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NORTH WEST HIGH COURT, MAFIKENG

CASE NO. 999/2008

In the matter between:

ROYAL BAFOKENG NATION APPLICANT

and

PETRUS MOKGATLE FAMILY RESPONDENT

In re:

ROYAL BAFOKENG NATION …...............................................APPLICANT

And

MINISTER OF LAND AFFAIRS …...................................1^st RESPONDENT

REGISTER OF DEEDS …...............................................2^nd RESPONDENT

BAFOKENG PRIVATE LAND

BUYERS ASSOCIATION ….............................................3^rd RESPONDENT

SETUKE COMMUNITY …................................................4^th RESPONDENT

THEKWANA COMMUNITY …..........................................5^th RESPONDENT

MOGONO COMMUNITY …..............................................6^th RESPONDENT

CHANENG COMMUNITY ….............................................7^th RESPONDENT

KHUNOU FAMILY …........................................................8^th RESPONDENT

MOTEPE FAMILY …........................................................9^th RESPONDENT

RANTSHABO FAMILY …...............................................10^th RESPONDENT

TSITSING COMMUNITY …............................................11^th RESPONDENT

MAKGATLHA FAMILY …..............................................12^th RESPONDENT

BAPHIRING COMMUNITY ….........................................13^th RESPONDENT

MOKGATLE FAMILY ….................................................14^th RESPONDENT

MPUTLE FAMILY ….......................................................15^th RESPONDENT

COMMISSIONER FOR RESTITUTION …......................16^th RESPONDENT

OF LANDS RIGHTS NORTH WEST REGION

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JUDGMENT

_______________________________________________________________________

GURA J

[1] The applicant seeks an order to compel the respondent in terms of Rule 30A of the Uniform Rules of Court to make discovery of the documents specified in applicant’s notice in terms of Rule 35(12).

[2] The respondent was required to produce for inspection and copying the following documents:

1. The identity document and the birth certificate of the deponent of the 14^th respondent’s answering affidavit being Sekete Mokgatle;

2. The identity document and the birth certificate of Sekete Mokgatle’s father;

3. The birth certificate and the death certificate of Petrus Kegakilwe (also known as Petrus Mokgatle);

4. The full record of the native location commission hearing of 17 December 1906;

5. The identity document and/or the birth certificate of Aaron Mokgatle; and

6. The “Title Deed which was passed on from my great grandfather to us” (Par. 8.2.4 of Sekete Mokgatle’s answering affidavit).

[3] The respondent objected to the proposed discovery on the following grounds:

“3.1 Discovery does not apply to motion proceedings but only in actions;

3.2 In terms of Rule 35(12) read with Rule 35(13) discovery is a rare and unusual occurrence in application proceedings unless there are exceptional circumstances which the applicants has failed to prove;

3.3 The discovery is required in bad faith and for purposes of bolstering the applicant’s case and as a fishing expedition that is aimed at curtailing the respondent’s right to access courts for adjudication of questions of law; and

3.4 There is no mention of the farm Zanddrift 28JQ in the founding affidavit but only in the annexure and therefore no case has been put up by the applicant against it.”

[4] Rule 35(12) provides:

“Any party to any proceedings may at any time before the hearing thereof deliver a notice as near as may be in accordance with Form 15 in the First Schedule to any other party in whose pleadings or affidavits reference is made to any document or tape recording to produce such document or tape recording for his inspection and to permit him to make a copy or transcription thereof. Any party failing to comply with such notice shall not, save with the leave of the court, use such document or tape recording in such proceeding provided that any other party may use such document or tape recording.”

The law is settled that discovery in terms of Rule 35(12) also applies in motion proceedings (Moulded Components & Rotomoulding SA (Pty) Ltd v Coucourakis 1979 (2) SA 457 (W) at 459B-C). A prima facie obligation rests on the party who refers to a document, in an affidavit to produce such document when called upon to do so (Magnum Aviation Operations v Chairman, National Transport Commission 1984 (2) SA 398 (W) at 400 (C)).

[5] Rule 35(13) provides:

“The provisions of this rule relating to discovery shall mutatis mutandis apply, in so far as the court may direct, to applications.”

In motion proceedings, discovery is a rare and unusual procedure and should be ordered by the court only in exceptional circumstances; see in this regard Moulded Components’ case supra. Exceptional circumstances should be gauged within the broader context of the values of fairness, equity, openness and transparency (Premier Freight (Pty) v Breathete Corporation (Pty) Ltd 2003 (6) SA 190 (SE) at 196 – 197).

[6] The main application in this case deals with the ownership of land. The Bafokeng Royal Nation intends to take back some land from the hands of private individuals for the benefit of the tribe. The question of dispossession of land, viewed in the South African history, is a thorny issue. Apart from that, there are allegations in the main application that this reputed land was acquired by the 14^th respondent’s family more than a century ago. Clearly, the evidence which will be necessary in the main application covers a period where no single person who is alive may personally testify except by relying on some documents. For this reason there are exceptional circumstances that discovery should be directed by the court in the interest of fairness, equity, openness, transparency and justice.

[7] In my view, discovery will not in any way curtail the respondent’s right of access to courts in any way. We are dealing with ancient matters in the main application. One single problem is that no single person (who is alive) will be able to testify that he/she was there when this land vested either in the 14^th respondent’s family or in the Royal Nation; only documents will be able to speak louder in this regard. The applicant’s request for discovery is not tainted by any bad faith but is a bona fide attempt to ventilate all areas which will be crucial at the hearing of the main application.

[8] It is true, as respondent submitted, that in the founding affidavit there is no mention of the farm Zanddrift 28JQ. However, in an annexure to that affidavit there is mention of the said farm. The words of Booysen J are apposite here:

“. . . in the result so he argued, the agreements did not fall within the ambit of Rule 35(12). It seems to me that this would be giving too narrow an interpretation to Rule 35(12). 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”

(Universal City Studio v Movie Time 1983 (4) SA 736 (D & CLD) at 750D).

[9] A party who objects to discovery under Rule 35(12) bears the onus of setting up “facts relieving them of this obligation, such as privilege, irrelevance or that documents are not in their possession and that they are unable to produce them” (Unilever plc and Another v Polagric (Pty) Ltd 2001 (2) SA 329 (C) at 338/9). The respondent has, in my view, failed to set up any valid defence against the proposed discovery.

[10] Consequently, the respondent is directed to

(a) furnish a reply to the applicant’s discovery notice in terms of Rule 35(12), dated 8 October 210, within ten (10) court days of the date of this order;

(b) pay the costs of this application.

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SAMKELO GURA

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING: 03 FEBRUARY 2011

DATE OF JUDGMENT: 29 APRIL 2011

COUNSEL FOR APPLICANT: ADV O. K. CHWARO

COUNSEL FOR RESPONDENTS: ADV P. W. MAKHAMBENI

ATTORNEYS FOR APPLICANT: KGOMO MOKHETLE & TLOU ATTORNEYS

ATTORNEYS FOR RESPONDENTS: GURA TLALETSI ATTORNEYS

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