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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 033483/2022
In the matter between:
In the matter between:
M[...] J[...] M[...] Plaintiff
and
WEYERS AND LOMBARD INCORPORATED Defendant
JUDGMENT
LENYAI J
Introduction
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
18/08/2026 _________________________
DATE SIGNATURE
[1] Before me are three interlocutory applications arising from the main action
between the Plaintiff, M[...] J[...] M[...] (“the Plaintiff”), and the Defendant,
Weyers and Lombard Inc. (“the Defendant”). The first is an application in terms
of Rule 35(7) 1 of the Uniform Rules of Court (“the Rules”) to compel the
Defendant to make further and better discovery. The second is an application in
terms of Rule 30 in which the Defendant seeks to set aside certain steps taken
by the Plaintiff in relation to her replying affidavit as irregular. The third is an
application for condonation concerning the late filing of the Plaintiff's replying
affidavit.
[2] The interlocutory applications arise against the background of the Plaintiff's
claim concerning the payment of funds following the sale of property pursuant
to a divorce settlement agreement. The disputes before me are principally
procedural, but they require consideration of the proper balance between
compliance with the Rules, the efficient administration of justice, and the
avoidance of procedural technicalities which do not materially prejudice a
litigant.
FACTUAL BACKGROUND:
[3] The Plaintiff and B[...] M[...] were divorced on 28 February 2019. Their
Settlement Agreement was made an order of court. In terms of the agreement,
a property in Randpark Ridge was to be sold, with the proceeds applied
towards the settlement of the bonds over the Randpark Ridge and Buccleuch
properties.
[4] After the Randpark Ridge bond was settled, R848 490.72 remained. The
Defendant, which was responsible for the transfer and distribution of the
proceeds, received fraudulent banking details purporting to be those of the
Plaintiff and Mr M[...] and paid R424 245.36 into each of two accounts. Neither
party received the funds, and the Buccleuch bond was consequently not
1 the Uniform Rules of Court.
settled. The Plaintiff alleges that the Defendant was negligent in effecting the
payments.
[5] During the main proceedings, the Plaintiff delivered a Rule 35(3) notice seeking
further and better discovery in respect of 19 categories of documents. The
Defendant resisted the request, contending that the documents were irrelevant,
constituted a fishing expedition and, in certain instances, were protected by
privilege or confidentiality. The Plaintiff consequently brought the Rule 35(7)
application.
[6] The Defendant subsequently brought a Rule 30 application concerning the
Plaintiff's delivery of different versions of her replying affidavit. The Plaintiff also
sought condonation for the late filing of the final signed replying affidavit. The
Defendant challenges both the procedural regularity of the affidavits and the
commissioning of the affidavit supporting the condonation application.
Issues for determination:
[7] As it appears from the Joint Practice Note dated 30 July 2026, the issues for
determination are the following:
Rule 35(7) Application
(a) Whether a Rule 30A notice was required before the Plaintiff could invoke
Rule 35(7).
(b) Whether the documents sought in items 1 to 19 of the Rule 35(3) notice are
material and relevant to the main action.
(c) Whether the Defendant has properly raised privilege and/or confidentiality
regarding any of the requested documents.
(d) Whether the application is premature, moot, abusive or otherwise
unsustainable.
Rule 30 Application
(e) Whether the delivery of an unsigned and uncommissioned version of the
replying affidavit constituted an irregular step.
(f) Whether the subsequent delivery of the signed version and final replying
affidavit renders the filing irregular in the absence of withdrawal, leave to
amend or prior condonation.
(g) Whether any established irregularity caused prejudice of the kind
contemplated in Rule 30.
(h) Whether the Rule 30 application was competent and appropriate, or
whether it is overly technical and dilatory.
Condonation Application
(i) Whether the founding affidavit in the condonation application was properly
commissioned or, alternatively, commissioned in substantial compliance
with the applicable regulations.
(j) Whether the Plaintiff has sufficiently identified the replying affidavit for which
condonation is sought.
(k) Whether the explanation for the delay is adequate.
(l) Whether the Defendant suffered prejudice as a result of the one-day delay.
(m) Whether condonation ought to be granted having regard to the delay,
explanation, prejudice and prospects of success in the underlying discovery
application.
ISSUE 1: WHETHER A RULE 30A NOTICE WAS REQUIRED BEFORE THE
PLAINTIFF COULD INVOKE RULE 35(7)?
[8] The Plaintiff seeks an order in terms of Rule 35(7) compelling the Defendant to
make further and better discovery pursuant to the Plaintiff's Rule 35(3) notice.
The application requires me to determine, first, whether Rule 30A constituted a
prerequisite to the application; second, whether the documents identified in
items 1 to 19 are relevant to a matter in question in the main action; third,
whether the Defendant has established any basis for withholding documents on
the grounds of privilege or confidentiality; and fourth, whether the application is
premature, moot, abusive or otherwise unsustainable. I deal with those
questions cumulatively because they determine whether the Plaintiff is entitled
to the relief contemplated by Rule 35(7).
[9] Rule 35(3) is specifically directed at a situation in which a party is dissatisfied
with the discovery already made. It permits that party to require further
documents which may be relevant to any matter in question. Rule 35(7), in turn,
provides the mechanism by which the Court may compel compliance where the
opposing party fails to give the required discovery.
[10] Rule 30A read as follows:
“Non-compliance with Rules
(1) Where a party fails to comply with these rules or with a request made or notice
given pursuant thereto, or with an order or direction made by a court or in a
judicial case management process referred to in rule 37A, any other party may
notify the defaulting party that he or she intends, after the lapse of 10 days from
the date of delivery of such notification, to apply for an order—
(a) that such rule, notice, request, order or direction be complied with; or
(b) that the claim or defence be struck out.
(2) Where a party fails to comply within the period of 10 days contemplated in subrule
(1), application may on notice be made to the court and the court may make such
order thereon as it deems fit.”
[11] The applicability of Rule 30A was discussed by this court in the matter of M and
[11] The applicability of Rule 30A was discussed by this court in the matter of M and
M Quantity Surveyors CC v Orvall Corporate Designs (Pty) Ltd (84202/19)
[2021] ZAGPPHC 343 (27 May 2021) ,2 where the learned judge accepted that
the principle that Rule 30A is not required where the Rules themselves provide
an appropriate remedy for the particular non-compliance.
[12] In its finding the Court relied on the matter of Minister of Police v Bacela
(275/2019) [2020] ZAECBHC 19 (8 September 2020) ,3 were the court stated
the following:
“[18] In ABSA Bank Ltd v The Farm Klippan 490 CC 5 the Court made it clear that if a
provision in the rules provides a specific remedy for non -compliance with the rule, a
party need only follow the specific rule and need not give notice in terms of, or follow,
Rule 30A.
[19] Harms, Civil Procedure in the Supreme Court: LexisNexis provides that: “The rule
applies only if compliance with the rules is sought and then only if the relevant rule
does not have its own inbuilt procedure such as rule 21(4), which provides for an
enforcement procedure in the event of a failure to provide particulars for trial.
...
Under rule 30A, a party making a request, or giving a notice, to which there is no
response by the other party, may through a further notice to the other party warn that
after the lapse of 10 days, application will be made for an order that the notice or
request be complied with, or that the claim or defence be struck out, as the case may
be. Failing compliance within the 10 days mentioned, application may then be made to
court, and the court may make an appropriate order.”
[20] This makes complete sense as the remedies provide for non -compliance with the
rules which have their own requirements, benefits and disadvantages which should
then be utilised.”
