REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2021/40889
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED: NO
7 NOVEMBER 2025 Judge Dippenaar
In the matter between:
MINISTER OF POLICE FIRST APPLICANT
NATIONAL COMMISSIONER OF THE SOUTH AFRICAN SECOND APPLICANT
POLICE SERVICE
COMMANDING OFFICER OF THE SOUTH AFRICAN THIRD APPLICANT
POLICE SERVICES POLICE STATION DOBSONVILLE
THE STATE ATTORNEY FOURTH APPLICANT
and
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MIDNIGHT STAR TRADING 437 CC T/A
BRAAMFISCHER SPAR RESPONDENT
IN RE:
MIDNIGHT STAR TRADING 437 CC T/A BRAAMFISCHER SPAR PLAINTIFF
and
MINISTER OF POLICE FIRST DEFENDANT
NATIONAL COMMISSIONER OF SOUTH AFRICAN SECOND DEFENDANT
POLICE SERVICE
COMMANDING OFFICER OF THE SOUTH AFRICAN THIRD DEFENDANT
POLICE SERVICES POLICE STATION DOBSONVILLE
THE STATE ATTORNEY FOURTH DEFENDANT
JUDGMENT
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by e-mail and uploading it onto the electronic platform.
The date and time for hand -down is deemed to be 10h00 on the 07th of
NOVEMBER 2025.
DIPPENAAR J:
[1] The applicants seek to compel the respondent to discover certain documents
referred to in their notice in terms of r 35(12) and r 35(3), served on the applicants on 21
June 2023. The respondent opposes the application . It contends that its response
constituted due compliance with the notice and that the application should accordingly be
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dismissed with costs. In that response, the respondent contended that the documents
were not in its possession and their whereabouts were unknown.
[2] At the hearing, the parties agreed that the application should be adjudicated on the
basis of r 35(3) and that r 35(12) was not applicable. T he applicants further abandoned
reliance on some of the documents sought in the ir original notice. Four categories of
documents remained: the respondent’s audited financial statements for the financial
years ending February 2018 to February 2022; its tax returns for the financial years ended
February 2018 to February 202 2; insurance claims submitted to SASRIA and CCTV
footage available from 7 to 18 March 2019. Certain ancillary relief was sought in the event
the respondent did not comply with the compelling order, together with costs.
[3] Two issues require adjudication: First, whether condonation should be granted to
the respondent for the late delivery of its answering affidavit. Second, whether the
applicant was entitled to a compelling order.
[4] I deal with the condonation issue first. The respondent did not comply with the
r35(3) notice within the stipulated ten day period. Accordingly, the applicants launched a
compelling application on 26 July 2023. The respondent only delivered an affidavit
responding to the notice on 26 June 2024. That affidavit was deposed to by the
respondent’s attorney. It delivered an answering affidavit to the application, together with
a condonation application for its late delivery on 5 September 2024. On 3 October 2024,
the respondent delivered a confirmatory affidavit by one of its employees supporting its
response to the said notice. It was contended that its failure to deliver an answering
affidavit was not prejudicial to the applicant that it was an “oversight by its legal team”. At
the hearing, respondent’s counsel, properly in my view, clarified the position that it was a
the hearing, respondent’s counsel, properly in my view, clarified the position that it was a
conscious decision, given the respon dent’s stance that it had properly responded to the
notice.
[5] The respondent’s conduct is open to substantial criticism and it did not fully or
properly explain the reasons for its default . Despite there being no substantial prejudice
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on the part of the applicants that cannot be addressed by way of an appropriate costs
order, it was still incumbent on the respondent to show good cause. Condonation is not
there for the mere asking .1 A party seeking condonation must show sufficient cause
entitling it to a court’s indulgence. Of great significance is that the explanation must be
reasonable enough to excuse the default. Here the delay was occasioned by the stance
adopted by the respondent.
[6] Given all the facts I am not persuaded that condonation for the late filing of the
answering affidavit should be granted to the respondent. The responden t’s answering
affidavit in any event does not take the matter any further, even if it had been admitted .
No attempt was made therein to clarify any of the responses given to the applicant’s
r 35(3) notice. Instead, it was merely repeated that primarily the respondent does not have
the documents in its possession. In relation to the tax returns, it was contended that ‘it is
not necessary for purposes of determining quantum in the respondent’s claim against the
applicants.’
[7] I turn to the merits of the application. Despite the applicant limiting the ambit of the
documentation sought at the hearing, the respondent maintained its stance that the
application should be dismissed.
[8] The relevant principles are summarised in Louw v Grobler and Another 2 and it is
not necessary to repeat them. Of particular relevance to the present context is the
principle set out in para 15 as follows:
‘The Court will go behind the affidavit only if it is satisfied-(i) from the discovery affidavit itself’
or (ii) from the documents referred to in the discovery affidavit; or (iii) from the pleadings in
1 Grootboom v National Prosecuting Authority and Another [2013] ZACC 37; 2014 (2) SA 68 (CC) paras
20-23.
2 Louw v Grobler and Another [2021] ZAFSHC 223 and the authorities cited in paras 10 to 17.
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the action; or (iv) from the admissions made by the party making the discovery; or (v) from the
nature of the case or the documents in issue.’
