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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO : 2022-36346
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 4/5/2026
SIGNATURE:
In the matter between :
SYDNEY DAVID MABALAYO First Applicant
Identity Number: 6[...]
PETER RANTHO KGAME Second Applicant
Identity Number : 5[...]
and
SIEMENS (PTY) LTD Respondent
Registration Number : 1923/007514/07
In re:
SIEMENS (PTY) LTD Plaintiff
Registration Number : 1923/007514/07
and
INDUSTRIAL DEVELOPMENT CORPORATION First Defendant
OF SOUTH AFRICA LTD
Registration Number : 1940/014201/06
SYDNEY DAVID MABALAYO Second Defendant
Identity Number: 6[...]
PETER RANTHO KGAME Third Defendant
Identity Number : 5[...]
MOTHOGOBENG ZANDILE FUYANE Fourth Defendant
Identity Number: 7[...]
SELIKANE LEBOHANG MAKAPE Fifth Defendant
Identity Number: 6[...]
MODISE ANDREW MATLALA Sixth Defendant
Identity Number: 7[...]
ABDURAGHIEM BRANDT Seventh Defendant
Identity Number : 6[...]
JUDGMENT
BOTES, AJ
A. INTRODUCTION
1. The First and Second Applicants 1 are the Second and Third Defendants in the
action initiated by the Respondent 2 on 7 July 2022 . Siemens is the Plaintiff in the
aforementioned action.
2. Electro Inductive Industries (Pty) Ltd, Registration Number 1999/019752/07 3 was
finally wound up in the High Court of South Africa, Western Cape Division, Cape Town,
under case number 4454/2020, on 26 August 2020 . The Applicants and the Fourth,
Fifth, Sixth and Seventh Defendants were at all relevant times executive directors of Ell.
3. The First Defendant has been the main funder of Ell. During the period 2012 to
2020 the First Defendant funded Ell in the amount of approximately R326 million.
4. The First Defendant was allegedly actively involved in the business of Ell in one
or more of the following capacities :
4.1 Financier;
4.2 Shareholder - 49% shareholding; and
4.3 Board of Directors - with the right to appoint a chairperson to the board.
5. Ell was initially established as a private company conducting the business of
transformer repairs.
SIEMENS' CLAIMS AGAINST Ell
6. Siemens initiated two claims against Ell, premised on:
6.1 A Bridge Loan Agreement entered into and concluded between it and Ell
on or about 24 July 2019; and
1 Hereinafter collectively referred to as "the Applicants".
2 Hereinafter referred to as "Siemens".
3 Hereinafter referred to as "Ell".
6.2 A Master Service License Agreement entered into and concluded between
it and Ell on or about 16 August 2019.
7. Siemens alleges that it will receive no liquidation dividend since Ell's liabilities
exceed its assets by at least R400 million and the First Defendant has a preferential
claim in excess of R450 million. There will thus be no dividend payable to concurrent
creditors, such as Siemens.
8. Siemens claims payment in the amounts of :
8.1 R9 967 799.00, in respect of the outstanding amount due and payable to it
by Ell pursuant to the Bridge Loan Agreement; and
8.2 R18 499 149.00, in respect of damages which it suffered pursuant to tools
and equipment it supplied and provided to Ell to the value of R23 499 149.00,
which amount is calculated as follows :
8.2.1 Total cost of tools and equipment
supplied and delivered to Ell
R23 499 149.00
8.2.2
Less the amount recovered from the
sale of the tools and equipment
R5 000 000.00
8.2.3 Total damages suffered by Siemens R18 499 149.00
9. Siemens alleges that the business of Ell was carried on :
9.1 with the intent to defraud creditors of Ell; and/or
9.2 recklessly, for the reasons alluded to in paragraph 8.1.2 of its Particulars
of Claim.
10. Siemens therefore submits that the Defendants 4 were all knowingly parties to the
fraudulent and/or reckless carrying on of the business of Ell.
