IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
AGRAFORUM SOUTH AFRICA (PTY) LTD
(Registration No : 2004/022326/07)
and
BARTLOMEUS COETZEE
INRE:
BARTLOMEUS COETZEE
(Registration No : 2004/022326/07)
and
AGRAFORUM SOUTH AFRICA (PTY) LTD
Not reportable
Case no: 5815/2022
APPLICANT
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RESPONDENT
APPLICANT
RESPONDENT
Neutral citation: Argaforum South Africa (Pty) v Bartlomeus Coetzee (5815/2022)
[2025] ZAFSHC 323 (16 October 2025)
Coram: MHLAMBI J
Heard: 8 May 2025
Delivered: 16 October 2025
Summary: Uniform Rules of Court -rule 35(3) notice -opposition alleging
requested documents irrelevant and unavailable - relevance is for the court to
decide.
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ORDER
1 The Respondent is ordered and directed to produce for inspection under and in
accordance with Uniform Rule of Court 35(3), as read with Uniform Rule of Court 35(6),
the following documents:
1.1 Copies of Plaintiffs Combine Harvester Charts for sunflowers planted
(harvested) by the Plaintiff during the 2015/2016 season concerning all sunflowers
planted by the Plaintiff in that growing season;
1.2 Copies of Plaintiffs spray program for all sunflower planted by the Plaintiff in
the 2015/2016 sunflower plant season;
1.3 Copies of Plaintiffs fertiliser program for all sunflowers planted by the Plaintiff
in the 2015/2016 sunflower planting season;
1.4 Copies of all Plaintiffs weighbridge receipts received regarding sunflower
planted (harvested) by the Plaintiff during the 2015/2016 sunflower planting season;
1.5 Copies all of the Plaintiffs delivery receipts for sunflower harvested by the
Plaintiff during the 2015/2016 sunflower planting season;
1.6 Copies of Plaintiffs Combine Harvester Charts for sunflower planted
(harvested) by the Plaintiff in the 2019/2020 season regarding all sunflower planted by
the Plaintiff.
1. 7 Copies of the Plaintiffs spray program for all sunflower fields planted by the Plaintiff
during the 2019/2020 sunflower growing season.
1.8 Copies of Plaintiffs fertiliser program for all sunflower planted by the Plaintiff in
the 2019/2020 sunflower planting season;
1.9 Copies of all Plaintiffs weighbridge receipts received for sunflower planted
(harvested) by the Plaintiff in the 2019/2020 sunflower planting season;
1.10 Copies of all the Plaintiffs delivery receipts for sunflower harvested by the
Plaintiff during the 2019/2020 sunflower season;
1.11 Copies of Plaintiffs Combine Harvester Charts for sunflower planted
(harvested) by the Plaintiff in the 2021/2022 season regarding all sunflower planted by
the Plaintiff;
1 .12 Copies of Plaintiffs spray program for all sunflower planted by the Plaintiff in
the 2021 /2022 sunflower planting season;
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1.13 Copies of Plaintiffs fertilizer program for all sunflower planted by the Plaintiff in
the 2021/2022 sunflower planting season;
1.14 Copies of all the Plaintiffs delivery receipts for sunflower harvested by the
Plaintiff during the 2021/2022 sunflower season;
2 The Respondent is ordered to pay the costs of this application, such costs to
include the costs of counsel on scale C as provided for in Uniform Rule of Court 67 A.
JUDGMENT
MHLAMBI, J
[1] The applicant requests an order to compel the respondent to produce
additional documents under Uniform Rule 35(3), specifically those not previously
discovered despite a prior rule 35(3) notice. The respondent opposed the application,
arguing that the documents were not relevant to the issues in dispute, had already
been disclosed, and that no other documents remained for discovery.
[2] Uniform Rule 35(3) states that if any party believes there are additional
documents (including copies) or tape recordings relevant to the matter in question that
are in the possession of another party, beyond those already disclosed, the former
may serve notice requiring the latter to make them available for inspection in
accordance with subrule (6), or to swear within 10 days that such documents or tape
recordings are not in their possession. In such cases, the party making the disclosure
must state their whereabouts, if known.
[3] Copies of the documents requested in the notice of motion include the
combine harvester charts, spray program, fertilizer program, weighbridge certificates,
and delivery receipts for the sunflower planted by the applicant during the 2015/2016,
2019/2020, and 2021 /2022 seasons, as well as the pre-plant agreement signed on
4 November 2020. The respondent argued that the documents for the 2015/2016 and
2019/2020 planting seasons were irrelevant and that the applicant was not entitled to
them. The respondent also stated that the only planting seasons mentioned in the
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pleadings are the 2019/2020 and 2021/22 seasons, as reflected in their plea in the
main case. The respondent refused to provide these documents, claiming that the
applicant was fishing.
[4] The respondent's reasons for his attitude are that the applicant deliberately
misinterpreted his expert's report. The respondent's attorney had asked the expert to
specify in his report whether previous planting seasons were relevant to resolving the
issues in the case. The expert stated in his letter dated 5 June 2024 that, in agriculture,
no production year can be directly compared to another, as crops are usually rotated
from year to year.