[13] The significance of that reasoning is not merely procedural. Where Rule 35(7)
is specifically designed to deal with a failure to comply with discovery
obligations, requiring a litigant additionally to invoke Rule 30A would introduce
2 M and M Quantity Surveyors CC v Orvall Corporate Designs (Pty) Ltd (84202/19) [2021]
2 M and M Quantity Surveyors CC v Orvall Corporate Designs (Pty) Ltd (84202/19) [2021]
ZAGPPHC 343 (27 May 2021) at para 24.
3 Minister of Police v Bacela (275/2019) [2020] ZAECBHC 19 (8 September 2020) at paras 18-
20.
a procedural step which is not contained in Rule 35 itself. That would defeat the
purpose of having a specific enforcement mechanism.
[14] This court in the matter of Mphatlane N.O and Others v Randvest Capital
Investments (Pty) Ltd and Others (017896/2022) [2025] ZAGPPHC 95 (5
February 2025),4 demonstrated how Rule 35(3) and Rule 35(7) are intended to
operate together by stating the following:
“[13] Subrule (3) of rule 35 provides a procedure for a party dissatisfied with
the discovery of another party. The intention of the subrule is to provide for a
procedure to supplement discovery which has already taken place, but which
is alleged to be inadequate. If the defaulting party does not comply with the
notice given under this subrule, the party requiring discovery is entitled to
bring an application under the provisions of subrule (7) to take the matter
further.”
[15] The Court in Mphatlane,5 then explained that “the rules allows a litigant to
approach court in terms of rule 35(7) for an order to compel the defaulting party
to produce the documents sought in subrule (3).” The significance of the
judgment is that Rule 35(7) is not an extraordinary or collateral remedy, but it is
the mechanism expressly provided by the Rules for enforcing the obligation
arising from Rule 35(3).
[16] Applying that principle here, the Plaintiff did precisely what Rule 35
contemplates. She served a Rule 35(3) notice requiring further documents. The
Defendant did not provide the further discovery sought and disputed the
Plaintiff's entitlement to some or all of the categories. The Plaintiff thereafter
invoked Rule 35(7).
[17] I therefore find no basis for requiring an additional Rule 30A notice. The
Defendant's objection confuses the general remedy for procedural non -
compliance with the specific remedy created by Rule 35(7) for a failure to
comply with discovery.
4 Mphatlane N.O and Others v Randvest Capital Investments (Pty) Ltd and Others
(017896/2022) [2025] ZAGPPHC 95 (5 February 2025) at para 13.
(017896/2022) [2025] ZAGPPHC 95 (5 February 2025) at para 13.
5 See Mphatlane judgement n 4 above at para 21.
[18] I accordingly conclude that Rule 30A is not a prerequisite to the Plaintiff's Rule
35(7) application.
Whether items 1 to 19 are relevant and material?
[19] The principal dispute concerns relevance. The starting point is the wording of
Rule 35(3): the documents must be capable of being relevant to a “matter in
question” in the action. The expression cannot be divorced from the pleadings
because the pleadings define the issues which the parties have placed before
the Court.
[20] In the matter of Democratic Alliance and Others v Mkhwebane and Another
2021 (3) SA 403 (SCA),6 the Supreme Court of Appeal stated that—
“The whole object of discovery is to ensure that before trial both parties are
made aware of all the documentary evidence that is available.'
In Erasmus Superior Court Practice the following, with reference to case law,
is stated:
'"Discovery has been said to rank with cross -examination as one of the
mightiest engines for the exposure of the truth . . . . Properly employed where
its use is called for, it can be and often is a devastating tool.”
. . .
"But it must not be abused or called in aid lightly in situations for which it was
not designed, or it will lose its edge and become debased."
[21] Although the case concerned Rule 35(12), the SCA dealt extensively with the
underlying purpose of discovery.
[22] The Plaintiff's claim arises from the Defendant's conduct in receiving and acting
upon fraudulent banking details and making payments which the Plaintiff says
ought not to have been made. The relevant enquiry therefore includes what the
6 Democratic Alliance and Others v Mkhwebane and Another 2021 (3) SA 403 (SCA) at para
23.
Defendant knew, what information it received, what verification it undertook and
whether its conduct in effecting the payments was consistent with the duty
alleged in the main action.
[23] Documents recording the banking details received by the Defendant,
communications relating to those details, instructions concerning the payments,
verification undertaken before payment, and communications with the relevant
financial institutions concerning the circumstances immediately preceding the
payments are consequently capable of having direct evidentiary value.
[24] The Defendant's argument that documents created after the payment are
necessarily irrelevant cannot be accepted in that absolute form. The date of a
document is not the legal test. The question remains whether its contents may
bear upon a matter already in issue.
[25] For example, suppose a document created after the payment records that the
Defendant had, before payment, received a warning concerning the authenticity
of the banking details. Although the document itself was created later, its
contents could directly illuminate the Defendant's earlier knowledge and
conduct. Such a document could plainly be relevant.
[26] Conversely, a document created after the payment solely recording an attempt
to recover the stolen money, without containing information capable of bearing
upon the Defendant's conduct before or at the time of payment, would ordinarily
not be relevant to the pleaded negligence.
[27] The distinction is therefore not simply between “pre -payment” and “post -
payment” documents. It is between documents which bear upon an issue in the
pleadings and documents which merely concern events occurring after the
cause of action had allegedly arisen.
[28] This distinction is supported by Mphatlane7 were the Court stated the following:
“[29] It is thus clear that the documents that ought to be regarded as relevant to the
issues in the matter, as gleaned from the pleadings, are those that fall within the
issues in the matter, as gleaned from the pleadings, are those that fall within the
7 See Mphatlane judgement n 4 above at para 29.
period between 28 October 2019 and 21 July 2021. All the other documents that the
Applicants seek by virtue of rule 35(3) that do not fall within the aforementioned
period, are for purposes of this matter irrelevant, as they do not relate to any issues
that are raised in the pleadings.”
[29] The Court excluded documents outside the relevant period because they did
not relate to the issues raised in the pleadings. The lesson for the present
matter is that temporal distance may be relevant evidence of irrelevance, but it
is not an independent rule that every subsequent document is excluded
[30] I do not accept either proposition in its absolute form. The Plaintiff is correct
that the mere fact that a document was created after the disputed payment
does not, without more, render it irrelevant. Equally, the Defendant is correct
that discovery must remain confined to documents bearing upon matters
properly in issue in the pleadings. The question is therefore whether the
particular document sought has a sufficient connection to the issues raised in
the main action
[31] The correct order must consequently distinguish between the categories. A
category is discoverable where the documents falling within it are sufficiently
connected to the pleaded issues concerning the Defendant's receipt,
verification and payment of the disputed funds. A category is not discoverable
merely because it relates generally to the fraud, the loss or subsequent
recovery efforts.
Privilege and Confidentiality
[32] I turn to the Defendant's claim that certain documents, particularly
communications with the SAPS, banks, insurers and legal representatives
concerning recovery of the stolen funds, are protected by litigation privilege and
are confidential
[33] Litigation privilege and confidentiality are distinct concepts and must not be
conflated. Privilege concerns whether a document is legally protected from
disclosure notwithstanding its relevance. Confidentiality, by contrast, does not
ordinarily render an otherwise relevant and discoverable document immune
from discovery. The latter generally concerns the manner in which the Court
should regulate access to, and use of, confidential information.
[34] In the matter of Competition Commission of South Africa v ArcelorMittal South
Africa Ltd and Others 2013 (5) SA 538 (SCA ),8 the Supreme Court of Appeal
stated that—
“[20] Litigation privilege is one of two components of legal professional privilege, the
other being the privilege that attaches to communications between a client and his
attorney for the purpose of obtaining and giving legal advice. Litigation privilege, with
which we are concerned in this case, protects communications between a litigant or
his legal advisor and third parties, if such communications are made for the purpose
of pending or contemplated litigation. It applies typically to witness statements
prepared at a litigant's instance for this purpose. The privilege belongs to the litigant,
not the witness, and may be waived only by the litigant. “
[21] Litigation privilege has two established requirements: The first is that the
document must have been obtained or brought into existence for the purpose of a
litigant's submission to a legal advisor for legal advice; and second that litigation was
pending or contemplated as likely at the time.”
