353 (CC) at para 41 ( “Lebashe ”).
19 Lebashe at para 41.
20 Santam and Others v Segal 2010 (2) SA 160 (N) .
21 M v M A3062/14, RC/GP/Pal 464/2013) [2014] ZAGP JHC 295 (31 October 2014) .
22 Taskflow (Pty) Ltd v Aluxium (Pty) Ltd and Others (Leave to Appeal) (2021/40976) [2024] ZAGPPHC
1294 (25 October 2024) .
15. The proposition is unsustainable. The order is not definitive of the issues arising in
the main action nor does it limit the discretion vested in the trial court to consider
any argument or evidence which the Applicant may wish to advance regarding the
relief she seeks under section 89(5) of the NCA. That the dismissal of the
application to compel further and better discovery may, and I would put it no higher
than that, inconvenience the Applicant in later leading certain evidence at the trial ,
is not a sustainable ground on which to grant leave to appeal. As Harms AJA said
in Zweni :
“The fact that a decision may cause a party an inconvenience or place him at a
disadvantage in the litigation which nothing but an appeal can correct, i s not
taken into account in determining its appealability . To illustrate: the exclusion of
certain evidence may hamper a party in proving his case. That party may
notionally be able to prove it by adducing other evidence. In that event an
incorrect exclusi on would not necessarily have an effect on the final result. ”23
16. The next submission advanced by the Applicant was that “certain ” of the Court’s
findings in the judgment were res judic ata and binding on the trial court. Precisely
which findings were being referred to , was not explained in any detail . That aside,
the argument is wrong. It misapprehends the principle of res judicata .
17. A central requirement for the operation of the principle of res judicata is that it must
be the same issue of fact or law determined by the judgment of the previous court
or earlier , that arise s before a later court for determination. If the same issue was
not not determined by the earlier court, an essential requirement for the operation
of res judicata has not been met .24 The question is always what issue of fact or law
was decided by the court in the earlier proceedings and was it finally decided.25
23 Zweni at para 13.
24 Democratic Alliance v Brummer (793/2021) [2022] ZASCA 151 (3 November 2022) at para 13 .
25 MV Wisdom C: United Enterprises Corporation v STX Pan Ocean Co Ltd [2008] ZASCA 21 ; 2008 (3)
SA 585 (SCA) at para 9
The decision of the earlier court can only support a finding of res judicata it was a
final and definitive judgment on issues arising before the later court.26
18. The issue before th is Court was whether the Applican t had made out a proper
case for the Court to exercise its discretion to enforce discovery of the documents
listed in the First Defendant’s Rule 35(3) Notice. The exercise of that discretion is
based on an assessment of whether the Applicant ha d demonstrat ed inter -alia that
the documents she sought , were relevant. In addition, the issues before the Court
related to whether the description of the documents sought by the Applicant were
overbroad and whether a proper case had been made out for the Court to go
behind the Respondent’s discovery affidavit.
19. In determining a pre -trial application for further and better discovery in terms of
Rule 35(7), a Court does not thereby don the garb of a sage prophesying the
eventual outcome of the trial. As Harms AJA put it “…a court is not called upon to
speculate upo n or divine (with or without the assistance of the parties) the ultimate
effect of its decision on the course of the litigation .”27
20. The order sought to be appealed is a pre -trial discovery ruling. Such a ruling does
not finally dispose of any issues of law or fact falling within the remit of the trial
court nor does it render such issues res judicata . To the extent that the Applicant’s
real complaint is about the Court’s findings and reasons for th e order, the position
is trite that appeals do not lie against the reasons for a judgment or order.28 The
Applicant’s res judicata point has no merit.
21. The authorities relied on by the Applica nt take the matter no further. In Santam
and Others v Segal29, a full court of the Natal Provincial Division held that a
dismissal of an application to compel further discovery had been finally
26 Cronshaw and Another v Coin Security Group (Pty) Ltd (410/94) [1996] ZASCA 38; 1996 (3) SA 686
(SCA) at para 6 – 8.
