THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION , CAPE TOWN)
Case No.: 10395/2020
In the matter between: Before the Hon Madam Justice Slingers
Hearing: 12 May 2025
Judgment Delivered: 20 June 2025
CONSTANTINOS PAPADIMOS
NAV EQUITY INVESTMENTS PROPRIETARY LIMITED
and
OLD MUTUAL PROPERT Y PROPRIETARY LIMITED
OLD MUTUAL GROUP HOLDINGS SA LIMITED
OLD MUTUAL REAL ESTATE HOLDINGS COMPANY
PROPRIETAR Y LIMITED
OMP MANAGEMENT SERVICES PROPRIETARY
LIMITED
PETER ASTON LEVETT
JACOBUS HENDRIK SMIT
QUESTCO PROPRIETAR Y LIMITED First Plaintiff
Second Plaintiff
First Defendant
Second Defendant
Third Defendant
Fourth Defendant
Fifth Defendan t
Sixth Defendant
Seventh Defendant
This judgment is handed down electronica lly by circulation to the parties' legal representatives' email addresses. The
date of hand-down is deemed to be 20 June 2025
JUDGMENT
SL/NGERSJ
Introduction -the Pleadings
[l] During August 2020 the plaintiffs instituted action proceedings against the
defendants. Central to the plaintiffs' claim against the defendants was the
2
investment opportunity purportedly the product of the first plaintiff's experience
and knowledge of real estate in Central and Eastern Europe and shared with the
defendants.1
[2] This investment opportunity constituted valuable confidential information in which
the plaintiffs held a protectable interest.
[3] The plaintiffs averred that the investment opportunity and the properties
constituting same, collectively and individually were not public knowledge,
specifically within the Republic of South Africa. Therefore , the defendants were
unaware of the investment opportunity, including the confidential information
inherent therein and had not identified the investment opportunity and would not
have become aware of or be in a position to properly evaluate the properties
constituting the investment opportunity had it not been for the business activities
and experience of the first plaintiff and the promotion of the investment
opportunity by the plaintiffs to the defendants.
[4] As such, the plaintiffs allege that the first to sixth defendants ('the defendants ')
were aware or ought to reasonably have been aware that the plaintiffs introduced
them to the property and investment opportunity in order to benefit financially by
participating in and being remunerated by the asset manager who would asset
manage any investment made by Old Mutual who would in addition, as the
investor, pay the plaintiffs a promoters fee.
[5) The plaintiffs allege that it was contrary to the legal convictions of the community
and wrongful for the defendants to intentionally and secretly pursue the
investment opportunity and properties , which included Oregon Park properties
without the plaintiff and to invest directly or indirectly therein and place them
1 See paragraph 13 of the plaintiffs' particulars of claim for a full definition of the 'investment opponunity'.
3
under asset management structures established by the defendants , in order to
deprive the plaintiffs of a promoters fee and asset management stake / fee. The
plaintiffs plead that the defendants ' wrongful and intentional conduct caused
them to suffer damages in the amount of thirteen million two hundred and
seventy-three thousand and seventy-seven euros (€13 273 077). This amount of
€13 273 077 is constituted of €5 100 000 and €8 173 077. In the alternative , the
plaintiffs claimed the fair and reasonable or usual amount the defendants would
have paid to the plaintiffs to transparently and lawfully exclude the plaintiffs from
participating in the investment and asset management of the Oregon Park office
properties , and the defendants investment and asset management structures
established in pursuance thereof.2
[6] The amount of €5 100 000 is arrived at by calculating three percent (3%) of
€170 000 000. 3 The amount of €8 173 077 is calculated by taking point five
percent (0.5%) as an asset management fee, after expenses and multiplying
same by fifty percent (50%). The property value was dealt with over a twenty
(20) year period at an estimated annual growth rate of four percent (4%). A
discount rate of 4% was applied.4
[7] Therefore , the plaintiffs seek judgment in their favour for the payment of
€13 273 077 by the first to sixth defendants jointly and severally.
