Africa Wide Investment Holdings (Pty) Limited v Miganu Investment Holdings (Pty) Limited (8279_2019) [2024] ZAGPJHC 518 (30 May 2024)

In this case before the High Court of South Africa, Africa Wide Investment Holdings (Pty) Limited is the applicant, while Miganu Investment Holdings (Pty) Limited is the respondent. The applicant seeks to compel the respondent to comply with a Rule 35 Notice delivered in November 2022, requesting the production of specific documents believed to be in the respondent's possession. The respondent, in turn, seeks to strike out certain paragraphs in the applicant's replying affidavit in the compelling application.

After the close of pleadings, the defendant filed two discovery affidavits, prompting the plaintiff to issue the Rule 35 Notice in November 2022. The defendant failed to respond timely to the notice, leading the plaintiff to launch an application to compel compliance in January 2023. The defendant eventually responded in March 2023, but the plaintiff found the response non-compliant and proceeded with the application.

The defendant argues against production of certain documents, claiming they are irrelevant to the separated issue of an alleged oral agreement in 2005. The defendant asserts that until the oral agreement is proven, the plaintiff cannot seek production of these documents under Rule 35. The plaintiff contends that all requested documents are relevant to the action, including proving the oral agreement and subsequent conduct of the parties.

The court is tasked with determining the relevance of the requested documents based on the pleadings and whether the defendant's refusal to produce them is justified. The plaintiff argues that the defendant's response was deficient and that the requested documents are crucial to proving the oral agreement and subsequent conduct. The defendant's argument to defer discovery until the oral agreement issue is resolved is challenged by the plaintiff.

Ultimately, the court rules in favor of the applicant, granting the compelling application and ordering the respondent to comply with the disclosure requests. The striking out application by the respondent is dismissed. The court also addresses the issue of costs, deciding that the standard party and party costs will apply, as the litigation did not involve vexatious or reprehensible conduct.

The core legal principle underlying the decision in this case is that a party cannot withhold the production of relevant documents based on the separation of issues in a legal matter. The court emphasised that discovery of documents should be based on their relevance to the issues raised in the pleadings, rather than being limited to specific separated issues. The court also highlighted that the purpose of Rule 35 is to enable parties to prepare for trial by using documents that may support their case or disprove their opponent's case. Therefore, the court ruled that the defendant's refusal to produce requested documents, which were relevant to the action and the oral agreement issue, was not justified, and the compelling application succeeded.

The court relied on the case of Democratic Alliance and Others v Mkhwebane and Another [2021] ZASCA 403 (SCA) in its reasoning process.