11. Siemens therefore claims :
1. An order declaring that the Defendants, jointly and severally, are
personally responsible and liable to it in terms of Section 424(1) of the
Companies Act, No. 61 of 1973, for the debts incurred by Ell to it in the
amount of R28 475 930.005
2. An order in terms of Section 424(2)(a) of the Companies Act that the
Defendants are liable, jointly and severally, the one to pay the other to be
absolved, to pay to it interest :
2.1 On the amount of R18 499 149.00 at the rate of 9% per annum a
tempore morae; and
2.2 On the amount of R9 967 799.00 at the rate of 0,5% below the
prime overdraft rate per annum a tempore morae with effect from 1
October 2019 to date of payment;
3. Judgment in favour of it against the Defendants, jointly and severally,
the one to pay the other to be absolved, as follows :
3.1 Payment in the amount of R28 475 930.00
3.2 Payment of interest :
3.2.1 On the amount of R18 499 149.00 at the rate of 9% per
annum a tempore morae; and
3.2.2 On the amount of RS 967 799.00 at the rate of 0,5%
below the prime overdraft rate per annum a tempore morae
with effect from 1 October 2019 to date of payment;
4. Costs of the suit;
5. Further and/or alternative relief6.
4 Including the Applicants.
5 R9 967 799.00 plus R18 499 149.00.
6 See : Siemens' Particulars of Claim dated 29 June 2022.
12. The First, Fourth, Fifth and Sixth Defendants' filed and delivered their Plea on or
about 7 September 20237.
13. The Applicants8 have not yet filed their Plea.
THE APPLICANTS' NOTICE TO PRODUCE DOCUMENTS IN TERMS OF RULE
35(14) OF THE UNIFORM RULES OF THE HIGH COURT
14. The Applicants' attorney filed and delivered a notice to Siemens' attorneys to
produce various documents in terms of the provisions of Rule 35(14) of the Uniform
Rules of this Court, dated 26 September 2022. It is for purposes hereof not necessary
to deal with each and every document contained in and provided for in the
aforementioned notice9.
15. No response was forthcoming from Siemens' attorneys pursuant to the
Applicants' aforementioned notice to produce documents in terms of the provisions of
Rule 35(14) of the Uniform Rules of this Court. The Applicants subsequently initiated an
application to this Court which was heard on 13 March 2024 in the Unopposed Motion
Court. Leso J made an order in the following terms of 13 March 2024 :
1. The Respondent 10 must comply with the First and Second
Applicants' Notice in terms of Rule 35(14) within 10 days of service of this
order.
2. The Respondent pays the costs of this application11.
16. Siemens' attorneys filed and delivered a response to the Applicants' Notice in
terms of Rule 35(14) on 20 May 202412.
7 See : The First, Fourth, Fifth and Sixth Defendants' Plea, dated 7 September 2023 - Caselines 03-0006.
8 The Second and Third Defendants.
9 See : The Applicants' Notice to produce documents in terms Rule 35(14), dated 26 September 2002 -
Caselines 05-33 to 05-40.
10 Siemens.
11 See : The Court Order dated 13 March 2024 - Caselines 011-1 to 011-2.
17. Aggrieved by the aforementioned response submitted by Siemens' attorneys on
20 May 2024, the Applicants' attorneys filed and delivered a Notice of Non -Compliance
with the Court Order dated 13 March 2024, in accordance with the provisions of Rule
30A of the Uniform Rules of this Court. The aforementioned Notice of Non-Compliance
was filed and delivered on or about 25 June 2024.
18. It is the Applicants' case that Siemens has in fact materially not complied with the
Court Order in the respects set out in its Notice of Non -Compliance, dated 25 June
2024.
19. Siemens' attorneys persisted that it complied with the Court Order dated 13
March 2024.
20. The Applicants initiated this application or about 13 September 2024 in terms of
which they apply for an order in the following terms :
(a) Respondent's claims against First and Second Respondents in its
Particulars of Claim dated 29 June 2022 is struck out in terms of Rule
30A(1)(b).
(b) Respondent pays First and Second Applicants' costs of suit;
(c) Respondent pays the costs of this application; and
(d) Further and/or alternative relief13.
12 See : Siemens' response to the Applicants' Notice in terms of Rule 35(14), dated 20 May 2024 -
Caselines 15-17 to 15-25.
13 See : The Applicants' Application to Strike Siemens' claim, dated 13 September 2024 - Caselines 015-
01 to 015-12.
21. The relief which the Applicants apply for in their Application to Strike Siemens'
claim is repeated verbatim in paragraph 20 supra.
THE APPLICANTS' CASE IN SUPPORT OF THE RELIEF WHICH THEY APPLY FOR
IN THE NOTICE OF MOTION, DATED 13 SEPTEMBER 2024
22. The Applicants confirm that Siemens' attorney provide their attorney with copies
of the documents referred to in its Rule 35(14) response on 4 June 2024 14. The
Applicants submit that " it is evident that the Respondent has in fact not materially
complied with the Order"15.