[8] In pleading to the plaintiffs' particulars of claim, the defendants invoked a special
plea wherein they aver that either on the facts pleaded or on the correct facts,
there was no legal duty in delict resting on the defendants to protect the plaintiffs
"The alternative claim is set out in the particulars of claim but not in the prayers where the amount of€ 13 273 077
is claimed.
3 POC 6
4 POC 7
4
from harm and there is no basis for extending the Aquilian liability to cover the
plaintiffs' pleaded case.
[9) Furthermore , the defendants denied that the investment opportunity constituted
confidential information exclusive to the plaintiffs and denied that the plaintiffs
had a protectable interest in the Oregon Park properties .
[ l OJ The defendants pleaded that the plaintiffs were not entitled to be involved in or to
benefit from the commercial exploitation of the Oregon Park properties.
Furthermore , that the information concerning Oregon Park properties was public
knowledge or could readily be ascertained. Therefore , there was no legal duty or
other legal obligation on the defendants to include the plaintiffs in any pursuit or
exploitation of the Oregon Park properties . Consequently , the defendants'
conduct was not wrongful and did not cause the plaintiffs any harm or loss which
could be attributable to them.
[ 11] Furthermore , the defendants deny that they placed any reliance on the
information provided by the plaintiffs.
[12] Thus, the disputed issues in the action proceedings between the parties are:
(i) was the investment opportunity , the result of the first plaintiff's experience
and knowledge of real estate in Central and Eastern Europe;
(ii) did the defendants rely on the information supplied by the plaintiff;
(iii) did the investment opportunity contain valuable confidential information;
(iv) did the plaintiff have a protectable interest in the Oregon Park properties;
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(v) were the defendants under a legal duty to include the plaintiffs in the
commercial exploitation of the Oregon Park properties;
(vi) did the plaintiffs have a protectable interest in the investment of the
Oregon Park properties ; and
(vii) the plaintiffs' damages of €13 273 077.
Discovery background
[ 13] On 29 September 2022, the defendants delivered an unsigned version of their
discovery affidavit. This was accompanied by a covering letter which informed
the plaintiffs that items 32 to 40 of the first schedule to the discovery affidavit
would not be delivered because they contained confidential and competitively
sensitive information. The plaintiffs were informed that the sensitive items would
only be delivered if they furnished a confidentiality undertaking .
[ 14] The defendants delivered a signed discovery affidavit on or about 5 October
2022. However, this affidavit also failed and/or refused to deliver the documents
which contained confidential and competitively sensitive information .
115 J On 6 October 2022 the plaintiffs caused correspondence to be sent to the
defendants which informed them inter alia that if the requested documents were
not discovered , the requisite Rule 35(3) notices would be delivered.
l 16) Almost a year later, on 13 September 2023 the plaintiffs delivered six notices in
terms of Rule 35(3), each notice calling upon the defendants to produce
additional documents to those already discovered . The time for responding to
the Rule 35(3) notice expired on 6 October 2023. The defendants were informed
that if they failed to respond to the notices by 11 October 2023, that the plaintiffs
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would launch the application to compel. The defendants requested an
indulgence until the end of November 2023 to properly deal with and respond to
the plaintiffs' request.
[17] The defendants, after being granted an indulgence, duly responded on 30
November 2023 to the Rule 35(3) notice. They deposed to an affidavit which
stated that they had made discovery of all the relevant documents in their
possession and that the documents requested were not in their possession or
under their control or relevant to the disputed issues. The defendants also stated
that the Rule 35(3) request was impermissibly broad and lacked the requisite
particularity and that it constituted a fishing expedition which amounted an abuse
of process.
Requested documents
[18] The plaintiffs sought documents which could be categorized into fourteen
categories . These were:
(i) exchange control documents;
(ii) accounting records;
(iii) meeting resolutions and minutes;
(iv) various company documents ;
(v) shareholder records;
(vi) audited or unaudited financial statements· '
(vii) year-end accounting packs;
(viii) monthly management accounts;
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(ix) various written agreements and deeds;
(x) registered title deeds;
(xi) promotional and/or advertising material; bank statements ;
(xii) rental roll;
(xiii) Bank statements ; and
(xiv) Correspondence .