[35] the Supreme Court of Appeal in ArcelorMittal9 judgement further stated that
that the purpose is not necessarily to be determined by reference to the author
of the document but by reference to the person under whose authority it was
procured. The enquiry is accordingly directed at the purpose for which the
document was brought into existence.
document was brought into existence.
[36] Applying that principle to the present matter, it is not sufficient for the Defendant
merely to state that correspondence with the banks, SAPS, insurers or other
third parties concerned the recovery of the stolen funds. The Defendant must
8 Competition Commission of South Africa v ArcelorMittal South Africa Ltd and Others 2013 (5)
SA 538 (SCA) at paras 20-21.
9 See ArcelorMittal judgement n 8 above at para 27.
establish that the particular communication or document falls within the
requirements of litigation privilege. A factual communication generated in the
ordinary course of investigating the transaction does not become privileged
merely because the Defendant's attorneys were involved.
[37] I turn separately to confidentiality.
[38] In Caxton and CTP Publishers and Printers Limited v Novus Holdings Limited
(219/2021) [2022] ZASCA 24; [2022] 2 All SA 299 (SCA) (9 March 2022) ,10 the
SCA in its reasoning stated the following:
“[78] There is one final issue relating to the principal relief sought by Caxton to
address in this judgment. That issue concerns the contention advanced by Novus in
resisting the interlocutory application, namely that the documents required contain
sensitive commercial information that should not be disclosed, especially to a
business rival and competitor like Caxton. The disclosure of sensitive commercial
information by way of discovery is not novel. In countering Novus' contention, Caxton
submitted in its heads of argument that the inspection of confidential documents may
be circumscribed to protect the commercial interests of the party asserting
confidentiality. In so doing, a court will strive to strike a fine balance between the
competing interests of the litigants. A court will, in exercising its discretion, not adopt
a predisposition either in favour of or against permitting production of the documents
concerned. This was recognised in Crown Cork & Seal Co Inc and Another v Rheem
South Africa (Pty) Ltd and Others. There , the court stated that a conflict will
occasionally arise between the necessity to protect one party's confidential
information on the one hand, and 'the need to ensure that a litigant is entitled to
present his case without unfair halters' on the other. And all of this will be considered
against the backdrop of the importance of the role fulfilled by discovery in the
against the backdrop of the importance of the role fulfilled by discovery in the
resolution of legal disputes. In order to resolve this conundrum, Schutz AJ in Crown
Cork held that a court could impose 'appropriate limits' on the right of a litigant to
have sight of the adversary's confidential documents.”
[39] The significance of Caxton11 is that confidentiality is not equivalent to privilege.
Where documents are relevant but confidential, the Court retains a discretion to
regulate their inspection rather than simply refusing discovery.
10 Caxton and CTP Publishers and Printers Limited v Novus Holdings Limited (219/2021) [2022]
ZASCA 24; [2022] 2 All SA 299 (SCA) (9 March 2022) at para 78.
[40] The SCA in Caxton12 adopted the principle that the Court may impose
“appropriate limits” upon a litigant's inspection of confidential documents where
necessary to prevent an unlawful appropriation or misuse of confidential
information.
[41] A party cannot simply invoke “confidentiality” as a blanket description covering
an entire category of documents and thereby avoid the discovery obligation.
The Court must first be able to identify the documents concerned and then
determine whether their contents and circumstances justify protection.
[42] I therefore distinguish between the two objections. If privilege is established,
the document is protected from disclosure in accordance with the applicable
rules of privilege. If confidentiality alone is established, the Court must ordinarily
consider whether the document should nevertheless be produced and, if so,
whether appropriate restrictions should regulate its inspection or use.
[43] Applying these principles to the present matter, the Defendant's reliance upon
litigation privilege in respect of communications with banks, SAPS, insurers or
other third parties must be assessed according to the test in ArcelorMittal. The
Defendant must establish that the documents were brought into existence for
the requisite purpose of pending or contemplated litigation. The mere fact that
attorneys were involved or that the communications concerned recovery of the
funds is insufficient.
[44] In respect of documents said to be confidential, the Defendant faces a different
enquiry. If the documents are relevant and discoverable, confidentiality does
not automatically justify their exclusion. In accordance with Caxton, I may
instead consider whether appropriate safeguards can adequately protect the
Defendant's legitimate confidentiality interests while preserving the Plaintiff's
right to obtain relevant evidence.
[45] This may be particularly appropriate where the alleged confidentiality concerns
[45] This may be particularly appropriate where the alleged confidentiality concerns
banking information, insurance information or communications with third
parties. The Court can, where circumstances justify it, regulate the manner in
11 See Caxton judgement n 10 above.
12 See Caxton judgement n 10 above at para 79.
which such information is inspected or used rather than depriving the Plaintiff
entirely of access to relevant material.
[46] I accordingly reject any suggestion that privilege and confidentiality constitute a
single and interchangeable basis for resisting discovery. They raise different
legal questions and require different remedies.
[47] I conclude that the Defendant has not established a general entitlement to
withhold all documents falling within the disputed categories merely because
they concern the recovery of the fraudulent payments or contain confidential
information.
[48] Documents protected by litigation privilege may properly be withheld where the
requirements identified in ArcelorMittal have been established.
[49] In respect of confidential documents which are otherwise relevant and
discoverable, Caxton establishes that confidentiality does not necessarily
defeat discovery. The Court may impose appropriate limitations upon
inspection or use in order to balance the protection of confidential information
against the litigant's right to a fair opportunity to present its case.
[50] I therefore find that the Defendant's objections based upon confidentiality must
be considered on a document -specific or properly defined category -specific
basis. Where privilege is established, the document need not be produced.
Where only confidentiality is established, the proper enquiry is whether
controlled disclosure or another protective measure can adequately safeguard
the Defendant's interests while giving effect to the Plaintiff's right to relevant
discovery.
[51] I turn now to the individual categories of documents identified in the Plaintiff's
Rule 35(3) notice. I do so because the question of relevance cannot properly be
determined by treating the 19 categories as a single undifferentiated request.
Each category must be considered against the issues arising from the
pleadings, the Plaintiff's pleaded case concerning the Defendant's alleged
pleadings, the Plaintiff's pleaded case concerning the Defendant's alleged
negligence in effecting the payments, and the Defendant's response to that
case.
[52] In respect of item 1, being the FNB trust account bank statement relating to
account number 6[...], I am satisfied that the document is relevant and
discoverable. It concerns the receipt of the purchase price by the Defendant
and therefore relates directly to the transaction from which the Plaintiff's claim
arises. It may establish when and in what amount the funds were received and
may further illuminate their subsequent disbursement. Significantly, the
Defendant does not contend that this category is irrelevant. I accordingly find
that item 1 falls within the scope of proper discovery.
[53] Item 2, being Mr M[...]'s bank verification letter, is likewise discoverable. The
Plaintiff's case places in issue the manner in which the Defendant verified the
banking details before making payment. The document therefore has a direct
connection with the alleged failure to exercise reasonable care in verifying the
intended recipient's banking details. It is not a document sought merely to
investigate the Defendant's conduct generally; it bears directly upon an issue
raised by the pleadings.
[54] The same conclusion applies to item 3, being proof of payment of R424 245.36
intended for Mr M[...]. The document establishes the payment which forms part
of the factual foundation of the Plaintiff's claim. It is capable of establishing the
date, amount and destination of the payment and is consequently directly
relevant to the pleaded dispute. It must therefore be discovered.
