Your browser does not support JavaScript! Consequences for Failure to Discover during Divorce - Divorce, Family and Commercial Law Attorneys

Consequences for Failure to Discover during Divorce

HOME / Consequences for Failure to Discover during Divorce

Consequences for Failure to Discover during Divorce

Case Name

M v M


[2014] ZAGPJHC 295

Court Where the Case Was Heard

South Gauteng High Court, Johannesburg

Date Of Judgment

31 October 2014

Introduction to the Matter

The case of M v M is an appeal instituted by the Appellant (hereinafter referred to as “the Plaintiff”), against the judgment in favour of the Respondent (hereafter referred to as the Defendant) and order of the Regional Magistrate, in dismissing the appellant’s application for better and further discovery in terms of Rule 23(8) of the Magistrates’ Courts Rules.

Overview Of the Matter at Hand

The Plaintiff initiated the discovery process using Rule 23(1) of the Magistrates’ Court Act, seeking relevant documents from the Defendant for the equitable division of joint estate in their pending divorce.

Despite initial production, the Plaintiff sought better discovery under Rule 23(3) due to dissatisfaction with the documents provided.

The Defendant failed to comply.

Subsequently, the Plaintiff invoked Rule 23(8) for court intervention, but the application was denied.

The Plaintiff appealed the decision.

Legal Issues Raised in The Case

Whether the interlocutory order by the court a quo to refuse to compel the Defendant to discovery is appealable.

If the Plaintiff is entitled to request discovery from the Defendant for the production and inspection of documents required for the proper and equitable distribution of assets of joint estate in pending divorce.

Relevance To Divorce and Family Law

In a pending divorce proceeding, both parties are obligated to disclose and share relevant documents with each other. This commitment to discovery ensures fairness and contributes to achieving a just resolution in the case.

Applicable Legislation

Rule 23(1) of the Magistrates Court Act

This is when a party to the action requires the other party to produce documents.

Rule 23(3) of the Magistrates Courts Rule.

If the other party is dissatisfied with the documents produced, then proceeds to give notice to the other requesting additional documents.

Rule 23(6) of the Magistrate’s Courts Rule.

All documents produced must be made available for inspection.

Rule 23(8) of the Magistrate’s Courts Rule.

Failure to produce entitles the other party requesting the documents to approach the court to compel.

Uniform Rules 35(3)

Should the other party be dissatisfied with the documents produce, then may give notice for additional tat are relevant to the action.

Uniform Rules 35(6)

In requesting discovery from the other party, then the former is to produce for inspection, should they fail then they are precluded from using it at trial.

Uniform Rule 35(7)

If the party fails to discover after service of the notice, then, the other party may approach the court to make an order to compel discovery.

Section 9 of the Divorce Act

This penalises the party who caused substantial misconduct to the other party during their subsistence of their marriage.

Summary Of the Relevant Legislation

The Rule 23(3), (6), and (8) of the Magistrates Court Rules, the purpose of these Acts is to compel the other party to produce documents for inspection to gather the necessary documentary evidence relevant to the action.

Explanation Of How the Legislation Applies to The Case

Either party in a legal action has the right to initiate the discovery process under Rule 23(1) of the Magistrate Courts Act.

This process involves one party requesting the other to disclose relevant documents for the case. If the documents provided are deemed insufficient, the requesting party can employ Rule 23(3) to demand additional pertinent documents. Failure by a party to produce the required documents can prompt the requesting party to approach the court for an order compelling discovery.

If the court orders the non-compliant party to produce documents and they still fail to do so, it won’t harm the requesting party’s position.

However, the court may penalise the non-compliant party by dismissing their claim or defence and by instructing them to cover the costs incurred.

Comparison To Other Relevant Legislation

The Uniform Rules 35(3), (6), and (7) are similar in nature to the above-mentioned statutes but are different in form as the former operates in Magistrates Court and the latter High Court. It still requires parties to an action to discovery documents which are relevant to the action.

Background and Facts of the Matter

In a divorce case, the Plaintiff and Defendant disagree regarding the division of their joint estate. The marriage was in community of property, and they have two minor children.

The Plaintiff aims to obtain specific financial documents from the Defendant to ensure an equitable distribution of assets. Not content with the initial documents supplied by the Defendant, the Plaintiff utilizes Rule 23(8) to request enhanced discovery.

The Defendant, on the other hand, asserts that the documents are already in the Plaintiff’s possession.

