Griessel and Another v De Kock N.O and Others (79315/23) [2025] ZAGPPHC 540 (30 May 2025)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case No: 79315/23
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED.
DATE: 30/5/2025
SIGNATURE
In the matter between:
JOAN
CYNTHIA GRIESSEL
First Plaintiff
HEROLD
LEE DE KOCK
Second Plaintiff
and
DE
VILLEBOIS ETTIENNE DE KOCK N.O.
First Defendant
SHIRLEY
ANN VAN WYK N.O.
Second Defendant
CELESTE
MARI DOVEY N.O.
Third Defendant
FREDERIK
FRANS VAN NIEKERK N.O.
First Defendant
JOHANNES
JURGENS POTGIETER N.O.
First Defendant
DE
VILLEBOIS ETTIENNE DE KOCK
Sixth Defendant
SHIRLEY
ANN VAN WYK
Seventh Defendant
CELESTE
MARI DOVEY
Eighth Defendant
MASTER
OF THE HIGH COURT, PRETORIA
Ninth Defendant
MANYELETI
(PTY) LTD
Tenth Defendant
Delivered:
This judgment was handed down electronically by
circulation to the parties by e-mail. The date for the handing
down of the
judgment shall be deemed to be 30 May 2025.
JUDGMENT:
APPLICATION TO COMPEL DISCOVERY
GROBLER,
AJ:
[1]
This judgment relates to an application to
compel discovery which was brought by the defendants in terms of Rule
35(7) of the Uniform
Rules of Court. The Office of the Deputy
Judge President directed on 26 February 2025 that the application be
heard on 22
April 2025.
[2]
The Uniform Rules of Court only permit
discovery of documents that relate to issues in dispute on the
pleadings. It is accordingly
necessary to firstly refer to the
nature of the relief claimed by the plaintiffs in the particulars of
claim.
[3]
The following relief is claimed by the
first and second plaintiffs in the summons issued against the
defendants (as per the amended
particulars of claim dated 27 December
2023):
“CLAIM
1:
1.
The first to fifth defendants,
alternatively, the tenth defendant as an alter ego of the trust, are
ordered to pay maintenance to
the first plaintiff in the amount of
R41 825.08, per month, with annual inflationary increases from
date of service of summons;
2.
The sixth to eighth defendants,
alternatively the tenth defendant as an alter ego of the trust, are
ordered to pay the plaintiffs’
costs of the action on an
attorney and own client scale, alternatively the first to fifth
defendants are ordered to pay the plaintiffs’
costs on an attorney
and own client scale.
3.
Further and/or alternative relief.
CLAIM
2:
4.
The first to fifth defendants,
alternatively, the tenth defendant as an alter ego of the trust, are
ordered to pay the first plaintiff
the amount of R400 000.00;
5.
The sixth to eighth defendants,
alternatively the tenth defendant as an alter ego of the trust, are
ordered to pay the first plaintiff’s
costs of the action on an
attorney and own client scale, alternatively the first to fifth
defendants are ordered to pay the first
plaintiff’s costs on an
attorney and own client scale.
6.
Further and/or alternative relief.
CLAIM
3:
7.
That the sixth, seventh and
eighth defendants are removed as trustees of the Arathusa Family
Trust;
8.
The ninth defendant is ordered to
appoint 3 (three) independent trustees for the Arathusa Family Trust;
9.
The sixth to eighth defendants are
ordered to pay the plaintiffs’ costs of the action on an
attorney and own client scale,
alternatively the first to fifth
defendants are ordered to pay the plaintiffs’ costs on an
attorney and own client scale.
10.
Further and/or alternative relief.”
[4]
The plaintiffs served a discovery affidavit
on the defendants under cover of a filing notice dated 30 April
2024. Schedule
A of the discovery affidavit lists the
pleadings, notices and all annexures thereto in case numbers
30320/2013, 44989/2014, 50776/2016,
93437/2019 and 26288/2020.
It furthermore lists correspondence for the period between 30 May
2019 and 4 March 2024 (138 items)
and documents (54 items).
[5]
The second plaintiff filed a supplementary
discovery affidavit under cover of a filing notice dated 5 August
2024. Schedule
A of the supplementary discovery affidavit lists
three further items of correspondence (respectively dated 28 May
2024, 11 June
2024 and 8 July 2024) and two further documents.
[6]
It should be noted that the references
above are in respect of the discovery affidavits filed by the second
plaintiff, but the first
plaintiff discovered exactly the same
documents in her own discovery affidavits, albeit on different
dates.
[7]
The defendants served a Rule 35(3) notice
dated 20 September 2024 on the second plaintiff, requesting discovery
of additional documents
listed in the 43 paragraphs of the notice.
[8]
The second plaintiff filed an affidavit in
response to the defendants’ Rule 35(3) notice, which was served
on the defendants
under cover of a filing notice dated 7 October
2024. The second plaintiff responded to each of the paragraphs
of the defendants’
Rule 35(3) notice separately and attached
certain further documents as annexures to the affidavit.