[55] Item 4, being the Plaintiff's bank verification letter, should also be discovered.
The Plaintiff seeks the document to establish what banking information relating
to her was available and what information was, or ought to have been, verified
before payment. Given that the alleged negligence concerns the payment of
funds into an account which did not belong to the intended recipient, the
document is sufficiently connected to the pleaded issues.
document is sufficiently connected to the pleaded issues.
[56] Item 5, being proof of payment of R424 245.36 intended for the Plaintiff, is
similarly discoverable. The document concerns the very payment which the
Plaintiff alleges was improperly made and is therefore directly relevant to the
cause of action. I accordingly find that the Defendant must discover item 5.
[57] Item 6 concerns the email communications exchanged between the
Defendant's employees and Mr M[...] between 9 and 31 October 2019. I regard
this category as relevant. The correspondence potentially establishes the
communications preceding the disputed payment, including the banking details
supplied to the Defendant, the requests made for those details, and the steps
taken by the Defendant in relation to their verification. These matters fall
squarely within the factual enquiry concerning whether the Defendant exercised
reasonable care before effecting payment. Item 6 must accordingly be
discovered.
[58] I reach a different conclusion concerning item 7, being the entire transfer file
relating to the Dale Lace Road property. The Plaintiff is entitled to documents
within that file which concern the receipt of the purchase price, the banking
details, verification of those details, payment instructions, authorisation of
payment and the disbursement of the funds. However, Rule 35(3) does not
entitle a party, merely by describing a request as an "entire file", to obtain every
document contained in a file irrespec tive of its relevance. Documents such as
unrelated administrative correspondence, municipal clearance documents,
estate-agent material or other documents having no bearing on the pleaded
issues need not be discovered. Item 7 therefore succeeds only to the extent
that the documents contained in the transfer file fall within the categories
identified above.
[59] Item 8 concerns third -party insurance claims relating to the stolen funds. I am
not persuaded that the category, as formulated, has been shown to be
sufficiently relevant to the pleaded cause of action. The Plaintiff's claim
concerns the alleged failure of the Defendant to exercise reasonable care in
verifying the banking details and making payment. Whether the Defendant
subsequently lodged an insurance claim or sought indemnification does not,
without more, establish what the Defendant knew or ought reason ably to have
without more, establish what the Defendant knew or ought reason ably to have
known when the payment was made. The request for item 8 is accordingly
refused. This conclusion makes it unnecessary to determine the Defendant's
claim of litigation privilege in relation to every document falling within this broad
category.
[60] Item 9 concerns proof of payment of R487 882.16 referred to in paragraph 12
of the Defendant's plea. The position here is different. The Defendant itself
relies upon the payment in its pleaded defence. The document therefore relates
to a fact placed directly in issue by the pleadings and is not sought merely on
the basis of speculation. I accordingly find item 9 to be relevant and
discoverable.
[61] In respect of item 10, being the civil litigation records in case number
17408/2020, I am not satisfied that the Plaintiff has established a sufficient
connection between the requested records and the pleaded issues in the
present action. The mere fact that those proceedings arose from the same
underlying fraud does not make every document in those proceedings relevant
to the question whether the Defendant was negligent when it effected the
disputed payment. Nor does the Plaintiff's reliance on a possible "train of
enquiry" dispense with the requirement that the enquiry remain connected to
the issues in the pleadings. Item 10 is accordingly refused in its present form.
[62] Item 11 concerns the report submitted by the Defendant to the Legal Practice
Council (LPC). The Plaintiff contends that the report describes the events giving
rise to the present dispute. I do not, however, consider that this is sufficient to
establish relevance. The Plaintiff has not pleaded a case based upon the
Defendant's regulatory compliance before the LPC. Nor has she identified a
specific issue in the pleadings to which the report relates. Unless a particular
document can be shown to contain an admission or information bearing directly
upon the Defendant's conduct in verifying the bankin g details and effecting
payment, the category constitutes an impermissible attempt to investigate
matters beyond the pleaded dispute. Item 11 is therefore refused.
[63] The same considerations apply to item 12, being the LPIIF claim and appeal
documents for the period 2022 to 2023. Whether the Defendant sought
documents for the period 2022 to 2023. Whether the Defendant sought
indemnification from the Legal Practitioners Indemnity Insurance Fund, and
whether such indemnification was granted or refused, does not determine
whether the Defendant was negligent when the payment was made. The
documents concern a subsequent indemnity process rather than the pleaded
conduct giving rise to liability. Item 12 is accordingly not discoverable.
[64] Item 13 concerns reports made by the Defendant to the SAPS in criminal case
521/10/2019. I am likewise not satisfied that these documents are relevant to
the pleaded issues. The fact that the Defendant reported the fraud, and the
contents of a subsequent criminal report, do not in themselves establish
whether the Defendant exercised reasonable care before making the payment.
The criminal conduct of the third -party fraudsters is not the issue presently
before this Court. Item 13 is therefore refused.
[65] Item 14, being all communications and documents exchanged between the
Defendant and the SAPS concerning the criminal investigation, is even
broader. Apart from the absence of a sufficient connection with the pleaded
negligence, the request for "all communications" lacks the degree of specificity
required of a proper discovery request. It would require the Defendant to search
and produce an extensive body of material without the Plaintiff identifying the
documents sought or the particular pleaded issue to wh ich they relate. Item 14
is accordingly refused.
[66] I reach a similar conclusion concerning item 15, being the ABSA fraud and
forensic records, and item 16, being the corresponding Nedbank fraud and
forensic records. These categories principally concern investigations and
recovery efforts undertaken after the disputed payments had already been
made. The Plaintiff's contention that these documents may assist in tracing the
stolen funds is insufficient, without more, to establish their relevance to the
question whether the Defendant was negligent at the time o f payment. The
requests are therefore refused in their present form.
[67] I nevertheless emphasise that the refusal of items 15 and 16 does not mean
that every document generated after the payment is necessarily irrelevant. If,
for example, a particular document generated during a subsequent
investigation contains an admission by the Defendant concerning the banking
investigation contains an admission by the Defendant concerning the banking
verification undertaken before payment, that document may stand on a different
footing. The present finding is directed at the categories as formulated in the
Rule 35(3) notice and not at a hypothetical document whose relevance has not
been established.
[68] Item 17 concerns the specific bank report regarding the "missing" funds
referred to in the Defendant's email of 13 November 2019. Unlike the broad
categories in items 15 and 16, this request identifies a particular report. The
Defendant itself accepts that information identifying the destination of the funds
may bear upon the issues in the action, subject to its content and any proper
claim of privilege. I am satisfied that the report is sufficiently connected to the
transaction and the loss alleged by the Plaintiff. If the report has not already
been discovered, and if no valid claim of privilege is established in respect of it,
it must be discovered.
[69] Item 18 concerns the urgent application papers relating to the proposed or
issued proceedings to compel ABSA and Capitec to release frozen funds. To
the extent that the documents comprise draft pleadings, confidential
instructions to legal representatives, legal opinions or communications created
for the dominant purpose of contemplated or pending recovery litigation, they
may attract litigation privilege. The Plaintiff has not established a basis for
compelling disclosure of such privileged material. Item 18 is therefore refused
to the extent that it seeks privileged litigation material. Any final court
documents forming part of the public record stand on a different footing and
cannot be withheld merely by describing them as litigation documents.
