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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 79315/23
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE : 30/5/2025
SIGNATURE
In the matter between:
JOAN CYNTHIA GRIESSEL First Plaintiff
HEROLD LEE DE KOCK Second Plaintiff
and
DE VILLEBOIS ETTIENNE DE KOCK N.O. First Defendant
SHIRLEY ANN VAN WYK N.O. Second Defendant
CELESTE MARI DOVEY N.O. Third Defendant
FREDERIK FRANS VAN NIEKERK N.O. First Defendant
JOHANNES JURGENS POTGIETER N.O. First Defendant
DE VILLEBOIS ETTIENNE DE KOCK Sixth Defendant
SHIRLEY ANN VAN WYK Seventh Defendant
CELESTE MARI DOVEY Eighth Defendant
MASTER OF THE HIGH COURT, PRETORIA Ninth Defendant
MANYELETI (PTY) LTD Tenth Defendant
Delivered: This judgment was handed down electronically by circulation to the
parties by e-mail. The date for the handing down of the judgment shall be deemed
to be 30 May 2025.
JUDGMENT : APPLICATION TO COMPEL DISCOVERY
GROBLER , AJ:
[1] This judgment relates to an application to compel discovery which was
brought by the defendants in terms of Rule 35(7) of the Uniform Rules of Court. The
Office of the Deputy Judge President directed on 26 February 2025 that the
application be heard on 22 April 2025.
[2] The Uniform Rules of Court only permit discovery of documents that relate to
issues in dispute on the pleadings. It is accordingly necessary to firstly refer to the
nature of the relief claimed by the plaintiffs in the particulars of claim.
[3] The following relief is claimed by the first and second plaintiffs in the
summons issued against the defendants (as per the amended particulars of claim
dated 27 December 2023):
“CLAIM 1 :
1. The first to fifth defendants, alternatively, the tenth defendant as an
alter ego of the trust, are ordered to pay maintenance to the first
plaintiff in the amount of R41 825.08, per month, with annual
inflationary increases from date of service of summons;
2. The sixth to eighth defendants, alternatively the tenth defendant as an
alter ego of the trust, are ordered to pay the plaintiffs’ costs of the
action on an attorney and own client scale, alternatively the first to fifth
defendants are ordered to pay the plaintiffs' costs on an attorney and
own client scale.
3. Further and/or alternative relief.
CLAIM 2 :
4. The first to fifth defendants, alternatively, the tenth defendant as an
alter ego of the trust, are ordered to pay the first plaintiff the amount of
R400 000.00;
5. The sixth to eighth defendants, alternatively the tenth defendant as an
alter ego of the trust, are ordered to pay the first plaintiff’s costs of the
action on an attorney and own client scale, alternatively the first to fifth
defendants are ordered to pay the first plaintiff’s costs on an attorney
and own client scale.
6. Further and/or alternative relief.
CLAIM 3 :
7. That the sixth, seventh and eighth defendants are removed as trustees
of the Arathusa Family Trust;
8. The ninth defendant is ordered to appoint 3 (three) independent
trustees for the Arathusa Family Trust;
9. The sixth to eighth defendants are ordered to pay the plaintiffs’ costs of
the action on an attorney and own client scale, alternatively the first to
fifth defendants are ordered to pay the plaintiffs’ costs on an attorney
and own client scale.
10. Further and/or alternative relief. ”
[4] The plaintiffs served a discovery affidavit on the defendants under cover of a
filing notice dated 30 April 2024. Schedule A of the discovery affidavit lists the
pleadings, notices and all annexures thereto in case numbers 30320/2013,
44989/2014, 50776/2016, 93437/2019 and 26288/2020. It furthermore lists
correspondence for the period between 30 May 2019 and 4 March 2024 (138 items)
and documents (54 items).
[5] The second plaintiff filed a supplementary discovery affidavit under cover of
a filing notice dated 5 August 2024. Schedule A of the supplementary discovery
affidavit lists three further items of correspondence (respectively dated 28 May 2024,
11 June 2024 and 8 July 2024) and two further documents.
[6] It should be noted that the references above are in respect of the discovery
affidavits filed by the second plaintiff, but the first plaintiff discovered exactly the
same documents in her own discovery affidavits, albeit on different dates.
[7] The defendants served a Rule 35(3) notice dated 20 September 2024 on the
second plaintiff, requesting discovery of additional documents listed in the 43
paragraphs of the notice.
[8] The second plaintiff filed an affidavit in response to the defendants’ Rule
35(3) notice, which was served on the defendants under cover of a filing notice dated
7 October 2024. The second plaintiff responded to each of the paragraphs of the
defendants’ Rule 35(3) notice separately and attached certain further documents as
annexures to the affidavit.
[9] Dissatisfied with the second plaintiff’s response, the defendants launched
the application in terms of Rule 35(7) currently under consideration per notice of
motion dated 28 October 2024. The defendants applied for the second plaintiff to be
compelled to discover documents listed in 21 paragraphs contained in the notice of
motion.
