Democratic Alliance and Others v Mkhwebane and Another

The Democratic Alliance (DA) and two of its members made public statements in 2016 alleging that Advocate Busisiwe Mkhwebane, then a nominee for Public Protector, had been on the payroll of the State Security Agency (SSA) while deployed as an immigration officer in China, effectively portraying her as a spy and questioning her integrity and suitability for office. Ms Mkhwebane denied these allegations, asserting that she was only employed by the SSA from May 2016, after her return from China, and launched motion proceedings in the Western Cape High Court seeking a retraction and apology for defamatory statements. Prior to filing their answering affidavit, the DA invoked Uniform Rule 35(12) to compel production of certain documents referred to in Ms Mkhwebane’s founding affidavit, including her application for the SSA analyst post and her acceptance of the offer. The High Court dismissed the application to compel, holding the documents were not referred to and were irrelevant. The DA appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court’s order was set aside and replaced with an order compelling the respondents to produce Ms Mkhwebane’s application for the SSA analyst post by 1 April 2021, extending the time for filing the answering affidavit, and ordering the respondents to pay the costs of the interlocutory application.

The judgment authoritatively clarifies the scope and operation of Uniform Rule 35(12) in South African civil procedure, particularly that references in annexures qualify as references under the rule and that relevance must be assessed broadly at the interlocutory stage. It reinforces discovery as a truth‑seeking mechanism and limits attempts to resist disclosure by characterising requests as fishing expeditions.