REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
Case Number: 055795/22
In the matter between:
AZIZE EQUIPMENT (Pty) Ltd Plaintiff/Respondent
and
MACHITE ENGINEERING CC Defendant/Applicant
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL
MANOIM J:
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: No
07/10/2025 ___________ ________
DATE SIGNATURE
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Introduction
[1] This is an application for leave to appeal an order I gave in respect of a
discovery application.
[2] The party seeking leave to appeal is Machite Engineering CC, the defendant in
this matter. The defendant had opposed the discovery application. I ordered the
defendant to discover certain documents requested by Azize Equipment (Pty)
Ltd, the plaintiff.1 The defendant now appeals against that order.
[3] Although the plaintiff has brought three claims against the defendant, only one
of them- for payment of the balance of the purchase price - is relevant to the
discovery dispute.
Nature of the case
[4] The plaintiff sold two drilling rigs to the defendant. The contract was entered
into in December 2019. The plaintiff alleges the agreement was partly written
and partly oral. The nub of the dispute is over the purchase price for the rigs.
The plaintiff alleges that it has only been part paid and the defendant owes it
the balance of the purchase price for the equipment.
[5] In its plea t he defendant contends it has paid the full purchase price. If the
defendant is correct, then on its version the price agreed to was approximately
44% less than the price contended for by the plaintiff.
1 I will refer to the parties from now on as plaintiff and defendant in the interests of clarity.
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[6] Hence the plaintiff seeks discovery of documentation from the defendant that it
alleges will either show the price, or if the not the price , then the value of the
drilling rigs, and hence may show that the defendant’s version is implausible.
[7] The documents sought and which I ordered to be discovered were:
• The defendant’s fixed asset register for the period between 10
December 2019 to date:
• All VAT returns submitted on behalf of the defendant to the South African
Revenue Services for the period between 10 December 2019 to 28
February 2023;
• All the defendant's insurance policies relating to the two drilling rigs; and
• The defendant’s financial statements for the years ending 2018 to 2023.
[8] The defendant had opposed the discovery on the basis of relevance. I found
that the documents were relevant and hence my order.
Grounds of Appeal
[9] The defendant now seeks leave to appeal. Briefly the grounds of appeal relate
to relevance and that the period for which the documents is sought is
overbroad. In addition , in the application for leave to appeal, the defendant
argues that the documents contain confidential information which the defendant
should not have to discover to a rival.
Appealability of the decision
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[10] Both parties agree that before I can consider the merits of the leave to appeal,
I have to decide whether the decision is appealable. If not, then the defendant
does not get out of the starting blocks.
[11] A decision to order discovery is not a final order. In terms of the Zweni decision,
the locus classicus on this point, for a decision to be regarded as final it must
possess all three of the following attributes.2
a. The decision sought to be appealed must be final in effect which meant
it must not be susceptible to alteration by the court appealed from;
b. It must be definitive of the rights of the parties; and
c. It must have the effect of disposing of at least a substantial portion of the
relief claimed in the main proceedings.
[12] Arguably an order to discover does not have any of these three attributes. But
it is at least uncontroversial that it does not meet the third requirement, as it
does not decide a substantial portion of the relief claimed. This is because it is
no more than an order to produce the named documents. In a recent decision
most in point on the matter, the Supreme Court of Appeal had to decide whether
a regional court decision to compel discovery was appealable . The court
explained why it was not:
“The upshot of the above is that the regional court’s order to compel the
respondent to discover is purely interlocutory in nature. It has no final effect, is
not a definitive proceeding, and does not have the effect of disposing of at least
2 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 536 A to C.
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a substantial portion of the relief claimed in the pending divorce action between
the parties. Neither does it affect the rights of the parties whatsoever. The
parties are still entitled to prosecute their case and are still at liberty to direct
the court to any evidence and to advance any argument that they wish.3
[13] The defendant then was faced with the problem of navigating around both
Zweni and HJ v PJ. Counsel argued that recent Constitutional Court decisions
have made it clear that the Zweni test is not the final word on appealability.4
Instead, in appropriate cases, courts should apply an ‘interests of justice’ test.
It is based on the latter test that the defendant suggests the decision is
appealable. Granted courts have grappled with the open ended nature of this
test. But it can at least be accepted that where a case fails the Zweni test but
passes an ‘interests of justice’ test, the facts must be exceptional. 5
[14] Here the defendant argues that the information sought is commercially
sensitive. It also contends that the plaintiff is its competitor. Thus, if the plaintiff
were to have sight of this information it would irreparably damage the
defendant. In this sense argued the defendant , the disclosure is final in effect
as the sensitive information once revealed cannot be “unseen.”
[15] There are two problems with this argument. First it was never made out before
me when the matter was heard and so the factual premise for this argument is
not made out on the papers. For instance , it is alleged the two firms are
3 H.J v P.J (285/2023) [2024] ZASCA 55 (19 April 2024) paragraph 16.
4 See for instance International Trade Administration Commission v SCAW South Africa (Pty) Ltd
2012 (4) SA 618 (CC) at paragraph 53, where the Court held that the Zweni requirements were never
without qualification.
5 See for instance TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and
Others 2023 (5) SA 163 (SCA) at paragraph 30.
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competitors. This is not in the papers. On the facts before me they appear to
be supplier and customer, not competitors.
[16] But even if they are competitors this has not been recognised as a basis to
deny discovery. Every day in commercial disputes firms are required to discover
information that is otherwise private and may be viewed by a party they would
rather did not have sight of it . Patent disputes, passing off, and unfair
competition are just some examples.
[17] Then the defendant sought to rely on a judgment of Margo J in Continental Ore
Construction v Highveld Steel & Vanadium Corporation Ltd as a basis for the
commercial secrecy exception. 6 In that matter Margo J upheld a defendant’s
contention that it should not have to disclose documents to the plaintiff which
contained information which related to price because the plaintiff was a
competitor. But this does not support the defendant in this case. In the latter
case Margo J noted that the main issue was whether an agreement had been
concluded and only then, if the issue was decided in favour of the plaintiff, would
the defendant become obliged to disclose the prices during the relevant period.
In other words the decision was that the discovery request was premature. It
does not decide that such disclosure is not generally discoverable. In the
present case the conclusion of the contract is not in dispute, but the price of the
goods is. Hence it is presently relevant.
[18] Nor is there any rationale for an interests of justice argument to protect
commercially sensitive documents from discovery. If anything creating a carve
out for commercially sensitive documents would be contrary to the interest of
6 Continental Ore Construction v Highveld Steel & Vanadium Corporation Ltd1971 (4)SA 589 W.
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justice. They would prolong litigation, incentivise opportunistic delays and lead
to great uncertainty.
[19] I find that no case is made out for finality in terms of Zweni and that no exception
in the interests of justice is made out not to apply that case to the present facts.
The result is that the decision is not appealable and leave to appeal must be
denied.
ORDER
I make the following order:
1. The application for leave to appeal is dismissed.
2. The Applicant is ordered to pay the costs of the application.
________ ______
MANOIM J
JUDGE OF THE HIGH COURT
JOHANNESBURG
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APPEARANCES:
For the Plaintiff: B van der Merwe
Instructed by: Malherbe Rigg & Ranwell Inc.
For the Defendan: L Molete
Instructed by: Maphoso Mokoena Attorneys
Date of hearing: 26 September 2025
Date of Judgement: 07 October 2025