[ 19] After the defendants filed their answering affidavit in the application to compel,
plaintiffs abandoned some categories of the documents requested and at the
hearing of the matter the list of requested documents had been reduced to the
following:
(i) for the period of May 2016 to date-all exchange control applications ,
notifications , approvals and correspondence regarding any investment by
the first to fourth defendants or any subsidiary or entity under their control
in and/or funding of OMP Investment Company (Pty) Ltd, Lion's Head
Investments EAD, Lion's Head Management EAD, AG Capital AD and/or
the Portland Trust and/or any subsidiary or associated companies of the
aforementioned companies relating to the direct or indirect acquisition , or
portion thereof, of Oregon Park, Soseaua Pipera 44, Bucharest Sector 2,
020112, Bucharest , Romania, or any portion or section thereof from
Atenor. For the purposes of this notice, the indirect acquisition of Oregon
Park would include, but is not limited thereto, the acquisition of any shares
or similar interest in any company, trust or other type of entity (whether
incorporated or not) which owns Oregon Park or any portion thereof;
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(ii) without derogating from the above, all exchange control applications ,
notifications , approvals and correspondence regarding any investment by
OMP Investment Company (Pty) Ltd or any subsidiary or entity under its
control in and/or funding of Lion's Head Investments EAD, Lion's Head
Management EAD, AG Capital AD and/or the Portland Trust and/or any
subsidiary or associated companies of the aforementioned companies
relating to the direct or indirect acquisition of Oregon Park;
(iii) all resolutions and/or minutes of meeting of directors, committees and/or
shareholders of the first to fourth defendants , OMP Investment Company
(Pty) Ltd, Lion's Head Investments EAD, Lion's Head Management EAD,
AG Capital AD and/or the Portland Trust and/or any subsidiary or
associated companies of the aforementioned companies relating to the
direct or indirect acquisition of Oregon Park or from Atenor. The aforesaid
should include, but not Jimited to
a. Business Campus from Atenor, including general ledger accounts
reflecting each amount transferred in regard to the foregoing ;
b. all resolutions and/or minutes of meetings of directors, committees
and/or shareholders of the first to fourth defendants , OMP Investments
Company (Pty) Ltd, Lion's Head Management EAD, AG Capital AD
and/or Portland Trust and/or any subsidiary of associated companies
of the aforementioned companies relating to the direct or indirect
acquisition of Oregon Park from Atenor. The aforesaid should include,
but will not be limited to:
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c. all feasibility studies, investment proposals or similar or equivalent
provided to the shareholders , board and/or the investment committee
(or equivalent) relating to Oregan Park; and
d. all excel spreadshee ts and analyses and valuations prepared or
obtained relating to Oregon Park
(iv) any and all deeds or documents or written agreements reflecting or
relating to or giving effect to the transfer of ownership or Oregon Park;
(v) the registered title deeds or registered documents of title deeds reflecting
the ownership of Oregon Park;
(vi) each and every written lease concluded with a tenant or Oregon Park;
(vii) the rental roll in respect of Oregon Park;
(viii) all correspondence , in any form including but not limited to emails, letters,
SMS, WhatsApp messages and faxes between:
a. representatives of OMP Investment Company (Pty) Ltd; and/or
b. representatives of the first to fourth defendants ; and/or
c. fifth defendant ; and/or
d. sixth defendant ; and/or
e. representative of Lion's Head Investment EAD; and/or
f. AG Capital; and/or
g. Christo lliev; and/or
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h. Dobrin Staikov; and/or
i. Elitsa Tsenova; and/or
j. Lori Collin; and/or
k. Constantinos Papadimos ; and/or
I. Mandy Ramsden ; and/or
m. Marian Gaylard; and/or
n. representatives of Questco (Pty) Ltd; and/or
o. Robert Neale; and/or
p. Portland Trust; and/or
q. Victor Constantinescu ; and/or
r. Tim Wilkinson ; and/or
s. representatives of Atenor; and/or
t. representatives of Colliers, in Bucharest or any other location involved
in work in Eastern Europe,
(ix) relating to properties situated in Romania and Bulgaria, including but not
limited to, Oregon Park.
120] The defendants opposed the application. As stated above, it is the defendants '
case that the application to compel is characterized by a consistent pattern of
overbreadth and lack of particularity and that the application constitutes an abuse
of process.
