IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: ¥ES/NO
(2) OF INTEREST TO OTHER JUDGES: ¥ES/NO
(3) REVISED
DATE: 19 June 2026
SIGNATURE:
1
Case No. 2025-145455
In the matter between:
VANZYL, DIAN JACOBUS APPLICANT
And
XODUS GOUD KOOPERASIE BEPERK RESPONDENT
Coram: Millar J
Heard on: 12 June 2026
Delivered:
MILLAR J
2
19 June 2026 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded
·,
to the CaseLines system of the GD and by release to SAFLII. The
date and time for hand-down is deemed to be 13H00 on 19 June
2026.
JUDGMENT
[1] This is an application to compel the delivery of documents in terms of Rule 35(12)
of the Uniform Rules of Court. The application finds its genesis in an application
for liquidation brought by the applicant, Mr. van Zyl against the respondent,
Xodus.
[2] The application for liquidation was launched on 22 August 2025. Mr. van Zyl is a
member of Xodus which is a co-operative governed by the Co-Operatives Act.1
The application was brought by Mr. van Zyl on the basis that as a creditor of
Xodus in the sum of R2 577 094.71 , notwithstanding demand, payment had been
refused. The refusal to pay was communicated to Mr. van Zyl by Xodus on 13
August 2025. There appears to be a dispute regarding the nature of the debt, but
this is not an issue before this Court.
[3] The urgent application was served on Xodus. Complying with the truncated time
periods set by Mr. van Zyl in terms of Rule 6(12), a notice of intention to oppose
the application was served on 25 August 2025 and an answering affidavit
thereafter served on 28 August 2025. A replying affidavit was then filed on behalf
1 14 of 2005.
3
of Mr. van Zyl on 29 August 2025. When the matter was called in the Urgent
Court on 4 September 2025, an order was made by agreement, the relevant
terms, were as follows:
"1. The matter is removed from the roll;
2. The applicant may deliver a supplementary founding affidavit within 15
days from date of this order, after which the respondent may deliver a
supplementary answering affidavit and the applicant a supplementary
replying affidavit within the ordinary time periods prescribed by Rule 6 of
the Uniform ,C?.ules;"
[4] On 8 September 2025, the attorneys for Mr. van Zyl addressed a letter to Xodus's
attorneys in which copies of certain documents that had been referred to in the
answering affidavit (that had already been filed) were requested. The request
was not framed as one in terms of Rule 35(12), but this is what it was in
substance. This request was met on 16 September 2025 with Xodus expelling
Mr. van Zyl as its member together with the removal of his access to the online
member portal. Mr. van Zyl now found himself in the proverbial "wilderness"
insofar as access to information that he had previously had through the online
member portal was concerned.
[5] On 18 September 2025, a formal notice in terms of Rule 35(12) was served on
Xodus. It is not in issue that certain of the documents which were sought were
referred to in the answering affidavit or that some were not.
[6] · Xodus for its part, opposes the application and the disclosure of all the documents
requested. The main basis for this is variously that the documents requested are
either irrelevant, are confidential in nature or that there are procedural defects
(documents already furnished or request for ·-documents not mentioned) in the
application. Before dealing with the specific requests, the legal framework within
which they are to be considered as well as the objections, is briefly as follows.
4
[7] Rule 35(12) of the Uniform Rules of Court provides the following:
"(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."
[8] In Democratic Alliance and Others v Mkhwebane and Another,2 the Court held
that the language employed in rule 35(12) is very wide. The Court further provides
relevant steps that are taken to test compellability and relevance under rule
35(12) as follows:
"[27) Literally, rule 35(12) appears to indicate that where there is a mere
reference to a document or tape recording in an opponent's pleadings or
affidavits, a defendant or respondent is entitled to call for its production and
may compel compliance. That is not how our courts approach an
application to compel the production of documents sought in terms of rule
2 2021 (3) SA 403 (SCA).
[9]
[1 O]
5
35(12). The first step in the adjudication process is to consider whether
'reference' is made to a document or tape recording.
[28J In Penta Commimicatio /1 Services (Pty) Ltd v King and Another above [21J
at 4 75J the court referred with approval, in para 14, to the following passage
in Slomowitz at 244 where the follo~ing appears:
'An essential is, of course, a refwence by the opponent, in his
pleading or affidavit to the documents whereof such production is
required, but the terms of the Rule do not require a detailed or
descriptive reference to such documents, nor is any distinction
made between documents upon which the action or other
proceedings is actually founded and documents which possess
merely evidentiary value.'
See also Harms Civil Procedure in the Superior Courts at 823.2. [BJ
It appears to me to be clear that direct or indirect reference to a
document will suffice, subject to what is stated later about relevance.
