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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

                                                                                         CASE NO: 1572/2020

                                                                                   Date heard: 11/02/2021

                                                                              Date delivered: 23/02/2020

IN THE MATTER BETWEEN:

LOUISE ANNE DU PLESSIS                                      1^st Applicant/Defendant

JULIANA MARY YAZBEK                                          2^nd Applicant/Defendant

ROSEMARY ANN SHUTZER-WEISSMANN              3^rd Applicant/Defendant

MATTHEW ANTHONY YAZBEK                                 4^th Applicant/Defendant

AND

LUKE ANTHONY YAZBEK                                              Respondent/Plaintiff

LESLEY ELIZABETH MCGILL                                                  5^th Defendant

IMMACULATE CONCEPTION CATHOLIC CHURCH               6^TH Defendant

ANDREW STUART PATERSON                                                7^th Defendant

NESHAL SINGH                                                                         8^TH Defendant

THE MASTER OF THE HIGH COURT                                       9^th Defendant

JUDGMENT

ROBERSON J:

[1]    This is an application by the first to fourth defendants (the defendants) to compel the plaintiff to make available for inspection certain documents specified in the defendant’s notice in terms of uniform rule 35 (3).

Background

[2]    The plaintiff is the son of the late Mark Anthony Yazbek who died on 29 June 2017 (the deceased). The second defendant is the surviving spouse of the deceased and the first, third and fourth defendants are the deceased’s other children.  During his lifetime the deceased executed a number of wills.  The first will which is referred to in the plaintiff’s particulars of claim was executed on 19 June 2009.  The plaintiff and the defendants were all beneficiaries under this will, the plaintiff in particular being bequeathed the deceased’s “farm fixed properties”, movables and livestock on the farm properties, and any interest in the close corporations and companies which owned the farm properties.  Any bequest to the children was to be subject to a lifelong usufruct in favour of the second defendant.

[3]   The next will was executed on 22 August 2016 under which the plaintiff and the first to sixth defendants were beneficiaries.  The plaintiff was bequeathed a fixed property known as Queens Court Farms together with movables and livestock on the farm and the interest in the close corporation owned by Queens Court Farms. 

[4]    A further will was executed on 23 January 2017.  Bequests were made to the first to sixth defendants (not including Queens Court Farms) and the residue of the estate was bequeathed to the second defendant.  It was stipulated that if the second defendant sold Queens Court Farms, 50% of the net proceeds would be paid to the plaintiff.  In the event of the second defendant dying within thirty days of the deceased’s death, bequests were made to all four children, the plaintiff being specifically bequeathed Queens Court Farms, the movables and livestock and the interest in the close corporation and company owned by Queens Court Farms.

[5]    The latest will was executed on 5 April 2017, under which the second defendant was bequeathed the deceased’s estate.  If the second defendant was to die within 30 days of the deceased’s death, specific bequests were made to the four children, the plaintiff being again bequeathed Queens Court Farms, the movables and livestock and the interest in the close corporation and company owned by Queens Court Farms.  The residue of the estate was bequeathed to the four children in equal shares.  The second defendant survived the deceased beyond thirty days.

[6]    In his particulars of claim in the action which the plaintiff has instituted, the plaintiff denies that the deceased executed the will of 23 January 2017 alternatively if the court finds that it was so executed, he alleges that at the time it was executed the deceased was of unsound mind to such a degree that he was unable to appreciate the nature or contents of his acts and the nature and import of attesting that will.  He makes the same allegation with regard to the will of 5 April 2017.  He seeks an order declaring the will executed on 5 April 2017 to be null and void, alternatively declaring the will executed on 27 January 2017 to be null and void, and to declare the will executed on 22 August 2016 to be the last will and testament of the deceased.

[7]    The defendants pleaded that the will of 23 January 2017 was revoked by the will of 5 April 2017, and that the deceased was of sound mind and capable of appreciating the nature and effect of his act when both these wills were executed.

[8]    In their notice in terms of rule 35 (3) the documents specified by the defendants were: (i) the contents of the plaintiff’s divorce file; (ii) the medical notes pertaining to the plaintiff for the three years prior to the death of the deceased made by:  Dr Jane Fleischman, Ms Barbara Gerber (a psychologist), and any psychiatrist who treated the plaintiff; and (iii) medical notes and records pertaining to the plaintiff’s visits to and stays at Riverview Manor Specialist Clinic and the notes of one Michael Theron (a clinical psychologist) who consulted with the plaintiff during his stay there.