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[21] The defendants argue that the plaintiffs adopted an overly broad approach which
constitutes a fishing expedition and that the plaintiffs have failed to show how
each request relates to the alleged wrongful acts or the damages the plaintiffs
seek to recover.
122] Before turning to the specific documents requested, I set out the legal principles
applicable to an application to compel discovery . These principles have been
comprehensively set out in Investec Bank Limited v O' Shea NO (10038/2014)
[2020] ZAWCHC 71 (31 July 2020). These principles are:
(i) the purpose of discovery is to assist in the ascertainment and proof of
facts that are relevant to the determination of the disputed issued;
(ii) the purpose of discovery is the clarification or settlement of issues to
narrow the scope of disputes and to facilitate the more efficient conduct of
the trial;
(iii) honesty and good faith are foundational to discovery. Therefore, the onus
is on the party who demands better discovery to establish ma/a tides or to
demonstrate that the party has failed or refused to make additional
discovery is misguided as to the relevance of non-discovered material· '
(iv) the lack of particularity in a request for discovery may indicate that the
process is being abused;
(v) the party seeking further discovery in respect of a document the existence
of which is in doubt ordinarily bears. the onus of proving the existence
before a court will grant an order compelling its discovery ;
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(vi) the oath of a party alleging non-relevance is prima facie conclusive unless
it is shown that the court ought to go behind the oath; and
(vii) the onus of proving relevance where same is denied is on the party
seeking discovery or inspection .
[23) In The MV URGUP: Owners of the MV URGUP v Western Bulk Carriers
(Australia) (Pty) Ltd and Others5 it was held that Rule 35(3) is intended to cater
for those situations where a party knows or believes that there are documents in
his/her opponent's possession or under his/her control which may be relevant to
the issues and which he/she is able to specify with some degree of precision.
The objective of Rule 35(3) is not to give a litigant a licence to undertake a fishing
expedition .
Specific documents requested
(24] The plaintiff requested for the period May 2016 to date:
(i) all exchange control applications, notifications, approvals and
correspondence regarding any investment by the first to fourth defendants
or any subsidiary or entity under their control in and/or funding of OMP
Investment Company (Pty) Ltd, Lion's Head Investments EAD, Lion's
Head Management EAD, AG Capital AD and/or the Portland Trust and/or
any subsidiary or associate d companies of the aforementioned companies
relating to the direct or indirect acquisition , or portion thereof, of Oregon
Park, Soseaua Pipera 44, Bucharest Sector 2, 02112, Bucharest ,
Romania, or portion or section thereof ('Oregon Park'). Indirect
acquisition of Oregon Park will include, but is not limited thereto, the
5 1999 (3) SA 500 (C)
IJ
acquisition of any shares or similar interest in any company, trust or other
type of entity (whether incorporated or not) which owns Oregon Park;
(ii) without derogating from the above, all exchange control applications ,
notifications , approvals and correspondence regarding any investment by
OMP Investment Company (Pty) Ltd or any subsidiary or entity under its
control in and/or funding of, Lions Head Investments EAD, Lion's Head
Management EAD, AG Capital AD and/or the Portland Trust and/or any
subsidiary or associated companies of the aforementioned companies
relating to the direct or indirect acquisition of Oregon Park.
(25] The plaintiffs justified this request on the ground that they demonstrate the
defendants ' commitment to investing in Romania and relate to the extent to
which the first plaintiff's protected skill, knowledge and expertise was exploited
without his benefit or knowledge .
f26] The plaintiffs also argue that the documents requested are relevant as it
concerns the extent to which the investment opportunity was relied upon and will
provide a timeline of the applications and approvals which will reveal the
defendants ' intent and investment strategy in relation to the properties .
[27] The plaintiffs aver that a comprehensive view of the investment structure adopted
by the defendants is directly relevant to the plaintiffs' claim.
[28] The plaintiffs do not set out how or why the requested documents will reveal the
defendants ' intent and investment strategy in relation to the properties . Nor why
this is relevant to the disputed issues. Secondly , the plaintiffs state that a
comprehensive view of the investment structure adopted by the OMP defendants
is directly relevant to the plaintiffs claim and that facts and details regarding the
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acquisition of the properties , as well as the involvement of the defendants '
subsidiaries, will necessarily relate to the investment structure that was adopted.
