SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 084444/25
In the matter between
THE HAJEE SULLAIMAN SHAHMAHOMED 1st APPLICANT
ACADEMY TRUST
SOPHIA BENNIE-CHETTY NO 2ND APPLICANT
MOAMMAD FAADIEL ESSOP NO 3RD APPLICANT
ZIYAAD AHMAD ESSOP NO 4TH APPLICANT
AND
THE DARUL KARAR MASJIED ASSOCIATION RESPONDENT
Heard on: 29 JANUARY 2026
Delivered on: 11 MAY 2026
JUDGMENT
___________________________________________________________________
THULARE J
ORDER
(a) The application is granted.
(b) The applicants are ordered to provide the respondents attorneys with the
documents as set out in the notice of motion: application to compel ,
within 20 days of the date of this order.
(c) The respondents are granted an extension of time to file its answering
affidavit, such affidavit to be filed within 1 month after the date of
compliance by the applicants with the terms of paragraph 2 of this order.
(d) The applicants are to pay the costs, including costs consequent upon the
employment of two counsel on scale C
[1] This is an opposed interlocutory application wherein the respondent sought
an order compelling the applicants to discover and provide documentation after
the applicants held a view that it was not bound to provide them, pursuant a
request in terms of Rule 35(12) and 35(14) notices. The respondent further
sought an order wherein the court granted it an extension to file its answering
affidavit within 1 month after the applicant had provided the documents sought.
In the main application the applicants sought interdictory relief against the
respondent which currently occupied and controlled the property. In the main
application the order sought included a declaration that the respondent had no
right to occupy the property, an order that the respondent vacate the property,
directing the respondent to hand over the keys to the property and that the
respondent cease all management and everyday business operations.
[2] The first applicant is a Trust and the second to fourth applicants are its
trustees. The respondent is running the day-to-day affairs of the Wynberg
Mosque (the Mosque) which is owned by the Trust. The relationship between
the Trust and the respondent has irretrievable broken down and the trust no
longer wants the responde nt to run the day-to-day affairs of the Mosque. A new
committee has been formed separate from the respondent, whose constitution is
in line with the vision of the Trust and its founder. The respondent does not
want to vacate the mosque, relinquish control and return the keys of the Mosque
to the applicants.
[3] It is in relation to the allegations made by the applicants as part of historical
background, that the request for documents arose. The applicants inter alia
allege that the Mosque was always run under the active oversight and authority
of the Trust; that the Trust appointed various individuals to attend to the day -to-
day affairs of the Mosque ; that all important decisions such as the appointment
of the Imam and caretaker as well as all renovations done to the Mosque were
made in consultation with the Trust ; that the Trust always paid the water,
sewage, refuse and electricity home user charge for prepaid electricity being
paid by debit order each month and that the city did not bill the Trust for
property rates and that the Trust attended to the monthly insurance payments of
the Mosque. The applicants also alleged that the respondent acted unlawfully
and without authority.
[4] The respondent filed a notice in terms of Rule 35(12) and 35(14) of the
Uniform Rules where it required the applicants to produce for inspection and to
permit the respondent to make copies of documents which were relevant to a
reasonably anticipated issue in the applicants founding affidavit . The
documents sought were:
1. The written authority of the second applicant to attest to the affidavit.
2. The written authority and/or letters of appointment by the Master of the High
Court, Cape Town, appointing the Nedgroup Trust as a trustee of the Trust.
3. In respect of the Nedgroup Trust, the supporting documentation which was
submitted to the Master of the High Court on the basis of which the written
authority of letters of appointment were issued.
4. The trust deed and supporting documents in terms of which the Trust was
constituted as a trust with Master reference I[...] since its inception and prior to
2017.
5. The letter of nomination of Nedgroup Trust which appointed the second
applicant to serve as a nominee on behalf of Nedgroup Trust.
6. A complete deed of transfer, inclusive of supporting documentation, which
preceded and upon which transfer was based.
7. Minutes of meetings between members of the community and the Trust, since
inception of the Trust.
8. Minutes of meetings and documents of alleged decisions regarding the
mosque allegedly made in consultation with the Trust, since inception of the
Trust.
9. Minutes of meetings and written contract s concluded in respect of the
appointment of the Imam and caretaker, since inception of the Trust.
10. Documentary proof of payments made in respect of the Imam, other staff
and electricity and water bills since the inception of the Trust.
11. Documentary proof of the monthly debit orders in respect of water,
sewerage, refuse and electricity home user charge.
12. Documentary proof of the requests by the committee to the Trust for
assistance and payment by the Trust of such requests.
13. Documentary proof of the monthly payments made in respect of insurance
for the Mosque and the insurance policy.
14. A copy of the records which show that the late Imam Kajee approached the
Trust on or about September 2015.
15. Documentary proof of all persons appointed by the Trust to attend to the
day-to-day affairs of the Mosque , the resolutions taken by the Trust to appoint
these persons and their acceptance and appointment letters since the inception
of the Trust.
16. Documentary proof of all the engagements between the trust and the
respondent for the 10 years.
17. A copy of the resolution taken by the Trust during 2015, that both the
Claremont Mosque and the Wynberg Mosque operate under similar
constitutions and structures.
18. A copy of the constitution adopted by the Al-Jamiah Mosque.
19. Documentary proof of all the communications between the trust and
members of the respondent from 2015 until 2019.
[5] For purposes of Rule 35(12) the applicants answer was that in respect of
points 1 to 16 and 19, they made no reference to a document or tape recording
and that accordingly the request was no t in compliance with Rule 35(12). For
purposes of Rule 35(14) the applicants answer was that the rule related to
actions and not applications; that the applicants launched an application which
fals under applications or motion proceedings ; that a notice of intention to
oppose was filed and no appearance to defend was entered as envisaged in Rule
35(14) and that accordingly, the applicants were not obliged to comply with the
respondents rule 35(14) notice, which related to documents and/or tape
recordings not provided for in rule 35(14) and as such the requests were
improper and irregular.
[6] Rules 35(12), 35(13) and 35(14) reads as follows:
(12) (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.
(13) The provisions of this rule relating to discovery shall mutatis mutandis apply, in so far as
the court may direct, to applications.
(14) After appearance to defend has been entered, any party to any action may, for purposes
of pleading, require any other party to—
(a) make available for inspection within five days a clearly specified document or tape
recording in such party’s possession which is relevant to a reasonably anticipated issue in the
action and to allow a copy or transcription to be made thereof; or
(b) 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
(c) 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.
[7] Discovery is typically limited to trial actions. If necessary for fair court
proceedings, rule 35(13) allows a court a discretion to order discovery in
applications [Premier Freight (Pty) Ltd v Breathetex Corporation (Pty) Ltd
2003 (6) SA 190 (SE) at paragraphs 4-5]. It is a tool to allow a party to gain
access to documents that contain relevant evidence [Erasmus Superior Court
Practice: RS 26, 2025, D1 Rule 35-29]
[8] In Democratic Alliance and Others v Mkhwebane and Another (1370/2019)
[2021] ZASCA 18; [2021] 2 All SA 337 (SCA); 2021 (3) SA 403 (SCA) (11
March 2021) the SCA discussed rule 35(12) (the DA case). At para 34 the court
said:
[34] Reliance on a document by the party from whom the document or tape recording is
sought is a primary indicator of relevance. That appears clearly from what is set out above.
Given the purpose of rule 35(12) it cannot, however, be the sole indicator. The document in
question might not be relied on by the party from which it is sought but might be material in
relation to the issues that might arise or to a defence that is available to the party seeking
production.
In Rule 35(12): The principles drawn bare by the SCA in Democratic Alliance
and Others v Mkhwebane and Another, Rakhee Bhoora and Kedibone Seroke,
Fasken, South Africa March 31 2022, the authors said:
However, whilst relevance is limited to the issues to the matter, it is not assessed on such
issues that have already been crystallised, but rather on issues or aspects that may arise from
what is canvassed in the pleadings or affidavits as well as any defences or grounds of
opposition that may be available or arise to a party in order for such party to better assess its
position and assist in asserting its opposition to the matter.
[9] The documents sought by the respondent might be material in relation to the
issues that might arise or to a defence that is available to the m, from what is
canvassed in the applicants’ affidavits. For instance, i t is flimsy reasoning for
the applicants to refer to meetings in their affidavits, and when asked to produce
the minutes of th ose very meeting s, to say they made no reference to a
document or tape recording , as an answer to the party seeking production. It is
unreasonable for the applicants to allege the existence of a Trust, and when
asked to produce the Trust deed and supporting documents in terms of which
the Trust was constituted, at different times which the applicants set out in their
founding affidavits, to answer t hat they made no reference to a document or
tape recording in their affidavits. At para 41 of the DA case it was said that:
[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 relat ion 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. … The question to be
addressed is whether the documents sought might have evidentiary value and might assist the
addressed is whether the documents sought might have evidentiary value and might assist the
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.
[10] In the examples that I have given, of the documents sought, the meetings
and the existence of a Trust were material facts relied upon by the applicants to
establish their claim, so much so that they were pleaded in the ir founding
affidavits. The minutes of the meetings and the Trust deed and supporting
documents are documents in respect of which there is indirect reference in the
affidavits, which are relevant, and there is no indication that they are privileged,
and should ordinarily be in the possession of th e Trust and must be produced .
They are d ocuments which might have evidentiary value and might assist the
respondent in their defence to the relief claimed in the main case . They are
documents to which there is reference in the affidavits within the meaning of
that expression in rule 35(12).
[11] There is no bar to the use of rule 35(14) at an earlier stage of court
proceedings especially where the issues in dispute can be reasonably
contemplated or are clearly defined [Makate v Joosub NO and Another
(57882/19) [2020] ZAGPPHC 248 (30 June 2020) at para 59 ] (Makate case).
Where the request for the documentation does not constitute a fishing
expedition but is relevant to what may be described as a reasonably anticipated
issue in the main application, a court may be required to invoke the flexibility of
the interpretation and application of the rules of the court that affords the
applicants access to documents they sought , and avoid a mechanical application
of a particular rule that may lead to an injustice [Makate case at para 60 to 61].
[12] In PFE International And Others v Industrial Development Corporation
of South Africa Ltd 2013 (1) SA 1 (CC) at para 30 the Court said:
"[30] Since the rules are made for courts to facilitate the adjudication of cases, the superior
courts enjoy the power to regulate their processes, taking into account the interests of justice.
It is this power that makes every superior court the master of its own process. It enables the
superior court to lay down a process to be followed in particular cases, even if that process
deviates from what its rules prescribe. Consistent with that power, this court may in the
interest of justice depart from its own rules.
[13] Having regard to the how rule 35 reads as a whole, and its purpose, against
the background of the heavy court rolls in the High Courts, the cost of litigation
in the High Courts, the purpose of rule 35(13) and the context of applications, I
am not persuaded that every request for discovery and production of documents
should be preceded by an application for such direction by a court. In many
instances the documents may be discovered and produced by agreement
between the parties. Moreover, courts are not there to argue the law, but to
resolve disputes. The respondent was entitled to first approach the applicants
through delivery of Rule 35(12) and 35(14) notices without first approaching
the court. Rule 35(13) becomes operative when there is a dispute or refusal
necessitating judicial intervention. Judicial intervention cannot be a ritual in
litigation in the High Courts but is there to ensure procedural fairness. For these
reasons I make the order.
________________________________
DM THULARE
JUDGE OF THE HIGH COURT