Gold Leaf Tobacco v Sasfin Bank LTD [2023] ZAGPJHC 1299

The case involves an application by Gold Leaf Tobacco Corporation (Pty) Ltd (referred to as "Gold Leaf") against Sasfin Bank Ltd (referred to as "Sasfin") in the High Court of South Africa, Gauteng Division, Johannesburg. The application is framed under Rule 35(12) of the Uniform Rules of Court, which pertains to the production of documents.

The context of the application is rooted in a broader legal dispute initiated by Gold Leaf under the Promotion of Access to Information Act (PAIA). Gold Leaf seeks an order compelling Sasfin to provide specific documents, namely:

1. Bank statements for a USD account and a ZAR account.
2. A full record of Sasfin's investigations into the potential manipulation, destruction, or corruption of the aforementioned bank statements.

The impetus for Gold Leaf's request arises from an investigation by the South African Revenue Services (SARS) into its financial affairs. Gold Leaf asserts that access to the bank statements and the investigative report is crucial for it to adequately respond to SARS's inquiries.

In its answering affidavit, Sasfin contends that it no longer possesses the requested bank statements. The information contained in these statements is reportedly stored on an outdated computer system that Sasfin has ceased to use. Consequently, Sasfin must extract and reconstruct the bank statements from this old system, a process that it describes as complex and not straightforward.

Sasfin further explains that the reconstructed bank statements are unreliable, citing significant discrepancies when compared to other internal records. It emphasizes that it cannot rely on the accuracy of these reconstructed statements until further reconciliation work is completed.

Gold Leaf's Rule 35(12) notice specifically requests documents that Sasfin has referenced in its answering affidavit, including:

1. The bank statements mentioned in various paragraphs of the answering affidavit.
2. The bank statements produced in response to a SARS request from March 2022.
3. The bank statements provided to a specific individual, Mr. van Niekerk, as mentioned in the affidavit.

However, Gold Leaf's requests appear to duplicate some of the documents sought, leading to potential confusion regarding the specific items being requested.

The court's consideration of the application involves examining whether Sasfin's answering affidavit adequately references the documents sought and whether those documents are relevant under Rule 35(12). The court also addresses the procedural aspects of invoking Rule 35(12) without first obtaining leave under Rule 35(13), which pertains to discovery in motion proceedings.

Ultimately, the court finds that the documents requested by Gold Leaf, particularly the reconstructed bank statements, are not relevant for the purpose of assessing its position in the main application. The court also notes that granting the Rule 35(12) application would circumvent Sasfin's substantive defenses raised in the main application under PAIA, thereby denying Sasfin its right to a proper adjudication of those defenses.

As a result, the court dismisses Gold Leaf's application under Rule 35(12) with costs, emphasising the importance of allowing the substantive issues to be resolved in the main application.

The ratio decidendi of the case is that a party invoking Rule 35(12) to compel the production of documents must demonstrate that the requested documents are referenced in the opposing party's pleadings or affidavits, are relevant to the matter at hand, and are not privileged. In this case, the court determined that the reconstructed bank statements sought by Gold Leaf were not relevant for the purpose of assessing its position in the main application, as they were unreliable and not finalised. Furthermore, the court found that allowing the Rule 35(12) application would effectively bypass Sasfin's substantive defenses raised under the Promotion of Access to Information Act in the main application, thereby undermining the opposing party's right to a fair hearing and proper adjudication of its defenses. Thus, the court dismissed the application, reinforcing the principle that procedural mechanisms should not be used to circumvent substantive legal defenses.

The court relied on several cases in its reasoning process, including:

1. Democratic Alliance and Others v Mkhwebane and Another 2021 (3) SA 403 (SCA), which distinguished Rule 35(12) from other sub-rules in Rule 35 and clarified that documents referenced in an affidavit must be produced if they are relevant.

2. Caxton and CTP Publishers and Printers Ltd v Novus Holdings 2022 (2) All SA 299 (SCA), which explained the approach to assessing applications for the production of documents under Rule 35(12).

3. Erasmus v Slomowitz 1938 TPD 242, which articulated the purpose of Rule 35(12) as allowing a party to consider its position based on documents referred to in an opponent's pleadings or affidavits.

4. Fourie N.O. and Others v Bosch and Others, unreported, case number 56027/2020, Gauteng Division, Pretoria, 27 August 2021, which suggested that an application under Rule 35(13) must precede the invocation of Rule 35(12), although the court ultimately found this view to be incorrect.