It has not been shown how the investment structure is relevant to the plaintiffs'
claim which is based on the existence of a legal duty which was contravened
when the defendants excluded the plaintiffs from the investment opportunity and
the wrongful reliance by the defendants on the plaintiff's alleged confidential
information .
[29] A common thread in the plaintiffs' case is that it presents conclusions pertaining
to relevancy but fails to set out the facts on which that relevancy is based.
[30] It is common cause that the defendants invested in Oregon. It has not been
shown that the requested documents will do no more than confirm this.
Moreover , it has not been set out how or why the requested documents will
support the plaintiffs' case that the defendants wrongfully relied upon the first
plaintiff's alleged protected skill, knowledge and expertise without his benefit or
knowledge .
[31 J Therefore , the plaintiffs have not discharged the onus to show that the requested
documents are relevant.
[32] Furthermore , the defendants have stated under oath that these requested
documents are not in their possession or under their control and they do not
know the whereabouts thereof. The plaintiffs have not discharged their onus to
show that the requested documents exist and in the defendants ' possession or
under their control.
[33) The plaintiffs justified the request for the documents listed in paragraph 19 (iii)
above by stating that:
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'In general, these records are relevant as they will shed light on the decision
making process of the OMP defendants and their subsidiaries. They will reveal
how decisions regarding the transaction were made, and by whom. '6
(34) The plaintiff alleges that these documents will show that the corporate resolutions
and meeting minutes will show the 'decision making process of the OMP
defendants and their subsidiaries ' and how the 'decisions regarding the
transaction were made, and by whom'.
(35] The decision-making process of the defendants is not relevant based on the
pleadings and issues in dispute. Who, how and when the decisions regarding
the decisions were made are irrelevant to whether the first plaintiff had a
protectable interest, to what extent, if any the defendants relied on the first
defendant's alleged protected skill, knowledge and expertise without his benefit
or knowledge and whether the defendants had a legal duty to include the
plaintiffs in the business transactions.
(36) The plaintiffs allege that these documents provide insight into the expected
profitability , risk and strategic importance of the investment in the property. The
plaintiffs go on to state this is directly relevant to the plaintiffs' claim that they
were excluded from the investment opportunity and that their protected interests
were unlawfully exploited. However, the plaintiffs do not provide the basis or
grounds on which the expected profitability, risk and strategic importance of the
investment in the property will be relevant to the plaintiffs' claim that they were
excluded from the investment opportunity and that their protected interests were
unlawfully exploited.
6 Paragraph 44 of the founding affidavit
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[37] In requesting the excel spreadsheets reflected in paragraph 19(iii)(d) above, the
plaintiffs allege that the requested documents are cardinal to understanding the
financial expectations and valuations of the transactions and that they aid in
clarifying the factual matrix of the case and directly relevant to the claim and will
assist in the determination of damages.
(38] However, as shown above, the plaintiffs are claiming a fixed amount of damages
calculated in terms of a specific formula with an alternative quantum being the
fair and reasonable or usual amount the defendants would have paid to the
plaintiffs to transparently and lawfully exclude the plaintiffs from participating in
the investment and asset management of the Oregon Park office properties .
[39 J The plaintiffs have not set out how or why these excel are relevant to the
damages or in clarifying the factual matrix.
(40] Furthermore , the defendants have deposed that these requested documents are
not in their possession or under their control and they do not know the
whereabouts thereof.
(41) The plaintiffs have not shown that these documents do exist and in the
possession or under the control of the defendants or that the defendants know
their whereabouts .
[42] The documents requested in paragraph 19(iii)(c) above are allegedly necessary
to understand the basis on which the joint venture was formed, including insights
into the expected profitability , risks, and strategic importance of the investments
in the properties .
[431 It has not been shown how/why this is relevant to the disputed issues in the
pleadings .
