IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: 25253/2009

and

CASE NUMBER: 25234/2009

and

JUDGMENT DELIVERED ON 18 MARCH 2010

OLIVIER AJ:
1.	These are two liquidation applications which raise the same question and which can conveniently be considered together.
2.	On 9 December 2009 the applicant commenced liquidation proceedings against XCD Props (Pty) Ltd. On the same date the applicant also commenced liquidation proceedings against GR & RJ Properties (Pty) Ltd.
3.	The applications were enrolled for 26 January 2010 on which date Schippers AJ, by agreement between the parties, postponed the applications for hearing on 16 February 2010, and ordered the respondents to file their opposing affidavits, if any, by 5 February 2010, and the applicant to file its replying affidavits by 12 February 2010.

(b)	The mortgage bond which gave rise the respondent's indebtedness, referred to in paragraph 4.2 of the founding affidavit; and
(c)	

10.	On behalf of the respondents it was argued that Rule 35(12) applies and that the respondents were entitled to demand those documents Mr du Buisson had referred to in his affidavit(s) as follows

"Any party to any proceeding 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."

"TAKE NOTICE that the plaintiff (or defendant) requires you to produce for his inspection the following documents referred to in your ... (declaration or plea, or affidavit). (Describe documents required)."

15.	Rule 35(12) of the Uniform Rules of Court had as predecessors the similar Transvaal Rule 53, Cape Rule 31(4), Orange Free State Rule 53, and Natal Order of Court 14 Rule 1.

"An essential is, of course, a reference by the opponent, in his pleading or affidavit, to the documents whereof such production is required, but the terms of the rule do not require a detailed or, descriptive reference to such documents nor is any distinction made between documents upon which the action or other proceeding is actually founded and documents possessing merely evidentiary value."

'In my opinion the ordinary grammatical meaning of the words is clear: once you make reference to the document, you must produce it. Even more is it so in this case where the implication in paras 19.4 and 19.6 is that, if the NTC had called for and looked at the financial statements of Operations, it might well have come to a different conclusion. It is significant that, while in Rule 35(1), the notice calling for discovery, it is said that discovery must be made of documents "relating to any matter in question in such action", in Rule 35(12) there is no such, nor indeed any other, qualification. I am consequently of opinion that, having made reference to the financial statements, Operations is obliged to produce them for inspection.'

'Applicant's desire that second respondent should first have to file his affidavit in response to the allegations made by Roberts as to what second respondent said to him during the telephone conversations which were recorded on the tape before being allowed to listen to the tape is understandable as a forensic strategy, but to gratify it would be to defeat the object of Rule 35(12). That Rule plainly entitles a litigant to see the whole of a document or tape recording and not just the portion of it upon which his adversary in the litigation has chosen to rely. That entitlement, unlike the entitlement to general discovery for which Rule 35(1) provides, does not arise only after the close of pleadings in a trial action, or after both answering and replying affidavits have been filed in motion proceedings: it arises as soon as reference is made in the pleading or affidavit to a document or tape recording. It is inherent in that that a litigant cannot ordinarily be told to draft and file his own pleadings or affidavits before he will be given an opportunity to inspect and copy, or transcribe, a document or tape recording referred to in his adversary's pleading or affidavits.'

26.	In the premises the respondents were entitled to demand inspection of these documents before filing their answering affidavits.
27.	Accordingly I make the following order:

b)	The respondents are to file their answering affidavit by not later than 8 April 2010.
c)	The applicant is to file its replying affidavits by not later than 15 April 2010.
(d)	The applications are postponed to 28 April 2010 on the third division roll.
(e)	Costs are to stand over for later determination.