[9]    In his affidavit in response to the rule 35 (3) notice the plaintiff objected to the production of the documents on the basis that they were not relevant to any triable issue in the action.

[10]   It is appropriate to mention at this stage that the parties reached agreement in the rule 37 minute on certain matters, amongst which was an admission by the defendants “that the court should adjudicate on the merits of the plaintiff’s claim, being a determination of which of the Testator’s wills (dated either the 5^th of April 2017 or the 23^rd of January 2017 or the 23^rd of August 2016) should be accepted as the Testator’s Last Will and Testament”.  The defendants admitted that the findings and opinions in various medical reports were correct.  The minute further recorded that the defendants contended that the deceased was of sound mind and executed valid wills on 5 April 2017 and 23 January 2017.

The application to compel

[11]   In this application the defendants do not pursue the request in respect of the plaintiff’s divorce file.

[12]   The second defendant deposed to the founding affidavit.  After setting out the history, she stated that when the deceased executed the 2017 wills, the deceased was concerned about the plaintiff’s psychological and addiction problems for which he had sought treatment.  This concern, so she stated, played a direct role in the deceased’s decision to change his will so that the farms and related assets were not left to the plaintiff.  In late 2016 or early 2017 when the deceased was terminally ill, the deceased told the second defendant that he felt that the plaintiff would not be able to manage the farm properly because of his psychological condition, his addiction to alcohol and other drugs, including cocaine, and his repeated visits to a rehabilitation centre for treatment.  In the event of the second defendant leaving any assets to the plaintiff, the deceased believed that she would have to place them in a trust in which the plaintiff would be a beneficiary and the trust would be managed and controlled by other persons. 

[13]   The second defendant concluded by saying that the evidence (presumably at the trial) would be that the plaintiff’s condition was directly pertinent to the deceased’s decision to alter his will and is an issue which the court will have to consider in determining whether or not the respondent has discharged the onus on him to prove the grounds on which he seeks to have the 2017 wills declared null and void.  The defendants, so the second defendant stated, contend that there were rational reasons for the deceased to remove the plaintiff as a beneficiary.

[14]   In his answering affidavit the plaintiff described himself as a famer presently residing at Queens Court Farm, which he has occupied for twenty years.  He stated that after service of the summons on the defendants, he was wrongfully dismissed as manager of the farming enterprise, domestic violence interdicts were sought against him and his firearms were confiscated by the police.  He was prohibited from dealing with the staff, and there was a refusal to pay for electricity and wi-fi (it is not clear by whom).

[15]   With regard to the medical notes requested to be made available, the plaintiff said that he suffered psychological problems for about five months during 2013 and 2014.  He denied that he was addicted to cocaine.  He said he never sought and does not have the reports of the various health professionals, and that such reports would be at their respective practices.    The plaintiff pointed out that the issue to be determined at the trial is whether or not the deceased was of sound mind when he executed the 2017 wills.  The plaintiff’s medical condition, so the plaintiff stated, has nothing to do with the triable issue in the pleadings and the issue now raised by the defendants does not appear in the rule 37 minute.  He said that the medical reports which have been accepted as correct concerned the deceased’s mental capacity and whether or not he was able to appreciate his act when he signed the 2017 wills.

[16]   The second defendant deposed to a replying affidavit in which she challenged the period for which the plaintiff said he had sought treatment.  She mentioned instances beyond 2014 when she said the plaintiff was treated at rehabilitation centres, had been treated by Michael Theron and had been diagnosed with depression by a psychiatrist who had prescribed medication.  She said that the plaintiff had admitted to her that he used cocaine.  She denied that the medical reports pertaining to the deceased concerned his capacity to execute a will.

[17]   In response to the plaintiff’s averments that he was not in possession of the documents, the second defendant said that the fact that the documents may be in the possession of third parties was not raised by the plaintiff in his reply to the rule 35 (3) notice.