[9]
Dissatisfied with the second plaintiff’s
response, the defendants launched the application in terms of Rule
35(7) currently
under consideration per notice of motion dated 28
October 2024. The defendants applied for the second plaintiff
to be compelled
to discover documents listed in 21 paragraphs
contained in the notice of motion.
[10]
The second plaintiff filed an answering
affidavit contending that the defendants are on a fishing expedition
and attempting to obtain
documents which are irrelevant to the matter
before Court. Furthermore, the second plaintiff contended that
the current application
is a delaying tactic employed by the
defendants to prolong the matter as far as possible. The second
plaintiff answered each
of the twenty-one paragraphs of the notice of
motion and concluded that the defendants are not entitled to the
further documents
requested in the application to compel further and
better discovery.
[11]
The defendants filed a replying affidavit,
concluding that further discovery by the second plaintiff as
requested in the notice
of motion is essential to the defendants’
trial preparation and that the defendants will be irreparably
prejudiced should
they not have insight into all the documents which
may be relevant.
[12]
At the commencement of the hearing of this
application, Mr Potgieter SC on behalf of the defendants stated that
he had not been
involved in the application until shortly before the
date of hearing. Mr Potgieter SC indicated that the
defendants
are not persisting with the following prayers in the
notice of motion: prayers 1.1 to 1.6 and prayers 1.8 to 1.18.
This meant
that the defendants persisted with the application to
compel discovery only in respect of the documents listed in prayers
1.7 and
1.19 to 1.21 of the notice of motion. I am appreciative
of and commend the ethical, professional and forthright manner in
which Mr Potgieter SC dealt with the matter.
[13]
The relief persisted with was the
following:
“That
the Respondent (the 2nd
Plaintiff in the principal action) be compelled to discover the
following documents:
…
1.7
Full and complete details of the account from which the Respondent
has made payments to
the 1st Plaintiff from October 2022
to date.
…
1.19
Any and all communication, albeit
text messages, whatsapp communications or e-mail between the
Respondent and Xolile Mhlakoana (with
identity Number: 8[…]) from
June 2022 to date.
1.20
Any and all communication, albeit text messages, whatsapp
communications or e-mail between the Respondent
and Maanda Alidzulwi
(with identity Number: 7[…]) from June 2022 to date.
1.21
Any and all communication, albeit text messages, whatsapp
communications or e-mail between the Respondent
and Kgomotso Shakwane
(with identity Number: 8[…]) from June 2022 to date.”
[14]
The defendants contend that
they are entitled to discovery of the documents referred to in
paragraph 1.7 of the notice of motion
because the requested documents
will enable them to verify, on their own, the validity of the
plaintiff’s claim of R400,000.00
as set out in Claim 2 of the
particulars of claim. The second
defendant contends that he has provided the defendant with proof of
the payments made, extracts of his annual financial
statements for
the years 2023 & 2024, and IRP5 tax documents for the years 2023
and 2024. Furthermore, it was submitted
on behalf of the
second plaintiff that the “full and complete details of the
account” from which the payments were
made, as referred to in
paragraph 1.7 of the notice of motion, is not a document and cannot
be provided.
[15]
The second plaintiff has stated under oath
that he has provided all the necessary documents in his possession,
including proof of
payments, to prove that he made the relevant
payments to the first plaintiff. The plaintiffs will have to
stand and fall
by their discovery affidavits and the evidence that
they will in due course be allowed to adduce at the hearing of the
main action.
I am not persuaded that the defendants are entitled to
further discovery of the documents referred
to in paragraph 1.7 of the notice of motion.
[16]
The defendants contend that
they are entitled to discovery of the documents referred to in
paragraph 1.19 to 1.21 of the notice
of motion because the second
plaintiff’s response to the request was a
qualified response which is improper. The second plaintiff
contends that these
documents are irrelevant.
[17]
The second plaintiff stated under oath that
the individuals referred to in paragraph
1.19 to 1.21 were guests of the fist plaintiff and that he
does not know who Xolile Mhalkoana and Kgomotso Shakwane are.
The second plaintiff furthermore stated that he simply cannot
provide
documents that do not exist or that are not in his possession. I am
not persuaded that the defendants are entitled to further
discovery
of the documents referred to in paragraph 1.19 to 1.21 of the notice
of motion.
[18]
It was submitted on behalf of the
second plaintiff that the defendants’ application for further
and better discovery was nothing
more than a fishing expedition
engineered to cause a delay in the matter. It was submitted
that the application is clearly
a gross and utter abuse of process
that warrants the making of a punitive costs order on an attorney and
client scale.
[19]
Having regard to inter
alia the second plaintiff’s
discovery and supplementary discovery affidavits, the further
documents requested in the defendants’
Rule 35(3) notice
preceding the application, the second plaintiff’s
response thereto, the relief claimed in the application
and the
result, I am inclined to agree that the application should be
dismissed on the scale as between attorney and client.
[20]
Accordingly the following order is issued:
a)
The application is dismissed with costs on
attorney and client scale, including the costs of 2 counsel.
JF
GROBLER
ACTING
Judge of the High Court
Pretoria
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Dates
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23
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Date
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30
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For
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SG
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R
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Instructed
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JJR
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For
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T
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JC
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Instructed
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Gildenhuys
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