[70] Finally, item 19 concerns correspondence and documents relating to the
Commercial Crimes Court proceedings against the recipient of the fraudulent
payment. I am not satisfied that the category, as formulated, bears sufficiently
upon the pleaded negligence of the Defendant. The criminal proceedings
concern the conduct of the alleged fraudster, whereas the issue in the present
action is whether the Defendant itself acted negligently in verifying the banking
details and effecting payment. The Plaintiff's asser tion that the documents may
details and effecting payment. The Plaintiff's asser tion that the documents may
assist in the recovery of the funds does not establish the requisite connection
with the pleaded issues. Item 19 is accordingly refused.
Whether the Application is abusive or a Fishing expedition?
[71] The Defendant characterises the Plaintiff's Rule 35(3) notice as a fishing
expedition. I accept that discovery cannot be used to search indiscriminately for
evidence in the hope of discovering a case which has not been pleaded.
[72] In Democratic Alliance and Others v Mkhwebane and Another (1370/2019)
[2021] ZASCA 18; [2021] 2 All SA 337 (SCA); 2021 (3) SA 403 (SCA) (11
March 2021),13 the Supreme Court of Appeal stated that—
“[23] Rule 35(12) is part of a set of rules regulating discovery, inspection and
production of documents in relation to litigation. The object of discovery is described
in Durbach v Fairway Hotel 1949 (3) 1081 (SR) at 1083 as follows:
‘The whole object of discovery is to ensure that before trial both parties are made
aware of all the documentary evidence that is available.’
In Erasmus Superior Court Practice2 the following, with reference to case law, is
stated: ‘“Discovery has been said to rank with cross -examination as one of the
mightiest engines for the exposure of the truth . . . Properly employed where its use
is called for, it can be, and often is a devastating tool . . .
. . .
But it must not be abused or called in aid lightly in situations for which it was not
designed, or it will lose its edge and become debased.”’
This case is about whether rule 35(12) has properly been called in aid by the
appellants.”
[73] The mere fact that the Plaintiff requests 19 categories does not establish
abuse. What matters is whether the categories are sufficiently connected to the
issues in the main action. If a category seeks every communication,
investigation, report or document concerning the fraud without limitation, it
would be impermissibly broad. If, however, the category is directed at
communications or documents capable of illuminating the Defendant's conduct
in relation to the disputed payments, it falls within the legitimate purpose of
discovery.
13 Democratic Alliance and Others v Mkhwebane and Another (1370/2019) [2021] ZASCA 18;
13 Democratic Alliance and Others v Mkhwebane and Another (1370/2019) [2021] ZASCA 18;
[2021] 2 All SA 337 (SCA); 2021 (3) SA 403 (SCA) (11 March 2021) at para 23.
[74] I accordingly do not find the application abusive merely because it is extensive.
Its sustainability depends upon the relevance of each category and the validity
of any privilege or confidentiality asserted over documents falling within those
categories.
[75] Having considered the Rule 35(7) application as a whole, I find that the Plaintiff
was entitled to invoke Rule 35(7) without first serving a Rule 30A notice. The
Plaintiff has established that the documents sought must be assessed
according to their connection with the issues raised in the main action. The fact
that certain documents were created after the disputed payments does not, by
itself, render them irrelevant; however, documents having no sufficient
connection with the pleaded issues are not discoverable.
[76] The Defendant has likewise not established a blanket basis for withholding
documents on the grounds of privilege or confidentiality. Any claim of privilege
must be properly established in respect of the particular documents concerned,
while confidentiality alone does not necessarily defeat an entitlement to
discovery. The application should accordingly succeed only in respect of
documents which are relevant to the pleaded issues and over which no valid
privilege has been established.
[77] I accordingly find that the Rule 35(7) application succeeds in part, to the extent
that the documents sought are relevant to the issues in the main action and are
not protected by a valid claim of privilege.
ISSUE 2: RULE 30 APPLICATION — REMOVAL OF IRREGULAR STEP
[78] The Defendant's Rule 30 application concerns the Plaintiff's delivery of different
versions of her replying affidavit in the Rule 35(7) proceedings. The Defendant
contends that the initial affidavit was unsigned and uncommissioned, that a
signed version was delivered only on the following day, and that a further final
version was subsequently delivered without the Plaintiff first withdrawing the
earlier versions or obtaining leave to amend. The issues are therefore whether
the delivery of the initial affidavit constituted an irregular step; whether the
subsequent versions could properly be delivered in those circumstances;
whether any irregularity caused prejudice contemplated by Rule 30; and,
ultimately, whether the Defendant's Rule 30 application is competent and ought
to be upheld.
The Nature and Purpose Of Rule 30
[79] Rule 30(1) provides that a party wishing to challenge an irregular step must do
so by notice, and Rule 30(2)(b) requires the aggrieved party to afford the
opponent an opportunity to remove the cause of complaint. Rule 30(3) then
permits the Court, upon application, to set aside the irregular step where the
requirements of the Rule have been satisfied.
[80] The purpose of Rule 30 is not to punish a party for every departure from the
Rules. It is directed at an irregularity which interferes with the proper conduct of
the litigation. The enquiry must therefore distinguish between a genuine
procedural irregularity and a defect which is merely technical and causes no
meaningful prejudice.
[81] In SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4)
SA 329 (O),14 the Court described rule 30 application as follows:
“I have no doubt that Rule 30 (1) was intended as a procedure whereby a hindrance
to the future conducting of the litigation, whether it is created by a non -observance of
what the Rules of Court intended or otherwise, is removed. A party who takes a
procedural step which advances the finalization of the case may not, unless he is
unaware of the irregularity, ask for the setting aside of the relevant irregularity. It may
even be correct to infer that the situations which have been regarded as beyond the
scope of Rule 30 (1) were instances where the relevant objection could be
14 SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O) at
333H -334A.
adequately raised at an appropriate stage whilst the cause of objection constituted no
hindrance to the ordinary course of the litigation process.”
[82] The rule is therefore concerned with the orderly progress of proceedings rather
than the vindication of procedural formalism for its own sake.
[83] The question before me is accordingly not simply whether the Plaintiff departed
from the prescribed procedure. I must determine whether what she did
amounted to an irregular step within the meaning and purpose of Rule 30 and,
if so, whether the irregularity justified the drastic consequence of setting aside
the relevant procedural step.
Whether the Unsinged and Uncommissioned Affidavit Was an Irregular
step?
[84] The first complaint concerns the Plaintiff's initial replying affidavit, which was
delivered unsigned and uncommissioned.
[85] An affidavit is not simply an ordinary pleading or correspondence between the
parties. Its evidential character derives from the fact that the deponent swears
to or affirms the truth of its contents in accordance with the applicable
formalities. The signature and commissioning requirements are therefore not
wholly insignificant.
[86] At the same time, the Court must distinguish between an affidavit that is
substantively defective as evidence and a document which was temporarily
transmitted in an incomplete form but was corrected immediately thereafter.
[87] In the matter of First Rand Bank Limited t/a RMB Private Bank and as FNB v
Doola (13723/2020) [2023] ZAGPJHC 456 (11 May 2023) ,15 the court stated
that—
“It cannot be overstated that rule 30, which confers upon the aggrieved person the
right to set aside the irregular step, is concerned with the forms and not the
substance of the matter. The party against whom the relief is sought is first and
foremost afforded an opportunity to remove and cure the cause of complaint. An
15 First Rand Bank Limited t/a RMB Private Bank and as FNB v Doola (13723/2020) [2023]
ZAGPJHC 456 (11 May 2023) at para 3.
application in terms of rule 30 will be granted only where the irregular step causes
prejudice to the person seeking to set it aside. It follows that there is no prejudice if
the further conduct of the case is not affected by the irregular step.”
[88] In First Mile Properties Ikhayalethu (Pty) Ltd and Others v SA Retail Properties
(Pty) Ltd and Another (2024/112906) [2026] ZAGPJHC 186 (2 March 2026) ,16
the court also emphasized that Rule 30 is not intended to encourage technical
obstruction of litigation, and the applicant must demonstrate prejudice where it
stated the following:
“[9] The respondent delivered the supplementary affidavit after the applicants had
filed a Rule 6(5)(d)(iii) notice raising points of law. The affidavit was not accompanied
by an application for leave nor by a formal application for condonation. Strictly
speaking, that constitutes a procedural irregularity. Nevertheless, not every
irregularity justifies the setting aside of a step under Rule 30. However, the nature
and effect of the affidavit are critical. This is determined having regard to the
prejudice upon the applicant by the supplementary affidavit.”
[89] This court in West Dunes Properties 92 (Pty) Ltd and Others v Kruger NO 2025
JDR 0259 (GP), 17 also emphasised that the Court retains a discretion and is
not obliged to set aside an irregular step merely because an irregularity has
been established when it stated that—
“Rule 30 envisages that any irregular step complained of must cause prejudice to the
party seeking to set it aside. It is accepted though, that even if a procedural step may
be found to be irregular but if it presents no prejudice in the further conduct of the
case to the party complaining thereof, there would be no need to set it aside.
See Trans-African Insurance Co Limited v Maluleka 1956 (2) SA 273 (A) at 276F -H.
In Maluleka’s case Schreiner JA held that technical objections to less than perfect
In Maluleka’s case Schreiner JA held that technical objections to less than perfect
procedural steps should not be permitted, in the absence of prejudice, to interfere
with the expeditious and, if possible, inexpensive decision of cases on their real
merits.”
16 First Mile Properties Ikhayalethu (Pty) Ltd and Others v SA Retail Properties (Pty) Ltd and
Another (2024/112906) [2026] ZAGPJHC 186 (2 March 2026) at para 9.
17 West Dunes Properties 92 (Pty) Ltd and Others v Kruger NO 2025 JDR 0259 (GP) at para
28.
[90] This court in West Dunes Properties18 further stated that—
“In an application under Rule 30, a court will set aside the complained -of irregular
step only if it would cause prejudice to the complaining party. On the other hand,
even if a case is made out for the relief sought, a court has a discretion not to yield to
the aggrieved party’s request.”
[91] In my view, those principles are directly applicable to the present matter. Even
if the delivery of the initial unsigned and uncommissioned affidavit constituted a
procedural irregularity, the enquiry does not end there. The Court must
consider the effect of the irregularity, the fact that a signed version was
delivered the following day, whether the subsequent version materially altered
the Plaintiff's case, and, most importantly, whether the Defendant suffered
prejudice affecting the future conduct of the litigation.
[92] The fact that the Plaintiff initially delivered a defective document cannot simply
be ignored. However, the appropriate remedy must be proportionate to the
procedural defect. Where the defect is capable of being cured and has in fact
been cured without introducing a new case or depriving the opposing party of
an opportunity to respond, the Court should be slow to impose the drastic
consequence of setting aside the entire replying affidavit.
[93] Having considered the Rule 30 application in its entirety, I find that the delivery
of the initial unsigned and uncommissioned version of the replying affidavit,
followed by further versions without formally withdrawing the earlier versions or
obtaining leave, constituted procedural non -compliance. The Plaintiff ought to
have ensured that the affidavit relied upon in the proceedings was properly
executed and that any substantive replacement or amendment was effected in
accordance with the Rules.
[94] I nevertheless find that the Defendant has not established prejudice of the
nature required to justify setting aside the Plaintiff's replying affidavit. The
nature required to justify setting aside the Plaintiff's replying affidavit. The
defective version was followed by a signed and commissioned version on the
following day, and the Defendant has not demonstrated that the subsequent
18 See West Dunes Properties judgement n 17 above at para 29.
versions introduced a new case or deprived it of a fair opportunity to respond.
The Rule 30 application accordingly fails and is dismissed.
ISSUE 3: CONDONATION APPLICATION — WHETHER CONDONATION FOR
THE LATE FILING OF THE REPLYING AFFIDAVIT SHOULD BE GRANTED?
[95] The third application concerns the Plaintiff's application for condonation for the
late filing of her replying affidavit in the Rule 35(7) application. The replying
affidavit was due on 4 November 2025, but the final signed version was
delivered on 5 November 2025, resulting in a delay of one day. The Defendant
opposes condonation and, in addition to challenging the explanation for the
delay, takes issue with the founding affidavit supporting the condonation
application on the basis that it was commissioned virtually. The issues for
determination are therefore whether the founding affidavit was properly
commissioned or substantially compliant; whether the Plaintiff has identified the
affidavit for which condonation is sought; whether the explanation for the one -
day delay is adequate; whether the Defendant suffered prejudice; and whether,
having regard to all the circumstances, condonation should be granted.
Whether the founding affidavit in the condonation application was
properly commissioned?
[96] I first consider the Defendant's objection to the commissioning of the founding
affidavit. Regulation 3(1) 19 of the Regulations Governing the Administration of
an Oath or Affirmation provides that the deponent shall sign the declaration “in
the presence of the commissioner of oaths.”
19 Regulations Governing the Administering of an Oath or Affirmation , (ZA) GNR.1258 of 21
July 1972.
[97] The significance of this requirement has recently been considered by the
Supreme Court of Appeal in LexisNexis South Africa (Pty) Ltd v Minister of
Justice and Constitutional Development 2026 (3) SA 71 (SCA).20
[98] In LexisNexis case, the SCA considered an application seeking a declaration
that the words “in the presence of” in regulation 3 should include the
administration of an oath by means of live audio-visual communication.
[99] The Court in LexisNexis considered the existing authorities concerning virtual
commissioning and recorded that—
“As matters stand, there is legal certainty: Briedenhann interpreted 'in the presence
of' to mean in the physical presence of the commissioner of oaths. This interpretation
is compatible with the approach adopted in other High Court judgments: Knuttel NO v
Bhana,21 and ED Foods SRL v Africa's Best (Pty) Ltd .22 In these cases, it has been
held that, while reg 3 requires physical presence, the requirement may be satisfied if
there is substantial compliance. What LNSA wants to achieve is not legal certainty,
which already exists, but rather a different legal certainty. Essentially, the application
for declaratory relief is an attempt at a back -door appeal against Briedenhann, in
circumstances where LNSA was not a party to that dispute. This is not a permissible
basis on which to engage a court's power to grant declaratory relief.”
[100] In Knuttel case,23 the court stated that—
“[53] Non-compliance with the regulations does not per se invalidate an affidavit. The
Full Court in S v Munn confirmed at 734H that the regulations are directory only and
that non-compliance with the regulations would not invalidate an affidavit if there was
substantial compliance with the formalities in such a way as to give effect to the
purpose of obtaining a deponent’s signature to an affidavit.”
[101] In Africa’s Best ,24 the deponent was in Italy, and the commissioner of oaths
was in the Republic of South Africa and zoom video call was used to administer
was in the Republic of South Africa and zoom video call was used to administer
20 LexisNexis South Africa (Pty) Ltd v Minister of Justice and Constitutional Development 2026
(3) SA 71 (SCA) (hereinafter referred to as LexisNexis case) at para 16.
21 Knuttel N.O. and Others v Bhana and Others (38683/2020) [2021] ZAGPJHC 874; [2022] 2
All SA 201 (GJ) (26 August 2021) (hereinafter referred to as Knuttel case).
22 ED Food SRL v Africa's Best (Pty) Ltd [2024] ZAGPJHC 1619 ([2024] JOL 63714)
(hereinafter referred to as Africa’s Best case).
23 Knuttel case n 21 above at para 53.
24 Africa’s Best n 22 above at para 5.
the oath. The court in Africa’ Best25 after considering evidence before it stated
the following:
“30. I find that based on the affidavit of Mr Kemp there has been substantial
compliance.
