The judgment of South Africa’s Supreme Court of Appeal (“the SCA”), the second highest court in the land, in DA & Others v Mkhwebane & Another has generated much heat, some commentators accusing that court of requiring South Africa’s beleaguered Public Protector to prove the negative, namely, that an accusation made by the main opposition party, the Democratic Alliance (“the DA”) during a media statement in 2016 that she was on the payroll of the country’s State Security Agency was untrue.
The accusation is unfair to the court. It is also uninformed. But in light of a series of court judgments that seem, at face value, to favour a cohort of identifiable litigants above others, it is not difficult to understand why some people may feel the way they do about this judgment. Examples of such judgments is a topic for another day.
For now, I wish to explain why in my view the criticism of the court is uninformed and unfair.
It is not always safe to embark on an analysis of a judgment without having read the pleadings and heads of argument filed on behalf of all parties. This is because some judges (in my experience of more than 24 years of practising in South Africa’s higher courts) are prone to leave out of the judgment (or ignore) arguments, submissions and factual allegations either out of convenience or because they subjectively consider them to be irrelevant or unpersuasive, and so not worthy even of being mentioned in a judgment. The result tends to be an understanding by the reader of the case that is tailored by the judge’s impression of the case, and not the case as pleaded by the parties.
So, in this assessment of the SCA’s judgment, I make allowance for the fact that I have not read the pleadings and the heads of argument filed by the parties, and put my trust entirely in the court’s fair exposition of the case as pleaded. At face value, the SCA appears to have done a fairly good job at laying out the issues that it was called upon to decide, and the main submissions of the parties on those issues.
What was the case about?
The first thing that one must, of necessity, understand before criticising a judgment is: What was the case about? What were the issues that the court had to decide? Without that understanding, the commentator is already on a fool’s errand.
The SCA tells us in paragraph 23 of the judgment that this case was about whether rule 35(12) of the High Court rules has properly been called in aid by the DA. The case was not about whether the DA had evidence of the conduct of which it accused the Public Protector. It was not about whether the Public Protector was a spy or on the payroll of the State Security Agency. It was simply about whether the procedural step taken by the DA in its endeavour to resist the Public Protector’s defamation claim in the main proceedings in the Western Cape High Court (which are still pending) was validly taken by the DA. The SCA answered that question in the affirmative.
What the reader needs to understand are the reasons the SCA provided for that conclusion. That conclusion is informed (as are all judgments in opposed motion proceedings) by the facts on which both parties are agreed (or facts alleged by the Public Protector which the DA cannot deny) in the pleadings (not heads of argument or submissions by counsel from the Bar) and by the application of the law by the court to those facts in relation only to how rule 35(12) of the High Court rules works. So, what are the undisputed facts?
The undisputed facts in brief
On 6 September 2016, a member of the DA (Breytenbach) acting in her representative capacity, gave a media briefing in which she announced why the DA would not support the nomination of Adv Mkhwebane for the position of Public Protector. In her statement she said many things that Adv Mkhwebane characterised as defamatory and intended and understood by members of the public to convey:
- that she was a spy of the State Security Agency at the time of her nomination and would remain such subsequent to her appointment at the office of the Public Protector
- that she was on the payroll of the State Security Agency while she was employed as an immigration officer in China
- that she was to be treated with suspicion as she continued to be on a payroll of the State Security Agency, and not independent as she was intricately connected to the former State President who was allegedly abusing the State Security Agency
- that her appointment would lead to the “state capture” of the office of the public protector by the former State President
- that she was not honest and had no integrity in that while she was deployed by the Department of Home Affairs to China, she was also on the payroll of the State Security Agency
- that she had no integrity and honesty as it is expected from an Advocate and a person applying for the Public Protector’s post, as she did not fully disclose material information about her past employment by the State Security Agency while in China to the Committee, the National Assembly and the State President
- that she acted dishonestly by failing to disclose to her employer that she received remuneration from other state departments while in gainful employment of the Department of Home Affairs
- that the information that she was a “spy” came from reliable sources and therefore was unquestionable.
Adv Mkhwebane was adamant that she had been deployed by the Department of Home Affairs to the Beijing Foreign Office during the period 7 September 2009 to 31 May 2014 in connection with Home Affairs related matters, and was during that period not employed by nor connected to the State Security Agency.
She pointed out, in her founding affidavit in the defamation proceedings against the DA, that she was appointed by the State Security Agency as an Analyst: Domestic Branch, at P3 level only on 11 May 2016. She attached a copy of her Appointment Letter as annexure “PPSA 5”. This annexure bore the letterhead of the State Security Agency, was addressed to Adv Mkhwebane, appeared to be from the office of the General Manager: Human Resources at the State Security Agency, detailed the salary package offered to her and requested her to confirm her acceptance of the offer as per attached appendix A.