23. The Applicants consequently served and delivered a Notice of Non -Compliance
with the Court Order at the offices of Siemens' attorneys on 25 June 2024 , in
accordance with the provisions of Rule 30A of the Uniform Rules of this Court16.
24. The Applicants therefore submit that Siemens remains in default of the Court
Order dated 13 March 202417.
25. The onus is on the Applicants to demonstrate whether there has been non -
compliance with the Court Order, which exercise should be attended to objectively. If the
Court finds that Siemens has not complied with the Court Order, this Court should
exercise its discretion to determine the appropriate remedy18.
26. The Applicants submit that Siemens confirmed in its Answering Affidavit that it
has in its possession some of the documents that were requested in the Rule 35(14)
Notice, being :
26.1 a due diligence report;
14 See : Paragraph 8 of the Founding Affidavit.
15 See : Paragraph 9 of the Founding Affidavit.
16 See : Paragraph 10 of the Founding Affidavit.
17 See : Paragraph 11 of the Founding Affidavit.
18 See: Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) at para 79.
26.2 minutes of meetings; and
26.3 documents relating to the negotiation and conclusion of the Bridging Loan
Facility Agreement.
27. The Applicants therefore submits that :
27.1 Siemens intentionally refuses to comply with the Court Order. This
constitutes contempt of court in that the Applicants have proven "beyond
reasonable doubt" :
27.1.1 the existence of the Court Order;
27.1.2 that Siemens is aware of the Court Order; and
27.1.3 that Siemens intentionally failed to comply with the Court Order.
27.2 Siemens' Affidavit in terms of Rule 35(14)(c) is in fact "incorrect" when it
alleges that "notwithstanding a diligent search" the documents required were no
longer accessible to it and that the "facts deposed to in such Affidavit are both
true and correct". This, according to the Applicants, clearly constitutes perjury by
the deponent to Siemens' Affidavit in terms of Rule 35(14)(c)19.
28. The Applicants submit that they require the documents requested in their Rule
35(14) Notice so as to enable them to prepare their Plea. It is the Applicants' case that
"without such documents they are unable to plead". The Applicants furthermore submit
that Siemens' failure to comply with the Court Order and to provide the requisite
documents is also prejudicial to them because they cannot plead without such
documents20.
SIEMENS' RESPONSE OR ANSWER TO THE RELIEF WHICH THE APPLICANTS
APPLY FOR IN THE NOTICE OF MOTION, DATED 13 SEPTEMBER 2024
19 See : Paragraph 8 of the Applicants' Heads of Argument.
20 See : Paragraph 12.4 of the Applicants' Heads of Argument.
29. Siemens' attorney 21 deposed to an Answering Affidavit in which the following is
stated :
29.1 The Applicants have at no stage made out a case that they cannot plead
to the allegations and averments contained in Siemens' Particulars of Claim22;
29.2 It cannot be in the interest of justice to dismiss Siemens' action against the
Applicants at this early stage of the proceedings23;
29.3 From Siemens' response to the Applicants' Notice in terms of Rule 35(14)
it is evident that a large number of documents were made available to the
Applicants, as provided for in his Affidavit dated 20 May 2024, deposed to in
terms of Rule 35(14)(c) of the Uniform Rules of this Court24;
29.4 The documents called for by the Applicants that were not made available
for inspection are not in Siemens' possession, and if they were, were no longer
accessible by Siemens. This is still Siemens' position25; and
29.5 The Applicants have not made any statement alleging facts and/or
circumstances which in the absence of these documents prevent them from
pleading. It is not sufficient for the Applicants to simply state that they are being
prejudiced in the formulation of the Plea if the documents are not provided26.
30. Siemens therefore submits that:
30.1 The Applicants are in fact in a position to file their Plea, as the First,
Fourth, Fifth and Sixth Defendants did;
30.2 Once the pleadings are closed, the issues will become crystalized and the
issues for trial will be defined;
21 Mr Geoff Ferreira.
22 See : Paragraph 2.2.1 of the Answering Affidavit.
23 See : Paragraph 2.2.3 of the Answering Affidavit.
24 See : Paragraph 3.4 of the Answering Affidavit.
25 See : Footnote 24 supra.
26 See: Paragraph 3.7 of the Founding Affidavit.
30.3 If the Applicants feel that the information presently sought is relevant to
the issues for trial, they can utilize the Pre -Trial Discovery Procedures set out in
Rule 35 of the Uniform Rules of this Court;
30.4 The Applicants cannot be prejudiced or even suffer potential prejudice in
obtaining the information later, as and when and if the documents or information
become available; and
30.5 The Applicants are not in the least being prejudiced by Siemens' inability
to provide the documents27.