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(44] The request for the documents set out in paragraph 19( iv) and (v) are justified by
alleging that they are relevant to the process by which the property was
transferred and reflecting the ownership of the property. The averment is made
that these issues are central to the plaintiffs' claim. The affidavit does not explain
the reason for this averment nor how these documents would advance its own
case or weaken the defendants ' case.
(45] The plaintiffs furthermore allege that these requested documents are necessary
to determine ownership of the properties and to understand the process by which
these properties were transferred. The ownership of the properties and the
transfer thereof have not been shown to be relevant to the disputed issues.
[46] The documents requested in paragraphs 19(vi) and (viii) are requested on the
basis that they would assist in the damages calculation . However, the plaintiffs'
damages , as pleaded, is quantified by reference to specific formulae which is
linked to the properties ' values. It is not dependent nor linked to the actual
tenants or rent rolls of the properties 7.
f 47) The plaintiffs allege that these documents are requested and are relevant
because it tests the plaintiffs' assertion that the transaction utilized the
investment opportunity , along with the plaintiffs' protected experience , knowledge
and skill. It is unclear how every written management agreement (including
asset management and/or performance agreements in respect of Oregon Park
would support the plaintiffs' claim.
[ 48] The defendants stated that all written agreements in respect of the Oregon Park
properties have already been discovered and that they are now aware of any
further relevant documents pertaining thereto.
7 Paragraphs 29 10 39 of the particulars of claim
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[ 49] The plaintiffs failed to make out a case for the court to go beyond the discovery
affidavit.
150] The plaintiffs allege that these documents will provide information on the income
generated from the properties and provide some context in respect of the tenant
relationships , which is necessary for the assessment of damages. As shown
above, the calculation of the plaintiffs' damages are not dependent on nor based
on the income generated from the properties not on the tenant relationships .
[51] The plaintiffs seek the documents in paragraph 19 (viii} as it will provide insight
into the decision-making process and to understand the background and
interpretation of the written agreements8.
[521 The plaintiffs state that the defendants had dealings with the plaintiffs and hold
vital information about the transactions. The court is not told the nature or
content of the vital information . In the absence of this detail, the court is unable
to properly evaluate the relevance of the requested documents .
l53] The court is simply told that the requested correspondence presents a direct
window into the defendants ' intentions and the use of the investment opportunity .
The court is not told what the correspondence contains nor why or how it is
relevant, simply that it is.
[54] The founding affidavit is peppered with superficia l allegations and conclusions
pertaining to relevancy which is insufficient to discharge the plaintiffs' onus.
l55] An example of the superficiality of the allegations is contained in paragraph 60.9
of the founding affidavit. The court is requested to compel discovery in respect of
correspondence pertaining to Robert Neale and the Portland Trust as they were
8 ';cc paragraph 30 (, iii).
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involved in the management of the property and engaged with the plaintiffs. The
court is told that:
'Their correspondence is highly relevant to amongst others, issues regarding the
exploitation of the plaintiffs' protected knowledge, skill and expertise. '
However, the court is not told the nature of the engagement with the plaintiffs,
nor why it is alleged that the correspondence would be relevant issues regarding
the exploitation of the plaintiffs' protected knowledge, skill and expertise.
[56] A simple allegation that the correspondence is relevant to the dispute does not
render it so. More is required as an allegation of relevance does not discharge
the burden needed to succeed in an application to compel discovery.
Legal Duty
[57) The plaintiffs persisted that the requested documents were relevant as they
would, among other things, enable the plaintiffs to test the defendants ' assertion
that they bore no legal duty towards the plaintiffs.
[58) In the founding affidavit deposed to in support of the application to compel, the
plaintiffs state that:
'The claim at the heart of these proceedings is neatly captured in paragraph 15 of
the particulars of claim, and in relevant part states that the OMP defendants -
"were entirely unaware of the properties and investment opportunity collectively,
and were also unaware of each component property thereof, individually ,
including the confidential information inherent therein and had not identified the
investment opportunity of any component property thereof for investment
purposes and asset management and would not have been in a position to
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properly evaluate them, recognize their protentional, and pursue an investment
(therein and/or asset management thereof, but for the business activities of the
first plaintiff ... "
(59] Furthermore, the plaintiffs state that
'When read together, the particulars of claim and the OMP defendants' plea
demonstrate that the requested documents are of significant relevance to the
resolution of the dispute. They will, amongst other things, enable the plaintiffs to:
37.1 Test the OMP defendants ' assertion that they bore no legal duty to
towards the plaintiffs.