Following the making of the defamatory statements which were published and widely circulated in the media, Adv Mkhwebane’s legal representatives wrote to the DA, demanding a retraction. The DA refused to accede to the demand, asserting not only that the statements complained of were true, but also that they constituted fair comment and their publication in the public interest.
In her affidavit in the defamation application, Adv Mkhwebane referred to a media interview of 2 February 2017, during which Ms Breytenbach allegedly stated that she was not bothered in the least by the threat of legal action because the statements complained of would not have been made if the DA did not have proof to substantiate them.
The DA’s refusal to accede to the demand for the retraction triggered the launching of the defamation application Adv Mkhwebane in October 2017 in the Western Cape High Court. She sought a retraction and an apology and did not seek any claim for monetary compensation, stating that her main objective was to vindicate her right to integrity and her right to her reputation as well as to ensure confidence in the office of the Public Protector.
On 10 November 2017 the DA filed a notice of intention to oppose the defamation application.
On 1 December 2017, before filing its answering affidavit, the DA filed a notice in terms of rule 35(12), seeking the production by Adv Mkhwebane of seven documents to which it considered it was, in terms of the rule, entitled.
Adv Mkhwebane (the Public Protector) produced five of the seven documents. but refused to produce
- her application for the post of Analyst: Domestic Branch DB01 in the State Security Agency, and
- the confirmation of her acceptance of the offer as per appendix A
The DA application to compel production of documents
When Adv Mkhwebane baulked at producing these two documents, the DA launched an application to compel their production in terms of another rule of the High Court: rule 30A.
Rule 30A reads as follows:
“(1) Where a party fails to comply with these rules or with a request made or notice given pursuant thereto, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days, to apply for an order that such rule, notice or request be complied with or that the claim or defence be struck out.
(2) Failing compliance within 10 days, application may on notice be made to the court and the court may make such order thereon as to it seems to meet.”
The basis for this application was that the contentions by Adv Mkhwebane, in her affidavit, concerned the time during which she was employed by the Department of Home Affairs in China and the date on which she was appointed to her post as analyst in the State Security Agency and her attachment of annexure ‘PPSA5’ as her letter of appointment. The annexure, in turn, alludes, in its opening line, to her application for the position and requires an acceptance form to be completed and returned. It was her application that the DA sought as well as an assumed completed acceptance form (appendix A), presaged in the annexure. It was envisaged that these documents would reveal precisely when Adv Mkhwebane had been in the employ of the State Security Agency – from May 2016 as she asserts, or during the period 7 September 2009 to 31 May 2014 as the DA suspects.
Rule 35(12) reads as follows:
“Any party to any proceeding may at any time before the hearing thereof deliver a notice … 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 a 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.” (my emphasis)
In simple terms, the rule affords the DA the right to demand that Adv Mkhwebane produce a document to which she refers in her defamation application against the DA. The DA submitted that the documents were indeed referred to in Adv Mkhwebane’s application, as annexure ‘PPSA5’ and ‘appendix A’, within the contemplation of rule 35(12). Rule 30A is a procedural step aimed at compelling her to produce the documents, failing which her defamation claim could be struck out. That means, her defamation case could be thrown out of court until she produces the documents sought. This is perfectly permissible in terms of rule 30A read together with rule 35(12) of the High Court rules. It is not reserved for certain litigants. But there are limitations which are discussed below.
The DA accepted that relevance was the touchstone for success in a rule 30A application to compel the production of documents sought in terms of rule 35(12). It contended that the documents sought were directly relevant to the question of whether Adv Mkhwebane was a spy at the material times claimed in its statements about which Adv Mkhwebane had complained.
In my view, this is hardly the enquiry. The enquiry is, rather, as case authorities have shown, is whether the document is relevant in the sense that it may assist the DA in mounting its defence to the defamation claim. That defence could be anything from fair comment to truth and publication of the offending statement being in the public interest for someone applying for the Public Protector position, a creature of the Constitution. The DA need not prove that Adv Mkhwebane was indeed a spy, and that it needs the document in order to prove that allegation. That line of enquiry is irrelevant in the assessment of whether or not the document in question must be produced under rule 35(12). Of relevance is whether the document, judging by the context in which reference is made to it in Adv Mkhwebane’s papers (including annexures), could shore up the DA’s defence in the defamation claim when the DA finally decides what its defence will be.
