About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 177
|
|
Qabaka and Another v South African Women in Mining Association and Others (37505/2019) [2026] ZAGPJHC 177 (1 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number: 37505/2019
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
In
the matter between:
QABAKA:
NOMACI
1st
Applicant
NGWABENI:
LUCY
2
nd
Applicant
and
SOUTH
AFRICAN WOMEN IN MINING
ASSOCIATION
(REG NO: 2003/022750/08)
1
st
Respondent
MZAMBO:
NOMAKHWEZI
2
nd
Respondent
LANGENI:
NOLUTHANDO
3
rd
Respondent
SITHOLE:
MASIKINI
4
th
Respondent
MOTSUMI:
DIKELEDI
5
th
Respondent
MOETLO:
MIRRIAM
6
th
Respondent
NGOMEZULU:
SIMANGELE
7
th
Respondent
NEDBANK
GROUP LIMITED
8
th
Respondent
JUDGMENT
ALLY, AJ
[1]
This
is an opposed interlocutory application to compel in terms of Rule
35(12)
[1]
wherein the applicant
seeks the Court to compel certain documentation allegedly mentioned
in the answering affidavit of the first
respondent.
[2]
The applicants were represented by Adv. S.
Vobi with Adv. A. Nase and the first respondent by Adv. H. Smith SC.
[3]
This application is only of relevance to
the first respondent as is evident from paragraph 1 above.
[4]
The
applicants contend that they are entitled to the documents mentioned
in their Rule 35(12) notice
[2]
.
The first respondent in its reply
[3]
to the said notice responded that certain documents were attached and
that the applicants require documentation not reflected in
the
answering affidavit and therefore out of the scope of Rule 35(12).
Accordingly, the applicants launched this application.
[5]
Rule 35(12) provides as follows:
“
(a) Any party
to any proceeding may at any time before the hearing thereof deliver
a notice in accordance with Form 15 in the First
Schedule to any
other party in whose pleadings or affidavits reference is made to any
document or tape recording to—
(i) produce such
document or tape recording for inspection and to permit the party
requesting production to make a copy or transcription
thereof; or
(ii) state in writing
within 10 days whether the party receiving the notice objects to the
production of the document or tape recording
and the grounds
therefor; or
(iii) state on oath,
within 10 days, that such document or tape recording is not in such
party’s possession and in such event
to state its whereabouts,
if known.
(b) Any party failing
to comply with the notice referred to in paragraph (a) shall not,
save with the leave of the court, use such
document or tape recording
in such proceeding provided that any other party may use such
document or tape recording.”
[6] It is
appropriate to deal with the applicant’s request and
contentions individually. The applicant requests correspondence
date
2 December 2021 mentioned in paragraph 17.
[7] First
respondent’s paragraph 17 reads as follows:
“…
The
First Respondent’s attorneys responded to the correspondence on
2 December 2021 advising that the First Respondents board
as complied
with Malindi J’s order and that the Applicants have not
submitted consent letters as contemplated by the Companies
and
Intellectual Property Commission (“CIPC”) Practice Notice
of 19 July 2021 to enable the registration of the Applicants
with
CIPC.”
[8] It is clear
from the papers in this matter that the first respondent provided the
applicants with a copy of the correspondence.
This issue therefore is
settled on the papers themselves and the applicants are not entitled
to an order compelling the first respondent
to provide the
correspondence mentioned in paragraph 17. Furthermore, the first
respondent submitted that the applicants are or
should be in
possession of the said letters.
[9] The applicants
then request the first respondent to provide a written statement
under oath by the administrator of the
WhatsApp group confirming the
correctness of the contents of the WhatsApp messages that were used
against the applicants in relation
to the lawful removal of the
applicants mentioned in paragraph 21.
[10] The first
respondent objected to this request on the ground that no mention of
the document as sought was mentioned in
the answering affidavit of
the first respondent as required in terms of Rule 35(12).
[11] It must be
stated that this request, in my view, does not conform to the
prescripts of Rule 35(12) and a different interpretation
by the
applicants is misplaced.
[12] The next
request in terms of Rule 35(12) relates to the minutes of the
meetings of 10 and 14 December 2021 and the meeting
of 18 February
2022.
[13]
In my view whilst no mention of minutes of the abovementioned
meetings is mentioned, the fact of such meetings is mentioned
within
the principles laid out in the enlightening case of
Caxton
[4]
.
It cannot be argued that the first respondent is not in possession of
the minutes nor can it be argued that the minutes are not
relevant in
the context of Rule 35(12). The first respondent’s response is
that the request for documents in terms of paragraphs
3 to 5 is
objected to on the ground that no reference is made thereto as
contemplated in Rule 35(12).
[14]
In my view, first respondent’s response referred to above is a
misinterpretation of Rule 35(12) as espoused in
the
Caxton
[5]
case.
[15] Accordingly,
the applicants are entitled to such minutes.
[16] The
applicants’ request for resolutions relating to the same
paragraphs in the answering affidavit of the first
respondent is
different from the request for minutes. In my view, Rule 35(12) does
not cater for this request and has been rightfully
objected to by the
first respondent.
[17] The applicants
have requested a copy of the Memorandum of Incorporation pertaining
to the first respondent during the
period 18 October 2021 to date. In
my view, no mention is made of the Memorandum of Incorporation in the
answering affidavit and
it is s misinterpretation of Rule 35(12) to
contend tat the applicants are entitled to same in terms of this
Rule.
[18] In respect of
the costs of this application, it is trite that the Court as a
discretion in awarding costs but that such
discretion must be
exercised judicially. It is further trite that usually costs for the
result. In tis matter, both parties have
been successful and it is my
view that bot parties should pay for their own costs.
[19] Accordingly,
the following Order shall issue:
a). an order in
terms of prayers 3,4 and 5 of the notice in terms of Rule 35(12) is
granted;
b). applicants
request in terms of prayers 1,2 6 and 7 are dismissed;
c).
each party shall pay their own costs.
ALLY. G
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
Electronically
submitted therefore unsigned
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 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 2 March 2026.
Date of hearing:
19 May 2025
Date of judgment:
2 March 2026
For
the Applicant:
Adv.
S. Vobi with Adv. A. Nase instructed by
Mudenda Inc Attorneys
tendayi@mutendainc.co.za
For
the First Respondent:
Adv.
H J Smith SC instructed by
RAMS
Attorneys
wmoeketsane@ramsattorneys.co.za
[1]
Uniform
Rules of Court
[2]
CaseLines:
Section: 087-1 – 087-4
[3]
CaseLines:
Section: 089-1 – 089-12
[4]
Caxton
and CTP Publishers and Printers Limited v Novus Holdings Limited
2022 SCA 24 @ para 15 - 17
[5]
supra