IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 14564/2014
In the matter between:
SUPERCARE SERVICES GROUP (PTY) LTD Applicant
And
INTEBE LANDSCAPING CC Respondent
In re
MAUREEN VAN DER MERWE Plaintiff
And
EDEN ON THE BAY (PTY) LTD First Defendant
SUPERCARE SERVICES GROUP (PTY) LTD Second Defendant
INTEBE LANDSCAPING CC Third Defendant
RENNIE PROPERTY MANAGEMENT
CAPE (PTY) LTD Fourth Defendant
EDEN ON THE BAY BODY CORPORATE Fifth Defendant
Coram: BARENDSE AJ
Heard: 13 May 2026
Delivered: 25 May 2026
ORDER
(a) The Respondent is ordered to provide the Applicant with a proper
Rule 35(3) Reply;
(b) The application to compel the furnishing of further and better
particulars is dismissed;
(c) Applicant shall pay the Respondent's costs relating to the application
to compel the furnishing of further and better particulars, with
counsel's fees taxable at scale B;
(d) No order as to costs is made in respect of the application to compel
compliance with Rule 35(3).
JUDGMENT
BARENDSE AJ
Introduction
[1] This is an interlocutory application in which Applicant brought an
application against the Respondent for:
2.1 an order compel ling the Respondent to comply with Applicant's
notice in terms of Rule 35(3);
2.2 an order compelling Respondent to sufficiently comply with
Applicant's Request for Trial Particulars.
Background
[2] It is necessary to briefly set out the background against which this
application was brought.
[3] The Plaintiff in the main action instituted action against the defendants
following an incident which occurred on 2 January 2014 at or near the
entrance between shop 53a and 55 at Eden On The Bay Shopping Centre in
Bloubergstrand, Cape Town, Western Cape (“the premises”).
[4] The Plaintiff claims that she was seriously injured when she stepped
onto water that was present on the floor of the premises which caused her to
slip and fall (“the incident”).
[5] The Applicant is the Second Defendant in the main action, and the
Respondent is the Third Defendant in that action.
[6] The Plaintiff claims that the Applicant at all material times was
contracted to provide cleaning services at the premises..
[7] By virtue of the aforesaid, the Plaintiff claims that the Applicant had a
legal duty towards the public and in general and to the Plaintiff:
7.1 to ensure the safety of any person entering the premises;
7.2 to ensure the safety of any person walking in or at the premises;
7.3 to take all reasonable steps to avoid incidents such as the one that
gave rise to the incident;
7.4 to ensure that any person or entity employed, alternatively
contracted to carry out any of the duties referred to above would
do so speedily, properly and effectively.
[8] The Plaintiff claims that the Respondent (as Third Defendant) at all
times material to the incident, was contracted to attend to landscaping,
horticulture and maintenance services of the premises.
[9] By virtue of the aforesaid, the Plaintiff claims that the Respondent had a
legal duty towards the public in general and the plaintiff in particular to:
9.1 the safety of any person entering the premises;
9.2 the safety of any person walking in or at the premises;
9.3 take all reasonable steps to avoid incidents such as the one that
gave rise to the accident.
9.4 ensure that any person or entity employed, alternatively contracted
to carry out any of the duties referred to above would do so
speedily, properly and effectively.
[10] The Plaintiff pleads that both Applicant and Respondent breached
their respective legal duties by:
10.1 failing to ensure the safety of any person , in particular the
plaintiff entering the premises.
10.2 failing to ensure the safety of any person, in particular the
plaintiff walking in or at the premises.
10.3 failing to ensure that the floor of the premises was dry.
10.4 failing to ensure that notice was drawn to the presence of water
on the floor of the premises.
10.5 failing to ensure that the water on the floor of the premises was
cordoned off.
10.6 failing to take all reasonable steps to avoid incidents such as the
one that gave rise to the action.
10.7 failing to ensure that any person or entity employed, alternatively
contracted to carry out any of the duties mentioned, would do so
speedily, properly and effectively.