27 Zweni at para 14.
28 Neotel at para 23.
29 Santam and Others v Segal supra fn 20 (“Santam”).
determinative of the party's rights in that case and was therefore appealable. The
case was decided some 14 years before the recent judgment s of the SCA in TWK
Agriculture , Minmetal s and HJ v PJ affirming the continued relevance and import
of the Zweni triad of attributes of an appealable order.
22. Santam is no t authority for a general proposition that interlocutory discovery orders
are appealable. That Court indeed made it clear that each case would have to be
judged on its own facts and that it was not laying down an immutable rule that all
all orders refusing or compelling discovery are necessarily appealable.30
23. M v M31 dealt with an appeal against a Regio nal Court’s interlocutory order
refusing an application for further discovery in terms of Rules 23(3), 23(6) and
23(8) of the Magistrates’ Courts Rules in a pending divorce action. The Court, per
Moshidi J and Kennedy AJ concurring, held that in the partic ular circumstances of
the case, the interlocutory order was appealable.
24. The judgment in M v M was also delivered well before the recent judgment of the
Supreme Court of Appeal in HJ v PJ, where in very similar circumstances involving
an appeal against the granting of a regional court’s order compelling discovery in a
pending divorce action, the SCA held that such an order was purely interlocutory
and not appealable.32
25. Santam and M v M , decided as they were a decade before HJ v PJ and TWK
Agriculture , are in my view and with respect , not entirely on par with the most
recent jurisprudence of the Supreme Court of Appeal on the appealability of orders
and the caution to High Courts regarding the circumscribed nature of the interest
of justice standard . These judgment s in any event turned on the specific and
particular factual circumstances before th ose Court s.
30 Santam, a t para 7.
31 M v M supra fn 21.
32 HJ v PJ at para 10 .
26. In Taskflow (Pty) Ltd v Aluxium (Pty) Ltd and Others33, Mogogabe AJ granted
leave to appeal against a discovery order compelling the discovery of computer
software listed in a Rule 35(3) Notice . The Court held that although the order
lacking one of the Zweni triad of attributes, the order was appealable in the
interests of justice.
27. It is evident from the judgment in Taskflow that a central factor considered by th at
Court to be a compelling reason to grant leave to appeal in the interests of justice,
relate d to the broadness of the order and that the order compelled the discovery of
further computer programs and software which had no relevance or reference to
the pleadings.34
28. I consider Taskflow to have been decided on the unique facts of that particular
case. The judgment is equally not authority for a general proposition that
interlocutory discovery orders are appealable in the interests of justice.
29. In my view, t he Zweni triad of attributes of an appealable order are signally absent
in all three respects from the order which is the subject of this application for leave
to appeal. The order is not final and definitive of any issue or portion thereof in the
main action. Nor does it have the effect of disposing of any portion of the relief
claimed in the main action, let alone a substantial portion thereof. The Zweni test
for appealbility not being satisfied, w hat remains to be considered is whether t here
are any other factor s relevant to the interests of justice , that would tilt the scale in
favour of the Applicant.
30. Mr. Kulenkampff submitted that the interests of justice and convenience would be
served by allowing an appeal at this stage rather than after the judgment in the
action. It was further submitted that the matter w ould be delayed less in the event
that an appeal is heard at this stage rather than after judgment in the main action
33 Taskflow (Pty) Ltd v Aluxium (Pty) Ltd and Others (Leave to Appeal) (2021/40976) [2024] ZAGPPHC
1294 (25 October 2024) (“Taskflow”).
34 Taskflow at para 12.
and a referral back to the court a quo, with adverse procedural and costs
implications.
31. Mr Stelzner SC, who appeared for the Respondent, submitted that an appeal
would achieve no practical effect or result . He argued that the trial court could, in
the final result, ultimately find in favour of the Applicant. He submitted that the pre -
trial processes should not be further protracted in order for the matter to be
declared trial ready and proceed to court.
32. Mr. Stelzner further submitted that it would be open to the trial court, after hearing
further evidence, to order discovery of some of the documents wh ich on the
current facts have been found to be not discoverable.
