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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 14570/2020
In the matter between:
THE FULCRUM GROUP PROPRIETARY LIMITED PLAINTIFF/RESPONDENT
And
VAUGHAN FRANCIS JONES FIRST DEFENDANT/APPLICANT
IAN CLARK BAIN SECOND DEFENDANT/APPLICANT
And
DEAN HYDE First Third Party
DEAN BURSCOUGH Second Third Party
PETER GORDON Third Third Party
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
5 December 2025 __________________________
DATE SIGNATURE
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PETER COWAN Fourth Third Party
MIKE BROWN Fifth Third Party
MATHEW MARAIS Sixth Third Party
COMPASS INSURANCE COMPANY LTD Seventh Third Party
LLOYDS SYNDICATE 2987 (BRIT) Eighth Third Party
LLOYDS SYNDICATE 1247 (ANTARES) Ninth Third Party
BRYTE INSURANCE COMPANY LIMITED Tenth Third Party
THE FULCRUM GROUP (PTY) LTD Eleventh Third Party
Heard: 17 September 2025
Delivered: 5 December 2025
JUDGMENT
WINDELL J:
Introduction
[1] This is an application by the defendants in the main action to compel the plaintiff,
Fulcrum Group (Pty) Ltd , (the respondent in this application) to produce documents in
terms of Rule 35(12). For ease of reference, the parties will be referred to as they are
cited in the main action.
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[2] The plaintiff instituted action against the defendants in 202 0 for damages based
on alleged breaches of fiduciary duties, arising from the approval of loans that were not
repaid. The defendants filed their plea in the same year and joined several third parties,
who delivered their pleadings in the third-party proceedings.
[3] Extensive discovery followed. Having considered the additional documents and
consultations with the third parties, the plaintiff sought to amend its particulars of claim.
On 22 December 2023 the plaintiff delivered a notice of intention to amend its particulars
of claim. The notice spans approximately 20 pages and includes multiple annexures. In
paragraph 5 of the notice, the plaintiff seeks to introduce additional allegations, numbered
9A.1 to 9A.5, containing further factual detail.
[4] The defendants opposed the amendment, relying mainly on an alleged absence
of bona fides on the part of the plaintiff in seeking to amend its particulars of claim. The
plaintiff consequently delivered an application to amend its particulars of claim ( “the
amendment application”).
[5] In the founding affidavit supporting the amendment application, the plaintiff stated
that the additional allegations sought to be introduced are based on material that emerged
during discovery. In paragraph 47.3 of that affidavit, the plaintiff averred tha t “the vast
majority of the evidence relied on for the allegations recorded in paragraph 5 of the notice
arose from what was discovered by Cowan”, being the fourth third party joined in these
proceedings.
[6] The defendants argue that, without identification of the specific documents on
which the plaintiff relies, they cannot determine the evidential basis for each of the new
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allegations. According to them, it must follow that the plaintiff identified particular
documents when formulating the amendments, and those documents should now be
produced. They accordingly seek an order under Rule 35(12) compelling production of
the documents referred to in the plaintiff’s founding affidavit in the amendment application.
[7] The defendants maintain that, without inspecting the specific documents relied
upon, they are unable to assess whether the plaintiff’s application to amend is brought
bona fide. They submit that access to those documents is necessary for them to
meaningfully oppose the amendment and that a Rule 35(12) notice was therefore the
appropriate mechanism to compel production.
[8] Pursuant to this stance, the defendants delivered a notice in terms of Rule 35(12)
calling upon the plaintiff to produce the documents referred to in the founding affidavit in
the amendment application for inspection. The request, as framed, sought product ion of
the documents upon which the plaintiff allegedly relied when formulating the proposed
amendments.
[9] The plaintiff responded to the Rule 35(12) notice and made two documents
available for inspection. As to the remainder, the plaintiff refused production on the basis
that the notice did not fall within the scope of Rule 35(12). The plaintiff’s position was that
no specific document had been expressly referred to in the founding affidavit, that any
relevant material already formed part of the discovery delivered by Cowan, and that the
defendants therefore already had access to the documents they sought.
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Evaluation
[10] The defendants accept that they have received the full discovery of the fourth third
party, Cowan, comprising approximately 6 000 pages. Their case, however, is that mere
possession of the bundle does not assist them where the plaintiff expressly states th at
the new allegations in the proposed amendment arise from documents discovered
therein, yet declines to identify which documents it relies on. They contend that without
knowing which documents underpin the amendments, they cannot meaningfully respond
to the amendment application or test bona fides. The issue is therefore not access, but
identification.
