Democratic Alliance and Others v Mkhwebane and Another

On 6 September 2016, the second appellant (Glynnis Breytenbach), a member of the first appellant (Democratic Alliance), conducted a press conference making statements concerning the first respondent (Advocate Busisiwe Mkhwebane), who had been nominated for the position of Public Protector. The statements alleged that Mkhwebane was "on the payroll of the SSA" (State Security Agency), had been a spy while employed as an immigration officer in China, and was unsuitable for the Public Protector position. The third appellant (Werner Horn) made similar statements about Mkhwebane being a spy. Mkhwebane launched a defamation action seeking a retraction and public apology, attaching her letter of appointment to the SSA (annexure "PPSA5") dated 11 May 2016 to show she was only appointed to the SSA after her return from China. The appellants, before filing their answering affidavit, served a notice under Uniform Rule 35(12) seeking production of documents, including Mkhwebane's application for the SSA Analyst post (referred to in "PPSA5") and her letter of acceptance. The respondents refused to produce these documents. The appellants brought an application to compel production under Rule 30A, which was dismissed by the Western Cape Division of the High Court.

• What is the meaning of 'reference is made' to documents in pleadings or affidavits under Uniform Rule 35(12)?
• Does a reference to a document in an annexure to an affidavit constitute a 'reference' for purposes of Rule 35(12)?
• What is the test for relevance in relation to documents sought under Rule 35(12)?
• How does relevance under Rule 35(12) differ from relevance under Rules 35(1), 35(3) and 35(11)?
• What is the proper approach to onus in applications to compel production under Rule 35(12)?
• Does a notice under Rule 35(12) suspend time limits for filing answering affidavits?

1. The appeal is upheld. 2. The respondents are to pay the costs of appeal jointly and severally, including costs of two counsel. 3. The order of the High Court is set aside and substituted with an order: (a) directing the applicants in the main application to produce for inspection and copying the first applicant's application for the post of Analyst at the State Security Agency, referred to in "PPSA5", by no later than 1 April 2021; (b) directing the respondents in the main application to file their answering affidavit by no later than 16 April 2021; and (c) ordering the respondents to pay the applicants' costs, including costs of two counsel, jointly and severally.

For purposes of Uniform Rule 35(12): (1) A 'reference' to a document includes references made in annexures to affidavits, as an annexure is as much part of an affidavit as the body itself. (2) A reference may be direct or indirect, but must not be based on supposition, speculation or extended inference. (3) Relevance under Rule 35(12) is assessed in relation to issues that 'might arise' in the litigation, not issues that have crystallised after close of pleadings or filing of all affidavits. (4) Documents are relevant if they might have evidentiary value and might assist a party in formulating a defence or assessing their position. (5) Where a document is referred to (within the meaning of Rule 35(12)) and is relevant, not privileged, and in the possession of a party, it must be produced. (6) The court exercises a general discretion to balance competing interests and should not adopt a predisposition for or against production, rather than applying a strict onus. (7) In defamation cases, documents relating to the timeline of events are material where the truth of defamatory statements depends on that timeline.

The court made several non-binding observations: (1) It expressed support for the approach in Centre for Child Law v The Governing Body of Hoërskool Fochville that applications to compel production should not be approached on the basis of onus, but rather through exercise of judicial discretion. (2) It noted that the obiter statement in Contango Trading SA v Central Energy Fund that references must be in affidavits and not annexures was contrary to long-established case law and commentary. (3) The court noted with approval the reasoning in Potpale Investments v Mkhize regarding whether Rule 35(12) notices suspend time limits for filing pleadings/affidavits, but declined to make a definitive ruling as the appellants accepted the existing order regarding filing deadlines. (4) The court observed that a person defending a defamation claim is entitled after launch of proceedings to gather further evidence to support defences of truth and public benefit or fair comment, and to use court rules including discovery rules for that purpose, and is not limited to evidence available at the time of publication. (5) The court commented that if Mkhwebane had filed an affidavit stating the documents were not in her possession, this may have been dispositive in favour of the respondents.

This judgment provides authoritative guidance on the interpretation and application of Uniform Rule 35(12) concerning production of documents referred to in pleadings or affidavits. It clarifies that: (1) references in annexures to affidavits constitute references for purposes of Rule 35(12); (2) relevance is assessed on the basis of issues that 'might arise' rather than issues that have crystallised after close of pleadings; (3) the rule operates more broadly than conventional discovery rules and is designed to enable parties to consider their position before finalising their case; (4) direct or indirect references suffice but supposition does not; (5) the court exercises a general discretion balancing competing interests rather than applying a strict onus. The judgment is significant for defamation litigation as it confirms that documents relevant to establishing timelines and factual matrices supporting or refuting defamatory allegations are compellable, even where not directly relied upon by the party resisting production. The case also addresses the intersection between procedural rules and substantive defamation defences.