IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Not reportable
Case no. 4424/2023
In the matter between:
MTHULISI MAVIYO Applicant
and
VELOCITY FINANCE (RF) LIMITED Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LAING J
[1] This is an application for leave to appeal against the court’s decision to
dismiss, with costs, an application brought to compel the production of certain
documents . These comprised the items listed under the applicant’s notice in terms of
rules 35 (12) an d 35 (14) , delivered previously.
[2] The main ground s relied upon by the applicant are that the court erred in
holding that the respondent made no reference in its answering affidavit to the items
in question. They comprised the following: the original sig ned transaction schedule ;
the Altech Netstar service mentioned in a transaction schedule ; and the instalment
sale agreement, signed electronically. The applicant contended that the respondent
made sufficient reference thereto in its papers to justify the p roduction thereof, citing
a recent decision of the Supreme Court of Appeal in that regard.
[3] The test for the granting of leave to appeal is contained in section 17 (1) (a) of
the Superior Courts Act 10 of 2013. The judge in question must believe that th e
appeal would have a reasonable prospect of success, or that there is some other
compelling reason why the appeal should be heard. In The Mont Chevaux Trust (IT
2012/28) v Tina Goosen ,1 the court said that the above provisions had raised the bar
for the test to be applied to the merits of the proposed appeal. This is the generally
accepted approach to applications of the present nature.2
[4] In argument, the applicant asserted that the respondent’s reference to ‘the
transaction schedule’ as well as a copy thereof was sufficient to be understood as a
reference to the original document. To that effect, he relied on the decision in
Democratic Alliance and others v Mkhwebane and another ,3 to contend that a
document referred to directly or indirectly in an affidavit or an annexure thereto, and
which w as relevant, must be produced when requested in terms of rule 35 (12). The
court, per Navsa ADP , held that:
‘. . . It appears to me to be clear that documents in respect of which there is a
direct or indirect reference in an affidavit or its annexures, that are relevant,
and which are not privileged, and are in the possession of that party, must be
produced. Relevance is assessed in relation to r ule 35 (12), not on the basis
of issues that have crystallised, as they would have had pleadings closed or
all the affidavits filed, but rather on the basis of aspects or issues that might
arise in relation to what has thus far been stated in the pleadings or affidavits
and possible grounds of opposition or defences that might be raised, and on
the basis that they will better enable the party seeking production to assess
his or her position and that they might assist in asserting such a defence or
defences. ’4
1 Unreported, LCC case no. LCC14R/2014, dated 3 November 2014.
2 See the discussion in DE van Loggerenberg Erasmus: Superior Court Practice RS 4 (2024) D -102–
7.
3 2021 (3) SA 403 (SCA).
4 Para 41.
[5] The court previously held that the respondent referred to a copy of the
transaction schedule. It could well be argued, as the applicant has done, that the
reference was sufficiently wide to include reference to the original document. Based
on Democ ratic Alliance , however, the reference must also be relevant. Th e applicant
has failed to demonstrate th is. The closest that he came to doing so, in the
immediate application, is the allegation that it is relevant to reasonably anticipated
issues regarding the main application. He did not , however, disclose the nature of
such issues. There was simply no indication from the applicant’s papers why the
original version of the transaction schedule, rather than a copy, was relevant.
[6] Regarding the Altech Netstar service mentioned in the transaction schedule , it
is important to observe that the applicant ’s notice in terms of rules 35 (12) and (14)
referred to the production of an Altech Ne tstar certificate . There is a clear distinction
between ‘service’ and a ‘certificate’ . The applicant has moved the goal posts, so to
speak. In any event, to the extent that Democratic Alliance can be used as authority
for the contention that the respondent ’s reference to the transaction schedule was
sufficiently wide to include reference to the services offered by Altech Netstar, the
relevance thereof to the main application was simply not explained.
[7] Turning to the electronically signed instalment sale agreement, the
respondent made no reference at all in its answering affidavit to the data messages
mentioned by the applicant in its notice and the application for leave. In that regard ,
section 13 of the Electronic Communications and Transactions Act 25 of 2002, cited
by the applicant, addresses the use of electronic signatures and their legal force and
effect. To assert, as the applicant seem ed to do, that the respondent’s reference to
an electronically signed instalment sale agreement was an indirect re ference to a
data message, as used within the context of section 13, is to strain, to breaking
point, the principles mentioned in Democratic Alliance . There is no connection
between the terms, whether direct or indirect. The relevance of the data messages
mentioned by the applicant is, in any event, not apparent.
[8] A further aspect to be considered is whether an appeal lies against the order
already granted by the court. The erstwhile Appellate Division held, in Pretoria
Garrison Institutes v Dan ish Variety Products (Pty), Limited ,5 that:
‘. . . a preparatory or procedural order is a simple interlocutory order and
therefore not appealable unless it is such as to “dispose of any issue or any
portion of the issue in the main action or suit” or. . . unless it “irreparably
anticipates or precludes some of the relief which would or might be given at
the hearing ”.’6
[9] The applicant has not argued that the order disposes of any issue in the main
application; he has also not argued that it anticipates or precludes any of the relief
sought in terms thereof. The applicant has not been prevented from delivering his
replying affidavit or from requesting that the matter be referred for oral evidence (if
so advised). The order does not have the final effect r equired to make it appealable.
Instead, the applicant appeared to contend that the production of the documents w as
required to allow a proper ventilation of the issues . This is plainly insufficient.
[10] In the circumstances, the court does not believe that the requirements of
section 17 (1) (a) of the Superior Courts Act 10 of 2013 have been met. The
following order is made:
(a) the application for leave to appeal is dismissed; and
(b) the applicant is ordered to pay the respondent’s costs.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
5 1948 (1) SA 839 (A).
6 At 870. See, too, the discussion in A C Cillier et al Herbstein and Van Winsen: Civil Practice of the
High Courts and the Supreme Court of Appeal of South Africa 5ed (2009) ch39 -p1206 –12.
APPEARANCES
For the applicant: Adv M Manana
Instructed by: YOKWANA ATTORNEYS
10 New Street
Makhanda
Tel: 081 473 9146
Email: anelem aviyo@gmail.com
Ref: Mr A Maviyo
For the respondent: Adv M Somandi
Instructed by: HUXTABLE ATTORNEYS
26 New Street
Makhanda
Tel: 041 585 3363
Email: cally@manilalbrewis.co.za
Ref: CP/VW298
Date heard: 13 June 2025
Date delivered: 19 June 2025