[9J What will not pass muster is where there is no direct, indirect or
descriptive reference but where it is sought through a process of
extended reasoning or inference to deduce that the document may
or does exist. [1 OJ Supposition is not enough."
The onus in this case is clear given that the respondent opposes the applicant's
application in terms of Rule 35(12). The applicant in this case must satisfy this
Court on a balance of probabilities of hi.s entitleme It to the documents requested.
In Centre for Child Law v Hoerskool Fochvil/e and nothJr,3 the court held that:
"It is obvious I think, that a. court will not make an order against a party to produce
a document that cannot be produced or is privile ed or ) relevant."
3 2016 (2) SA 121 (SCA) at para (18].
6
[11] Confidentiality does not form part of the recognised grounds that a party may
raise to avoid production of a document in terms of Rule 35(12).4 Parties are
limited to proving privilege or irrelevance to trump a Rule 35(12) application. In
this case Xodus raised confidentiality as a ground of objection but even if this is
a consideration, it does not militate against the furnishing of the doc~ment but
rather in favour of the imposition of conditions which would be accommodative of
the right s of both parties.
[12] Turning now to the specific items requested.
ITEM 1
[13] "Copies of the respondent's audited annual financial statements for the period during
which the applicant was a member, as referred to in paragraph 40 of the answering
affidavit, including the audited financial statements for the year ending 29 February
2024".5
[14] Since the main application is one for the liquidatio of Xodus, it is self-evident that
[15]
the financial statements which were referred to and which were sought are
I relevant to the application.
Since Xodus is regisiered in terms of the Co-OJe,atives Act and Section 22 of
that Act provides an unqualified right to members of Xodus to attend at its
registered office,6 where in terms of Section 21, it ib obliged to keep all its financial
records so that they can be examined and copies made. The audited financial
4 Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: in re: Matsetla v President.of the
Republic of South Africa and Another 2008 (5) SA 31 (CC) at para (27].
5 At paragraphs 29 and 82 of the answering affidavit. •
6 In terms of Section 20 it must have a registered office within the Republic as set out in its constitution .
7
statements fall within this category and are specifically provided for in Sections
21 (1 )(g) and 22(2).
[16] There is no basis upon which confidentiality can be claimed or the furnishing of
the documents refused by virtue of Section 22. Mr. van Zyl has the right to
examine and make copies as a matter of law_ let alone for purposes of the present
litigation. The purport'ed termination of his membership to thwart access to copies
of documents (to which he is as a matter of law entitled) is nothing more than a
cynical attempt to by-pass the statutory right contained in Section 22.
ITEM2
[17] "The respondent 's "books of account . '17
[18] In this regard, Xodus argued that the reference to books of account was not to
any specific document. It was also argued that for purposes of the liquidation
application, Mr. van Zyl was not entitled to books of account showing transactions
of other members. It was argued that this would be irrelevant, and the information
would be the confidential information of third parties.
[19] While I do not agree that the documents themselves are necessarily irrelevant or
that there is any confidentiality, the request as it is framed, would not be relevant
to any inquiry in respect of the liquidation application considering that the
information contained in the" books of account" as a class of documents is
reflected in the audited financial statements.
[20] Mr. van Zyl does not seek to, nor would it be permissible for him to conduct an
audit of the veracity of the audited financial state ents at this stage. There is no
7 ibid at para 30.5.
ITEM 3
8
allegation that the audited financial statements do not accurately reflect the true
financial position. Given that the request is framed as widely as it is and that I
intend to order the production of the audited financial statements , the request for
the books of account is refused.
[21] "The "agreed written terms applicable when applying for membership. ,,a
[22] Section 21 (1 )(a) of the Act provides that Xodus must keep at its registered office,
"The constitution of a co-operative and its rules, if any, including any amendments."
[23] These documents fall within the scope of Section 22(1) and there is no basis for
Xodus to refuse examination and copying of these documents by Mr. van Zyl.
The reasons set out in paragraph [9] above apply to this request also.
ITEM 4
[24] "RBK's application "to establish a unit trust with tangible Kruger Rands as underlying
assets," together with the Financial Services Board ("FSB'J reply declining the
application". 9
[25] It was argued that these documents relating to events some 17 years before Mr.
van Zyl became a member of Xodus were irrelevant. In the context of the
liquidation application, they are clearly irrelevant. Nothing further need be said
on this save that this request is to be refused.
8 Ibid.
9 Ibid at para 18.
9
ITEM 5
[26] "A register of members. "10
[27] The argument in this regard for refusing to make the documents available was as
follows:
[28]
"22. Paragraph 3 of the respondent's answering affidavit does not make
reference to the 'register of members '.
