1) REPORTABLE:~O
2) OF INTEREST TO OTHER JUDGES: ~NO
3) REVISED: YES/NO
SIGNATURE
27 February 2026
DATE
1
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
In the matter between :
BRENDAN RAYMOND DE BRUYN
BRENDAN RAYMOND DE BRUYN N.O.
IN HIS CAPACITY AS TRUSTEE OF THE DU
BRYUN INVESTMENT TRUST IT 675 / 00
And
LETITIA BETSIE DE BRUYN
THE MASTER OF THE HIGH COURT , PRETORIA
CASE NUMBER: 105154 / 2024
First Applicant
Second Applicant
First Respondent
Second Respondent
This Judgment was handed down electronically by circulation to the parties and or their representatives
by email and by being uploaded to Caselines . The date and time for the hand down is deemed to be
27 February 2026.
JUDGMENT
M Snyman, AJ
2
Introduction
[1] In the interlocutory application before me, the first respondent in the main
application (herein referred to as “the respondent”) is the applicant seeking an
order in terms of Rule 30A enforcing compliance with notices filed in terms of
Rule 7(1) and Rule 35(12).
[2] It will, in this judgment, be convenient to refer to the parties as described in
the main application.
[3] The papers filed in the main application have not been uploaded to CaseLines,
and their relevance will become clear below . However, it seems from the
papers to which I have access that t he applicant seems to seek the
respondent’s removal as a trustee from the De Bruyn Investment Trust (herein
referred to as “the trust”) and the appointment of another trustee. The trust
deed is similarly not before me.
[4] A trust deed generally prescribes how decisions are made as well as how and
who can represent the trust ; if not, then it is determined by the common law.
That generally entails that the trustees must act jointly when making decisions
and mu st all represent the trust in litigation. Without the trust deed being
before court it is not possible to determine if and to what extent the general
position has been changed.
[5] It will be appropriate to state the general requirements of the applicable rules
before dealing with the disputes before me.
Factual Matrix (Rule 7)
[6] The first applicant describes himself as a major male and being a trustee of
the trust (the second applicant in the main application and second respondent
3
in the interlocutory application) . Based on th at averment, the respondent
delivered a notice in terms of Rule 7(1) requesting that the attorney of the
applicants prove his authority to act on behalf of the trust.
[7] By not having the main application before court, it is not possible to give the
exact description as contained therein.
[8] In the reply to the notice in terms of Rule 7(1), the respondent quote s a part
thereof stating that:
‘The second applicant is cited only insofar as his capacity to act as a trustee of
the De Bruyn Investment Trust…’
[9] In the notice, reference is also made to the provisions of the trust deed, which
is not before court. The content is , in my view, however irrelevant, having
regard to the conclusion I have come to.
[10] The respondent thereafter filed a notice and an application in terms of Rule
30A, seeking to compel compliance or dismissal of the application for non -
compliance.
Rule 7 and application to facts
[11] The wording of Rule 7, as it currently stands, reads as follows:
‘7(1) Subject to the provisions of subrules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting on behalf of a party may,
within 10 days after it has come to the notice of a party that such person is so
acting, or with the leave of the court on good cause shown at any time before
judgment, be disputed, whereafter such person may no longer act unless he
satisfied the court that he is authorised so to act, and to enable him to do so
the court may postpone the hearing of the action or application.’
[emphasis added]
4
[12] The notice in terms of Rule 7(1) was served on 21 October 2024. W ithin 10
days thereafter, the first applicant responded thereto.
[13] Rule 7(1) clearly provides for the remedy if a party does not comply with the
provisions thereof.1
13.1. Firstly, if a party does not answer within the time period provided, the
representative of that party may not act until the court is satisfied that
he/she is properly authorised.
13.2. Secondly, if there is an answer and the notifying party is not satisfied
with the answer , it is the court who must be satisfied whether the
representative is duly authorised.
[14] If the provided authority is disputed, for whatever reason, can the procedure
as set out in Rule 30A be utilised , and if not, what is the procedure to be
followed to determine whether the attorney is duly authorised or not?
[15] Rule 30A provides for method to enforce compliance with the rules. It provides
as follows:
‘30A. Non-compliance with Rules and Court Orders
1) Where a party fails to comply with these Rules or with a request made
or notice given pursuant thereto, or with an order or direction made by
a court or in a judicial case management process referred to in rule 37A,
any other party may notify the defaulting party that he or she intends,
after the lapse of 10 days from the date of delivery of such notification,
to apply for an order—
(a) that such rule, notice, request, order or direction be complied with;
or
1 Eriksson v Hollard Insurance Company Limited and Others (2021/45339) [2023] ZAGPJHC 39 (24
January 2023)
5
(b) that the claim or defence be struck out.