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[5] In respect of the 2021/2022 season, the respondent contended that the
documents called for had already been provided, and no further documents were
available. He could therefore not be compelled to give what is not available.
[6] The respondent's claim is based on the breach of an oral agreement made
between the parties in December 2021 when the applicant's representative told him
that the applicant's product, Comcat , was suitable for foliage nutrition on his sunflower
crops at Dora Farm. The product, which was properly registered, was supposed to
increase the crop yield and have no negative effects on plant growth. However,
contrary to that advice, the product mixture applied to the crop on 5 January 2022,
damaged the crop, and the sunflower plants appeared unhealthy with stunted growth.
The total sunflower area on the farm was 41 .86 hectares, of which only 4.79 hectares
remained undamaged . This crop was sold at a loss on 4 November 2020.
[7] In its plea, the applicant denied the existence of the agreement and that the
representative acted on its behalf. It stated that the representative visited the
respondent's farm on 25 November 2021, at the request of an independent distribution
agent for Comcat WP , Fred Schabert. During the 2019/2020 planting season, the
respondent purchased and successfully used the applicant's product called Comcat
respondent purchased and successfully used the applicant's product called Comcat
without any negative results. The respondent was not only familiar with the
effectiveness of the product on crops where it was applied but also aware of the
product information, warnings, disclaimers, and instructions for use printed on the
packaging or label of Comcat.
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(8] The applicants argued that the respondent's damage to his sunflower crop
resulted from several factors other than the use of Comcat. These included the
respondent's failure to effectively remove and clean the herbicide residue from the
spraying equipment used to apply the Comcat; using contaminated equipment when
applying or spraying the Comcat on his crop; planting sections of the larger sunflower
crop in the 2021/2022 season that suffered poor germination; using a different product
besides Comcat during the 2021/2022 season; and spraying the sunflower crop with
a contact herbicide like Gramoxone containing the active ingredient paraquat, or
applying the herbicide Captora in a manner contrary to the product's directions and
mixing instructions.
(9] Consequently, the applicant argued that it was necessary to obtain information
about previous planting seasons, along with full disclosure of the spray and fertiliser
programs. The respondent did not provide the raw data for the requested combine
harvester charts but supplied summar ies prepared by a third party, which included
data on 37,654 hectares. In contrast, the case involved 41 .86 hectares, of which 37.07
hectares were damaged . The applicant contended that approximately 140 hectares of
sunflower were treated with Comcat without any adverse effects on the crop during
the 2021/2022 season, consistent with previous uses of Comcat in earlier planting
seasons.
[9] The respondent failed to provide copies of his program for all the sunflower
planted in the 2021-2022 planting season. Instead, he only supplied a list of products
sprayed, lacking details about the mixture or ratio, the quantities or volumes sprayed
per hectare, or the spraying timeline, which is typical in a spray program. The
requested information was argued to address the issues raised in the plea. The
respondent provided plant nutrition details for Skaapplaas, not Dora Farm, which
respondent provided plant nutrition details for Skaapplaas, not Dora Farm, which
pertained to the action, and claimed that the applicant was not entitled to it. Despite
his December 2023 Rule 35(3) answer stating he was compiling the receipts for
discovery, the respondent argued that he could no longer find the documents and
therefore could not provide them.
(1 0] Uniform Ru le 35(3) states that if any party believes there are, beyond the
documents or tape recordings already disclosed as mentioned, additional documents
(including copies) or tape recordings relevant to the matter in question and in the
possession of any party, the former may notify the latter, demanding such materials
be made available for inspection as per subrule (6), or require the party to swear within
1 O days that these documents or recordings are not in their possession. In this case,
the party making the disclosure must specify their location, if known . A document is
properly said to contain information that may enable the party requiring the affidavit to
either advance their own case or damage their adversary's case if it fairly leads to a
train of inquiry with either of these two consequences.1
[11] This subrule outlines the process for a party dissatisfied with another party's
discovery. Its purpose is to provide a procedure to supplement discovery that has
already been completed but is alleged to be insufficient.2 The subrule is not intended
to allow a litigant to fish in hopes of catching something useful.3 Courts are hesitant to
look behind a discovery affidavit, which is viewed as conclusive, unless it can be
shown that either (i) from the discovery affidavit itself, (ii) from the documents
referenced in the affidavit, (iii) from the pleadings in the case, (iv) from any admission
made by the party who submitted the affidavit, or (v) based on the nature of the case
or the documents involved, there are reasonable grounds to believe that the party has
or previously had other relevant documents or tape recordings in their possession or
control, or that they misunderstood the principles on which the affidavit should be
made.4
[12] The respondent's main objection to additional discovery is that the requested
documents are irrelevant and inadmissible. In ST v CT,5 it was stated that a litigant
1
Re/lams (Pfy) Ltd v James Brown & Hamer Limited 1983 (1) SA 556 (N) at 564A-B as quoted in
1
Re/lams (Pfy) Ltd v James Brown & Hamer Limited 1983 (1) SA 556 (N) at 564A-B as quoted in
Swissborough Diamond Mines (Pfy) Ltd and Others v Government of the Republic of South Africa 1999
(2) SA 279 (T) (Swissborough) at 316F-H.