31. Siemens' attorney furthermore submits that if the Applicants insist that the
documents that they seek are relevant for purposes of the trial, they could utilize the
Pre-Trial Discovery Procedures otherwise set out in Rule 35 of the Uniform Rules of this
Court. Siemens' inability to produce or disclose any such documents will be to its own
detriment who would not (save with the leave of this Court) be able to make use of
those documents, were they so critically relevant in the first place28.
32. It is therefore not possible for Siemens to comply with the Court Order, as it
submitted and made available all the documents in its possession to the Applicants in its
response to the Applicants' Notice in terms of rule 35(14), dated 20 May 202429.
DISCUSSION AND RATIONALE
33. The Applicants apply for an Order in terms of which Siemens' claims, as set out
in its Particulars of Claim dated 29 June 2022, be struck out.
34. Siemens opposes this application on the following grounds :
34.1 It duly complied with the provisions of Rule 35(14) of the Uniform Rules of
this Court;
27 See : Paragraph 3.8 of the Answering Affidavit.
28 See : Paragraph 3.9 of the Answering Affidavit.
29 See : Paragraph 3.10 of the Answering Affidavit.
34.2 The Applicants failed to establish material non -compliance with the
provisions of Rule 35(14) and/or the provisions of the Court Order dated 13
March 2024;
34.3 It provided copies of all specified documents in its possession;
34.4 The Applicants, in essence, demand from it to make available for
inspection documents which either do not exist or which are no longer,
alternatively have never been in its possession; and
34.5 Neither Rule 35(14) of the Uniform Rules of this Court, nor the subsequent
Court Order is intended to compel it to make available documents which are not
in its possession or under its control or which are not clearly identifiable.
35. Siemens furthermore submits that the Applicants failed to comply with the
provisions of Rule 35(14)(a) of the Uniform Rules of this Court, by failing to identify
clearly specified documents or tape recordings for purposes of pleading.
36. Rule 35(14) specifically provides for the following :
(a) Make available for inspection within 5 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 of
transcription to be made thereof.
37. Siemens' response consisted of a list of all specified documents as requested by
the Applicants, and which are in its possession, together with an Affidavit confirming the
fact that Siemens is not in possession of any of the remaining documents.
38. Notwithstanding the above qualification, the Applicants nevertheless filed a
Notice of Non-Compliance in terms of Rule 30A of the Uniform Rules of this Court.
39. Rule 30A can never be interpreted as authority to require a party to make
available documents which are neither in its possession, nor under its control.
40. The Court Order dated 13 March 2024 specifically instructs Siemens to :
Comply with the First and Second Applicants' Notice in terms of Rule
35(14) within 10 days of service of the Court Order.
41. It cannot be expected from Siemens to provide or to submit documents to the
Applicants which are not in its possession, or do not exist.
42. Rule 35(14) of the Uniform Rules of this Court was designed for the situation
where a party to an action requires, for purposes of pleading, the production of a
specific document or tape recording of which he has knowledge and which he can
describe precisely. The test to be applied in these circumstances is whether the
document or tape recording in question is essential, not merely useful, in order to
enable a party to plead30.
43. Van Dijkhorst J summarized the purpose of Rule 35(14) as follows :
"Die eerste vereiste is dat die aangevraagde dokument "vir doeleindes van
pleit benodig word". Uit die eedsverklaring van Nel is dit duidelik dat die
Verweerder sy verwere duidelik kon formuleer sonder die vermelde
dokumente. Die dokumente is nie noodsaaklik ten einde te kan pleit nie. Die
feit dat dit nuttig kan wees indien die opsteller van die pleitstuk dit
beskikbaar het, is nie die toets nie. Om hierdie rede alleen al moet die
aansoek onder Reel 30 faal.