33. There is in my view no doubt that a llowing an appeal at this stage w ill delay the
pending trial of both the Respondent’s claim in the pending action and the
Applicant’s claim in reconvention . An appeal solely on an interlocutory discovery
ruling will stay the progress of the trial with no discernible advantage as the a ppeal
will not finally dispose of the case , even if the Applicant ultimately succeeds on
appeal. The matter would in that event simply be remitted to the trial court,
possibly years from now, for the proceedings to recommence .
34. The trial court would then eventually hear from witnesses on contracts which were
concluded and events which , at this stage , already took place some four and a half
years ago. The sale of members agreement underlying the dispute and impugned
by the Applicant as void, was concluded between the parties on 23 September
2019. As TWK Agriculture observes, trial delay not only atrophies due process, but
its baleful effects also include the well -known risks regarding availability of
witnesses and their diminished ability to recall distant events.35
35 TWK at para 36.
35. An appeal against the order will fragment the case and result in piecemeal
appellate adjudication o f an interlocutory discovery issue , which will not finally
dispose of the litigation. There are sound and obvious policy considerations for the
general rule discouraging piecemeal appeals , not the least of which are the
conservation of limited judicial resources and the cost effective and expeditious
disposal of litigation by the same court at the same time. The relaxation of this
approach has been limited to jud icial decisions which meet the Zweni triad of
attributes of an appealable order.36 As I have concluded earlier, the interlocutory
discovery ruling sought to be appealed , lacks those attributes.
36. The Applicant contends that only an appeal at this stage will cure what it claims to
be the prejudicial effect of the order. I fail to see how that would be so. It is well
established that should it appear at the conclusion of a matter that a court’s
interlocutory ruling was not only incorrect but amounted to an irregularity which
may have had a material effect on its outcome, a Court of Appeal may, in
adjudicating the merits, set aside the final judgment on that ground and, in an
appropriate case, remit it back to the trial Court .37
37. I am furthermore in agreement with the Respondent’s submissions that it would be
open to the trial court , after hearing further evidence, to revisit the discovery of
documents which this Court held not to be discoverable on the current facts . The
trial court has a discretion to do so in terms of Rule 35(11), which permits the court
to order , during the course of any proceeding s, the production by any party under
oath of documents in such party’s power or control relating to any matter in
question in such proceeding s.
38. The Respondent submitted that nothing precludes the Applicant from filing a
further notice requesting further and better discovery and a ruling thereon on
another occasion. I agree. It can hardly be suggested that it is a foregone
36 Guardian National Insurance Company Ltd v Searle NO (195/97) [1999] ZASCA 3; [1999] 2 All SA 151
(A) (1 March 1999) .
37 Zweni at para 14.
conclusion that such a further notice w ill suffer the same fate as its predecessor.
More so , I would add, if care were taken to heed the basis on which the previous
application for further and better discovery fai led.
39. As I have pointed out earlier, a piecemeal appeal against th e order will not bring
finality to this litigation . The entire dispute between the parties remains pending
and has not been resolved. I am unable to conclude that an appeal on an isolated
issue relating to pre -trial discovery, would nonetheless lead to a just and prompt
resolution of the real issues between the parties, as required by s ection 17(1)(c) of
the Superior Courts Act .
40. The order sought to be appealed furthermore lacks the required attributes of an
appealable decision as contemplated by section 16(1)(a) of the Superior Courts
Act. The order does not involve the granting of an interim interdict or relief
significantly prejudicing the Applicant’s constitutional rights . No exceptional
circumstances have in my view been demonstrated to grant leave to appeal in the
interests of justice. On this basis as well, I would dismiss the application for leave
to appeal.
Prospects of success
41. I shall deal briefly with the prospects of success on appeal , in the event that I am
wrong regarding the appealability of the order . The application for leave to appeal
is prolix and consists of some 72 paragraphs spanning over 36 pages. I do not
intend addressing each and every one of the professed grounds of appeal . A
number of these grounds relate to the Court’s reasons for its order as opposed to
the order itself . The purpose of an application for leave to appeal is furthermo re
not an opportunity for parties to rehash and traverse again the well -worn pathways
of the merits of the matter.
