Mthulisi Maviyo v Velocity Finance (RF) Limited

The applicant brought an application to compel the production of certain documents listed in a notice in terms of rules 35(12) and 35(14). The documents sought comprised: the original signed transaction schedule; the Altech Netstar service mentioned in a transaction schedule; and the instalment sale agreement signed electronically. The court dismissed the application with costs. The applicant then sought leave to appeal against that dismissal, arguing that the court erred in holding that the respondent made no reference in its answering affidavit to the items in question, and that the respondent made sufficient reference to justify production.

• Whether the test for granting leave to appeal in terms of section 17(1)(a) of the Superior Courts Act 10 of 2013 was met
• Whether references in an affidavit or annexures were sufficiently direct or indirect to require production of documents under rule 35(12)
• Whether the documents sought were relevant for purposes of rule 35(12)
• Whether the order dismissing the application to compel production was appealable as an interlocutory order

The application for leave to appeal was dismissed with costs against the applicant.

For purposes of rule 35(12) discovery, even where a party may have made an indirect reference to documents in its affidavit or annexures, the party seeking production must demonstrate the relevance of those documents to the matter, assessed on the basis of issues that might arise and possible grounds of defence. A simple interlocutory order regarding production of documents is not appealable unless it disposes of any issue in the main action or irreparably anticipates or precludes relief that might be given at the hearing. The test for leave to appeal under section 17(1)(a) of the Superior Courts Act requires either a reasonable prospect of success or some other compelling reason, which sets a raised threshold for appellate intervention.

The court observed that the applicant had not been prevented from delivering his replying affidavit or from requesting that the matter be referred for oral evidence if so advised, indicating that alternative procedural remedies remained available. The court also noted that moving the goal posts (requesting production of a certificate in the notice but arguing for service in the application) was problematic. The court commented that asserting a reference to an electronically signed agreement constituted an indirect reference to data messages under section 13 of the Electronic Communications and Transactions Act would strain the Democratic Alliance principles to breaking point, suggesting there must be some meaningful connection between the reference and the document sought.

This case illustrates the application of the raised threshold for granting leave to appeal under section 17(1)(a) of the Superior Courts Act 10 of 2013 in the context of discovery disputes. It also clarifies the limits of the Democratic Alliance v Mkhwebane principle regarding production of documents, emphasizing that not only must there be a direct or indirect reference to documents, but relevance must also be demonstrated. The judgment reinforces the principle that simple interlocutory orders on procedural matters are not appealable unless they dispose of an issue or irreparably affect relief in the main matter.