(2) Where a party fails to comply within the period of 10 days
contemplated in subrule (1), application may on notice be made to the
court and the court may make such order thereon as it deems fit.’
[emphasis added]
[16] Firstly, it must be determined if the applicant failed to comply with the rules or
a request made in terms thereof.
[17] It is clear that the applicant indeed responded to the notice in terms of Rule
7(1). It is not the case of the respondent that it was not timeously done. There
is simply no case to be made that the applicant is to be forced to comply, as it
is common cause that applicants indeed replied thereto.
[18] What is the procedure then i f the applicant is not satisfied with the answer
received?
[19] It has been found that the party not so satisfied must launch an interlocutory
application in which the court is called upon to determine not whether there
has been compliance with the rule, but whether the court is satisfied that the
representative is duly authorised.2
[20] The provision of Rule 30A applies if, inter alia, compliance with a rule or notice
delivered pursuant thereto is sought when the relevant rule does not have its
own inherent procedure with which compliance can be enforced.
[21] The application of Rule 30A is evident from what had been stated in Absa Bank
Ltd v the Farm Klippan3 wherein the following was held:
2 Eriksson v Hollard Insurance Company Limited and Others (2021/45339) [2023] ZAGPJHC 39 (24
January 2023) at [21]
3 Absa Bank Ltd v the Farm Klippan 490 CC 2000 (2) SA 211 (W) at 214H-215B
6
‘Rule 30A has an important place in the Rules, in that, as I have stated, it
provides a remedy where none exists elsewhere. However, it could not have
been intended by the drafters of Rule 30A to jettison the existing and effective
remedies provided in the specific remedy Rules. If it was so intended, it would
render such remedies nugatory. The remedies in the specific remedy Rules have
always been effective, and there is no reason to denude them of their efficacy.
I, therefore, find that an application may be made in terms of those Rules which
provide a specific remedy for failure to comply therewith without the applicant
first having to give notice in terms of Rule 30A or to follow the provisions
thereof.’
[22] Had the response to the Rule 7(1) notice been out of time, then it should be
the end of the matter.
[23] The relief sought in terms of Rule 7(1) i n this matter is therefore misplaced
and Rule 30A should not be utilised.
[24] However, I do not think that an overly technical approach should stop a party
from seeking a court’s ruling, whether or not the court is satisfied that the other
party and/or its attorney is properly authorised to institute/launch/represent a
party. That is logical as the authority dispute must be resolved to have the
matter move forward in order to finalise the disputes.4
[25] The answer in this matter further lies in the response to the notice in terms of
Rule 7(1) . The response clearly states that neither the applicant nor his
attorney claims to represent the trust. Seemingly, the trust had been joined
only as an interested party. The trust however has no legal standing and is
represented through its duly appointed trustees, both being before court.
4 Eriksson v Hollard Insurance Company Limited and Others (2021/45339) [2023] ZAGPJHC 39 (24
January 2023)
7
[26] The first applicant’s answer is that he does not claim to be representing the
trust, and any reference to him as trustee simply bolsters his locus standi.
[27] The first applicant contends that all that is required to satisfy the requirements
of Rule 7(1) is the production of a power of attorney. A court, so it is contended,
cannot go behind the power of attorney to enquire whether the person who
instructed the attorney had the power or authority to do so.
[28] In the matter of Kurt Robert Knoop and Others v Tegeta Exploration and Resources
(Pty) Ltd and Others5 the SCA dealt with the very same argument and rejected
the argument as follows:
‘[11] However, Rule 7 specifically states that the person claiming the right to
act on behalf of the companies (VDM in this case)[*the attorney], must
satisfy the court that he is authorised so to act. To be so satisfied, the
power of attorney must issue from a person vested with the authority
to give the power of attorney. If the person lacks the authority to do so,
the power of attorney does not evidence that its bearer is authorised to
act.[*]6 The respondents’ submission cannot be accepted.’
[29] Despite this argument not being correct, I am satisfied that the applicant ’s
attorney does not purport to represent the trust and represents Mr Du Bruyn
only. It is clear that the trust is not before court and cannot be. Both trustees
are before court, the first respondent however not in her capacity as trustee
or the trust.
[30] There is therefore no merit in the application in terms of Rule 7(1) seeking
compliance with the notices in terms of Rule 7(1) as read with the notice in
terms of Rule 30A.