[10] The second plaintiff filed an answering affidavit contending that the
defendants are on a fishing expedition and attempting to obtain documents which
are irrelevant to the matter before Court. Furthermore, the second plaintiff
contended that the current application is a delaying tactic employed by the
defendants to prolong the matter as far as possible. The second plaintiff answered
each of the twenty -one paragraphs of the notice of motion and concluded that the
defendants are not entitled to the further documents requested in the application to
compel further and better discovery.
[11] The defendants filed a replying affidavit, concluding that further discovery by
the second plaintiff as requested in the notice of motion is essential to the
defendants’ trial preparation and that the defendants will be irreparably prejudiced
should they not have insight into all the documents which may be relevant.
[12] At the commencement of the hearing of this application, Mr Potgieter SC on
behalf of the defendants stated that he had not been involved in the application until
shortly before the date of hearing. Mr Potgieter SC indicated that the defendants are
not persisting with the following prayers in the notice of motion: prayers 1.1 to 1.6
and prayers 1. 8 to 1.18. This meant that the defendants persisted with the
application to compel discovery only in respect of the documents listed in prayers 1.7
and 1.19 to 1.21 of the notice of motion. I am appreciative of and commend the
ethical, professional and forthright manner in which Mr Potgieter SC dealt with the
matter.
[13] The relief persisted with was the following:
“That the Respondent (the 2nd Plaintiff in the principal action) be compelled to
discover the following documents:
…
1.7 Full and complete details of the account from which the Respondent
has made payments to the 1st Plaintiff from October 2022 to date.
…
1.19 Any and all communication, albeit text messages, whatsapp
communications or e -mail between the Respondent and Xolile
Mhlakoana (with identity Number: 8[...]) from June 2022 to date.
1.20 Any and all communication, albeit text messages, whatsapp
communications or e -mail between the Respondent and Maanda
Alidzulwi (with identity Number: 7[...]) from June 2022 to date.
1.21 Any and all communication, albeit text messages, whatsapp
communications or e -mail between the Respondent and Kgomotso
Shakwane (with identity Number: 8[...]) from June 2022 to date.”
[14] The defendants cont end that they are entitled to discovery of the
documents referred to in paragraph 1.7 of the notice of motion because the
requested documents will enable them to verify , on their own , the validity of the
plaintiff's claim of R400,000 .00 as set out in Claim 2 of the particulars of claim. The
second defendant contends that he has provided the defendant with proof of the
payments made, extracts of his annual financial statements for the years 2023 &
2024, and IRP5 tax documents for the years 2023 and 2024. Furthermore, it was
submitted on behalf of the second plaintiff that the “full and complete details of the
account” from which the payments were made , as referred to in paragraph 1.7 of the
notice of motion, is not a document and cannot be provided.
[15] The second plaintiff has stated under oath that he has provided all the
necessary documents in his possession , including proof of payments, to prove that
he made the relevant payments to the first plaintiff. The plaintiffs will have to stand
and fall by their discovery affidavits and the evidence that they will in due course be
allowed to adduce at the hearing of the main action. I am not persuaded that the
defendants are entitled to further discovery of the doc uments referred to in
paragraph 1.7 of the notice of motion .
[16] The defendants cont end that they are entitled to discovery of the
documents referred to in paragraph 1. 19 to 1.21 of the notice of motion because the
second plaintiff’s response to the request was a qualified response which is
improper. The second plaintiff contends that these documents are irrelevant.
[17] The second plaintiff stated under oath that the individuals referred to in
paragraph 1. 19 to 1.21 were guests of the fist plaintiff and that he does not know
who Xolile Mhalkoana and Kgomotso Shakwane are . The second plaintiff
furthermore stated that he simply cannot provide documents that do not exist or that
are not in his possession. I am not persuaded that the defendants are entitled to
further discovery of the doc uments referred to in paragraph 1. 19 to 1.21 of the notice
of motion .
[18] It was submitted on behalf of the second plaintiff that the defendants ’
application for further and better discovery was nothing more than a fishing
expedition engineered to cause a delay in the matter. I t was submitted that the
application is clearly a gross and utter abuse of process that warrants the making of
a punitive costs order on an attorney and client scale .
[19] Having regard to inter alia the second plaintiff’s discovery and
supplementary discovery affidavits, the further documents requested in the
defendants’ Rule 35(3) notice preceding the application, the second plaintiff’s
response thereto, the relief claimed in the application and the result, I am inclined to
agree that the application should be dismissed on the scale as between attorney and
client.
[20] Accordingly the following order is issued:
a) The application is dismissed with costs on attorney and client scale ,
including the costs of 2 counsel .
JF GROBLER
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Dates of hearing: 23 April 2025
Date of judgment: 30 May 2025
For the Second Plaintiff: SG Maritz SC
R De Leeuw
Instructed by: JJR Incorporated
For the Defendant: T Potgieter SC
JC Van Eeden
Instructed by: Gildenhuys Malatji