Relevance
42. I concluded in my judgment that the Applicant had failed to demonstrate the
relevance of item 6 and item 7 (lists of clients and suppliers), item 8 (PSIRA
registration documents), item 10 and 11 (documentation relating to Plaintiff’s
employees) and item 12 to 14 (Plaintiff’s financial statements, credit applications
and bank statements) of the Applicant’s Rule 35(3) Notice.
43. The main submission advanced by the Applicant in respect of the Court’s findings
on the relevance of these items, is that in so finding , the Court erred by limiting
facts and circumstances relevant to the exercise of the trial judge’s discretion and
has tied his/her hands in this regard. Additionally , it was submitted that the
judgment limits the evidence to which the Applicant will have access to
demonstrate the matters pleaded by her .
44. I have already dealt earlier with these submissions. They ar e without merit. I
repeat that a determination by this Court on a pre -trial interlocutory discovery
application , can on no sustainable basis be construed as a final determination o f
legal and factual issues pending before the trial court , which has not eve n begun
to hear the evidence. It is furthermore untenable for the Applicant to contend on
the one hand , that the trial court enjoys a wide unfettered discretion to make any
just and equitable order under section 89(5) of the NCA , yet on the other, that thi s
Court’s judgment in a pre -trial discovery motion ties the hands of the trial court in
advance.
45. The determination by Courts of the dispute s concerning relevance of documents in
pre-trial applications to compel discovery, is par for the course. It can hardly be
suggested that Courts determining such pre-trial applications and the relevance of
disputed documents, thereby make final and determinative pronouncements on
issues between the parties, which are binding on the trial court.
46. Item 6 and 7 of the Rule 35(3) Notice sought discovery of lists of the Responden t’s
and Evolution Supply Chain (Pty) Ltd trading as Vengeance Security Solutions ’
("the company") , clients and suppliers from 23 September 2019 to the date of the
Notice in April 2024. I am not persuaded that there are reasonable prospects of
another Court concluding that the Respondent’s lists of clients and suppliers at
April 2024 are relevant to the Applicant’s claim for an order under section 89(5) of
the NCA in respect of an agreement concluded in 2019 and cancelled on 2
alternatively 9 December 2021.
47. The wide and unfettered discretion of a court under section 89(5) of the NCA is a
discretion which can only be exercised judicially with regard to relevant evidence.
Relevant evidence does not mean any evidence.
48. Item 8 of the Rule 35(3) Notice sought the Respondent’s and the company’s
Private Security Industry (‘PSIRA’) registration applications. Item 9 sought all
written and electronic communication between representatives of PSIRA, the
Respondent and any representatives of the company from September 2019 to the
date of the Notice. At paragraph 63 of the judgment, I concluded that the allegation
by the Applicant in her founding affidavit in the application to compel, that the
Respondent was not registered to provide security services and represented t hat
he was registered to offer services for which he was not PSIRA registered , was
false. The Applicant contended that this factual finding was wrong and binding on
the trial court.
49. The Respondent has discovered the PSIRA registration documents relating t o
himself and the company. He states under oath that he has nothing more to
discover in this regard. The A pplicant in effect seeks proof that there were no
earlier registration certificates. This would however be evident from the
Respondent’s statement und er oath that he has no has no further PSIRA
registration documents other than those discovered. The generalized allegation by
the Respondent that the Plaintiff provided security services when he was not
registered , was in my view not established on the evi dence and is contradicted by
the documents discovered by the Respondent.
50. There are in my view no reasonable prospects of another Court going behind the
Respondent’s affidavit regarding the PSIRA documents or concluding that the
requested PSIRA documents, which the Respondent says do not exist and are not
in his possession, are relevant to an unlawful competition claim properly brought
by the Applicant. The same applies to the additional documents which were sought
in the application to compel further disc overy and which the Respondent states
under oath that he is not in possession of.