23. To the extent that article 10 of the respondent 's Constitution provides for
the respondent to keep 'a register of members,' the contents thereof are
irrelevant in the determination of the application for liquidation.
24. The respondent's board, as has be n stated in the answering affidavit, in
terms of section 2 2 /2) of the Co-Op+ alives A ct, has reason to believe that
the disclosure of this informatior to the applicant will be to the
disadvantage of the co-operative and other members.
I _ I
25. This has "been dealt with in the re pondent 's supplementary answering
affidavit referred to in thle answerinJ affidavit of this application.
26. This information is also totally- irrelevant for purposes of the liquidation
application and is made for ma/a fidl reasons."
There are two aspects which arise regarding tie request for this item. The first
is that Section 21 (1 )(d) requi,
1
s thr Xodus k. ep a list of ils members on which
10 Ibid at para 31 and annexure XG7, para 1 I thereof .
10
is set out the name and address of each member, the date on which person
became a member, date of termination of membership (if applicable) together
with the amount of any membership fees paid, the number of membership shares
owned and the number and amount of member loans.
[29] The right to inspect this list resides in Section 22(1) read together with Section
22(2). The present request is made in terms of Rule 35(12) and not in terms of
the relevant Sections.
[30] The second is this-for purpose of the liquidation application, the audited financial
statements requested in item 1, will contain a fair representation of all the assets
and liabilities of Xodus. The specific personal information of the members is not
relevant to the liquidation applicatio t
[31]
ITEM 6
The application is predicated on th inability of Xodus to repay a member - it
follows as a matter of common sen! e that if this is so, that one member cannot
be repaid in fu 11 , that if that member f ere to be pa id, it wou Id necessarily resu It in
a shortfall for all the other members. Put simply, the membership list (while of
interest) is not relevant for purp°f es of the litigation and for that reason,
notwithstanding the provisions of Se tion 22, I inte I d to refuse the request for this
item in terms of Rule 35(12).
..
[32] "The minutes of the meeting at which the special reso ution was passed on 31 March
I
2021 amending the constitution of the respondent." 11
11 Ibid at paras 30.1.3(b) and 34.
11
[33] Regarding this item, Xodus asserted that Mr. van Zyl is already in possession of
the document requested. It pointed to annexure DZ8 to the founding affidavit.
This annexure is a letter from the Companies and Intellectual Properties
Commission recording an amendment of the Constitution. Attached to this letter
is a copy of the special resolution together with the amended Constitution . Since
Mr. van Zyl is in possession of this document , it already forms part of the Court
record, the request is of no moment in terms of Rule 35(12) and is to be refused.
ITEM 7
[34] "Identification and particulars of the underlying assets in the cryptocurrency pool. "12
[35] It was argued for Xodus that there was no reference to this anywhere in its
answering affidavit and that it was entitled to refuse this request. I agree. The
request does not fall within the ambit of Rule 35(12) and is to be refused.
[36] In summary and regarding the items requested in Mr. van Zyl's notice in terms of
Rule 35(12) - •
[36.1] This item is to be furnished .
[36.2] This item is refused.
[36.3] This item is to be furnished.
12 Ibid at para 22.
12
[36.4] This item is refused.
[36.5] This item is refused.
[36.6] This item already forms part of the Court record.
[36.7] This item is refused.
[37] Regarding costs, Mr. van Zyl sought a punitive order for costs as between
attorney and client. While I intend to order that certain of the items be furnished,
and in this respect, Mr. van Zyl has been successful, not all the items requested
are to be furnished. In respect of those items that are not to be furnished, the
opposition by Xodus was entirely justifiable. I am not persuaded that a punitive
order for costs is merited and intend to make an order for costs as between party
and party.
[38] In the circumstances, it is ordered:
[38.1] The respondent is ordered to produce and allow the inspection and
copying of items 1 and 3 listed in the applicant's Rule 35(12) Notice
served on 18 September 2025, within 15 days of the granting of this
[38.2]
order. J
In the event of the responde t failing to comply with paragraph 1 of
this order set out above, the applicant is granted leave to approach
this Court on the same papers duly supplemented for an order striking
out the respondent's defence.
13
[33.3] The respondent is ordered to pay the costs of this application on the
scale as between party and party with the costs of counsel on scale C.
HEARD ON:
JUDGMENT DELIVERED ON:
COUNSEL FOR THE APPLICANT:
INSTRUCTED BY:
REFERENCE:
COUNSEL FOR THE RESPONDENT:
INSTRUCTED BY:
REFERENCE:
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
12 JUNE 2026
19 JUNE 2026
ADV. H VAN STADEN
DLBM AT ORNEYS
MR. P LESSING
I
I
ADV. R DU PLESSIS SC
COO~ER\& ASSOCIATES INC.
MR. S REDELINGHUYS