Centre for Child Law v Hoërskool Fochville and Another

• Jurisdiction: South Africa

Centre for Child Law v Hoërskool Fochville and Another
2016 (2) SA 121 (SCA)

2016 (2) SA p121

Citation	2016 (2) SA 121 (SCA)
Case No	156/2015; [2015] ZASCA 155
Court	Supreme Court of Appeal
Judge	Ponnan JA, Theron JA, Majiedt JA, Mbha JA and Gorven AJA
Heard	September 28, 2015
Judgment	October 8, 2015
Counsel	W Trengove SC (with J Brickhill) for the appellant.; A Kemack SC (with C Dreyer) for the respondents.

Flynote : Sleutelwoorde G

Discovery and inspection — Production of documents — Application to compel H production — Onus in such application — Court's discretion to order production — Proper exercise of — Uniform Rules of Court, rules 30A and 35(12).

Discovery and inspection — Production of documents — Application to compel production of questionnaires — Children completing questionnaires and their representative using these as basis for summary of their views in its affidavit — Uniform Rules of Court, rules 30A and 35(12). I

Headnote : Kopnota

This was an appeal against a High Court decision in an application to compel production of documents. The background to the application was as follows.

A provincial department of education decided that a school should admit certain children. The school and its governing body (the School) instituted J

2016 (2) SA p122

A proceedings to review the decision, and the Centre for Child Law applied to intervene. It represented the children who had been admitted. In its affidavit it summarised the experiences of the children and it stated that the summary was sourced from questionnaires completed by the children.

The School gave notice that it would oppose the Centre's application to intervene, but before filing an answering affidavit, gave the Centre a B Uniform Rule 35(12) notice to produce the questionnaires for inspection. The Centre refused, asserting that the questionnaires were attorney-client communications and privileged.

The School then applied under rule 30A to compel production, which the Centre opposed. Ultimately, though, the High Court ordered the Centre to comply with rule 35(12).

C Sometime thereafter the review proceedings were settled.

Nonetheless, the High Court granted the Centre leave to appeal its rule 30A judgment to the Supreme Court of Appeal (SCA).

The questions considered there were the following:

(1)

Whether the decision the Centre sought would have a 'practical effect or result'. (Section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 allows an D appeal court to dismiss an appeal if its decision would have no such effect.) Held, that it would: it would involve an important issue — the interpretation of rule 35(12) — that would affect future litigants. (Paragraphs [10] and [14] at 128J – 129C and 130H – I.)

(2)

The proper approach to an application under rule 30A to compel production of documents under rule 35(12).

E Rule 35(12) provides that if party A refers in its papers to a document, party B may give it notice to produce the document for B to inspect or copy. If A fails to, A may not use the document.

Rule 30A provides that if a party such as A fails to comply with a rule, its opponent B may give it notice to comply within 10 days. If A fails to heed F the notice, B may apply to a court to compel compliance with the rule. The court presented with the application 'may make such order thereon as to it seems meet'.

The SCA noted that the cases differed on where an onus lay in an application to compel production of documents. It held, without deciding, that it might G be a mistake to approach the matter on the basis of an onus. It might be more appropriate to speak of a burden to adduce evidence.

The SCA also commented on the discretion rule 30A gives a court to make an order that 'seems meet'. It held that the court had to weigh the parties' interests in its exercise. It should moreover not order production of documents that were privileged, irrelevant, or not in a party's possession. H (Paragraph [18] at 133C – E.)

(3)

Whether the High Court, presented with the School's application for production of the children's questionnaires, correctly exercised its discretion in ordering their production. (The effect of ordering production of the questionnaires would be that the identities of the children who had completed them would be revealed.) Held, that it had not. Correctly assessed, the children's I interests in non-production outweighed the School's interests: the School could point to no prejudice if the questionnaires were not produced; but the children might be subject to reprisals if they were. (Plainly this would be contrary to their best interests guaranteed by s 28(2) of the Constitution.) Moreover, the questionnaires were privileged. (Paragraphs [19], [25] – [27] and [29] – [30] at 133F – 134C, 138C – 140B and 140I – 141D.)

J Appeal upheld, and the High Court's order set aside. (Paragraph [30] at 141D.)