5 [2025] 4 All SA 48 (SCA); 2025 (6) SA 424 (SCA) at [11]
6 Unlawful Occupiers of the School Site v City of Johannesburg 2005 (4) SA 199 (SCA) at [16]
8
[31] The application to compel compliance with the notice in terms of Rule 7(1) can
therefore not succeed.
Application to compel compliance with a Rule 35(12) notice
[32] Before dealing with the remaining facts and merits of th is part of the
application, I find it appropriate to briefly deal with the procedure to obtain
copies of documents referred to in applications.
Rule 35(12)
[33] Rule 35(12) provides:
“(a) Any party to any proceeding may at any time before the hearing thereof deliver
a notice [as near as may be] 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 . . . .
……
(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.”
[34] In Moulded Components and Rotomoulding South Africa (Pty) Ltd v
Coucourakis,7 the court found that Rule 35(12) has a self-contained sanction.
That sanction is in the form of a ‘negative nature, being to the effect that a party
7 1979 (2) SA 457 (W) at 459G
9
failing to comply with the notice shall not, save with the leave of the court, use the
document in question, provided that any other party may use such document’.
[35] At face value, this sanction may , in application procedure, be of little
assistance to a party not having the document in its possession as it may have
an impact on admissibility of such evidence, but this issue need not be
determined herein.
[36] The SCA in Centre for Child Law v The Governing Body of Ho ërskool
Fochville and Another 8 found that the sanction in sub -rule (b) is one that
comes into effect automatically upon non -compliance with the provisions of
the rule, i.e. after non-compliance with the notice in terms of the rule and the
passing of the time afforded to comply. However, it was found that:
“…. a party who gives notice under rule 35(12) may not be content with just the
negative sanction provided by the rule. In that event, it is to rule 30A that such
party must turn.”
[37] It needs to be emphasised, as th e court rightly observed in Hoërskool
Fochville9, that a court considering an application under Rule 30A to compel
production of documents sought pursuant to Rule 35(12) enjoys a general
discretion 'in terms of which it is required to try to strike a balance between the
conflicting interests of the parties to the case' .10 It continued that the court
'should not fetter its own discretion in any manner and particularly not by
adopting a predisposition either in favour of or against granting production'.11
8 Centre for Child Law v The Governing Body of Hoërskool Fochville and Another 2016 (2) SA 121 (SCA)
at [15]
9 Centre for Child Law v The Governing Body of Hoërskool Fochville 2016 (2) SA 121 (A)
10 at [18]
11 at [18]
10
[38] The court further added that 'a court will not make an order against a party to
produce a document that cannot be produced or is privileged or irrelevant'.12
[39] In the matter of Democratic Alliance and Others v Mkwebane and Another 13
the SCA summarised the legal position as follows:
“[41] To sum up: It appears to me to be clear that documents in respect of
which there is a direct or indirect reference in an affidavit or its
annexures that are relevant, and which are not privileged, and are in
the possession of that party, must be produced. Relevance is assessed
in relation to rule 35(12) , not on the basis of issues that have
crystallised, as they would have, had pleadings closed or all the
affidavits been filed, but rather on the basis of aspects or issues that
might arise in relation to what has thus far been stated in the pleadings
or affidavits and possible grounds of opposition or defences that might
be raised and, on the basis that they will better enable the party seeking
production to assess his or her position and that they might assist in
asserting such a defence or defences . In the present case , we are
dealing with defamatory statements and defences such as truth and
public interest or fair comment that might be raised. The question to be
addressed is whether the documents sought might have evidentiary
value and might assist th e appellants in their defence to the relief
claimed in the main case. Supposition or speculation about the
existence of documents or tape recordings to compel production will
not suffice. In exercising its discretion, the court will approach the
matter on the basis set out in the preceding paragraph. The wording of
rule 35(12) is clear in relation to its application. Where there has been
reference to a document within the meaning of that expression in an
affidavit, and it is relevant, it must be produced. There is thus no need
to consider the submission on behalf of the respondents in relation to
to consider the submission on behalf of the respondents in relation to
discovery generally, namely, that a court will only order discovery in
application proceedings in exceptional circumstances.”
[Emphasis added]
12 at [18]
13 Democratic Alliance and Others v Mkwebane and Another 2021 (3) SA 403 (SCA) at [41]
11
[40] A party therefore has the right to seek production of the document referred to
as contemplated in Rule 35(12) despite the evidence that is sought to be
supported by reference to a document being inadmissible as evidence by that
party as the general rules of admissibility, authentication, and the like still
applies. It may , however, be advisable to apply for the striking out of such
evidence on the grounds of being inadmissible hearsay , not complying with
the best evidence rule or any other such ground found to be applicable.
