IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-120971
DATE: 28 AUGUST 2026
In the matter between:
GAME BREEDING AFRICA (PTY) LIMITED First Plaintiff
DANIEL CHRISTOFFEL LAURENS PONT Second Plaintiff
JOHANNES JACOBUS PICKARD Third Plaintiff
and
OBARO FINANCIAL SERVICES (PTY) LIMITED First Defendant
LAND & AGRICULTURAL DEVELOPMENT
BANK OF SOUTH AFRICA Second Defendant
Neutral Citation: Game Breeding Africa and Others v Obaro Financial Services
and Another (2024-109949) [2026] ZAGPJHC --- (28 August
2026)
Coram: Adams J
Heard on: 6 August 2026 – ‘virtually’ as a videoconference on Microsoft
Teams
Delivered on: 28 August 2026 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by being uploaded to CaseLines and by release to
2
SAFLII. The date and time for hand -down is deemed to be
10:30 on 28 August 2026.
Summary: Civil procedure – Practice and Procedure – application to compel
better discovery – rule 35(3) discussed – relevance of documents requested –
Discovery and inspection – discovery – production of documents – application to
compel second defendant (Land Bank) to comply with rule 35(3) notice seeking
discovery of certain documents – interlocutory to action by plaintiffs against first
defendant and Land Bank for declaratory relief relating to validity of cession
agreement between Land Bank and first defendant – cessionary of debts of first
plaintiff, as principal debtor, in favour of first defendant, as creditor – second and
third plaintiffs in their capacities as sureties for payment of amount s –
indebtedness arising from various credit agreements entered into between first
defendant and first plaintiff – Court rejecting plaintiffs’ claim that they require
procurement and other financial documentation to establish lack of locus standi
of Land Bank – such documents held to be irrelevant – plaintiffs not entitled,
according to law, to challenge the cession agreement, to which they were not
party – only the parties to that agreement entitled to do so – therefore, documents
in support of such challenge not relevant to pleaded issues – Land Bank not
obliged to furnish such documents –
Plaintiffs’ application to compel better discovery refused.
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ORDER
(1) The first, second and third plaintiffs’ application in terms of Uniform Rule of
Court 35(7) to compel the second defendant to comply with their (plaintiffs’)
rule 35(3) notice, is dismissed with costs.
(2) The first, second and third plaintiffs, jointly and severally, the one paying the
other to be absolved, shall pay the second defendant’s costs of this opposed
rule 35(7) a pplication to compel , which costs shall include the costs
consequent upon the employment of two Counsel, one being Senior
Counsel, on scale ‘C’ of the tariff referred to in Uniform Rule of Court 67A(3),
read with rule 69.
JUDGMENT
Adams J:
[1]. I shall refer to the parties as referred to in the main defended action, in
which the first, second and third plaintiffs (plaintiffs) seek declaratory relief against
the first and the second defendants. The relief is sought in relation to a Cession
(‘the Cession’) in terms of which the first defendant (‘Obaro’) ceded to the second
defendant (‘Land Bank’) its right, title and interest in and to Term Loan
Agreements concluded during 2018 and 2019 between the first plaintiff (‘Game
Breeding Africa’) and Obaro . I n terms of and pursuant to the Term Loan
Agreements, Obaro had lent and advanced to Game Breeding Africa the total
sum of R3 233 944.06.
[2]. In this interlocutory application, which came before me, qua Judicial Case
Manager of the main action in terms of the Commercial Court Practice Directive
of this Division, the plaintiffs apply in terms of Uniform Rule of Court 35(7) for an
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order compelling the second defendant to reply to their (plaintiffs’) rule 35(3)
notice dated 24 June 2026. The said notice was delivered by the plaintiffs on or
about 24 June 2026 and it called upon the second defendant to make available
for inspection further documents in its possession, which documents the plaintiffs
believed to be in possession of the second defendants and which are relevant to
matters in question in the main action.
[3]. It may be apposite, at this juncture, to cite in full the relevant portion of the
updated rule 35(3) notice, which, in the relevant part, reads as follows: -
‘TAKE NOTICE that the first, second and third plaintiffs believe that the defendants are
in possession of the undermentioned documents which have not been discovered by the
second defendant and which are relevant to the issues in this matter.
TAKE NOTICE FURTHER that in terms of rule 35(6) the plaintiffs require the defendants
to make available for inspection within five (5) days after delivery of the discovery affidavit
aforesaid all documents which are referred to therein and which are not privileged.
(1) Proof that the Land Bank complied with the procurement requirements in the form
of a competitive bidding process to enter into a Service Level Agreement ("SLA")
with the said Obaro, to render the services as set out in the SLA;
(2) If no competitive bidding process was followed, proof of the prior written approval
of the Deviation by the Department of Treasury;
(3) Prior written approval of the Land Bank's Board for the Deviation from the
competitive bidding process to appoint the Third party in terms of the SLA.
(4) All statements of account pertaining to the accounts of the first plaintiff held at the
first and second defendant from the date of inception of the account until the date
hereof.
(5) Documentary proof that first and second defendants complied with all the
conditions precedent contained In the sale of book debts agreement and Service
level agreement.’
level agreement.’
[4]. On 22 July 2026, the second defendant responded to the plaintiffs ’ rule
35(3) notice by serving its affidavit in terms of rule 35(3). The general tenet of the
second defendant’s rule 35(3) reply is that the documents requested in the
plaintiffs' rule 35(3) notice, to the extent that they exist, are completely irrelevant
to the issues that are to be ventilated during the upcoming trial. The trial, which
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is set down for hearing during September 2026, so the second defendant
contends, is not a general trial on all issues raised in the pleadings. It has a
narrow compass, being confined only to the separated issue identified in the
application for separation , which was successfully brought by the second
defendant. And, so the contention by the second defendant goes, none of the
documents sought in plaintiff’s rule 35(3) notice are relevant to this limited and
separated issue upon which the Court is required to make a decision. In any
event, so the argument is concluded on behalf of the second defendant, the
documents requested by the plaintiffs are irrelevant in the broader context of the
issues determined by the pleadings themselves.
[5]. This is the same approach adopted by the second defendant in its
opposition to the plaintiffs’ application to compel further and better discovery in
terms of rule 35(7).
[6]. Rule 35(3) provides as follows:
‘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 him to make the same available for inspection in
accordance with subrule (6), or to state under oath within ten days that such documents
are not in his possession, in which event he shall state their wher eabouts, if known to
him.’
[7]. Most of the documents which the plaintiffs require of the second defendant
are documents concerning the second defendant's compliance, as an Organ of
State, with constitutional procurement provisions.
[8]. The documents requested in paragraph 4 of the rule 35(3), so the second
defendant submits, can and should be requested from the first defendant. The
second defendant confirms that it is not in possession of any of those documents
because the debt was incurred while the first defendant (Obaro) was
because the debt was incurred while the first defendant (Obaro) was
administering the debtors' book under the service level agreement with it .
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Accounts were distributed to the first plaintiff by the first defendant during that
period. Accordingly, no such accounts would be in the possession of the second
defendant. That, in my view, having regard to the trite principles set out
hereinafter, is the end of the request as per paragraph 4.
[9]. That brings me back to the second defendant’s main ground of opposition
to the plaintiffs’ application to compel further and better discovery that being that
the documents requested are not relevant to issues to be decided by this Court
during the trial of the matter.
[10]. The main action concerns a debt recovery claim. The Land Bank pleads
that it is the lawful creditor of the plaintiffs by virtue of a cession of rights from
Obaro. The plaintiffs dispute the Land Bank's locus standi and, consequently,
their indebtedness to the Land Bank.
[11]. On 23 February 2026, this Court ordered a separation of the following crisp
issue from any and/or all other disputes between the parties: -
‘(a) Whether, at the relevant time, arising from a suite of agreements concluded
between the first defendant and the second defendant during 2013 and 2014, there
was in existence and extant a valid and enforceable Cession in terms of which the
first defendant had ceded and delegated to the second defendant any and/or all its
(first defendant’s) right, title and interest in and to the first plaintiff’s indebtedness
to the first defendant.
(b) And w hether the plaintiffs, who were not parties to the agreements concluded
between first and the second defendants, can raise as a defence against the claims
instituted by the second defendant against the plaintiffs, based upon the
agreements, that the second defendant has not acquired the underlying rights of
action against the plaintiffs and the related security, if there is no dispute – and in
fact consensus between the defendants, who were the only contracting parties to
the agreements, that all rights of action to recover the debts, and related security,
the agreements, that all rights of action to recover the debts, and related security,
were successfully and effectively transferred from the first defendant to the second
defendant and vest in the second defendant.’
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[12]. The Court also directed that the separated issue is to proceed separately
to trial first and before any and/or all of the remaining disputes between the
parties.
[13]. The second defendant contends that t he documents sought, concerning
procurement compliance, National Treasury approval or deviations for the
2013/2014 transactions between the Land Bank and Obaro, do not pertain to any
issue raised on the pleadings, and critically, have no bearing on the sep arated
issue to be determined at trial. Moreover, so the contention continues, the
plaintiffs, as debtors, are strangers to the agreements and the relationship
between Obaro and the Land Bank. It is not for them to question the validity of
an agreement to which it is neither privy nor party.
[14]. I find myself in agreement with these contentions on behalf of the second
defendant. The simple point is that the plaintiffs, b eing foreign to the suite of
agreements between the first defendant and the second defendant, lack the right
to challenge the cession contracts. The authority for this proposition is Hillock and
Another v Hilsage Investments (Pty) Ltd1, which held as follows: -
‘What is clear, however, is that those provisions, and indeed also the provisions of clause
31, were intended to operate only as between the parties to the agreement, namely, the
lessor and lessee. A third pa rty, such as the National Exposition in the present case,
cannot seek to rely on the provisions in question, unless it has become a party to the
agreement, for example by assignment, and it is the validity of the alleged agreement of
assignment that the applicant seek to attack.’
[15]. Moreover, as was held in The Land and Agricultural Development Bank of
South Africa v Du Plessis N O2, a matter which involved a cession similar to the
one in casu, it is not for a third party to the cession to raise an issue thereon. The
Court (per Daffue J) held as follows: -
Court (per Daffue J) held as follows: -
‘However, more important than the lack of evidence, is the legal principle that it doesn't
lie in the mouths of the respondents to endeavour showing that the agreements are
1 Hillock and Another v Hilsage Investments (Pty) Ltd 1975 (1) SA 508 (A) at 515A – E.
2 The Land and Agricultural Development Bank of South Africa v Du Plessis N O 2020 JDR 1670 (FB).
8
invalid and/or unenforceable. As indicated earlier, Mr Nagel, a senior employee of
Suidwes, deposed to the founding and replying affidavits on behalf of applicant. His
version is not contested on any acceptable and reliable basis. I have no doubt that
Suidwes would not allow applicant to, for its own account, claim monies due and payable
to Suidwes. I repeat that no positive facts have been presented to the court to controvert
or refute the applicant's allegations.’
[16]. On the basis of the aforegoing authorities, I conclude that the plaintiffs,
being foreigners to the suite of agreements between the first and the second
defendants, lack the right to challenge the cession contracts. Their only obligation
is to pay the debt to the party legally entitled to receive it. This, in turn , means
that an enquiry into the Land Bank's internal procurement compliance is entirely
irrelevant to the pleaded dispute. And this translates into a conclusion that
documents relating to procurement are irrelevant to the disputes between the
parties.
[17]. The important point is this. The issue of procurement has not been raised
in the pleadings filed in the main action. The intention of the plaintiffs is clearly to
attempt to argue that the Land Bank did not follow due procurement processes
when Obaro was appointed in terms of the Service Level Agreement with Land
Bank. Thereby presumably contravening the provisions of the Public Finance
Management Act 1 of 1999 (PFM A) and the Treasury Regulations. The point,
however, remains that this issue and the documents relating thereto are irrelevant
and not an aspect that can validly and lawfully be raised by the plaintiffs, as third
parties.
[18]. As regards the bank statements requested in para 4 of the plaintiffs’ rule
35(3) notice, I have already dealt with same supra. The Land Bank states that it
is not in possession of any of those documents and this Court cannot and should
is not in possession of any of those documents and this Court cannot and should
not, without more, go behind the affidavit of the deponent. The opposition to the
relief sought in relation to these documents is to excuse the non -production
thereof on the grounds that they are not in the second defendant's possession.
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[19]. In Dube v Member of Executive Council3, this Court (per Sutherland J) held
as follows: -
'[3] The reason why the documentation had not been discovered is that the staff of
the hospital, so it is alleged, cannot find the material. There is a tender to discover
whatever is found, when it is found. The argument on behalf of the applicant is that this
excuse is unacceptable, emphasis being placed on the obligation in terms of law to keep
records and the prima facie breach of that duty is alleged.
[4] In my view the de facto position is deplorable and the idea of a breach of statutory
obligations is on the probabilities in my view a plain fact. Notwithstanding these
considerations, the ambit of rule 35 of the uniform rules is limited to imposing a duty on
a litigant to discover what it has got.