The Law

[18] Rule 35 (3) provides:

“If any party believes that there are, in addition to documents or tape recordings disclosed as aforesaid, other documents (including copies thereof) or tape recordings which may be relevant to any matter in question in the possession of any party thereto, the former may give notice to the latter requiring him to make the same available for inspection in accordance with subrule (6), or to state on oath within ten days that such documents are not in his possession, in which event he shall state their whereabouts, if known to him.”

[19] In Makate v Vodacom (Pty) Ltd 2014 (1) SA 191 (GSJ) Spilg J said the following at paragraphs [16 – [19]:

“[16] The contents of a discovery affidavit are regarded prima facie to be conclusive with regard to the existence of documents and accordingly a court will be reluctant to go behind the affidavit. See Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others  1999 (2) SA 279 (T) at 317E – G. The courts require a sufficient degree of certainty that the documents exist (see Continental Ore Construction v Highveld Steel & Vanadium Corporation Ltd  1971 (4) SA 589 (W); and Federal Wine and Brandy Co Ltd v Kantor  1958 (4) SA 735 (E) at 749A – B ('a degree of conviction approaching practical certainty'). This is hardly surprising. The consequence of a court order being de facto impossible to implement exposes the offending party to contempt proceedings for not procuring something he did not have in the first place, and exposes the order to ridicule. Accordingly it is necessary to be circumspect before directing production in the face of a denial of a document's existence.

[17] Nonetheless it is also recognised that a party cannot rely on his denial under oath of a document's existence if, for instance, mala fides can be shown (Swissborough at 321E), or the discovery affidavit itself, a document referred to in discovery, the pleadings or an admission evidences the document's existence to the requisite degree (Federal Wine at 749G – H). Similarly, statutory or professional obligations, such as tax legislation or basic accounting requirements, regarding the retention of the records may also suffice if no acceptable explanation is provided for their non-production.

[18] Where mala fides is raised then the principles enunciated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634G apply. It remains open for an applicant 'to seek a referral of the disputes of fact for oral evidence or even trial'. For both propositions see Swissborough at 321E.

[19] The relevancy of a document may also involve determining whether the ambit of the issues in dispute (including the legitimate testing of credibility on a non-collateral issue, or the existence of other pertinent documents) is misconceived by the respondent. In such a case the existence of the document is already established and the enquiry is more concerned with a legal determination of whether the extent of the issues in dispute has been properly comprehended. The consequence is that the respondent's say-so under oath does not necessarily play as dominant a role. (However, compare Marais v Lombard  1958 (4) SA 224 (E) at 227A which holds that the respondent's affidavit remains prima facie conclusive. Marais was mentioned by Joffe J in Swissborough at 317E – F to support the general proposition regarding the conclusive nature of a discovery affidavit.) In any event, it is open for the court to scrutinise the document in order to determine relevance and impose suitable safeguards against unnecessary public disclosure where issues of confidentiality arise.”

[20]   With particular regard to relevance, the following was said in Rellams (Pty) Ltd v James Brown & Hamer 1983 (1) SA 556 (N) at 563H-564B:

“The question remains whether the documents called to be produced are relevant to any matter in the action. The test for determining this, as laid down in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co  (1882) 11 QBD 55, has often been accepted and applied in our Courts. After remarking that it was desirable to give a wide interpretation to the words "a document relating to any matter in question in the action", BRETT LJ stated the principle as follows:

"It seems to me that every document relates to the matter in question in the action which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words 'either directly or indirectly' because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry which may have either of these two consequences."”

[21]   And in Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 316J-317B Joffe J stated:

“The broad meaning ascribed to relevance is circumscribed by the requirement in both subrules (1) and (3) of Rule 35 that the document or tape recording relates to (35(1)) or may be relevant to (35(3)) 'any matter in question'. The 'matter in question' is determined from the pleadings. See in this regard SA Neon Advertising (Pty) Ltd v Claude Neon Lights (SA) Ltd 1968 (3) SA 381 (W) at 385A--C; Schlesinger v Donaldson and Another 1929 WLD 54 at 57, where Greenberg J held

'In order to decide the question of relevancy, the issues raised by the pleadings must be considered . . .',

and Federal Wine and Brandy Co Ltd v Kantor  1958 (4) SA 735 (E) at 753D--G.”