[41] The approach of the SCA in Hoërskool Fochville14 where it states that the rules
exist to regulate the practice and procedure of the courts with the object to
secure the ‘inexpensive and expeditious completion of litigation before the courts ’
is clearly still applicable and correct.
[42] The history, legal requirements and application of Rule 35(12) have been fully
canvassed and summarised in a matter of Caxton and CTP Publishers and
Printers Limited v Novus Holdings Limited 15 and I am not to repeat all, but to
merely summarise the general rule with some exceptions:
a) If reference is made to a document in an affidavit or annexures
attached by the other party, that party is obliged to produce the
document sought by the other;
b) There is generally no obligation to produce documents sought if such
documents are:
i) irrelevant.
ii) not material; or
14 Centre for Child Law v The Governing Body of Hoërskool Fochville 2016 (2) SA 121 (A) at [17]; Hudson
v Hudson 1927 AD 259 at 267; Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 654C-D
15 [2022] 2 All SA 299 (SCA)
12
iii) protected by privilege; or
iv) no longer in the possession of the party required to produce
the documents concerned.
Factual matrix (Rule 35(12))
[43] The first respondent served a notice headed “Notice in terms of Rule
35(12)(a)” on 21 October 2024. The notice further reads as follows:
“BE PLEASED TO TAKE NOTICE the first respondent requires the
applicants for their inspection the undermentioned documents referred to in the
founding affidavit , which documents are required by first respondent for
purposed of preparing an answering affidavit in these proceedings being:
1. The du Bruyn Investment Trust beneficial ownership register referenced in
paragraph 37 of the founding affidavit.
2. The Minute book of the du Bruyn Investment trust.
3. An extract of the first applicant s and first respondents ’ loan accounts
referenced in paragraph 49 of the founding affidavit.
4. The “working papers” of Adolphus Mapuranga referenced in paragraph
50.2 of the founding affidavit.
5. The email form Mr Gianoglio referenced in paragraph 61of the founding
affidavit.
6. The documentation referenced in paragraph 66 of the founding affidavit
which the first respondent allegedly failed to sign.”
[44] The first applicant replied to this notice from applicant on 6 November 2024.
[45] In reply to the requests in paragraphs 1 , 2, and 3 of the notice as referred to
above, the respondent is reminded of the fact that documents not referred to
directly or indirectly cannot be requested.
[46] Thereafter, the response, in summary, indicates that no mention is made to
any document as claimed in paragraph 37 to “the beneficial ownership register”,
or the requested “minute book of the Trust”, and the “loan account”.
13
[47] The first respondent is further referred to the unsigned Annual Financial
Statements attached as annexure “FA13” to the founding affidavit.
[48] The requested working papers were provided together with the e -mail of Mr
Gianoglio as requested.
[49] The documents referred to in paragraph 66, is identified as the documents
handed to the first respondent at the Trustees meeting held at Eagle Canyon
Clubhouse during September 2023 and as such documents are in the first
respondent’s possession it need not be provided.
[50] The first respondent responded to this response of the first applicant in a
notice in terms of Rule 35(12) read together with Rule 30A on 14 November
2024.
[51] In this notice, the first respondent replies that the reply of the first applicant in
terms of Rule 35(12) is inadequate, stating that:
“The first and second applicants refer in paragraph 49.3 of the founding
affidavit to “my loan account” (line 1) and “loan account” (line 2) which is a
document properly identified and referred to in the applicants’ founding
affidavit.
…….
6.1 The first respondent correctly identified the documentation referred to
in paragraph 66 of the founding affidavit.
6.2 The first and second applicants are obliged to furnish the “requested
documentation” referenced in paragraph 66 of the founding affidavit.”
[52] The issues have clearly been reduced and only the reference to “ a loan
account” is claimed to be a reference to a document , and the documents
handed to the applicant at a trustees meeting remain in issue.
14
[53] It needs be mentioned that no reference is made in this notice in terms of Rule
30A to the notice in terms of Rule 7(1).
[54] In the founding affidavit, the first respondent claims that the first applicant has
not complied with the rules and is being obstructive in not furnishing her with
the documents as requested to enable her to timeously respond and properly
prepare an opposing affidavit.
[55] Firstly, the applicants did comply with the request in terms of Rule 35(12). The
first respondent, however, was not satisfied with the response.
[56] Further, the first respondent seems to labour under the misconception that
she is excused from filing an answering affidavit when she has not received
the documents requested, claiming prejudice without any further factual basis
advanced for the statement.
[57] The first respondent then claims that she is being frustrated in her capacity as
trustee in not having access to the documents she must have access to as
trustee.