2016 (2) SA p123

Cases Considered

Annotations A

Case law

Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) (2000 (10) BCLR 1051): referred to

Clear Enterprises (Pty) Ltd v CSARS [2011] ZASCA 164: referred to

Coch v Lichtenstein NO 1910 AD 178: referred to B

Coin Security Group (Pty) Ltd v SA National Union for Security Officers and Others 2001 (2) SA 872 (SCA) ([2000] ZASCA 48): referred to

Crown Cork & Seal Co Inc and Another v Rheem South Africa (Pty) Ltd and Others 1980 (3) SA 1093 (W): dictum at 1100A applied

Deutsches Altersheim Zu Pretoria v Dohmen and Others [2015] ZASCA 3: referred to C

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and Others 2009 (4) SA 222 (CC) (2009 (2) SACR 130; 2009 (7) BCLR 637; [2009] ZACC 8): applied

Ethekwini Municipality v South African Municipal Workers Union and Others [2013] ZASCA 135: referred to

Executive Officer, Financial Services Board v Dynamic Wealth Ltd and Others D 2012 (1) SA 453 (SCA) ([2012] 1 All SA 135; [2011] ZASCA 193): dictum in para [43] applied

Ex parte Goldman 1960 (1) SA 89 (D): referred to

Federated Trust Ltd v Botha 1978 (3) SA 645 (A): referred to

Gorfinkel v Gross, Hendler & Frank 1987 (3) SA 766 (C): referred to

Governing Body, Hoërskool Fochville and Others v Centre for Child Law E 2014 (6) SA 561 (GJ): reversed on appeal

Hudson v Hudson and Another 1927 AD 259: referred to

Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the Republic of South Africa and Another 2008 (5) SA 31 (CC) (2008 (8) BCLR 771; [2008] ZACC 6): dictum in para [27] applied F

Kenmont School and Another v DM and Others [2013] ZASCA 79: referred to

Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4) SA 506 (SCA) ([2005] 4 All SA 509; [2005] ZASCA 15): dictum in para [7] applied

Legal Aid South Africa v Magidiwana and Others 2015 (2) SA 568 (SCA) G ([2014] 4 All SA 570; [2014] ZASCA 141): referred to

Lubbe v Du Plessis 2001 (4) SA 57 (C): referred to

McCall v McCall 1994 (3) SA 201 (C): referred to

MEC for Education, KwaZulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC) (2008 (2) BCLR 99; [2007] ZACC 21): referred to

Minister of Trade and Industry v Klein NO [2009] 4 All SA 328 (SCA): H referred to

Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 (W): referred to

Natal Rugby Union v Gould 1999 (1) SA 432 (SCA) ([1998] 4 All SA 258; [1998] ZASCA 62): followed

Pillay v Krishna and Another 1946 AD 946: referred to I

Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others 2013 (3) SA 315 (SCA) ([2012] ZASCA 166): dictum in para [5] applied

R v H and Another 2005 (6) SA 535 (C): referred to

Radio Pretoria v Chairman, Independent Communications Authority of South Africa, and Another 2005 (1) SA 47 (SCA): applied J

2016 (2) SA p124

Rand Water Board v Rotek Industries (Pty) Ltd A 2003 (4) SA 58 (SCA): referred to

S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) (2007 (2) SACR 539; 2007 (12) BCLR 1312; [2007] ZACC 18): dictum in para [14] applied

Soller NO v G and Another 2003 (5) SA 430 (W): referred to

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd B 1977 (3) SA 534 (A): referred to

The Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation 2002 (4) SA 273 (SCA) ([2002] ZASCA 18): followed

Unilever plc and Another v Polagric (Pty) Ltd 2001 (2) SA 329 (C): referred to

Universal City Studios v Movie Time C 1983 (4) SA 736 (D): referred to.

Rules Considered

Rules of Court

The Uniform Rules of Court, rules 30A and 35(12): see The Superior Courts Act and the Magistrates' Courts Act and Rules (Juta 2014) at 50 and 57.

Case Information

W Trengove SC D (with J Brickhill) for the appellant.

A Kemack SC (with C Dreyer) for the respondents.

An appeal against a judgment in the Gauteng Local Division, which was reported as Governing Body, Hoërskool Fochville and Others v Centre for Child Law 2014 (6) SA 561 (GJ).

Order E

The appeal succeeds and the order of the court below is set aside and replaced with:

'The application is dismissed.'

Judgment

Ponnan JA (Theron JA, Majiedt JA, Mbha JA and Gorven AJA concurring): F

[1] On 1 December 2011 the respondents in the present appeal, the Governing Body of Hoërskool Fochville, as the first applicant, and Hoërskool Fochville, as the second (collectively referred to as the G School) approached the Gauteng Local Division of the High Court, Johannesburg, for relief in two parts. Under part A an urgent interim order was sought, interdicting what for convenience may be described as the relevant authorities [1] from admitting or directing the principal of the School to admit any additional learners (the additional learners) for the 2012 H...