Discussion

[22] Much was made by the defendants of the fact that in his affidavit in response to the rule 35 (3) notice the plaintiff did not state that the requested documents were not in his possession.  As already mentioned, he only objected on the grounds of relevance (which he was entitled to do).  It was only in his answering affidavit in the application that he said that he did not possess the documents.  It was submitted that by objecting to the production of the documents on the basis of relevance, the plaintiff impliedly stated that he was in possession of the documents, had analysed them and considered them to be irrelevant.

[23] I am unable to agree with this submission. It was correctly accepted on behalf of the plaintiff that he could have initially stated that the documents were not in his possession, but nonetheless he had subsequently, on oath in the application to compel, stated that he was not in possession of the documents.  As pointed out on behalf of the plaintiff, the defendants’ response to the plaintiff’s averments that he is not in possession of the documents was merely to rely on the fact that the plaintiff only objected on the basis of relevance in his initial response to the rule 35 (3) notice.  In other words, there was no evidence from the defendants that the plaintiff was in possession of the documents.

[24]   I think it is going too far to infer from the plaintiff’s initial failure to object on the basis that he was not in possession of the documents that he is in fact in possession.  I cannot disregard his evidence on oath that he is not in possession of the documents.  He stated that he did not request them from the various practitioners and that they would be in the possession of those practitioners.  This is not at all an untenable scenario.

[25]   I am consequently of the view that the defendants have failed to establish a “sufficient degree of certainty” that the documents are in the possession of the plaintiff, or that he is mala fide in denying possession.  On this ground alone the application should be dismissed.  However I shall deal with the relevance of the documents sought.

[26]   The issue for decision at trial is whether or not the deceased executed the January 2017 will and whether or not he had testamentary capacity at the time he executed both 2017 wills.  The onus will be on the plaintiff to prove his allegations regarding the execution of the January 2017 will and the deceased’s lack of testamentary capacity.  The defendants’ assertion of relevance is based on their intention to present evidence to the effect that the deceased was concerned about the plaintiff’s psychological condition and addiction to certain substances, and thereby acted rationally when he executed the 2017 wills.  One does not know what evidence the plaintiff intends to present in order to attempt to discharge the onus on him, but if he relies on the fact that the deceased changed his will to the detriment of the plaintiff, then evidence of the reason why the deceased changed his wills will be relevant.  It was submitted on behalf of the defendants that the medical reports would underpin the concerns of the deceased.

[27]   In my view the reports are not relevant.  The defendants’ stated intention is to present evidence that the deceased changed his wills because of his concern about the plaintiff’s condition.  The plaintiff has admitted that at a certain time he had psychological and addiction issues.  Corroboration for his psychological and addiction issues would not be required.  The dispute concerning for how long he received treatment is neither here nor there.  It is not in dispute that the deceased did change his will.  Bearing in mind freedom of testation, if he did so because of his concerns about the plaintiff’s condition, no more information is required.  The deceased would not have had sight of such reports.  His decision, as alleged by the defendants, would have been based on his factual knowledge of the plaintiff’s problems.  The application must therefore fail on this ground as well.

[28]   It was submitted on behalf of the defendants that in the event of the application not succeeding, the plaintiff should nonetheless bear the costs.  Had the plaintiff at the outset stated that he was not in possession of the requested documents, this application, so it was submitted, would not have been brought.  Further, the plaintiff misled the court by suggesting that he had received no psychological treatment beyond 2014.

[29]   My view is that once the plaintiff stated on oath in his answering affidavit that he was not in possession of the documents, the application should not have been pursued further.  It was clear from the replying affidavit that the defendants would not have been able to establish the sufficient degree of certainty that the plaintiff was in possession of the documents, or that he was mala fide in denying possession.  The defendants failed to establish either possession or relevance and I am of the view that they should pay the costs of the application.

[30]   The following order will issue:

The application is dismissed with costs.

______________________

J M ROBERSON

JUDGE OF THE HIGH COURT

Appearances

First to fourth defendants/Applicants:  Adv S H Cole, instructed by Whitesides Attorneys, Makhanda.

Plaintiff/Respondent:  Adv G Brown, instructed by Wheeldon Rushmere & Cole Inc, Makhanda.

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