31. I also seem it necessary to refer to the judgment of Satchwell J in Uramin
(Incorporated in British Columbia) t/a Areva Resources Southern African v Perie
2017 (1) SA 236 GJ when she states
"[27] in summary, courts cannot be ignorant of the needs of the societies and
economies within which they operate. Legal procedures must comport to the
exigencies of globalisation and the availability of witnesses as I have discussed
above. Courts must adapt to the requirements of the modernities within which we
operate and upon which we adjudicate...
…
[32] At the time that the rules of Court were first formulated, witnesses from beyond
the jurisdiction of the then Transvaal Courts travelled by train from the coast and then
by motorcar and then by aeroplane. They may even have arrived at the coast after
week-long voyages by steamship from another continent. Urgent messages arrived
at this Court by way of telegrams whose contents and authors were difficult to
authenticate…”
[102] The court in Africa’s best26 also further stated that—
“I agree that the Courts must open themselves to the modern trend of technology.
This does not mean that the Court can willy nilly accept non -compliance with acts
and regulations, but must be aware of the requirement that there must be substantial
compliance with such acts and regulations. As stated, in this case I am satisfied that
there has been substantial compliance.
[103] In applying these principles to the present matter, I am mindful that LexisNexis
is the most recent authority of the Supreme Court of Appeal and that it must be
given due weight. The judgment makes it clear that the ordinary requirement
under regulation 3(1) remains physical presence before the commissioner of
25 Africa’s Best 22 above at para 30-31.
26 Africa’s Best n 22 above at para 32.
oaths. The question, however, is not whether virtual commissioning has
generally been authorised by the Regulations, but whether the particular non -
compliance in this matter is fatal to the Plaintiff's condonation application.
[104] In this regard, I do not understand LexisNexis to have abolished the principle of
substantial compliance recognised in Knuttel and applied in Africa's Best .
Indeed, the passage from LexisNexis relied upon by the Defendant expressly
records that Knuttel and Africa's Best accepted that, although regulation 3
requires physical presence, an affidavit may nevertheless be valid where there
has been substantial compliance with the relevant formalities.
[105] The SCA's concern in LexisNexis was principally with the proposition that a
court could, by interpretation, transform virtual presence into physical presence
for purposes of regulation 3. That is different from determining the
consequences of a particular instance of non -compliance in circumstances
where the Court is asked to exercise its discretion in the interests of justice.
[106] The circumstances surrounding the Plaintiff's affidavit must accordingly be
examined. The Plaintiff explains that the affidavit was commissioned virtually
because she was suffering from flu and was unable to travel to appear
physically before a commissioner. This is materially different from a case where
a litigant elects virtual commissioning merely for convenience. The Court must
also have regard to the safeguards that accompanied the virtual
commissioning, including whether the Plaintiff's identity was e stablished,
whether the commissioner personally administered the oath, whether the
Plaintiff signed the affidavit during the audio -visual process, and whether the
commissioner was satisfied that the deponent understood and affirmed the
contents of the affidavit.
[107] If those safeguards were present, the essential purpose of commissioning an
affidavit was substantially achieved. The purpose of the Regulations is not
affidavit was substantially achieved. The purpose of the Regulations is not
simply to impose a formal requirement of physical proximity for its own sake. It
is, amongst other things, to ensure that the person whose evidence is placed
before the Court is properly identified, understands the nature and contents of
the affidavit, and makes the oath or affirmation before a person authorised to
administer it. Where those safeguards have in fact been observed, the absence
of physical presence remains a departure from regulation 3(1), but it does not
necessarily follow that the affidavit must be treated as though it had never
existed.
[108] I am reinforced in this conclusion by Africa's Best , where the Court was
confronted with an even more pronounced geographical separation between
the deponent in Italy and the commissioner in South Africa. Despite the
absence of physical presence, the Court found that there had been substantial
compliance. The Court cautioned that the Courts may not “willy nilly” disregard
statutory requirements but emphasised that the Court must remain alive to
technological developments and determine whether there has been substantial
compliance. That approach does not render virtual commissioning generally
lawful; rather, it recognises that the consequences of non -compliance must be
considered against the particular facts.
[109] The present case is also distinguishable from a situation in which the deponent
deliberately disregards the Regulations without explanation. The Plaintiff has
placed before the Court an explanation based on illness. If accepted, that
explanation constitutes an exceptional circumstance which materially affected
her ability to comply with the ordinary physical -presence requirement. There is
no suggestion that the Plaintiff sought to evade the safeguards associated with
the oath, nor that the Defendant has ide ntified any substantive falsity,
misrepresentation or prejudice arising from the manner in which the affidavit
was commissioned.
[110] The Defendant's reliance on LexisNexis is therefore correct to the extent that it
establishes that physical presence is the ordinary requirement under regulation
3(1). It is, however, too broad if it is contended that LexisNexis requires the
automatic rejection of every affidavit that was commissioned virtually,
irrespective of the circumstances and irrespective of whether the requirements
irrespective of the circumstances and irrespective of whether the requirements
underlying the commissioning process were substantially observed. Such an
interpretation would overlook the very authorities that the SCA itself considered
and distinguished and would convert a procedural requirement into an inflexible
rule of nullity.
[111] I accordingly find that the Plaintiff has demonstrated sufficient grounds for the
Court to exercise its discretion in her favour. The illness relied upon constitutes
an exceptional circumstance; the affidavit was nevertheless subjected to an
oath or affirmation before an identified commissioner through an audio -visual
process; and the essential purpose of the commissioning requirements was
substantially fulfilled. In these circumstances, and particularly in the absence of
demonstrated prejudice to the Defen dant, I am satisfied that it would be
disproportionate to refuse to consider the condonation application solely
because the affidavit was not commissioned in the physical presence of the
commissioner.
[112] I conclude that the founding affidavit was not strictly compliant with regulation
3(1), because the Plaintiff did not sign it in the physical presence of the
commissioner of oaths. However, the non -compliance does not, in the
circumstances of this matter, render the affidavit a nullity. The Plaintiff has
established exceptional circumstances arising from her illness and has
demonstrated substantial compliance with the essential purpose of the
commissioning requirements.
[113] I therefore find that the Defendant's objection to the founding affidavit on the
basis of its virtual commissioning fails. The founding affidavit will be received
for purposes of determining the condonation application. This finding is
confined to the particular facts before me and should not be understood as
recognising virtual commissioning as a generally permissible substitute for the
physical-presence requirement in regulation 3(1).
Whether the Plaintiff has sufficiently identified the affidavit for which
condonation is sought?
[114] I turn to the second issue, namely whether the Plaintiff has sufficiently identified
the affidavit in respect of which condonation is sought. The Defendant contends
that the Plaintiff's conduct in delivering more than one version of the replying
affidavit creates uncertainty as to which affidavit she seeks to have admitted
out of time. The Plaintiff, on the other hand, maintains that the condonation
application concerns the final signed and commissioned replying affidavit
delivered on 5 November 2025, and that the earlier unsigned version was
merely provided as a courtesy.
[115] A condonation application must identify with sufficient clarity the procedural
default which the applicant seeks to have excused. This is necessary because
the Court must be able to determine the extent of the non -compliance, the
period of delay, the explanation for that delay and the prejudice, if any,
occasioned to the opposing party. Condonation cannot properly be granted in
the abstract. It must relate to an identifiable procedural act or document.
[116] In the present matter, however, the fact that more than one version was
transmitted does not necessarily mean that the condonation application is
incapable of determination. The material question is whether, on a proper
reading of the papers, the Plaintiff has made it sufficiently clear which
document she intends to rely upon as her replying affidavit. The papers indicate
that the version ultimately relied upon is the final signed and commissioned
version delivered on 5 November 2025.