Daar is egter nog 'n rede. Die dokumente wat in die kennisgewing aangevra
word, word omskryf in algemene terme by wyse van klas of soort. Alie
30 See : Cullinan Holdings Ltd v Mamelodi Stadsraad 1992 (1) SA 645 (T) at 647F; Bennett Attorneys Inc.
v Pro -prop Constructions and Civils (Pty) Ltd (unreported) Gauteng Johannesburg Case Number
2021/37739, dated 11 April 2022, at para 13; and The MV Urgup Owners v Western Bulk Carriers
(Australia) (Pty) Ltd 1999 (3) SA 500 (CPD) at 515C-I.
fakture met hoeveelheidslyste, alle kwitansies van die Ontvanger van
lnkomste ten aansien van betaling van algemene verkoopsbelasting en die
waarborg of waarborge na bewering verskaf deur die Eiser, word gevra.
Dit is myns insiens nie wat die reel voorsien nie. Dit was nie die bedoeling
met die invoeging van Reel 36(14) in 1987 om 'n onbeperkte ofwye reg tot
blootlegging voor sluiting van pleitstukke in te voer nie. Soos Reel 36(12)
die geleentheid skep om voor sluiting van pleitstukke insae te verkry in 'n
dokument of bandopname waarna in die teenparty se pleitstukke of
eedsverklarings verwys word, so skep Reel 35(14) 'n geleentheid ten
aansien van dokumente of bandopnames waarvan die Applikant kennis dra,
maar wat nie vermeld word in die stukke dan geliasseer nie."
And
"Myns insiens skep Reel 35(14) nie 'n metode waardeur 'n gedingsparty
deur gebruikmaking van generiese omskrywings 'n net kan knoop waarmee
vir halfbedekte dokumente gevis kan word nie. Dit is 'n remedie wat vir
besondere omstandighede geskep is. Dit vereis die oproep van 'n
spesifieke dokument waarvan die Applikant kennis dra en wat hy presies
kan omskryf. Slegs dan kan hy deur gebruikmaking van Reel 35(14) die
normale blootlegging van Reel 35(1) vooruit loop.31"
44. It is therefore evident that the provisions of Rule 35(14) of the Uniform Rules of
this Court does not provide a mechanism whereby a party may cast a net within which
to fish for vaguely known documents. The provisions of Rule 35(14) is not a tool to be
used as a "sniping weapon" in preliminary skirmishes32.
31 See: Cullinan Holdings v Mamelodi Stadsraad, supra at 647E-I and 648F-G.
32 STT Sales (Pty) Ltd v Fourie and Others 2010 (6) SA 272 (GSJ) at para 15.
45. In trial proceedings the legal issues existing between the parties are apparent
once the pleadings are closed. That is the purpose of pleading. The factual issues are,
however, not identified. The factual issues can only become identified once the facts in
question are produced. This takes place by way of production of documents and by way
of evidence given in Court. The purpose of discovery is to enable the parties to become
aware of documentary evidence that is available and to identify factual issues. In
addition, discovery results in the production of documents that can be used in the
course of interrogation of witnesses33.
46. 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 to draw the battle lines
and establish the legal issues. Rather, it is a tool used to identify factual issues once
legal issues are established34.
47. This Court is not prepared to strike Siemens' Particulars of Claim at this stage, as
it is evident that Siemens provided and made available all the requisite documents in its
possession to the Applicants. It cannot be expected from Siemens to produce or to
discover documents which are not in its possession.
48. The Applicants have to demonstrate on a balance of probabilities that the
requisite documents :
48.1 are required for purposes of pleadings;
48.2 are precisely described in the possession of Siemens; and
48.3 are relevant to a reasonably anticipated issue in the pending action35.
33 STT Sales (Pty) Ltd v Fourie, supra at para 14.
34 STT Sales (Pty) Ltd v Fourie, supra at para 16.
35 See : Nova Property Group Holdings Ltd and Others v Cobbett and Another 2016 (4) SA 317 (SCA) at
para 11.
49. The Applicants have not discharged the aforementioned onus, as provided for
and envisaged in paragraph 48 supra.
50. The Applicants are therefore dutybound and obliged to file and deliver their Plea
to the allegations and averments contained in Siemens' Particulars of Claim, dated 29
June 2022.
51. The Applicants have sufficient opportunity to invoke the provisions of discovery,
as provided for and envisaged in Rule 35 of the Uniform Rules of this Court, in the
furtherance of the trial.
CONCLUSION
52. This Court is therefore not prepared to prevent Siemens from an opportunity to
ventilate its claims against the Applicants.
53. The Applicants have not made out a case in support of the relief they apply for in
the Notice of Motion, dated 13 September 2024. The costs of this application should
follow the result.
In the premises an Order in the following terms is made :
1. The application is dismissed with costs on the scale as between
party and party [Scale B].
FW BOTES
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA