REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-092731
In the interlocutory application between:
CUSTOM CAPITAL FINANCE (PTY) LTD Applicant/Plaintiff
and
FORMULATED IT GROUP CC First Respondent / Defendant
ANTHONY KINNEAR Second Respondent / Defendant
SHONEEZ SALLIE Third Respondent / Defendant
SHANEEL RAM Fourth Respondent / Defendant
ANGELIQUE MARQUES DE SOUSA Fifth Respondent / Defendant
RIDWAN ADAMS Sixth Respondent / Defendant
UBUNTU FAMILY HEALTH CENTRE
GRAYSTON (PTY) LTD (in liquidation) Seventh Respondent / Defendant
Delivered: this judgment was prepared and authored by the judge whose name is
reflected and is handed down electronically and by circulation to the parties/their legal
representatives by email and by uploading it to the electronic file of t his matter on
Caselines. The date for handing down is deemed to be 26 August 2026
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______ __________________
DATE SIGNATURE
2
JUDGMENT
CARELSE AJ
Introduction
[1] The applicant is the plaintiff in an action pending in this Division. The first to fifth
respondents are the first to fifth defendants in that action. In what follows, I will
refer to the parties as in this application and to the first to fifth respondents
collectively as “the respondents”.
[2] This is an opposed interlocutory application to compel the respondents to reply
to the applicant’s notice delivered in the action under Uniform Rule 35(3).
[3] No relief is sought against the sixth and seventh respondents, and they took no
part in these proceedings.
The relief sought and the issue
[4] The notice of motion seeks an order compelling the respondents to furnish the
applicant, within ten days of service of the order, with their “Reply” to the notice
in terms of rule 35(3), together with the costs of the application. The draft order
uploaded to CaseLines is to the same effect, save that it seeks costs jointly and
severally.
[5] In their joint practice note, the parties describe the application as one to compel
further and better discovery under Uniform Rule 35(3) read with rule 35(7). They
record that the applicant bears the onus of establishing its entitlement to the
relief and that “the determinative issue is that of relevance”. I approach the
matter on that footing.
Discovery and the notice
[6] On 3 April 2025, the respondents delivered five discovery affidavits. Each
discloses only two items:
3
a) all pleadings and processes filed under the above case number, and
b) all correspondence between the parties and between their attorneys not
marked “without prejudice”.
[7] None of the discovery affidavits identify any financial, accounting, or
commercial document that may relate to any matter in question in the action
between the parties.
[8] Understandably dissatisfied with the discovery made, the applicant, on
7 April 2025, delivered a notice in terms of rule 35(3) calling for six categories
of documents:
a) the first respondent’s bank statements with all financial institutions for the
period 1 August 2023 to 30 July 2024 (“Item 1”);
b) Red Holidays Pty Ltd’s bank statements for the same period, including for
a specified account (“Item 2”);
c) details of any and all documents relating to the bank accounts of SNW
Traders Pty Ltd and “Investment Fuel” (“Item 3”);
d) all invoices, ledgers , statements and any and/or all documentation
evidencing amounts due by Red Holidays to SNW Traders Pty Ltd and/or
“Investment Fuel” (“Item 4”);
e) proof of payment to Red Holidays of R 647 000 for a quotation dated
31 August 2023 for five guests to travel to the United Kingdom in
December 2023 (“Item 5”); and
f) SNW Traders Pty Ltd’s bank statements for the same period (“Item 6”).
[9] Nothing was delivered in response to the rule 35(3) notice. A demand on
5 May 2025 for compliance with the rule 35(3) notice likewise produced no
response. This application consequently followed and was initially enrolled for
11 June 2025. On 9 June 2025, however, the respondents delivered a notice
of intention to oppose the application and, two minutes later, thei r answering
4
affidavit. The application was therefore removed from the roll on 11 June 2025,
and Wanless J reserved the wasted costs.
[10] The answering affidavit is deposed to by an attorney at the firm representing
the respondents. It contends only that the documents are irrelevant to the
applicant’s claim and to the respondents’ business dealings. It does not state
that the documents are not in the respondents’ possession, and none of the
respondents delivered a confirmatory affidavit. Although the deponent asserts
personal knowledge, no basis for that knowledge is given and it is not said that
the documents sought were examined.
[11] A question arose in argument as to whether the answering affidavit was itself
the reply that the notice called for, so that nothing remained to be compelled.
The answering affidavit was not a proper response to the rule 35(3) notice. The
subrule requires the recipient either to make the documents available for
inspection or to state on oath that they are not in its possession and to give their
whereabouts. The answering affidavit does neither. It resists the application on
the ground that the documents are irrelevant, which is a different thing from a
response to the notice.
[12] The founding affidavit itself says nothing about relevance beyond asserting that
a reply to the rule 35(3) notice is vital to the applicant’s preparation for trial. The
corporate relationships and the flow of funds appear for the first time in the
replying affidavit. Nothing, however, turns on that . Relevance in this context
falls to be determined against the pleadings , and I have based my reasons in
this judgment on the averments in the pleadings and not from the replying
affidavit.
The Legal Principles
[13] Rule 35(3) provides:
“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
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
5
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.”
[14] The subrule puts the recipient of the rule 35(3) notice to an election. It may
make the documents available for inspection under rule 35(6), or it must state
on oath, within ten days, that the documents are not in its possession and state
their whereabouts, if known.1
[15] Rule 35(7) permits a party to apply for an order compelling compliance. Where
the notice has been given and the time for compliance has passed, it is
sufficient for the applicant to show that the documents are in existence and are
relevant to a matter in question in the action.2
[16] A document is relevant to a matter in question if it is reasonable to suppose that
it contains information which may , not must, directly or indirectly enable the
party requiring it to advance his own case or to damage that of his adversary,
or which may fairly lead him to a train of enquiry with either of those
consequences.
3 What is a matter in question is determined from the pleadings,4
and the subrule does not license a fishing expedition.5
1 Uniform Rule 35(6) reads:
“(6) Any party may at any time by notice in accordance with Form 13 of the First Schedule require any
party who has made discovery to make available for inspection any documents or tape recordings
disclosed in terms of subrules (2) and (3). Such notice shall require the party to whom notice is given
to deliver within five days, to the party requesting discovery, a notice in accordance with Form 14 of the
First Schedule, stating a time within five days from the delivery of such latter notice when documents
or tape recordings may be inspected at the office of such party’s attorney or, if such party is not
represented by an attorney, at some convenient place mentioned in the notice, or in the case of bankers’
books or other books of account or books in constant use for the purposes of any trade, business or
undertaking, at their usual place of custody. The party receiving such last-named notice shall be entitled
at the time therein stated, and for a period of five days thereafter, during normal business hours and on
any one or more of such days, to inspect such documents or tape recordings and to take copies or
transcriptions thereof. A party’s failure to produce any such document or tape recording for inspection
shall preclude such party from using it at the tri al, save where the court on good cause shown allows
otherwise.”
2 Bothma v Protea Furnishers (Pty) Ltd 1970 (3) SA 180 (O) at 183E–F.
3 Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, as
adopted by the Full Court in Rellams (Pty) Ltd v James Brown & Hamer Ltd 1983 (1) SA 556 (N) at
564A–B (“Rellams”).
4 Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and
Others 1999 (2) SA 279 (T) at 316J–317A.
5 The MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd and Others
1999 (3) SA 500 (C) at 515C–D (“MV Urgup”).
6
[17] Where relevance is denied on oath, the onus of establishing it lies on the party
seeking discovery.6 The applicant correctly accepted that onus.
[18] The facts in Rellams (Pty) Ltd v James Brown & Hamer Ltd7 are materially the
same as those in this matter. There, as here, discovery had been made, an
itemised rule 35(3) notice was delivered, nothing was delivered in reply, an
application to compel followed, and the only affidavit bearing on the notice was
one by the defendant's attorney asserting that the documents were not relevant.
[19] The Full Court held that the objections to an attorney making discovery under
rule 35(1) apply equally to an affidavit under rule 35(3) and that where an
attorney does depose, the circumstances qualifying him to do so must be
disclosed. None were disclosed in that case beyond "the bald statement that
the facts contained therein are within his own knowledge", unlike the attorney
in Richardson's Woolwasheries Ltd v Minister of Agriculture,
8 whose affidavit in
the discovery proceedings set out that he had perused the files before the
discovery affidavit was drawn and, on receipt of the rule 35(3) notice, had again
perused every file in his client's possession relating to the matter and satisfied
himself that nothing further fell to be disclosed. The court held that a party is at
least entitled to be informed in proper form whether the documents called for
are in the recipient's possession and whether their relevance is disputed. On
that ground alone the appeal succeeded.
The pleadings
[20] In the action, t he applicant claims damages against the first to seventh
respondents jointly and severally, arising from what it pleads were fraudulent
misrepresentations.
[21] The applicant pleads that it purchased equipment from the first respondent for
R 1 931 636.20 and R 1 861 711.30 under two tax invoices , issued in August
2023 and September 2023, respectively. It further pleads that it rented that
2023 and September 2023, respectively. It further pleads that it rented that
6 Continental Ore Construction v Highveld Steel & Vanadium Corporation Ltd 1971 (4)SA 589 (W) at
597G–H.
7 1983 (1) SA 556 (N).
8 Richardson's Woolwasheries Ltd v Minister of Agriculture 1971 (4) SA 62 (E) at 67A-B (“Richardson’s
Woolwasheries”).
7
equipment to the seventh respondent (Ubuntu) under two written rental finance
agreements signed on Ubuntu’s behalf by the sixth respondent (Adams), its
sole director. Ubuntu was placed in business rescue two months later , in
November 2023, and in liquidation in May 2024, having paid the applicant a
total amount of R 348 268.20.
[22] The applicant then pleads what became of the money. It pleads that the second
to fifth respondents are members of the first respondent. That t he third
respondent (Sallie) is also a shareholder in and a director of a company called
Red Holidays (Pty) Ltd, which conducts business as a travel agency. Between
29 August 2023 and 20 September 2023, the first respondent paid a total of
R 1 300 000 to Red Holidays in three payments and R 50 000 directly to Sallie.
Red Holidays , in turn, between 29 and 31 August 2023, paid a total of
R 778 000 to SNW Traders (Pty) Ltd in three payments and R 272 000 to an
entity described as “Investment Fuel”. On 20 September 2023, the first
respondent paid a further R 647 000 into SNW Traders’ account. Adams was
the sole director and shareholder of SNW Traders and had a controlling interest
in “Investment Fuel”. The effect, it is pleaded, was that R 1 697 000 was paid
back to Adams through entities which he controlled.
[23] The applicant pleads that the first respondent, the fifth respondent (De Sousa),
Adams and Ubuntu made certain representations to it that were false and which
misrepresentations induced it to enter into the aforesaid rental finance
agreements with Ubuntu. The said agreements are pleaded not to have been
legitimate rental finance transactions but rather money -raising transactions,
concluded with the intention to raise funds that were to be paid back to Adams,
alternatively, juristic entities in which he had a substantial/controlling interest.
The second to fifth respondents are sought to be held personally liable under
s 64 of the Close Corporations Act.
9
s 64 of the Close Corporations Act.
9
[24] Having considered the respondents’ plea, it is common cause on the pleadings
that the two transactions were concluded as pleaded, that the first respondent
9 69 of 1984.
8
received the two sums totalling R 3 793 347.50, and that Sallie is a shareholder
in and a director of Red Holidays.
[25] The respondents, however, deny the flow of the funds as pleaded in the
particulars of claim and amplify the denial as follows:
“11. In amplification to the aforementioned denial, but without derogating from the
aforesaid denial, the defendants represented in this plea, plead that the payments
made to these respective organisations had nothing to do with the plaintiff nor the
alleged business transaction between the plaintiff and the first and seventh
defendants.
12. The payments made as referred herein related to business transaction for the
companies mentioned herein and are not related to the plaintiff’s claim and/or the
alleged transaction with the plaintiff. The plaintiff is therefore put to the proof thereof to
prove these payments and further prove relevance of these transactions.”
[26] The plea elsewhere asserts that the applicant never considered installation
costs, hardware costs, cable costs, or billable working hours; that the applicant
verified the equipment and checked the serial numbers before paying the
invoiced amount; that the amounts invoiced were fair and reasonable for the
equipment delivered and installed; and that the respondents never
misrepresented to anyone when invoicing the applicant.
Analysis
[27] On the reasoning in Rellams, the application could be disposed of on a single
ground: the respondents have never informed the applicant, in proper form,
whether the documents called for are in their possession and whether their
relevance is disputed. Because relevance was fully argued, and because the
parties identified it as determinative, I will, however, deal with it.
[28] The applicant pleads a scheme. Its case is not that the first respondent
breached a contract or that it was unjustly enriched. It is that money paid by the
applicant for equipment was routed within days, in identified amounts, through
applicant for equipment was routed within days, in identified amounts, through
a travel agency of which Sallie is a director, to two entities controlled by Adams.
9
[29] The respondents do more than deny that route. T hey in fact plead positively
that the payments are “related to business transaction for the companies
mentioned herein”, and they put the applicant to the proof of the payments.
[30] Two things are accordingly in issue: (i) whether the payments were made,
which the applicant is required to prove; and (ii) whether, if made, they were
legitimate commercial transactions, which is the affirmative case pleaded by
the respondents.
[31] Bank statements of the paying and the receiving accounts are the ordinary
means by which a series of electronic transfers is proved. A litigant who
requires his opponent to prove a series of payments cannot therefore maintain
that the banking records of those payments may not be relevant. Items 1, 2 and
6 of the rule 35(3) notice are directed at those records, and their existence has
not been called into question.
[32] The respondents complain that the notice calls for entire bank statements over
a twelve -month period across multiple institutions. The pleaded transfers
occurred between 29 August 2023 and 20 September 2023, and to that extent
the complaint has force. But the respondents' own answer to those transfers is
that they "related to business transactions for the companies mentioned
herein". Whether a genuine trading relationship existed between these entities
or whether the transfers were isolated movements cannot be tested on a single
month's statements. The period is, in any event, bounded, closing on 30 July
2024, and the quotation to which item 5 relates concerns travel in December
2023. Above all, the notice of motion does not seek to compel the production
of twelve months of statements but rather to compel a reply to the rule 35(3)
notice. A respondent who therefore does not hold the statements for the whole
period or any part of it must say so on oath.
[33] Item 4 of the rule 35(3) notice goes directly to the affirmative defence. If genuine
[33] Item 4 of the rule 35(3) notice goes directly to the affirmative defence. If genuine
indebtedness underlay Red Holidays’ onward payments, invoices, ledgers and
statements would tend to establish it. If it did not, their content or their absence
would tend to damage the defence. Item 4 carries no date limitation, but it is
confined by its subject matter to documents evidencing amounts due by Red
10
Holidays to SNW Traders and "Investment Fuel", which is the very matter the
respondents have put in issue.
[34] Item 5 of the notice requires separate mention. It seeks proof of a payment to
Red Holidays of R 647 000 for a travel quotation. Paragraph 26 of the
particulars of claim pleads that the R 647 000 was paid into SNW Traders’
account, and no travel quotation is pleaded anywhere. To that extent , item 5
does not mirror the pleaded case, but it should, in my view, nevertheless survive
because the payment is pleaded . Whether the payment was applied to fund
travel booked through a travel agency of which a respondent is a director bears
on the pleaded question whether the payments were legitimate.
[35] Item 3 of the notice stands differently, and I return to it below.
The grounds of opposition in the respondents’ heads of argument
[36] During argument, the respondents’ legal representative stated that the
respondents stand by the arguments advanced in their heads of argument. It is
therefore prudent to deal with the five grounds advanced therein in opposition
to the application.
[37] First, it is said that the documents are irrelevant to the issues in the main action,
which the heads of argument identify as “whether the Respondents breached
the agreement or were unjustly enriched”. The particulars of claim plead
neither. It pleads fraudulent misrepresentation and liability under s 64 of the
Close Corporations Act. The submission thus rests on a misidentification of the
pleaded issues and cannot succeed.
[38] Secondly, it is said that Red Holidays, SNW Traders and “Investment Fuel” are
separate juristic persons and that the applicant may not pierce the corporate
veil, where no fraud, sham or an abuse of the corporate form has been alleged.
Fraud is, however, alleged throughout the particulars of claim, which pleads
that the transactions were "not legitimate rental financing transactions but were
in fact money raising transactions" concluded to route funds to Adams or to
in fact money raising transactions" concluded to route funds to Adams or to
entities in which he held a controlling interest. It is further pleaded that the first
respondent, De Sousa, Adams and Ubuntu knowingly made false
11
representations to the applicant to induce it to enter into the pleaded
transactions and to make the payments it did.
[39] Discovery from a person who is not a party to the action may be obtained only
in the limited instances for which rule 35(5) provides, which do not apply here,
and otherwise by subpoena duces tecum.10 To that extent the respondents are
correct. However, the applicant also does not seek to pierce the corporate veil
of companies that are not parties to the action. The applicant does not seek
discovery against Red Holidays, SNW Traders or “Investment Fuel”. What the
applicant seeks is for the respondents, who are parties to the action, to make
certain documents available for inspection or to state under oath that suc h
documents are not in their possession and state their whereabouts, if known.
The authorities relied upon by the respondents in this regard relate to when the
corporate veil may be pierced and not when discovery may be refused.
11
[40] Rule 35(3) is concerned with the possession of documents, not with their
ownership. A litigant must disclose relevant documents in his possession or
control whether they belong to him, to a company of which he is a director, or
to a stranger. No corporate veil is pierced.
[41] If the respondents do not have the documents, subrule 35(3) tells them what to
do: they must say so on oath and give the whereabouts if known. An order
compelling compliance cannot require them to produce what they do not have.
It requires them to answer , which is the one thing they have never properly
done.
[42] I should add that Durbach,
12 the authority cited for the proposition that discovery
cannot be compelled in respect of documents belonging to non-parties, decides
the opposite. It holds that the obligation to discover is in very wide terms , that
a party must discover every document relevant to any aspect of the case and
that he must do so even where he may lawfully object to producing it.
10 Richardson's Woolwasheries supra at 66H.
10 Richardson's Woolwasheries supra at 66H.
11 Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd and Others 1995 (4) SA 790 (A) holds
that the veil may be pierced where there has been fraud, dishonesty or improper conduct.
12 Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1083.
12
[43] Thirdly, privacy and commercial confidentiality. The point is raised for the first
time in the heads of argument and there is no evidence to support it in the
answering affidavit . No respondent has deposed to what the statements or
documents would reveal or to any confidence owed to anyone. In any event ,
confidentiality is not an answer: in Rellams an objection that documents were
confidential was held to have no substance.13
[44] Fourthly, proportionality. The respondents submit that the burden of obtaining,
redacting and disclosing extensive banking data of multiple entities is
disproportionate, and that the applicant already possesses the records it needs
and can prove its case without the discovery it seeks. There is no evidence to
support either proposition. The second is also difficult to reconcile with the
respondents' own plea, which denies the payments and puts the applicant to
the proof of them. The respondents cannot at once require the applicant to
prove the payments and contend that it has no need of the documents by which
payments are proved. The answer is, in any event, that given in Rellams to an
objection in identical terms , being that too many documents over too long a
period were called for and that this would entail practical difficulties. The Full
Court found no substance in the objection and held that if the documents are in
the possession of the party from whom they are sought and are relevant, they
ought to be made available for inspection.
14
[45] Fifthly, a fishing expedition. Rule 35(3) does not permit a litigant to trawl for a
case it has not pleaded. But items 1, 2, 4, 5 and 6 of the notice are each linked
to a pleaded allegation. The applicant is not searching for a cause of action
because it has already pleaded one in detail and seeks the documents by which
it will stand or fall.
[46] Item 3 of the notice is different, and here the argument has force. It calls for
[46] Item 3 of the notice is different, and here the argument has force. It calls for
“details of any and all documents relating to the bank accounts in the name of
SNW Traders Pty Ltd and Investment Fuel”. Unlike the other items, it identifies
neither a class of document nor a transaction. In The MV Urgup, relief was
refused in part because the documents sought were described only in wide,
13 Rellams supra at 564D.
14 Rellams supra at 564C–D.
13
generic terms.15 Read literally, item 3 attracts the same objection. However, it
need not be read literally , as it appears in the rule 35(3) notice, which is
otherwise closely tied to the pleaded payments and plainly has those payments
as its object. I shall confine it accordingly to such payments.
[47] Finally, the respondents ask in the alternative that discovery be limited to the
pleaded transactions between the applicant, the first respondent, and Ubuntu,
excluding the banking records of third- party entities. That would exclude the
very documents which the pleadings put in issue. The pleaded case is about
what became of the money once it reached the first respondent. An order
stopping at the first respondent’s door would leave the central allegation
untested. I therefore decline to make it.
The form of the order
[48] There remains the form of the order. The applicant submits that the
respondents have never said the documents are not in their possession, that
the ten days allowed for such an oath have long passed, and that the second
limb of the subrule is accordingly spent. The only reply now open to them, it
argues, is production of the documents sought.
[49] The submission has some force. Nowhere in t he respondents’ heads of
argument is it suggest ed that the documents are beyond their reach. They
assert the opposite in three places in their heads of argument: (i) that disclosure
would intrude upon “the Respondents’ and third parties’ privacy and commercial
confidentiality”; (ii) that it would “expose business information, client details, and
unrelated transactions”; and (iii) that “the burden on the Respondents to obtain,
redact, and disclose extensive banking data of multiple entities is wholly
disproportionate”. Each of those propositions presupposes that there is
something that the respondents are able to obtain and to disclose.
[50] I nevertheless decline to make the order in that form because the premise for
[50] I nevertheless decline to make the order in that form because the premise for
such an order is not established on the papers. The founding affidavit does not
allege that the documents are in the respondents' possession. T he nearest it
15 The MV Urgup supra at 515H–516B.
14
comes is the assertion that they are "withholding information and documents",
which was denied by the respondents. The applicant cannot rely on a failure to
deny an averment it did not make, and to infer possession from silence would
reverse the onus it accepted. Rellams points the same way: there too
possession was not put in issue, yet the Full Court, having decided relevance,
framed its order in the alternative. Rule 35(7) empowers a court to order
compliance with the rule, and compliance is the election which the subr ule
creates. A court should not order a party to produce what it may not have.
[51] The order must also accommodate a respondent who holds a relevant
document but objects to producing it. Rule 35(2)(b) recognises documents in
respect of which a party has a valid objection to produce. Such a respondent
can neither produce the document nor swear that it is not in its possession. The
order therefore provides a third course: to identify the document and state the
ground of objection on oath. The objection remains the respondents to take, but
the facts founding it may be deposed to by anyone with personal knowledge of
them, including an attorney who sets out the basis of that knowledge.
[52] The applicant’s underlying concern is nevertheless legitimate. It is that the
respondents may now say for the first time, and without particularity, that they
do not have the documents, leaving the applicant where it began. Three
features of the intended order meet that concern. First, each of the first to fifth
respondents must depose separately, not through their attorney and not
through one another. Secondly, each affidavit must deal with each of the six
items in turn, so that a general disclaimer will not answer. Thirdly, it must
address not only possession but control. Rule 35(3) falls to be read with rule
35(1), which reaches all documents which are or have at any time been in the
possession or control of a party. That matters here, because Sallie is an
possession or control of a party. That matters here, because Sallie is an
admitted director and shareholder of Red Holidays and the other respondents
are not.
Conclusion
[53] The applicant has discharged the onus. The first to fifth respondents have not
responded to the notice in either of the ways the subrule permits, and the only
15
ground on which they resisted the application on the papers cannot be
sustained. Thus, the application succeeds.
[54] I frame the order as the Full Court framed it in Rellams. Relevance having been
determined, a reply asserting that the documents are irrelevant will not
constitute compliance; and the affidavit contemplated by the subrule must be
made by each of the respondents separately and not by their attorney. I make
no finding on the merits of the action, on whether any of the documents exists,
on whether any of them are in the possession of the first to fifth respondents,
or on any privilege which may properly be claimed.
Costs
[55] Costs must follow the result as the general rule dictates and should include the
wasted costs reserved on 11 June 2025. The removal of the application from
the court roll on that day was occasioned by the belated opposition entered into
by the respondents.
[56] The applicant seeks costs on the attorney and client scale. I decline. This relief
was sought for the first time in the replying affidavit . The applicant’s notice of
motion and own draft court order ask for no more than the costs of the
application. The conduct of the first to fifth respondents is open to criticism, but
it does not cross the threshold at which a court marks its displeasure by a
punitive award.
[57] Rule 67A(3) obliges the court to indicate a scale for the costs awarded. This
was an interlocutory application that the parties estimated would occupy
between one and two hours of argument, the principles in relation to Rule 35(3)
are settled, and the argument that had to be advanced was short. The higher
scales are reserved for matters which are truly important, complex or valuable.
Scale A is therefore appropriate.
16
16 Mashavha v Enaex Africa (Pty) Ltd and Others 2025 (1) SA 466 (GJ), at [11], [16] & [26].
16
Order
[58] The following order is made:
1. The first to fifth respondents are directed to comply, within 10 (ten) days of
service of this order, with the applicant's notice in terms of Uniform Rule
35(3) dated 7 April 2025. For that purpose, each of the first to fifth
respondents shall, separately and in relation to each of items 1 to 6 of that
notice, account for every document falling under that item by:
1.1 making the documents available for inspection in accordance with
Uniform Rule 35(6);
1.2 stating on oath that the documents are not in the possession or under
the control of that respondent, and stating their whereabouts in so far
as those are known to that respondent; and
1.3 in the case of any document production of which is objected to on a
ground recognised in law, identifying that document or class of
documents and stating on oath the ground of the objection and the
facts relied on in support of it.
2. For the purposes of paragraph 1 above, item 3 of the notice is confined to
documents relating to the bank accounts of SNW Traders (Pty) Ltd and
“Investment Fuel” into which the payments pleaded in paragraphs 24 and
26 of the amended particulars of claim were made.
3. The affidavits contemplated in paragraph 1.2 and 1.3 above shall be made
by each of the first to fifth respondents personally and not by their attorney;
and, in the case of the first respondent, by a member duly authorised
thereto.
4. The first to fifth respondents shall pay the costs of this application, jointly
and severally, the one paying the other to be absolved, such costs to include
the wasted costs reserved on 11 June 2025, on the party -and-party scale,
including the costs of counsel, where so employed, to be taxed on scale A.
17
_____________________________
CARELSE AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Heard on: 28 May 2026
Decided on: 26 August 2026
APPEARANCES
For the applicant: N Lombard (Ms)
Instructed by: Romer Attorneys, c/o KWA Attorneys
For the first to fifth respondents: Mr F Mashele (attorney)
of Frans Mashele Incorporated
1