IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION – MAHIKENG
Case No: 1734 / 2020
In the matter between:
CHEICKHEART GENERAL SALES (PTY) LTD
t/a IMPALA PANELBEATERS APPLICANT
And
B & W AUTOBODY EXPERT CC
t/a AUTOBODY EXPERTS RESPONDENT
CORAM: MAODI AJ
Date judgment reserved: 11 September 2025
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e -mail. The date that the judgment is deemed to be handed
down is 24 March 2026 at 10h00.
ORDER
1. The application is granted.
2. The respondent to comply with the order within ten (10) days of this
order.
3. The respondent to pay costs on scale B including costs of counsel.
JUDG1\1ENT
MAODIAJ
Introduction
[ 1] This is an interlocutory application for discovery of further and better
particulars. Also access to inspect the discovered documents once same is
done. The applicant is plaintiff in the main action while the respondent is
defendant. The applicant instituted action against the respondent in which
it claims damages as a result of respondent's unlawful competition.
[2] The applicant's main action in line with its particulars of claim is that the
applicant and respondent are the only major direct competitors in the
industry concerned with panel beating of motor vehicles in the City of
Matlosana. The applicant's principal place of business is situated across
from the respondent' s principal place of business. In order for an entity to
be appointed onto the panel of preferred supplier of panel beating services
by reputable insurance companies, it has to meet certain internal
requirements which are stipulated. A methodology of rotational system is
utilised to ensure equal distribution of work to panel beaters by insurance
companies allocate.
[3] Since 2018 the respondent has been competing unlawfully against the
applicant by misrepresenting to the insurance companies that it possesses
certain certificates, whereas in fact it did not. Outside the said
misrepresentation, the respondent would not have retained its appointment
as preferred panel beater supplier to the insurance companies. During the
years 2018 and 2019 the respondent paid bribes in the form of referral fees
to an employee of an insurance brokers to unlawfully manipulate the
rotational system by manual override to ensure allocation to the
respondent. As a result of the respondent’s unlawful actions, the applicant
suffered a reduction of instructions to perform work from insurance
companies. This led to the damages claimed.
[4] The respondent’s defence in line with its plea is that the applicant’s
allegations are denied. The rotation is based on a point allocation or award
system to which panel beating suppliers are not party.
Discovery
[5] The parties exchanged discovery notices. There is also an Anton Pillar
application between the parties under case UM156/2020 where certain
documents have been preserved. On 14 September 2 023 the applicant
delivered a notice in terms of rule 35(3) in which it sought additional
documents it believes are in the possession of the respondent. A list of the
said documents is provided. On 27 October 2023 the respondent replied to
the notice that some of the documents are not required or relevant while
some of the documents have been provided under the Anton Pillar
application under UM156/2020. Further that the applicant is entitled only
to documents for the period 2018 and 2019 which were provided under the
Anton Pillar application.
[6] On 12 January 2024 the applicant delivered another (second) notice in
terms of rule 35(3) in which it sought additional documents it believes are
in the possession of the respondent. A list of the said documents is
provided. The list differs from the one under the first notice. On 19
February 2024 the respondent replied to the second notice that the
requested documents do not constitute documents relevant to any matter
between the parties and are therefore refused. In addition, applicant’s cause
of action is limited to 2018 and 2019. The applicant is not entitled to
documents ranging from 2016 to 2022.
[7] On 27 September 2024 applicant delivered a notice of motion for an order
compelling the respondent to comply with the two notices in terms of rule
35(3) respectively dated 14 September 2023 and 12 January 2024.
Applicant’s case (Interlocutory)
[8] The parties have discovered. However, once the respondent discovered,
there remained documents not discovered. The documents sought in both
notices are relevant and must be made available to insurance companies
when contracting with them to ensure a panel beater’s co mpliance to
remain accredited and to continue to receive work from those insurance
companies. The applicant has in the past caught respondent being
untruthful and falsifying documents to maintain its status and
accreditations. If the respondent does not ha ve the documents sought or
any of those documents are falsified, it would serve to prove that the
respondent is competing unlawfully with the applicant.
[9] The applicant’s cause of action is not limited to the time period as alleged
or at all and it is incumbent upon the respondent to provide the documents
to the applicant in order for it to be ascertained whether or not the
respondent was lawfully and legal ly accredited and entitled to conduct
work for the various manufacturers and brands to which the second notice
relates. The applicant is confronted by a recalcitrant respondent who is
doing its best to hide documents and evidence from the applicant, which is
completely and utterly relevant to the applicant’s claim and dispute
between the parties.
[10] The information is relevant to the applicant’s claim, inter alia, for reasons
that it would allow the applicant to demonstrate the impact of the unlawful
competition the applicant suffered and will substantiate the applicant’s
claim, inter alia, by means of comparing the turnovers of the applicant and
the respondent for the relevant periods. The financial statements of the
respondent will also show from where the respondent derived its income,
for those relevant periods and will further assist the appl icant in
determining the actual extent of the benefit the respondent accrued through
the unlawful competitive behaviour the respondent employed.