In this regard it is important to understand that the production of a document under rule 35(12) is usually sought before the other party has even pleaded. The idea is to cover all bases and not limit one’s defence to what may already be publicly known. This is not say the DA is entitled to a fishing expedition. The context in which reference is made in Adv Mkhwebane’s papers to the document determines the scope for which production of the document may be required. That scope must be clearly pleaded as it is upon a consideration of such pleading in a rule 30A application that the court would be able to assess the relevance of the document to the DA’s defence in the main application.
From a careful reading of the judgment – without the aid of the pleadings – it seems to me that the true basis for the DA’s application to compel the production of the documents in question is the timing of Adv Mkhwebane’s employment at the State Security Agency as that seems, on her own version, to be a contentious issue.
The Public Protector’s defence
In resisting production of the documents sought, Adv Mkhwebane adopted the position that her application for the post of Analyst at the State Security Agency was not referred to at all in her affidavit in the defamation application. She was also adamant that she had not referred to a completed letter of acceptance. She insisted that the DA was on a fishing expedition which is not a permissible purpose for which one may invoke rule 35(12).
Although it was communicated on behalf of Adv Mkhwebane in the High Court, both in heads of argument and in correspondence, that the documents sought in the rule 30A application to compel were not in her possession but were in the hands of the State Security Agency, she did not (according to the SCA) say so on affidavit either in the High Court or in the SCA. If this is an accurate exposition of the facts, then this was a costly mistake for Adv Mkhwebane because a plea that the documents sought are not in the possession of the party called upon to produce it is ordinarily a good defence to a rule 30A application to compel.
But, not having read the pleadings in this case, it is difficult to make a definitive factual finding in this regard. I find it difficult to believe that such a rudimentary and costly mistake could have been committed in a case with stakes so high given the hostility that the DA has shown towards Adv Mkhwebane from the very beginning of the process for the appointment of a new Public Protector in 2016 until now.
The High Court finding
In adjudicating the rule 30A application to compel, the High Court took the view that neither of the documents sought were referred to or relied on by Adv Mkhwebane as contemplated in rule 35(12). The court did, however, go on to state the following:
“They were both referred to in and are ancillary to annexure ‘PPSA5’.”
After an examination of case law, the High Court concluded as follows:
“ [Ms Mkhwebane] did not refer to the requested documents in her founding affidavit, which documents are, in my view, irrelevant to the proceedings at this stage. Even if the documents were relevant, the sanction for the [DA] is encompassed in the relevant rule, and that is, [Ms Mkhwebane] would not be able to use the documents, without leave of the court, in terms of rule 35(12).
 In light of the authorities considered above, I am of the view that the reference made to documents in an annexure to [Ms Mkhwebane’s] founding affidavit, did not constitute “reference” as envisaged for purposes of Rule 35(12). I am also not persuaded of the relevance of the requested documents, especially in the context of [Ms Mkhwebane’s] claim that she does not rely on the documents referred to in an annexure to her founding affidavit, which she claimed to be irrelevant to her claim, and the [DA’s] claim that such allegations would not have been made, “if [it] did not have evidence”, and that the publication of the statement “was true and in the public interest”.
 To the extent that the [DA] alleged that [Ms Mkhwebane] was and is a spy, is [sic] not at all borne out by the letter of appointment. Nor can [her] acceptance of the letter of appointment cast any light on the allegations allegedly made by the [DA]. Both these ancillary documents are, in the context of this specific matter, and in my view, entirely irrelevant.”
The DA’s appeal was directed against these conclusions and the resultant orders that it retracts and apologise.
In my view, the High Court’s reasoning in paragraph  seems to miss the point that the sting of the failure to produce the documents sought lies not so much in rule 35(12) as in rule 30A. After all, the High Court was called upon to decide an application to compel production of the documents. That application was brought in terms of rule 30A, not rule 35(12) which in any event makes no provision for the bringing of an application. The sting is that failure to produce the document may result in the defamation claim being struck out. So, it is not to rule 35(12) that one looks for remedy but to rule 30A.
The reasoning in paragraph  seems a misdirection in law. The enquiry in these matters is usually not whether or not the claimant relies on the document in question for her claim, or whether or not the respondent had indicated that it had all the evidence it needed to back up its wounding statements about the claimant. So, the fact that Adv Mkhwebane says “she does not rely on the documents”, or that the DA said in an interview that it would not have made the wounding statements about Adv Mkhwebane “if [it] did not have evidence” to back them up, is irrelevant. The proper enquiry is whether the documents are relevant to the DA’s defence against the defamation claim.