[9] This conforms with the principle set out in Rellams (Pty) Ltd v James Brown &
Hamer Ltd 3 that although courts should generally not go behind the party’s affidavit that
documents are not relevant, such affidavit is not conclusive. In Rellams, it was also held
that discovery affidavits must be made by the parties themselves and not by their
attorneys unless special circumstances exist. 4 The respondent only belatedly complied
with this requirement. The applicant’s criticism on this issue is thus justified.
[10] In the present instance , the respondent’s claim against the applicants is a
damages claim based on a decrease in gross profit for periods ranging from March 2019
to February 2021. It pleads that ‘the damages are calculated by comparing the average
daily loss of gross profit calculated over the period as stated above and comparing it with
the total daily gross profits for the same period for the previous year, duly adjusted by the
assumption that the plaintiff’s net income would have continued to increase by
R1 062 856.00’.
[11] In support of its claim it relies on an expert actuarial report compiled in December
2020. The report is qualified that it may be amended with additional information. Since
that date, nearly five years has passed. According to the actuarial report it was anticipated
that the respondent would be fully operational with effect from 1 March 2021.
[12] It is a statutory requirement for the respondent to prepare annual financial
statements. The statements sought relate only to a period up to 2022, some years ago.
The averment that the respondent is not in possession of annual financial statements
other than the limited documentation discovered pertaining to the February 2019 financial
year, is unconvincing. No attempt was made to proffer any explanation for any such state
year, is unconvincing. No attempt was made to proffer any explanation for any such state
of affairs. The respondent’s averments pertaining to its annual tax returns, do not pass
3 Rellams (Pty) Ltd v James Brown & Hamer Ltd 1983 (1) SA 556 (N).
4 Ibid 558B-D.
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muster. They are relevant to the issues in dispute and the submission of such returns is
similarly a statutory requirement. The bald claim to confidentiality does not bear scrutiny.
[13] In the documentation discovered by the respondent, reference is made to
payments made pursuant to a SASRIA claim. In order to obtain such payments, a claim
must have been submitted. Such documents should reasonably be in the possession of
the respondent. The same applies to the CCTV footage, referred to in a preliminary report
discovered by the respondent.
[14] In all these circumstances a court may go behind the oath of the respondent as
enunciated in Louw. There are in my view reasonable grounds for supposing that the
respondent has the documents sought in its possession. Such documents are clearly
relevant to the disputes between the parties and the claim advanced by the respondent.
[15] As pointed out by Twala J in Alf’s Tippers C C v Martha Susanna Steyn :5 ‘The
purpose of discovery is to ensure that before trial both parties are made aware of all the
documentary evidence that is available. …Moreover it is every party’s right to be given a
fair trial as enshrined in the Bill of rights in the Constitution…’. Later it was held:6 ‘There
is a plethora of authority that litigation is not a game where the one party takes advantage
of the other.’
[16] Considering the relevant principles and the facts, I conclude that the compelling
application must succeed. Costs follow the result. The applicant has been substantially
successful in its compelling application . The respondent in its condonation application,
seeks an indulgence for its non -compliance with the rules. Given that the respondent’s
conduct in relation to the application fell short of the standards expected, it should be held
5 Alf’s Tippers Cc v Martha Susanna Steyn [2023] ZAGPJHC 527 para 5.
6 Ibid para 9 .C
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liable for the costs of that application. Considering all the facts, it would be fair to the
respective parties that counsel’s costs be determined on scale B.
[17] The following order is granted:
[1] The respondent’s c ondonation application for the late delivery of its answering
affidavit is refused with costs;
[2] The respondent is ordered to make discovery on oath in response to the
applicants’ notice in terms of Rule 35(3) within ten (10) days of service of this order.
[3] The respondent is directed to discover the following documents:
a. Its audited financial statements of the financial years:
i. 1 March 2017 - 28 February 2018 for both Tops and Spar
ii. 1 March 2018 - 28 February 2019 for both Tops and Spar
iii. 1 March 2019 - 28 February 2020 for both Tops and Spar
iv. 1 March 2020 - 28 February 2021 for both Tops and Spar
v. 1 March 2021 - 28 February 2022 for both Tops and Spar
b. Its Tax Returns for the financial years:
i. 1 March 2017 - 28 February 2018
ii. 1 March 2018 - 28 February 2019
iii. 1 March 2019 - 28 February 2020
iv. 1 March 2020 - 28 February 2021
v. 1 March 2021 – 28 February 2022
c. Insurance claims submitted by the respondent to SASRIA in relation to the
incident that occurred as a result of the strike action;
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d. CCTV footage available for the period 7 March 2019 to 18 March 2019.
[4] In the event of the respondent failing to comply with 2 and 3 above, the applicants
are granted leave to approach the Court on the same papers, duly supplemented
where necessary, for an order in terms whereof the Plaintiff’s claim under the case
number 40889/2021 be struck out with costs;
[5] The costs of this application, together with the costs of 7 October 2024 when the
matter was removed from the unopposed roll are to be paid by the respondent on
scale B.
______________________________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
GAUTENG JOHANNESBURG
HEARING
DATE OF HEARING : 06 NOVEMBER 2025
DATE OF JUDGMENT : 07 NOVEMBER 2025
APPEARANCES
APPLICANT’S COUNSEL : T. MAKOLA
APPLICANT’S ATTORNEYS : STATE ATTORNEY
RESPONDENTS’ COUNSEL : X VAN NIEKERK
RESPONDENTS’ ATTORNEYS : ML SCHOEMAN ATTORNEYS