[5] In circumstances where it ought to have a document but cannot access it and
may even confess to not knowing whether or not it still exists, and is still in its possession,
the duty imposed by rule 35 requires a party merely to frankly declare what the true state
of affairs is at the time that discovery is demanded. Ostensibly that is what the
respondent has done. Assuming that the defendant / respondent is rightly to be rebuked
for its poor record keeping it has not violated rule 35 by stating that it cannot lay its hands
on the relevant documentation.
[6] In the absence of facts from which I can on these papers infer the affidavit of the
defendant is untruthful, the plaintiff in such circumstances must unhappily accept the
position as described, however disgraceful the conduct of the respondent, objectively ,
may be. Rule 35 itself plays no role in the disciplining of state officials to perform their
statutory duties. There may indeed be other remedies in order to compel compliance
with those statutory duties but they do not fall within the ambit of rule 35.
[7] In the circumstances I have taken the view that there is no useful purpose in
[7] In the circumstances I have taken the view that there is no useful purpose in
granting the relief which is sought, which would achieve no more than to provoke a
contempt application which would be readily answered by the same explanation which
is proffered now. In the circumstances, therefore, the application must be dismissed.'
[20]. On the basis of this authority, the second defendant cannot be compelled
to furnish the documents sought in para 4 of the plaintiff’s rule 35(3) notice . A
probability has not been shown to exist that the deponent to the second
defendant's affidavits is either mistaken or false in his assertions that the required
3 Dube v Member of Executive Council 2018 JDR 1218 (GJ).
10
documents are not in the possession of the second defendant. See also :
Richardson's Woolwasheries v Minister of Agriculture 4. To hold otherwise would
amount to a brutum fulmen.
[21]. In any event, as contended by the second defendant, these documents
have no relevance to the separated issue , which is another reason why the
plaintiffs are not entitled to an order compelling the second defendant to produce
same. Bank statements would pertain to the quantum of the indebtedness. The
quantification of the claim has never been in dispute in the pleadings and forms
no part of the separated issue.
[22]. There is one last issue which requires my attention and that relates to a
recent judgment by the Free State Division of the High Court, on which much
reliance was placed by the plaintiffs in their revival of the rule 35(3) processes in
casu. That case is Fourie and Another v Land and Agricultural Development Bank
of South Africa and Others 5, in which Naidoo J, in an action for rescission of a
default judgment, held that the plaintiffs in that recission action are entitled to
procurement documents and financial records because those documents would
prove or disprove the locus standi of the Land Bank, which makes the documents
relevant to the pleaded issues.
[23]. Mr Van der Merwe SC, who appeared with Ms Van der Merwe on behalf
of the second defendant in casu, submits that the judgment in Fourie was wrongly
decided and that this Court should not follow it for the simple reason that the
learned Judge in that matter erred in her assessment of the relevance of the
requested documents in the context of the pleaded issues.
[24]. The central flaw in the said judgment, so the contention on behalf of the
second defendant goes , is that it conflate d the plaintiffs’ desire in that case to
challenge the Land Bank's locus standi with their legal entitlement to do so. The
4 Richardson's Woolwasheries v Minister of Agriculture 1971 (4) SA 62 (ECD) at 67 D – F.
4 Richardson's Woolwasheries v Minister of Agriculture 1971 (4) SA 62 (ECD) at 67 D – F.
5 Fourie and Another v Land and Agricultural Development Bank of South Africa and Others 2026 JDR 2684
(FB).
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plaintiffs' challenge in Fourie, and the plaintiffs’ challenge in this matter, are
premised on the allegation that the Land Bank failed to comply with internal and
constitutional processes when it acquired the book debts from the original
creditor. That challenge, so the second defendant contends, is without merit.
[25]. I find myself in agreement with these contentions by Mr Van der
Merwe SC. The simple point is that it is a fundamental principle of our law that a
third-party debtor cannot challenge the validity of the underlying cession
agreement between the cedent and the cessionary. The debtor is not a party to
that agreement and has no legal interest in its terms or the manner of its
conclusion. The debtor's only legally recognised interest is to ensure that
payment is made to the correct creditor. The documents pertaining to the Land
Bank's internal procurement processes, compliance with Section 217 of the
Constitution or National Treasury approvals, are exclusively matters between the
Land Bank and its counterparty (Obaro) and relevant oversight bodies.
[26]. As contended on behalf of the second defendant, t he documents
requested have no bearing whatsoever on the issue which is required to be
decided by this Court. The plaintiffs were not competing applicants in a tender
process and did not compete with Obaro in procuring the service level agreement
or the sale agreement. The time within which the procurement process could
have been challenged has expired a very long time ago
[27]. That, in my view, is the end of the case on behalf of the plaintiffs in this
interlocutory application.
[28]. Moreover, the plaintiffs seek documents which do not relate to and which
cannot substantiate a pleaded defence . In that regard, the essence of the case
pleaded by the plaintiffs in the main action are encapsulated in the following
paragraphs of the particulars of plaintiffs’ claim: -
‘(24) The plaintiffs deny that there was a valid cession of the right, title and interest in
‘(24) The plaintiffs deny that there was a valid cession of the right, title and interest in
and to the debts pursuant to the credit agreements referred to supra, from the
12
first to second defendants in that the suit of agreements relied upon by the first
and second defendants do not contain a cession of rights.
(24). The plaintiffs contend that the debts in favour of first defendant did not exist on
date of the alleged cession, during December 2013 or April 2014, when the
alleged cession and delegation took place, in that the indebtedness arose only
afterwards, and could not have been ceded at the time of the alleged cession.
(25). The true facts as to the Land Bank's lack of locus standi only came to the
knowledge of the Plaintiffs during or about June 2024 and as a result, it is denied
that any transfer of rights in and to the debts allegedly owing by the plaintiffs to
the first defendant was in fact ceded to the second defendant as alleged or at all.
(26). The cession of the securities of the first and second covering mortgage bonds
from the first defendant to second defendant without ceding the underlying debt
has the effect that the bonds are of no force and effect, grants no security without
an ancillary indebtedness to the cessionary (the second defendant) and stands
to be set aside.
(27). Due to the cession of the securities of the first and second covering mortgage
bonds on the said dates, the underlying debts allegedly owed to the first
defendant were not secured by a mortgage bond and accordingly the claim in
respect of those debts prescribed within three years from the date when the last
payment was made, in terms of section 11(d) of the Prescription Act, Act 68 of
1969, which was 8 September 2024.’
[29]. From the aforegoing it is clear that the case pleaded by the plaintiffs is to
the effect that the suit of agreements does not contain a valid cession of the right,
title and interest in and to the debts. The plaintiffs go on to plead in particular that
the debts in favour of first defendant did not exist on date of the alleged cession,
during December 2013 or April 2014, when the alleged cession and delegation
during December 2013 or April 2014, when the alleged cession and delegation
took place, and therefore it could not have been ceded at the time of the alleged
cession. Liability is therefore disputed on the basis that the agreements do not
transfer and cede rights to the debts – nowhere do the plaintiffs plead that the
agreements are not valid. This reinforces the point that the documents requested
are not relevant to the pleaded case.
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[30]. I therefore conclude that the plaintiffs’ application to compel further and
better discovery in terms of rule 35(3) falls to be dismissed.
Costs
[31]. The general rule in matters of costs is that the successful party should be
given his costs, and this rule should not be departed from except where there are
good grounds for doing so, such as misconduct on the part of the successful party
or other exceptional circumstances. See: Myers v Abramson, 1951(3) SA 438 (C)
at 455.
[32]. I can think of no reason why I should deviate from this general rule.
[33]. I am therefore of the view that the plaintiffs should pay the second
respondent’s costs of the application.
Order
Accordingly, I make the following order: -
(1) The first, second and third plaintiffs’ application in terms of Uniform Rule of
Court 35(7) to compel the second defendant to comply with their (plaintiffs’)
rule 35(3) notice, is dismissed with costs.
(2) The first, second and third plaintiffs, jointly and severally, the one paying the
other to be absolved, shall pay the second defendant’s costs of this opposed
rule 35(7) application to compel, which costs shall include the costs
consequent upon the employm ent of two Counsel, one being Senior
Counsel, on scale ‘C’ of the tariff referred to in Uniform Rule of Court 67A(3),
read with rule 69.
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HEARD ON: 6 August 2026 – ‘Virtually’
JUDGMENT DATE: 28 August 2026 – handed down
electronically.
FOR THE PLAINTIFFS / APPLICANTS: F G Janse Van Rensburg
INSTRUCTED BY: Eugene Geyser Attorneys,
Viljoenskroon
FOR THE SECOND DEFENDANT /
RESPONDENT:
M P Van der Merwe SC, together with
(Ms) A Van der Merwe
INSTRUCTED BY: Leahy Attorneys Incorporated,
Sandton