37. 2 Verify the claim made by the OMP defendants that the investment
opportunity and/or the substance of the Confidential Information
Memorandum and/or the plaintiffs protected interest as it relates to the first
plaintiff's knowledge, skill, and expertise, was publicly known or
ascertainable.
37.3 Vitally, the records will enable the ventilation of the key issue in dispute:
being the manner and the means by which the OMP defendants
concluded the transaction and acquired the properties . '
(60] The plaintiffs' case is that
' ... it was contrary to the legal convictions of the community and accordingly
wrongful, for Old Mutual and Levett and Smit to intentionally and secretly pursue
the investment opportunity and properties (or any component property thereof},
without and excluding the plaintiffs, to invest, directly or indirectly therein and
place them under asset management structures established by the defendants ,
21
behind the plaintiffs' backs in order to deprive the plaintiffs of a promoters fee
and asset management slake/fee, and Old Mutual, Levett and Smith were under
a duty not to do so. 9
f 61] As seen from the above extracts of the plaintiffs' particulars of claim, the
existence and breach of a legal duty is central to the plaintiffs' case against the
defendants . This legal duty is not founded in statute or in terms of a contractual
relationship between the parties.
[62] It is trite that the plaintiffs bear the onus to establish that the defendants owed
them a legal duty which they breached .10
[63] As held in Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty)
Ltd11 South African law does not extend the scope of the Aquilian action to new
situations unless there are positive policy considerations favouring such an
extension. When a court is asked to accept, as it is in this case, the existence of
a legal duty in the absence of a precedent , it is actually asking the court to
extend the principles of delictual liability.12
[64] In Country Cloud Trading v MEG, Department of Infrastructure Development , the
Constitutional Court held that in a wrongfulness enquiry the focus is on the harm
causing conduct and whether the policy and legal convictions of the community,
constitutionally understood , regard the conduct as acceptable . The enquiry is
based on the duty not to cause harm and to respect rights; and questions the
reasonableness of imposing liability.
q Paragraph 28 of the plaintiffs amended paniculars of claim
10 Old Mutual Unit Trust Managers Ltd v living I-lands (Pty) Ltd and Others 2024 (6) SA 85 (SCA)
11 1985 (I) SA 475 (/\); C. IV v G. 1' (867/2021) (2023] ZASCA 23 ( 13 March 2023)
12 1i'11steesfor the Time Being o/Two Oceans Aquarium Trust & Templer (Pty) Ltc/2005 JDR 1375 (SCA)
22
[65] Therefore , the enquiry in an application to compel which relies on a legal duty is
whether the requested documents will not only be relevant to the harmful conduct
but also to the policy and legal convictions of the community and the
reasonableness of imposing liability.
[66] The plaintiffs do not set out how or why the requested documents are relevant to
the alleged harmful conduct or to ascertaining the legal and policy convictions of
the community . The plaintiffs want the court to come to this conclusion without
providing it with the facts and/or circumstances to do so.
[67] In the circumstances , the plaintiffs have not made out a case to compel discovery
based on the breach of a legal duty owed by the defendants to them.
Conclusion
[68] When the plaintiffs instituted the application , they sought 14 categories of
documents which were described in general terms. After the defendants filed
their answering affidavit, the plaintiffs abandoned the majority of the documents
sought without any explanation or reasons therefore being furnished.
l69] In persisting with the application pertaining to the revised and shortened list of
documents the plaintiffs presented general conclusions of relevancy without
furnishing the facts to support these conclusions .
[70] The plaintiffs requested the court to disregard the defendants ' statements under
oath pertaining to relevancy and the existence of documents without providing
any satisfactory or cogent reasons therefore in the founding papers.
[71] Therefore , in my view, this application constituted an abuse of process.
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[72] Consequently , I make the following order:
(i) the application is dismissed with costs, which costs shall be on an attorney
client scale, including the costs of counsel.