The Western Cape High Court, (“WCHC”) judgment, in favour of the Public Protector, was short lived. This follows the judgment of the Supreme Court of Appeal (the “SCA”) in Democratic Alliance and Others v Mkhwebane and Another handed down on 11 March 2021, where the SCA ordered her to comply with the appellants’ Rule 35(12) notice.

The SCA heard an appeal from the WCHC where an interlocutory application brought for an order to compel the Public Protector to produce certain documents in terms of Rule 35(12) was dismissed. The WCHC found that the documents requested were not referred to in the pleadings or affidavit but were referred to, and are ancillary to, an annexure attached to the affidavit. That Court held that reference to documents in an annexure did not constitute “reference” as envisaged in Rule 35(12).

The SCA considered the requirements of an application to compel in terms of Rule 35(12), namely:

• Was reference made to a document/tape recording;
• Was the document relevant to the issue between the parties; and
• Was the document material in relation to the issues that might arise or to a defence that is available to the party seeking production.

These requirements are subject to limitations, namely:

• was the document in the possession of the party;
• was the document privileged; and
• was the document relevant to the proceedings.

In considering documents not mentioned in an affidavit but referred to in annexures of the affidavit, the Court referred to Universal City Studios v Movie Time 1983 (4) 736 (D) which stated: “…An annexure to a pleading or an affidavit seems to me to be as much part of the pleading or affidavit as the body itself. Many references to documents in annexures to pleadings are probably irrelevant to the proceedings and would for that reason not have to be produced but it does not follow that the Rule does not apply to documents to which reference is made in annexures”

The SCA held that documents directly/indirectly referenced in an affidavit or its annexures, not privileged and in possession of that party, should be produced. The question to be considered is whether the document sought has an evidentiary value and might provide the appellants with a defence to the relief claimed in the main case. The SCA found that “The wording of rule 35(12) is clear in relation to its application and where there has been reference to a document within the meaning of that expression in an affidavit, and it is relevant, it must be produced”. The First Respondent was ordered to produce at least one of the documents in contention.

Telephone : +27 31 570 5565; Email : busisiwe.mpunga@gb.co.za