The reasoning in paragraph  seems misconceived. The issue, it seems to me, is not whether or not the contents of the letter of appointment prove Adv Mkhwebane was a spy during the relevant period. It is rather whether she was in the employ of the State Security Agency during that period. In any event, unless the learned judge had seen the letter, he could not authoritatively say that the letter does not show that Adv Mkhwebane was a spy.
The SCA reasoning
The SCA meticulously trawled the archives in order to explain the legal position as regards the appropriate application of rule 35(12). In fact, it did more than was necessary in my view. That is why the criticism of the judgment as seeking to have Adv Mkhwebane prove the DA’s claim for it is, in my view, unfair and uninformed. People should read the judgment for themselves here –> DA & Others v Mkhwebane & Another.
As the SCA says, citing authority, the purpose of discovery, of which rule 35(12) forms part, is to ensure that before trial both parties are made aware of all the documentary evidence that is available. Discovery ranks with cross-examination as one of the mightiest engines for the exposure of the truth. The legal position is this:
“[A] Defendant or respondent does not have to wait until the pleadings have been closed or his opposing affidavits have been delivered before exercising his rights under Rule 35 (12): he may do so at any time before the hearing of the matter. It follows that he may do so before disclosing what his defence is, or even before he knows what his defence, if any, is going to be. He is entitled to have the documents produced “for the specific purpose of considering his position”.”
The SCA sums up the general principles broadly as follows, on occasion citing reported judgments with approval:
- While rule 35(12) appears to indicate that where there is a mere reference to a document or tape recording in an opponent’s pleadings or affidavits a defendant or respondent is entitled to call for its production and may compel compliance, that is not how our courts approach an application to compel the production of documents sought in terms of rule 35(12). In other words, the mere mentioning of a document does not entitle the other party to its production
- If a wife seeking an interdict to prevent a husband from assaulting her were to allege that he assaulted her shortly after she had read the evening newspaper, there being no relevance alleged of the paper, one could hardly imagine that her husband, the respondent, would be entitled to production of that newspaper
- The first step in the adjudication process is to consider whether ‘reference’ is made to a document or tape recording
- 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 proceedings is actually founded, on the one hand, and documents which possess merely evidentiary value, on the other
- Direct or indirect reference to a document will suffice, subject to relevance
- What will not pass muster is where there is no direct, indirect or descriptive reference but where it is sought through a process of extended reasoning or inference to deduce that the document may or does exist
- Supposition is not enough
- It would be absurd to suggest that the rule should be so construed that reference to a document would compel its production despite the fact that the document has no relevance to any of the issues in the case
- Where there is reference by a party to a document in a pleading or affidavit there is prima facie an obligation on that party to produce it for inspection if called upon to do so, subject to certain limitations, namely, if the document is not in that party’s possession and he or she cannot produce it, or where the document is privileged or where it is irrelevant
- Reliance on a document by the party from whom the document or tape recording is sought is a primary indicator of relevance. Given the purpose of rule 35(12) it cannot, however, be the sole indicator. The document in question might not be relied on by the party from which it is sought but might be material in relation to the issues that might arise or to a defence that is available to the party seeking production
- A person defending a defamation claim on the grounds of truth and public benefit or fair comment is entitled, after the launching of proceedings, to gather further evidence to support those defences and to use the rules of court for that purpose, including the rules relating to the discovery and production of documents
- As regards the compellability of documents that are not specifically mentioned in affidavits, but which are referred to in annexures to the affidavits, an annexure to a pleading or an affidavit is as much part of the pleading or affidavit as the body itself. Many references to documents in annexures to pleadings are probably irrelevant to the proceedings and would for that reason not have to be produced; but it does not follow that the rule does not apply to documents to which reference is made in annexures.
The SCA then distinguished the recent judgment of Justice Cachalia in Contango Trading SA and Others v Central Energy Fund SOC Ltd and Others  ZASCA 191; 2020 (3) SA 58 (SCA) as obiter (that is, an observation made in a judgment in passing and which does not form part of the basis for the judgment and orders made). In Contango, Justice Cachalia stated that a reference for purposes of rule 35(12) has to be a reference in pleadings and affidavits and not in annexures. But the basis for that judgment was that the applicants had sought the production of “a general category of documents”and not a specific document. Justice Cachalia refused the application, pointing out that “[a]n order of that kind would perforce include within its scope irrelevant documents and confidential communications that the respondents are properly entitled to withhold. In other words, it would have to include every bit of paper generated during the process. That is not what the subrule envisages.”
