Janet Earl's Rule 35 mediation mixup - Carina Bruwer

Views expressed are my own and do not necessarily represent a legal opinion

On 22 September, Leon van Rensburg (second respondent), on behalf of his client Janet Earl (first respondent), filed a Notice of Opposition to my Application for Specific Performance which was lodged earlier in the month.  This was to be expected.  What did manage to shock my legal team (and believe me, they’ve seen it all) was the content of the Rule 35 notice which accompanied the notice to oppose.

A rule 35 notice is used when a party refers to a document in its affidavit but doesn’t attach it, and the other side believe that they need it in order to prepare their response. The other party is obliged by law to provide these documents, and/or provide reasons for being unable to do so.  Usually the request is for one document, sometimes up to five, perhaps ten max.

My application consisted of a 90 page affidavit which was meticulously drawn up by a team of legal experts which included two advocates. Attached to it was +- 300 pages of relevant supplementary information and documents. Everything that is material to the case was attached.  

Van Rensburg & Co, presumably at the behest of Janet Earl, demanded no less than 69 (yes, SIXTY NINE!) documents! Most of these were Earl / van Rensburg’s own documents – this includes letters issued by van Rensburg and even the founding affidavit in their eviction application! The balance consists mostly of documents which were attached to the application – it includes the sale agreement, numerous letters and emails that were clearly referenced and attached, and the ones that weren’t were either immaterial, or they were THEIR documents, or documents that were meant to have been issued (by them) but never were (because of the respondents’ failure to do so).  


This move was clearly intended to try to scupper the process, waste time, frustrate me, and cause me to incur unnecessary costs, and so, I am publishing the Notice of Opposition and Rule 35 Response for all to see.  And my response to this notice, which has been filed at the High Court: Applicant’s response to Rule 35 Notice . We were obliged to make the requested documents available for inspection by the parties for a period of 10 days.  We did so.  Did they come and inspect?  No.  I wonder if the First Respondent is aware that she will be held responsible for these wasted costs… 

Intriguingly, their notice was followed 3 days later, by a request for mediation.  Really?  One day they waste hours of my time and tens of thousands of Rands and the next day they want to mediate?  However difficult it may be to trust their sincerity – and however much I feel that only a High Court judgement will bring me full closure in what has been the most traumatic experience of my life – I indicated a willingness to mediate, because my children deserve a mother who spends more time in the light, rather than one who’s energy is consumed by processing pain into courage.  

What followed was another rollercoaster ride of epic proportions.  We indicated my willingness to mediate, but rejected Van Rensburg’s unilateral approach through which he contacted a mediator with a biased description of the matter, even before proposing mediation to us.  My team requested that the process was approached correctly and that the mediation was scheduled urgently (i.e. the week of 4 October); my attorney proposed 3 mediators for Earl to choose from, shared availability, and he even drafted a mediation agreement. And then, radio silence.  At least 4 of his letters to van Rensburg remained unanswered during this week, and I had to assume that Earl had changed her mind about mediation. 

During the same week, we had demanded a statement of my investment (consisting of a R300k deposit plus R711k in transfer fees) which Leon Van Rensburg holds in his Trust account.  This was also ignored at first, and only when my attorney followed up with a final demand, did Van Rensburg share the statement.  Some deeply concerning revelations came out of this statement, which are now being probed.  I will share more information in this regard when I am able to do so.  

In the mean time, the mediation idea “resurfaced” last week, after our Respondents’ week of silence.  I’m given deadlines to (re)commit to mediation, and I seem to be disallowed to ask any questions or have any conditions with regards to the nature of the mediation.  The opposition keeps implying that I’m unwilling to mediate, despite all our correspondence indicating the contrary.  On Friday 14 October – with mediation arrangements / correspondence being in full force – I receive….. wait for it….  ANOTHER CANCELLATION LETTER.  Yes, by refusing to pay occupational rent (but tendering it into my attorney’s firm’s trust account instead, awaiting the court’s finding regarding any right the seller might claim to it), I again breached a contract that they say don’t exist, and over which there are already two court applications in the High Court system.  Confusing much? I am spinning…  

So, the plot thickens (it’s as thick as a brick by now), the “breaches” pile up (I’m still waiting for my BEACH notice – Cayman Islands please), the costs multiply (I can’t even think of a silly metaphor for that aspect), and… the Respondents have some very important questions to answer about the unauthorised and unexplained handling of my funds in Trust….. 


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