"Discovery Affidavit" which is high court rule "Rule 35" and the southern divorce court rule is "Rule 26" – making relevant documents available for inspection prior to trial commencement. The aim being to shorten the trial period.
In divorce cases after the notice calling on the other side to discover is served, sometimes not all the documentation is discovered. The one attorney then has the right to serve a further pleading on the other side referred to as an “annexure to Rule 35(3) notice” wherein they list other documentation already discovered.
In one of my cases, discovery had already taken place. It was alleged that not all relevant documentation had been discovered. An annexure to the Rule 35(3) notice was served calling on the husband to produce certain additional documentation. There was a family trust of his family in this particular case and the husband was asked for copies of all or any drawings from that trust as well as from certain other entities, one being a close corporation.
Other documents which he was asked to make available included for example all IRP certificates issued in respect of him personally from 1 March 2008 to date of reply. He was also asked for copies of all loan account ledgers, loan agreements and communication in respect of any loans held by him in respect of that family trust as well as certain other entities.
Once that client has provided his/her attorney with all of the required documentation, that attorney drafts a so-called “Plaintiff’s reply to defendant’s notice in terms of Rule 35(6)”. In this pleading, the husband (plaintiff in this case) would in an affidavit respond to the notice served calling for further documentation. A “schedule” would sometimes be added to the annexure, listing the items which that party has in his possession. Each item would be listed as well as whether that party has an original or copy of that document. Item 1 may for example indicate tax returns for the period of 1 March 2008 – 28 February 2013.
After the reply to the notice in terms of Rule 35(6) has been served by the plaintiff’s attorney, the next pleading to be drafted and served would be one in which the plaintiff’s attorney gives the other side notice of dates and times when the documentation may be inspected by the other side. This notice must be served on the other side in terms of the court rules.
In this notice the drafter would for example state “Be pleased to take notice that the Defendant may have access to the documentation requested in the above notice from 28 October 2013 to 14 November 2013 between 09h00 in the morning and 16h00 in the afternoon”. The heading of this document would be “Answer to Rule 35(6) Notice”.
The abovementioned pleading would be short and concise and usually only consist of a single paragraph, that being the one mentioned above. This document would take the form of a normal court pleading with the plaintiff and defendant cited in the heading with the case number, and the names and addresses of the attorneys on the bottom right hand corner of the page under the paragraph above. The date and place of signature would need to be inserted between the clause in the above paragraph and the names and addresses of the legal representatives.
As a measure of courtesy, the one attorney would contact the other attorney first to find out which dates would suit them. There would no doubt be no point in drafting a notice with dates and times which do not suit the other side. The pleading with the dates and times does not necessarily have to state where the documentation can be inspected. This is because inspection would no doubt take place at the offices of that firm which is offering the inspection.
The high court and the regional court have different ways of doing things. In a regional court divorce case the attorneys would usually informally agree on a date and time for access to the documentation. The high court is however a lot stricter in the way it works and would require the formal notice to be served.
It is important for attorneys to know and understand the court rules backwards, particularly those relating to discovery, which is a big part of the whole procedure. The aim of the rule is no doubt to shorten the whole divorce procedure, so that both parties have perused and inspected whatever documentation the other side may use at the trial. The aim is to shorten the trial so that a postponement cannot be sought due to certain documentation not having been perused by the time the trial commences.
Divorce - duty to disclose financials
Signing of pleadings and summons
Southern Divorce Court (Cape Town)