2
Swissborough at 3201-321 F; See also Louw v Grob/er and Another (3074/2016) (2021] ZAFSHC 223
(28 September 2021) (Lauw) para 17.
3
MV Urgup: Owners of the MV U rgup v Western Bulk Carriers (Australia) (Pty) Ltd and Others 1999
(3) SA 500 (C) at 515D; See also Investec Bank Ltd v O'Shea NO (10038/2014) [2020] ZAWCHC 158
(16 November 2020) (Investec) para 16.
4
Makate v Vodacom (Pfy) Ltd 2014 (1) SA 191 (GSJ) at 197C-G ; See also: Investec para 18; Erasmus
NO v The MEG for Health, NC Province (1342/2014) [2021] ZANCHC 1 (8 January 2021)
para 46; Louw paras 13-15; Isaacs v Mangera Attorneys (2021/51099) (2023] ZAGPJHC 785 para
22; Africa Wide Investment Holdings (Pfy) Limited v Miganu Investment Holdings (Pty)
Limited (8279/2019) (2024] ZAGPJHC 518 (30 May 2024) para 34.
5
ST v CT[2018] ZASCA 73; (2018] 3 All SA 408 (SCA ); 2018 (5) SA 479 (SCA) para 19.
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should not impose his view of relevance in the discovery process, as this is a matter
for the courts based on the pleadings. Relevance is for the court to decide, considering
the issues between the parties, as noted in Lauw v Grob/er and Another.6
[13] The respondent, in a previous rule 35(3) affidavit in 2023, undertook to make
full discovery of certain documents that he was busy compiling. These documents
were apparently made available to his expert. In a subsequent affidavit in 2024, he
stated that he had since conducted a thorough research of his records and was unable
to find the documents sought. Such documents were no longer in his possession and
did not know their whereabouts. Save for the documents discovered, he had no further
documents in his possession relevant to the issue in dispute.
[14] Having considered the above, I conclude that the respondent is not forthright
and willing to make proper discovery of the documents required. Consequently, the
applicant must succeed in the relief sought.
[15] I, therefore, make the following order:
1 The Respondent is ordered and directed to produce for inspection under and in
accordance with Uniform Rule of Court 35(3), as read with Uniform Rule of Court 35(6),
the following documents:
1.1 Copies of Plaintiffs Combine Harvester Charts for sunflowers planted
(harvested) by the Plaintiff during the 2015/2016 season concerning all sunflowers
planted by the Plaintiff in that growing season;
1.2 Copies of Plaintiffs spray program for all sunflower planted by the Plaintiff in
the 2015/2016 sunflower plant season;
1.3 Copies of Plaintiffs fertiliser program for all sunflowers planted by the Plaintiff
in the 2015/2016 sunflower planting season;
1.4 Copies of all Plaintiffs weighbridge receipts received regarding sunflower
planted (harvested) by the Plaintiff during the 2015/2016 sunflower planting season;
1.5 Copies all of the Plaintiffs delivery receipts for sunflower harvested by the
Plaintiff during the 2015/2016 sunflower planting season;
Plaintiff during the 2015/2016 sunflower planting season;
6 Louw para 12.
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1.6 Copies of Plaintiffs Combine Harvester Charts for sunflower planted
(harvested) by the Plaintiff in the 2019/2020 season regarding all sunflower planted by
the Plaintiff.
1. 7 Copies of the Plaintiffs spray program for all sunflower fields planted by the Plaintiff
during the 2019/2020 sunflower growing season.
1.8 Copies of Plaintiffs fertiliser program for all sunflower planted by the Plaintiff in
the 2019/2020 sunflower planting season;
1.9 Copies of all Plaintiffs w eighbridge receipts received for sunflower planted
(harvested) by the Plaintiff in the 2019/2020 sunflower planting season;
1.1 O Copies of all the Plaintiffs delivery receipts for sunflower harvested by the
Plaintiff during the 2019/2020 sunflower season;
1.11 Copies of Plaintiffs Comb ine Harvester Charts for sunflower planted
(harvested) by the Plaintiff in the 2021/2022 season regarding all sunflower planted by
the Plaintiff;
1.12 Copies of Plaintiffs spray program for all sunflower planted by the Plaintiff in
the 2021/2022 sunflower planting season;
1.13 Copies of Plaintiffs fertilizer program for all sunflower planted by the Plaintiff in
the 2021/2022 sunflower planting season;
1.14 Copies of all the Plaintiffs delivery receipts for sunflower harvested by the
Plaintiff during the 2021/2022 sunflower season;
2 The Respondent is ordered to pay the costs of this application, such costs to
include the costs of counsel on scale C as provided for in Un iform ule of Court 67 A.
HE HIGH COURT
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Appearances
For the appellant: C Snyman
Instructed by: Phatshoane Henney Attorneys
For the respondent: JW Steyn
Instructed by: Honey Attorneys