Respondent’s case
[11] All respondent’s financial records and documents have been lost due to
lightning damage and damage to their computer system. On 8 April 2023
Klerksdorp experienced heavy weather with extensive lightning activity.
The respondent’s business was struck by lightning and damaged all
information technology hardware and software. There are two damage
reports confirming same.
[12] The applicant’s claim is limited to the period 2018 to 2020 but the applicant
seeks documents outside this period which are not relevant. On 13 August
2020 applicant obtained an Anton Pillar which was intended to attach and
safeguard respondent’s financial records. The documents requested by
applicant are either irrelevant, were never in respondent’s possession,
alternatively are no longer in respondent’s possession.
Applicant’s reply
[13] The answering affidavit was filed late and there is no condonation
application in respect of same. The applicant objects to the late filing of the
answering affidavit. The respondent should be able to obtain the
documents and information requested if it approaches third parties. The
respondent is hiding the information from the applicant in order to frustrate
the applicant in its claim.
The authorities and reasons for judgment
Condonation (Answering affidavit)
[14] The applicant has raised an objection to the answering affidavit that it was
filed out of time. Perusal of the documents show that the notice of motion
was served on 30 September 2024 while the notice to oppose was delivered
on 25 March 2025 and the answering affidavit was delivered on 27 March
2025. This is two days after the notice to oppose was de livered. Although
the notice to oppose might have been out of time, the answering affidavit
was not out of time as it was supposed to be delivered within f ifteen (15)
days of the notice to oppose. Although no condonation was sought, I see no
reason why the respondent’s affidavit should be disallowed. I find that there
was no need for condonation in filing of the answering affidavit and it is
therefore proper before me.
Main application
[15] Discovery is a process meant to assist parties provide each other with
information, documents or tape recordings which are relevant to any issue
in the proceedings and can assist to prove or disprove either party’s case.
This, together with the proce dure under rule 37, helps in the narrowing of
issues and elimination of trial by ambush.
[16] The authorities are clear that “Relevancy is determined from the pleadings
and not extraneously therefrom. A party may only obtain inspection of
documents and tape recordings relevant to the issues on the pleadings.” See
Erasmus, Superior Court Practice, Second Edition, Van Loggerenburg,
Volume 2, Juta at D1 Rule 35-20.
[17] The applicant’s claim is clear that in order to proof same, it needs to see what
the growth in respondent’s claim was for a few years prior to and after the
period in issue. This will give credence to the allegations that there was
manipulation of allocation of work from insurance companies which led to
applicant receiving less or nothing at all as compared to respondent whose
growth suddenly went up. The information is sought for litigation and
nothing beyond that. I find that it is relevant for the applicant’s case and also
to assist respondent in disproving applicant’s claims. Without this
information I do not see how the parties are going to be able to canvass issues
pleaded. If the respondent knows that it has not done anything wrong as
alleged by applicant, then it has nothing to hide.
[18] With regard to allegations by the respondent that the documents and
information sought by applicant w ere destroyed and no longer in its
possession, I find this untenable. The respondent can approach the
organisations that issued such statements as some of these institutions are
statutory regulatory bodies like SARS and MIBCO. SARS documents can
be obtained from SARS, MIBCO documents from the relevant institution
and financial accounting records can be obtained from the bookkeepers or
auditors who compi led respondent’s financials during the relevant period.
Where the respondent is justifiably incapable of securing same, they can
properly motivate why same cannot be provided. A blanket refusal or denial
or statement that the said documents are no longer in the possession of the
respondent is unacceptable.
Costs
[19] The applicant's claim is clearly and concisely set out in its particulars of
claim. The respondent 's plea on the other hand does not sufficiently set out
grounds for its denial. The applicant has motivated why it seeks the
documents and information while the respondent has adopted an attitude
that most of the sought information has either not been in its possession or
is no longer in its possession. The respondent has not provided information
on what steps it has taken to reconstruct the information lost. On these basis
I see no reason why costs should not follow the suit.
Order
[20] I therefore make an order as follows:
1. The application is granted.
2. The respondent to comply with the order within ten (10) days of this
order.
3. The respondent to pay costs on scale B including costs of counsel.
J. T.MAODI
ACTING JUDGE OF THE IDGH COURT OF SOUTH AFRICA,
NORTH WEST DIVISION, MAIDKENG
APPEARANCES
FOR THE APPLICANT: Adv J. H. Sullivan
Instructed by: Oosthuizen Le Roux &
Janse Van Rensburg Attorneys
e-mail: jb@olj.co.za
FOR THE RESPONDENT: Adv A. P. Ellis
Instructed by: Jassat Mitchell Inc
e-mail:
Date judgment reserved: 4 September 2025
Date of Judgment: 24 March 2026