[58] The first respondent in her application did not rely on her being a trustee to be
granted access to the records of the trust. Instead , she pursued the process
of Rule 35(12), which is clearly much more limited, as can be seen from the
above.
[59] The first respondent does not claim to have ever made any request that
applicants grant her access to the documents of the trust or that she had been
denied such access. As such , the statements are clearly misplaced and
cannot be relied upon.
15
[60] Importantly, the first respondent does not claim that she is no longer in
possession of the documents referred to in paragraph 66 or that it was not
handed to her, an aspect that should have been addressed in the founding
affidavit.
Application of the principles to the facts
[61] As to the reference to a “loan account” it clearly does not refer directly or
indirectly to any document.
[62] Reliance on any inferred reasoning when seeking to claim that such a
document does exist or is referred to, for instance , the financial statements,
cannot be relied upon. It is clear from the decision of Democratic Alliance and
Others v Mkwebane and Another16 that inferred reasoning to establish whether
reference was in fact made to a document, cannot be relied upon.
[63] The first ground that the reference to a “loan account” refers to a “document”,
cannot be sustained.
[64] The second ground is the document referred to in paragraph 66. It is claimed
that the documents were provided and seems not to be disputed in the Rule
30A notice.
[65] As indicated above, the first respondent did not deny being in a position of or
having received the documents referred to in paragraph 66 of the founding
affidavit.
16 Democratic Alliance and Others v Mkwebane and Another 2021 (3) SA 403 (SCA) at [41]
16
[66] When an allegation is made in a response to a notice in terms of Rule 35(12)
that the requesting party is in possession of the documents, specifically
identifying the documents it would be expected that in the founding affidavit in
support of the application there be a some explanation in this regard , for
instance that the party is no longer in possession thereof or would seek to
compare the documents.
[67] At the outset, it does not seem as if the applicants rely on the content of the
documents referred to in paragraph 66, but the mere existence thereof. This,
however, may only be relevant to the adjudication of the main application. It
needs also be pointed out that I have not been provided with any affidavits
filed in the main application, even as annexures to the affidavits in the Rule
30A application. I am thus not in a position to properly adjudicate whether it
can be said that the documents are referred to by inference.
[68] If referral is to be “implied”, it is clearly logical, and in my view an indispensable
requirement, that the court presiding over the application to compel
compliance with Rule 35(12) be provided with the affidavit/s to be able to study
the wording used and why reference is claimed to be implied. The court cannot
rely on a few words in a notice to conclude whether reference by implication
had indeed taken place. The mere say -so of a party is simply not good
enough.
[69] Further it needs be pointed out I do not hereby mean that it is to be done in all
matters. In some matters only the relevant page would suffice, however in
others the whole context of the affidavit would be indispensable to determine
whether reference to a document is to be implied.
17
[70] That being said, it brings me to the issue of reference to the documents in
paragraph 66.
[71] As the law stands the applicant have referred thereto and must produce the
documents. The documents is clearly stated to be in possession of the first
respondent who does not deny same.
[72] The applicants claim not to be in possession of the documents referred to in
paragraph 66. Not being placed in possession of the affidavit, it is impossible
to decide on this claim without the exact wording of the affidavit.
[73] The main application was however uploaded to the CaseLines platform after
having heard argument. This was too late as the court was not addressed on
the issues with reference thereto, nor could any of the parties respond to
questions in that regard. I have therefore not relied on the content thereof in
coming to the conclusions herein.
[74] In the light of this averment, and the fact that the first respondent did not deny
having been placed in possession of or having been provided with the
documents claimed to have been handed to her, the inevitable conclusion is
that no case has been made out for the relief.
Costs
[75] The applicants in the answering affidavit sought costs on a scale as between
attorney and client as it is of the view that the application is an abuse of the
process.
18
[76] Despite the fact that it should have been clear if the relevant caselaw had been
studied, that there was no merit in the application, that is, in itself, not a ground
for granting a punitive costs order.
[77] I have also considered the heads of argument of applicants with regards to
the issue of a punitive costs order. I am, however, of the view that the mere
fact that a party is wrong on the law, or as in this case, was able to file an
answering affidavit without the documents, is abusing the court process.
[78] A punitive costs order is, in my view, not warranted.
Conclusion
[79] As a result, the following order is granted:
The application is dismissed with costs on a party and party scale, such costs to
include the costs of counsel on scale 8.
BY ORDER
M SNYMAN, AJ
Counsel for Applicant
Applicant's Attorneys:
Counsel for Respondent:
Respondent's Attorneys:
Adv L De Wet
Kampel Kaufmann Attorneys
Adv JHF Le Roux
B Deneys Attorneys