Defences raised by the Applicant and Respondent in the main action
[11] The Applicant pleads a general denial of negligence and wrongfulness.
In the alternative , Applicant relied upon an indemnity provided for in the
Master Service Agreement concluded between Applicant and Eden On The
Bay Body Corporate, the Fifth Defendant in the main action. To place
reliance on the indemnification , Applicant served a Rule 13 Notice on Eden
On The Bay in the main action.
[12] Applicant further denie s negligence on the parts of the Defendants
(including the Respondent as Third Defendant ) and put s Plaintiff to the
proof thereof.
[13] In the further alternative , Applicant plead s that the incident and
injuries were caused by Plaintiff's sole negligence , alternatively, Plaintiff's
contributory negligence.
[14] The Respondent in turn admits that it was at the time of the incident
contracted to attend to the landscaping, horticulture and maintenance
services at the premises.
[15] In amplification, the Respondent pleads that to the extent that it was
contracted to provide and maintain the landscaping and horticulture services
of the premises, it is admitted that it had the duty to do so and that such
obligations having at all material times been attended to.
[16] Further to the above and without derogating from the generality of the
aforesaid, the Respondent pleads that should a court find that it was subject
to a legal duty towards members of the public, which duty entails the taking
of any steps, which ought to be taken, then it is pleaded that such duty had at
all material times been complied with.
[17] In the further alternative, the Respondent pleads that the incident and
sequelae were caused wholly by the negligence of the plaintiff, alternatively
by her contributory negligence.
The Rule 35(3) Issue
[18] The Applicant served a Rule 35(3) Notice, dated 23 January 2024, on
the Respondent , requiring it to produce documents falling within four
categories:
• Category 1 : All correspondence between the Respondent and
the Plaintiff and/or the Fourth and/or Fifth Defendants before,
during and after the provision of landscaping services at Eden
on the Bay;
• Category 2 : Any written or partly written agreement or
correspondence constituting an agreement between the
Respondent and the entity , it contracted with to render
landscaping services;
• Category 3 : All quotations, invoices, letters of acceptance,
payment remittances, bank statements, proof of payments,
inventory lists, employment agreements and any other
communication relating to any aspect of the landscaping
services; and
• Category 4 : All communications, reports, notes or other
correspondence by the Respondent with any party, including its
insurers, relating to the incident of 2 January 2014.
[19] The Respondent’s Reply to the Rule 35(3) Notice, dated 20 May 2024,
was in the form of a letter by Respondent's attorney. The Reply states that
“the Third Defendant does not have in its possession any of the
documents/information requested and as far as the Third Defendant is
concerned, it does not exist.”
[20] The Applicant contends that the Respondent's Rule 35(3) Reply
was non-compliant with the requirements of Rule 35(3). The said Rule
provides that: “If any party believes that there are, in addition to
documents or tape recordings disclosed as aforesaid, other documents
(including copies thereof) or tape recordings which may be relevant to
any matter in question in the possession of any party thereto, the former
may give notice to the latter requiring such party to make the same
available for inspection in accordance with subrule (6), or to state on
oath within 10 days that such documents or tape recordings are not in
such party’s possession, in which event the party making the disclosure
shall state their whereabouts, if known.”
[21] The Applicant also complain s about the fact that Respondent's
discovery affidavit was signed by an employee of Respondent's insurer. This
prompted the filing of the Rule 35(3) Notice. 1 That being said, the relief
sought by the Applicant does not relate to the discovery affidavit itself.
[22] Applicant’s main gripe is that in response to the Rule 35(3) Notice, the
Respondent failed to state under oath that the requested documents were not
in its possession and to state the whereabouts ther eof, this being a
peremptory requirement.
[23] The Respondent contends that the documents requested are not
relevant to the matters in question . It also contends that Applicant was
requested to indicate whether Applicant required an affidavit which would
confirm what is stated in the Rule 35(3) Reply.