Quite right, with respect. But that is not what seems to have happened in this case between the DA and Adv Mkhwebane.
The SCA then summed up the legal position as follows:
“To sum up: It appears to me to be clear that documents in respect of which there is a direct or indirect reference in an affidavit or its annexures that are relevant, and which are not privileged, and are in the possession of that party, must be produced. Relevance is assessed in relation to rule 35(12), not on the basis of issues that have crystallised, as they would have, had pleadings closed or all the affidavits been filed, but rather on the basis of aspects or issues that might arise in relation to what has thus far been stated in the pleadings or affidavits and possible grounds of opposition or defences that might be raised and, on the basis that they will better enable the party seeking production to assess his or her position and that they might assist in asserting such a defence or defences. In the present case we are dealing with defamatory statements and defences such as truth and public interest or fair comment that might be raised. The question to be addressed is whether the documents sought might have evidentiary value and might assist the [DA] in [its] defence to the relief claimed in the main case. Supposition or speculation about the existence of documents or tape recordings to compel production will not suffice. … The wording of rule 35(12) is clear in relation to its application. Where there has been reference to a document within the meaning of that expression in an affidavit, and it is relevant, it must be produced.”
The SCA then turned to the facts of this case and it is important to read this part of the judgment in full as it neatly sums up the court’s reasoning with particular reference to the facts:
“In the present case it is clear that the timeline in relation to the period of employment of [Adv] Mkhwebane by the SSA, or her connection to it, is material to each party’s case. Precisely when she took up her employment or whether she had any connection to the SSA while employed by the Department of Home Affairs, especially when she was deployed by the latter to China, is essential in relation to the issues that suggest themselves at this stage. That much is clear from the statements complained of and her own affidavit in the main case, in terms of which she complained about the statements by the [DA] and what they were intended to convey. The importance of the timeline in relation to her employment by or connection to the SSA is given impetus by what she sets out in [her founding affidavit]. Annexure ‘PPSA5’ was clearly intended by her to show that her letter of appointment supports her denial of the statements made by the [DA] and to prove that her appointment by and her connection with the SSA only commenced well after her return from China. It was material to her claim for a retraction.
‘PPSA5’, in the context of … [Adv] Mkhwebane’s affidavit, appears to have been intended to convey that an application for a position as Analyst at the SSA was made some time after her return from Beijing to South Africa to continue as Director: Refugee Affairs at the Department of Home Affairs. It can safely be said that [Adv] Mkhwebane relied on the letter of appointment and its material terms in relation to when her employment and connection to the SSA commenced. That application for the post is referred to at the commencement of ‘PPSA5’. There could hardly have been an appointment to the SSA without such an application. … To my mind there is, within the meaning of that expression in rule 35(12), a clear ‘reference’ to [Adv] Mkhwebane’s application for appointment as an Analyst in annexure ‘PPSA5’, which it will be recalled contained her occupational band, and the terms of her remuneration.
[Adv] Mkhwebane’s application for appointment is relevant in that it is bound to contain details of her employment history, including those relative to the time when she was deployed to China. As stated above, the timeline is critical. In my view that document should be produced by [Adv] Mkhwebane. The court below erred in concluding that there was no reference to the application for appointment to the post of Analyst and that it was irrelevant. It misapplied the cases referred to. It does not behove [Adv Mkhwebane] to say that [she] need not have referred to her application for the post of Analyst. She did refer to it and relied on it in the principal case. It was lost on her and her legal representatives that she appears by that statement to have admitted a reference to the document sought.
At this stage there is no affidavit before us informing us that she is not in possession of the document. Such an affidavit if it had been lodged may have been dispositive, in favour of [Adv Mkhwebane]. The court below rightly had no regard to the statements in the heads of argument or from the bar on this aspect.”
I am unable to fault this reasoning.
In my view, the reasoning of the SCA in this case is sound. That is not to discount the fact that another court, differently constituted, might not reach a different conclusion by reasoning that is just as sound. Our challenge as ordinary citizens invested, to varying degrees, in the outcome of certain cases, is to assess each judgment based on the reasoning and not on the outcome.
There is nothing wrong with criticising the reasoning in a judgment. Legal scholars and students have been doing it for many years. Law journals are full of critical analyses of court judgments. This is good for the development of sound jurisprudence. What is not good, and damaging to the rule of law fabric, is wholesale attack on the judiciary (or individual judges) based only on the result of a court case on the strength of little more than an artificial media report cobbled up in double-quick time to meet a publication deadline and sell newspapers or airtime to advertisers.
Let us all guard against making the judiciary (and individual judges) the bane of our frustration with the justice system.