[117] The earlier unsigned version does not, without more, alter that conclusion. It
was not presented as the final sworn version upon which the Plaintiff intended
to rely, and the subsequent signed version identified the document ultimately
relied upon. The Defendant may legitimately complain about the manner in
which the different versions were delivered, particularly insofar as the earlier
versions were not formally withdrawn. That complaint is more directly relevant
to the Rule 30 application. It does not nec essarily render the separate
condonation application unintelligible.
[118] I accordingly find that the Plaintiff has sufficiently identified the replying affidavit
[118] I accordingly find that the Plaintiff has sufficiently identified the replying affidavit
in respect of which condonation is sought. The document is the final signed and
commissioned replying affidavit delivered on 5 November 2025.
Whether the explanation for the delay is adequate?
[119] I next consider the explanation for the delay. The replying affidavit was due on
4 November 2025 but was delivered on 5 November 2025. The delay was
therefore one day. The Plaintiff explains the delay by reference to the
circumstances surrounding the preparation and commissioning of the affidavit,
including illness.
[120] The approach to condonation is well established. Condonation is not granted
merely because the period of delay is short. The Court must consider the
explanation for the default together with the degree of lateness, prejudice,
prospects of success and the interests of justice. The explanation must
nevertheless be sufficiently full to enable the Court to understand why
compliance did not occur within the prescribed period.
[121] In Ferris and Another v FirstRand Bank Ltd 2014 (3) SA 39 (CC), 27 the
Constitutional Court in explaining the nature of the condonation application
stated the following:
“[10] In Bertie van Zyl this court held that lateness is not the only consideration in
determining whether condonation may be granted. It held further that the test for
condonation is whether it is in the interests of justice to grant it.”
[122] In the present case, the delay is minimal. There is no period of weeks or
months that requires explanation. The Plaintiff was required to deliver her reply
by 4 November 2025 and did so on the following day. The explanation
advanced must nevertheless be considered against the surrounding
circumstances, including the fact that an unsigned version had already been
provided.
[123] In my view, the Plaintiff has provided a satisfactory explanation for a delay of
one day. The circumstances relied upon are not so inadequate as to justify the
refusal of condonation.
27 Ferris and Another v FirstRand Bank Ltd 2014 (3) SA 39 (CC) at para 10.
Whether the Defendant suffered prejudice?
[124] The next consideration is prejudice. The Defendant contends that the Plaintiff's
conduct caused procedural prejudice because it was confronted with different
versions of the replying affidavit and was required to determine which version
constituted the Plaintiff's proper response.
[125] I accept that procedural uncertainty may constitute prejudice in an appropriate
case. Rule 30 is intended to protect the orderly conduct of litigation and not
merely to punish technical non -compliance. The relevant question for present
purposes, however, is whether the one -day late filing of the final replying
affidavit caused prejudice sufficient to justify refusing condonation.
[126] The Defendant has not demonstrated substantive prejudice flowing from the
one-day delay. There is no indication that the Defendant lost an opportunity to
respond, that its preparation for the litigation was materially compromised. Any
procedural complaint arising from the existence of multiple versions falls
primarily to be considered under the Rule 30 application.
[127] The distinction is important. The Court must not conflate the question whether
the Plaintiff's conduct constituted an irregular step with the separate question
whether the one -day delay should be condoned. Even if the manner in which
the affidavits were delivered was procedurally unsatisfactory, it does not follow
that the Defendant suffered the type of prejudice that makes condonation
inappropriate.
Prospects of success and interests of justice
[128] I turn finally to the prospects of success. The condonation application concerns
the Plaintiff's replying affidavit in the Rule 35(7) application. The Court must
therefore consider, at least to a limited extent, whether the underlying
application raises genuine issues deserving determination. It is not necessary
at this stage to finally determine the merits of the discovery application.
[129] The Plaintiff's Rule 35(7) application raises substantive questions concerning
the relevance and materiality of the documents sought, the alleged failure to
make further and better discovery, and the Defendant's claims of privilege and
confidentiality. These are not matters which can properly be characterised as
entirely devoid of merit. They require determination on the substantive merits of
the discovery application.
[130] In the circumstances, the interests of justice favour allowing the Plaintiff's
replying affidavit to be considered. The delay was one day, the final version has
been identified, the explanation is reasonable, and no material prejudice has
been demonstrated. Refusing condonation would have the effect of preventing
the Court from considering the substantive discovery dispute because of a
minor procedural default.
[131] Having considered the commissioning of the founding affidavit, the identification
of the replying affidavit, the explanation for the delay, the absence of material
prejudice, and the prospects of success in the underlying Rule 35(7)
application, I am satisfied that the Plaintiff has established sufficient grounds for
condonation. The procedural default was limited to one day and the Defendant
has not demonstrated prejudice of such a nature that the interests of justice
require the replying affidavit to be excluded.
[132] The condonation application therefore succeeds. Condonation is granted for
the late filing of the Plaintiff's final signed and commissioned replying affidavit
delivered on 5 November 2025.
[133] Having considered the three interlocutory applications and the respective
issues arising from each, I find that the Rule 35(7) application succeeds in part,
to the extent that the Plaintiff has established that certain categories of
to the extent that the Plaintiff has established that certain categories of
documents sought are material and relevant to the issues in the main action
and that further discovery is justified. The Defendant was not required to
comply with a Rule 30A notice before the Plaintiff invoked Rule 35(7). The
Defendant's claims of privilege and confidentiality must, however, be upheld in
respect of documents properly falling within the recognised scope of those
protections. The application therefore does not justify an unrestricted order
compelling disclosure of all 19 categories of documents.
[134] The Rule 30 application fails, as the irregularities concerning the different
versions of the replying affidavit did not cause the type of prejudice
contemplated by Rule 30 and, in the circumstances, do not warrant the setting
aside of the Plaintiff's replying affidavit. The condonation application succeeds.
Although the founding affidavit was not strictly compliant with the physical -
presence requirement in regulation 3(1), there was substantial compliance in
the particular circumstances, and the Plaintiff' s one -day delay has been
adequately explained. Having regard to the limited delay, the absence of
material prejudice, and the existence of reasonable prospects in the underlying
discovery application, it is in the interests of justice that condonation be
granted.
Order
[135] Under the circumstances the following order is made:
1. Defendant’s Rule 30 application is dismissed with costs on scale B.
2. Plaintiff’s condonation application for the late filling of the rep lying
affidavit in the application to compel further and better discovery is
condoned with costs on scale B.
3. The Plaintiff's application in terms of Rule 35(7) is partially granted,
with costs, and the Defendant is directed to make available for
inspection and, where applicable, copying, the documents falling within
the following items identified in the Plaintiff's Rule 35(3) and (6) notice
dated 1 August 2025:
(a) Items 1, 2, 3, 4, 5, 6, 9 and 17 are relevant and discoverable. The
Defendant is directed to discover and make available for inspection
and copying the documents falling within these categories, to the
extent that they are in its possession, custody or control and have
not already been discovered within 10 days of service of this order.
(b) Item 7 is discoverable within 10 days of service of this order only to
the extent that the documents contained in the transfer file relate to
the receipt of the purchase price, banking details, verification of
those details, payment instructions, authorisation of payment and
disbursement of the funds. The Plaintiff's request for the entire
transfer file is refused.
___________________________
LENYAI J
JUDGE OF THE HIGH COURT
PRETORIA
Appearances:
For the Plaintiff: Adv. L.E Quilliam
instructed by: Lawtons Inc. p/a Lawtons Africa
For the Defendant: Adv. D.A Weyers
instructed by: Weyers and Lombard Incorporated
Date of Hearing: 03 August 2026
Date of Judgement: 18 August 2026