[11] Rule 35(12) entitles a party to production of a document referred to in a pleading
or affidavit. The rule is not confined to expressly annexed or named documents; a
reference may arise by necessary implication where it is clear that the litigant has relied
on specific material for an asserted fact. Here, the plaintiff stated that the amendments
arise from what was discovered by Cowan and that the evidence supporting its new case
appears in the Cowan discovery. This is a reference to documents. Once reliance has
been placed on documents as the evidential source for expanded allegations, fairness
requires that the opposing party be allowed to inspect those documents in an identifiable
form.
[12] The plaintiff argued that because the defendants already have the Cowan
discovery, production is unnecessary. That approach is too narrow. Possession of a mass
of documents does not equate to meaningful access to those documents when the relying
party has already isolated the material it considers relevant. In Copalcor Manufacturing
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(Pty) Ltd v GDC Hauliers (Pty) Ltd,1 the court held that where documents are relevant and
indicated by pleadings or reference, they must be made available in a manner that
enables the opponent to identify and assess them. Likewise in Minister of Land Affairs
and Agriculture and Others v D&F Wevell Trust and Others,2 the court cautioned against
requiring a litigant to trawl through difficult or voluminous material to discern relevance,
emphasising that litigation is not a trial by ambush. The principle applies here. The plaintiff
cannot on the one hand rely on documents for new allegations, yet on the other refuse to
identify those documents on the basis that they lie somewhere within thousands of pages.
[13] The object of Rule 35(12) is to ensure that where reference is made to a document
in support of an allegation, the opposing party is entitled to see that document so that the
case can be understood and met. In the context of an amendment where bona fides i s
challenged, identification of the evidential material becomes especially significant.
Without access to the specific documents underpinning the new allegations, the
defendants are unable to address whether the amendment is supported by evidence or
whether the plaintiff seeks to expand its case without foundation. Rule 35(12) exists
precisely to avoid such uncertainty.
[14] The procedural context matters. This is a Commercial Court matter under active
case management. The Commercial Court Practice Directive emphasises proportionality,
cooperation between litigants, early identification of issues, avoidance of satellite
disputes, and focused interlocutory processes. Requiring the plaintiff to identify the
documents it has relied on is consistent with these objectives. It clarifies the factual basis
1 2000 (3) SA 181 (WLD)
2 2008 (2) SA 184 (SCA) para 43.
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of the amendment, reduces the scope for later discovery disputes, and promotes efficient
resolution rather than piecemeal litigation. Requiring the defendants instead to analyse 6
000 pages unaided in search of documents the plaintiff has already located w ould run
counter to the directive's aim of streamlining commercial litigation.
[15] No prejudice to the plaintiff arises from the order sought. The documents are
already in its possession and have been used to formulate the amendment. Identifying
them is a finite and reasonable obligation. The potential prejudice lies rather with the
defendants, who would otherwise have to prepare for the amendment application without
knowing the evidentiary foundation for the allegations introduced. They are entitled to a
fair opportunity to oppose the amendment on a fully informed basis. That outcome
accords with both Rule 35(12) and the spirit of the Commercial Court system.
[16] I am satisfied that reference to the documents has been sufficiently made within
the founding affidavit to trigger the application of Rule 35(12), that relevance is
established, and that fairness and case -management considerations support requiring
identification. The defendants are entitled to the relief they seek.
[17] In the result the following order is made:
1. The plaintiff is ordered to produce the following documents for the defendants’
inspection with five days of date of this Order:
1.1 The specific documents discovered by Cowan giving rise to the allegations
made in paragraph 5 of the plaintiff’s notice of intention to amend (“the
Notice”) referred to in paragraph 47.3 read with paragraph 55.3 of the
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founding affidavit in the plaintiff’s application for leave to amend (“the
founding affidavit”).
1.2 The specific documents discovered by Cowan giving rise to the allegations
made in paragraph 6 of the Notice referred to in paragraph 48.1 read with
paragraph 55.3 of the founding affidavit.
1.3 The specific documents discovered by Cowan giving rise to the allegations
made in paragraph 7 of the Notice referred to in paragraph 49.1 read with
paragraph 55.3 of the founding affidavit.
1.4 The specific documents obtained through discovery giving rise to the
amendments referred to in paragraph 55.3 of the founding affidavit.
2. The plaintiff is to pay the defendants’ costs on Scale C, including the costs
consequent the employment of two counsel.
_______________________________
L WINDELL
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
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representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand down is deemed to be 5 December 2025.
Appearances
For the applicants: CM Eloff SC
T Dalrymple
Instructed by: Knowles Husain Lindsay Inc
For the respondent: B Berridge SC
A Berkowitz
Instructed by: Bowman Gilfilian Inc
Date of Hearing: 17 September 2025
Date of Judgment: 5 December 2025