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JUDGMENT
1.
1.1. This is an interlocutory application in terms of Rule 35(7) of the
Uniform Rules of Court in which the applicant (“Discovery”) seeks
an order compelling the respondent (“Komba”) to produce various
documents requested in a Rule 35(3) notice dated 17 September
2025.
1.2. The application arises within the context of a pending action
instituted by the respondent against Discovery concerning the
repudiation and cancellation of an Income Continuation Benefit
(“ICB”) policy. The respondent seeks declaratory relief declaring the
cancellation unlawful and seeks payment of benefits allegedly due
under the policy.
1.3. Discovery’s case in the main action is that the respondent materially
misrepresented and/or failed to disclose the true extent of injuries
and sequelae arising from a motor vehicle accident that occurred
during October 2016, prior to the inception of the policy and prior to
amendments thereto.
1.4. The respondent opposes the application principally on three bases,
namely:
1.4.1. that certain requested documents are irrelevant;
1.4.2. that certain documents are not within his possession or
control; and
1.4.3. that the application constitutes an impermissible “ fishing
expedition”.
1.5. The respondent further contends that Discovery could have
subpoenaed third parties, including the RAF or attorneys involved in
the RAF litigation, if it wished to obtain such documents.
1.6. After the exchange of affidavits, the respondent filed a
supplementary affidavit during May 2026. In that affidavit he states
that he had since located and furnished most of the requested
documentation, including:
1.6.1. hospital records compiled by Dr Mattelaer, Dr H Pieterse,
Dr M Zorio and Dr VA Jennings;
1.6.2. ITA34 tax documentation for the period 2019 to 2022;
and
1.6.3. medical reports filed in the RAF matter under case
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number 83132/2017.
1.7. The respondent further alleges that those documents were
uploaded to Caselines and that, to that extent, the interlocutory
application had become academic.
THE APPLICABLE LEGAL PRINCIPLES
2.
2.1. Rule 35(3) entitles a litigant who believes that there are additional
documents relevant to any matter in question in the possession or
control of another party to require production thereof or,
alternatively, a statement on oath that such documents are not in
that party’s possession and, if known, their whereabouts.
2.2. Discovery is intended to ensure that litigation proceeds openly and
fairly. The concept of relevance in discovery is broad and extends
to documents that may directly or indirectly enable a party to
advance its own case or damage the case of its opponent.
2.3. At the same time, Rule 35(3) does not grant a licence to conduct a
speculative fishing expedition. The requested documents must be
identified with sufficient precision and must bear relevance to issues
legitimately arising from the pleadings.
2.4. A court will ordinarily be reluctant to go behind a discovery affidavit.
However, where there are objective grounds for believing that
documents exist and are likely to be within the possession or control
of the party resisting discovery, the court may compel production.
ANALYSIS
3.
The medical reports and RAF documentation
3.1. Discovery seeks production of medical records and reports relating
to the respondent’s 2016 motor vehicle accident and the RAF claim
instituted pursuant thereto.
3.2. In my view, those documents are plainly relevant to the issues in the
main action.
3.3. The respondent himself pleads that he disclosed details of the motor
vehicle accident and associated medical information to Discovery
when applying for the policy.
3.4. Discovery’s pleaded defence is that the respondent materially
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misrepresented the extent of his injuries and their sequelae when
applying for and later amending the policy. The nature, extent and
duration of the respondent’s injuries therefore lie at the heart of the
dispute between the parties.
3.5. The RAF litigation is directly connected to those issues. Indeed, the
respondent successfully prosecuted a substantial RAF claim arising
from the same accident and obtained an award including
compensation for past and future loss of earnings and/or earning
capacity.
3.6. It is difficult to conceive how medical reports utilised in that litigation
could be regarded as irrelevant in the present proceedings.
3.7. Equally untenable is the respondent’s contention that Discovery
should merely subpoena third parties. Rule 35 entitles a litigant to
obtain relevant documents from an opposing party where such
documents are within that party’s possession or control. Documents
held by a litigant’s attorneys are generally regarded as being under
that litigant’s control.
3.8. On the papers before me, there are ample objective grounds for
concluding that at least some of the RAF-related documentation
existed and was under the respondent’s control.
3.9. Importantly, the respondent’s supplementary affidavit materially
undermines his earlier assertions that the documents could not be
located. He now confirms that most of those documents were indeed
located and produced.
3.10. The supplementary affidavit therefore substantially vindicates
Discovery’s contention that the requested documents existed and
were discoverable.
Financial and income-related documents
3.11. Discovery also seeks financial documentation relating to the
respondent’s income, employment and business activities.
3.12. Those documents are similarly relevant.
3.13. The ICB policy expressly concerns the respondent’s inability to work
and loss of income. Discovery relies on policy provisions defining
“income” and contends that the requested documentation is
“income” and contends that the requested documentation is
necessary to determine the respondent’s entitlement, if any, under
the policy.
3.14. The respondent’s income and occupational status formed part of the
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underwriting process and further bear directly upon the
quantification and validity of any ICB claim.
3.15. The respondent’s contention that the only issue is whether there was
non-disclosure of medical conditions is too narrow and inconsistent
with the pleadings and policy provisions relied upon by the parties.
3.16. Discovery is entitled to obtain documentation bearing upon both the
medical underpin and income underpin of the ICB claim.
Whether the application became academic
3.17. The respondent argues that the application became academic once
further documents were produced during March 2026 and
referenced in the supplementary affidavit.
3.18. There is force in the submission that the subsequent production of
documents narrowed the dispute considerably.
3.19. However, the fact that documents were eventually produced does
not render the application entirely academic. The supplementary
affidavit does not establish that all requested documents were
furnished. Nor is there agreement between the parties regarding the
completeness of discovery.
3.20. The application therefore remains live to the extent that discoverable
documents may still remain outstanding.
COSTS
4.
4.1. The respondent repeatedly accused Discovery of abuse of process,
unlawful surveillance and improper conduct.
4.2. Those allegations were unsupported on the papers and were
unnecessarily inflammatory.
4.3. At the same time, the respondent ultimately did produce substantial
further documentation after the institution of the application. That
development materially narrowed the dispute and demonstrates that
the application was not entirely without foundation.
4.4. In my view, the appropriate order is one compelling the respondent
to furnish any remaining discoverable documents still under his
possession or control, alternatively to depose to a proper affidavit
explaining their absence and whereabouts if known.
4.5. As to costs, the respondent’s late production of substantial