[24] The Applicant further requests the Court to go behind the
Respondent's discovery. In doing so, reliance is placed on Minister of Police
and Others v Midnight Star Trading 437 cc t/a Braamfischer Spar2, where it
was held that: "The Court will go behind the affidavit only if it is satisfied -(i)
from the discovery affidavit itself’ or (ii) from the documents referred to in
the discovery affidavit; or (iii) from the pleadings in the action; or (iv) from
1 Founding Affidavit paragraphs 9 to 14.
2 (2021/48998) [2025] ZAGPJHC 1128 (7 November 2025) at paragraph 8.
the admissions made by the party making the discovery; or (v) from the
nature of the case or the documents in issue.’
[25] During arguments, the Court mero motu raised the fact that in its Plea,
the Applicant does not enter into a lis with the Respondent, yet through the
Rule 35(3) Notice and the Re quest for Further Particulars , it was seeking to
establish grounds for liability on the part of Respondent. Applicant did not,
not even in the alt ernative, plead that the Respondent was liable to the
Plaintiff in the main action for her damages . The documents requested to be
discovered should be relevant to the issues in dispute as they appear from the
pleadings.3
[26] Pursuant to the above, and after argument, both parties provided the
Court with a further note.
The Trial Particulars issue
[27] At the outset is recorded that the court file relating to the main action
does not contain the Request for Tr ial Particulars and the Replies there to.
The current Index and paginated papers end at page 169 with Fifth
3 Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279
(T) at 311A.
Defendant's Plea. The Court was however able to glean the nature and
details of the particulars requested from the papers filed in this interlocutory
application. That said, it was incumbent on Applicant to ensure that the
pleadings in the main action were pr operly before the Court, to the extent
that it intended to rely thereon.
[28] The Applicant is seeking an order under Rule 21 (4), compelling the
Respondent to reply sufficiently to the requests listed from paragraph 2.1 to
2.10 of the Notice of Motion.
The Rule 30A issue
[29] There is also a dispute between the parties as to whether Applicant
ought to have availed itself of the mechanism in Rule 30A , instead of
bringing this application under R35(7) for further and better discovery.
[30] At the heart of this dispute was whether the Applicant should have
allowed the Respondent an opportunity to purge its default of compliance
before an application under Rule 35(7) was brought.
[31] During argument , this point was not pursued with any level of
enthusiasm by Respondent's counsel. This Court accepts that Rules 30A and
35(7) are not in conflict and that the Court has a discretion to allow a party
to follow either of them. Nothing more needs to be said about this issue.
Reasoning
[32] I first turn to deal with the discovery dispute. Rule 35(1) reads as
follows:
"Any party to any action may require any other party thereto, by notice in
writing, to make discovery on oath within 20 days of all documents and tape
recordings relating to any matter in question in such action (whether such
matter is one arising between the party requiring discovery and the party
required to make discovery or not) which are or have at any time been in the
possession or control of such other party."
[33] A plaintiff may require discovery from a co -plaintiff and a defendant
may require discovery from a co-defendant.4
[34] Rule 35(3) is by extension a tool through which discovery to which a
party is under Rule 35(1) entitled can be procured.
[35] The discovery must relate to " any matter in question". Given the wide
literal meaning of this phrase, it may convey the impression that a party may
4 Erasmus D1-460.
request discovery of any document conceivable. This is however not the
legal position. Relevance is the test for what is discoverable. Relevance in
turn is a matter for the court to decid e, having regard to the issues between
the parties.5
[36] The following is further stated in Erasmus :"The ambit of discovery
flows from the pleadings in which the parties have delineated the matters in
question between them"6 (own emphasis).
[37] When having regard to the pleadings, in particular the Applicant's own
Plea as mentioned in paragraphs [11], [12] and [13] above, this Court holds
the view that the Applicant had to enter into a lis or had to otherwise raise
matters between it and Respondent on the pleadings for the documents
sought in the Rule 35(3) Notice to be relevant. Absent this, the request for
the documents in question is nothing more than a fishing expedition.
[38] In STT Sales v Fourie and Others, the Court held as follows:
“The essential feature of discovery is that a person requiring discovery is in
general only entitled to discovery once the battle lines are drawn and the
legal issues established. It is not a tool designed to put a party in a position
5 Erasmus, Superior Court Practice D1-461.
6 Erasmus, Superior Court Practice D1-461 footnote 2 and the authorities cited there.
to draw the battle lines and establish the legal issues. Rather, it is a tool
used to identify factual issues once legal issues are established.7
[39] There is a further conundrum. The Applicant contends, and rightly so,
that there was no valid Rule 35(3) Reply. The Reply ought to have been in
the form of a statement under oath. It was however not in dispute that the
Respondent offered to provide this to Applicant. Applicant failed to respond
to that offer and instead launched this application.
[40] Applicant asked the Court to go behind Respondent's discovery. In
doing so, it asked the Court to go behind a Rule 35(3) Reply that Applicant
itself contends is invalid. This notwithstanding, in view of the finding that
Applicant failed to establish relevance, the requirements for going behind
discovery were not satisfied.8
[41] While the Respond ent did not strictly speaki ng comply with Rule
35(3), this application could have been avoided. Respondent tendered proper
compliance, but this was ignored. Litigants must litigate responsibly and
avoid a waste of client’s and court’s resources.
7 2010 (6) SA 272 (GSJ) at para [16].
8 See paragraph [24] supra.
[42] In enforcing compliance with the Uniform Rules of Court , this Court
will direct the Respondent to file a proper Rule 35(3) Reply but for the
reasons stated earlier, it will not grant a cost order in favour of Applicant.
[43] I now turn to deal with the Trial Particulars issue. In terms of Rule
21(2) of the Uniform Rules , a party is only entitled to the further particulars
strictly necessary to prepare for trial. The purpose of Further Particulars is:
43.1 to prevent surprise;
43.2 that the parties should be told with greater precision what the other
party is going to prove in order to enable his opponent to prepare
his case to combat counter allegations.
43.3 having regard to the aforegoing , nevertheless not to tie the other
party down and limit his case unfairly at the trial.9
[44] In determining what particulars fall within the scope of the rule, one
would look primarily at the pleadings. 10 The pleadings define the issues in
dispute between the parties on which the court will be called upon to
9 See Erasmus, Superior Court Practice , Second Edition at D1 -252 and the authorities cited under footnote
2 there.
10 Minister of Public Works &Infrastructure v Tuiniqua (supra) at [60].
adjudicate. The purpose of particulars for trial is not to elicit evidence of
information, which will emerge in cross-examination.11
[45] A litigant may only request such further particulars as are strictly
necessary to adequately prepare for trial by knowing enough about the other
party’s case to decide what evidence is required to meet it. When having
regard to the pleadings and the further particulars sought in this matter, it
cannot be held that such particulars are strictly necessary for Applicant to
prepare for trial in the sense envisaged in Kliptown. On the pleadings, the
Applicant does not have to meet a case by or prove one against Respondent.
Requests of this nature go against the spirit and purpose of Rule 21(2).
[46] The Court agrees with the Respondent that the remaining particulars
sought are not strictly necessary to prepare for trial, constitute interrogatories
and concern matters of evidence. The order being sought by Applicant is
therefore refused. The parties requested the Court to rule that the costs
relating to the application to compel the furnishing of further particulars
should stand over for determination at the trial. While this was appropriate in
11 Von Gordon v Von Gordon 1961 (4) SA 211 (T) at 213.
Tuiniqwa, there is on the present facts no reason to burden the trial court
with these costs.
Order
(a) The Respondent is ordered to provide the Applicant with a proper
Rule 35(3) Reply;
(b) The application to compel the furnishing of further and better
particulars is dismissed;
(c) Applicant shall pay the Respondent's costs relating to the application
to compel the furnishing of further and better particulars, with
counsel's fees taxable at scale B;
(d) No order as to costs is made in respect of the application to compel
compliance with Rule 35(3).
____________________________
R.D. BARENDSE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For applicant: Adv A Engelbrecht
Instructed by: MacGregor Erasmus Attorneys
For respondent: Adv E Benade
Instructed by: Visagie Vos Inc