51. Items 10 and 11 of the Rule 35(3) Notice sought a broad range of documents
relating to the Respondent’s employees. The primary basis on which further and
better discovery of these documents was refused, was due to the manifestly
overbroad formulation of the description of the documents sought. I consider there
to be no prospects of another Court concluding that the documents sought in items
10 and 11 of the Rule 35(3) Notic e, were not overbroad and complied with the
degree of specificity required by the rule.
52. The Applicant bore the onus of establishing that the documents sought in her Rule
35(3) Notice were relevant. A factual basis demonstrating relevance is required.
Merely submitting in an affidavit, as the Applicant did in relation to item 14 of the
notice, that the required documents are “relevant and sufficiently particularized”,
does not assist.
Overbroad d escription of the documents
53. The judgment concluded that the description of the items sought in paragraphs 3,
4, 5, 10 and 11 of the Rule 35(3) Notic e were manifestly overbroad. Mr.
Kulenkampff submitted that the wide formulation and broadness by which the
medium or format of the items sought was described, is as a result of the
“significant explosion of methods of communication which are now are avail able in
the modern world. ” It was further submitted that t he medium or format in which the
documents are held does not prejudice the Respondent because he “…knows or
should know in what mediums or formats he communicates or holds records.”
54. The Applicant’s submissions proceed from an incorrect premise . Overbroad
requests for discovery are not justified by the wide variety of electronic mediums
and formats in which information and documents are stored.
55. On the contrary, it is precisely becau se of the greater use of electronic
communication that Courts are required to be alert to guard against potential
abuse of the discovery process through unspecific and overbroadly formulated
demands for discovery. As Spilg J explained in Makate v Vodacom38:
“The greater use of electronic documentation (“e -documents”) whether as a
means of communication (such as e -mails) or as a means of storing information
(such as computer databases or central servers) exacerbates the risk of potential
abuse. The issue has received the attention of many jurisdictions and has
spawned specialist in the field of discovery (or disclosure) of electronic material.
Lord Jackson in his Review of Civil Litigation Costs (Preliminary Report) of May
2009 vol 2 at para 1.1 (wh ich was prepared at the request of the Master of the
Rolls) summed it up as follows:
‘the existence of a vast mass of electronic documents presents an acute
dilemma for the civil justice system. On the one hand, full disclosure of all
electronic material may be of even greater assistance to the court in
arriving at the truth than old style discovery of documents. On the other
hand, the process of retrieving, reviewing and disclosing electronic
material can be prodigiously expensive. Certain short cuts are available,
38 Makate v Vodacom (Pty) Ltd (2011/07680) [2011] ZAGPJHC 241; 2014 (1) SA 191 (GSJ) (18
November 2011) .
such as the use of keyword searches. However, the sheer volume of
potentially disclosable electronic material which is now generated in the
course of a project means that disclosure is now becoming an even more
expensive process than formerly. ’
Conclusion
56. Section 17(1)(a)(i ) of the Superior Courts Act provides that leave to appeal may
only be granted if an appeal would have a reasonable prospect of success.
57. The Applicant has not suggest ed that there are compelling reasons why an
appeal should be heard as contemplated by sec tion 17(1)(a)(ii) of the Act. I see
none. The application for leave to appeal does not raise any significant questions
of law or issues of public importance that may have a bearing on future disputes.
58. I have carefully considered the Applicant’s grounds of appeal . I am unpersuaded
that another Court would reasonably arrive at a different conclusion, even were
the order to be appealable.
Order
59. The application for leave to appeal is dismissed with costs , such to include the
costs of two counsel where so employed, to be taxed on scale C.
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S G MAGARDIE
Acting Judge of the High Court
Western Cape Division
APPEARANCES
For Applicant / First Defendant : D Kulenkampff
Instructed by:
Kulenkampff & Associates
For Respondent / Plaintiff: R Stelzner SC
Instructed by:
Hannes Pretorius, Bock & Bryant
Date of hearing: 21 January 2025
Date of judgment: 17 March 2025