Detailed Description of The Facts Leading Up To The Case

In a divorce action, the Plaintiff and Defendant disagreed about financial documents.

The Plaintiff sought certain financial records from the Defendant but wasn’t satisfied with her response. Using Rule 23(8), the Plaintiff requested better discovery.

The Defendant claimed the Plaintiff already had the documents. The trial court rejected the Plaintiff’s request, leading to his appeal.

Chronological Order of Events

The Parties got married on 21st June 2001 at Alberton.

Two Minor Children were born of the marriage.

The Plaintiff instituted divorce proceedings against the Defendant.

In March 2014 the Plaintiff served a notice of Discovery on the Defendant.

In April 2014 the Defendant made discovery.

The Learned Magistrate dismissed the application on 3rd July 2014

The date of hearing of the appeal was 20th October 2014

Date of judgment 31st October 2014

Relationship Between the Parties

The parties were married on 21st June 2001 and two children were born of the marriage.

Issues to be Determined.

Whether the interlocutory order was appealable?

Is the Plaintiff is entitled to discovery of documents pertinent to the divorce action?

Primary Legal Questions Raised in The Case

Is the court’s dismissal of the Discovery Application appealable?

Explanation Of the Significance of Each Issue

The court faced the question of whether the interlocutory order made during the pending divorce proceedings was appealable. This required the court to assess if the initial decision was incorrect and could affect the parties’ rights.

The court also considered whether the requested discovery was relevant to the case and ensured fairness and justice.

How The Issues Relate to Divorce and Family Law in South Africa

Discovery is a crucial aspect of legal proceedings, compelling both parties to reveal documents. This transparency fosters fairness and justice by ensuring compliance with the duty to provide pertinent information in the action.

Legal Arguments Presented

Since the parties were married in community of property, and the Defendant claim for forfeiture of the common home and Plaintiffs claim to the Defendants pension.

The Plaintiff requested documents by way of discovery from the Defendant, to determine equitable and just determination of the total value of the joint estate in the divorce.

The Defendant only argument was that the documents sought by the Plaintiff which were relevant to the divorce action not in her possession as it was stolen by the Plaintiff while they were in the process of divorce.

Summary Of the Arguments Made by Both Parties

  1. The Plaintiff argued that he required further and better discovery of documents that may assist in defending against the Defendants counterclaim seeking forfeiture and determining the total value of the liabilities of the joint estate.
  2. The Defendant argued that the documents sought after by the Plaintiff were not in her possession due to theft by the Plaintiff.

Evaluation Of the Strength and Weaknesses of Each Argument

The Plaintiff provided prima facie evidence to the court to compel the Defendant to discover the documents pertinent to the divorce proceedings regarding defending the Defendants claim for forfeiture of the common home and her pension fund.

The weakness of the Defendant’s argument was that she did not have the in her possession, and failed to provide, a bona fide defence to persuade the court that such documents were not pertinent to the divorce action.

Discussion Of Precedents and Other Relevant Case Law

The relevant case law are as follows:

Santam Ltd and Others v Segal 2010 (2) SA 160 (N), The court discussed the appealability of orders related to better discovery, noting that recent approaches prioritize the appropriateness of correction before proceedings conclude.

It highlighted the balance between promptly correcting decisions and avoiding excessive appeals that could hinder justice. The court emphasized that traditional criteria for appealability are not exhaustive and can be flexible.

The court referred to the case of Invictus Holdings (Pty) Ltd v AdvTech Ltd and Others  [2009] JOL 24145 (GSJ) para 4, highlighting how it discussed the factors affecting the appealability of interlocutory orders and the evolving approach to such appeals.

These cases formed the basis for the court’s analysis of whether the order under consideration could be appealed.

Court’s Decision and Order

The interlocutory order made by the court a quo was appealable and that plaintiff was entitled to compel discovery the documents sought were relevant to the action.

The court ordered:

That the appeal was successful and set aside the order made by the court a quo.

The Defendant to discovery to the Plaintiff the documents referred to in Annexure “A”.

That should the Defendant fail to discover, then the Plaintiff approach the court a quo for an order to strike the Defendants defence to the Plaintiff claim with costs.

The Defendant was ordered to pay costs for the appeal.

Summary Of the Court’s Ruling

The appeal was successful, resulting in the Defendant being directed to provide the pertinent documents concerning the divorce proceedings and being held liable for the costs of the appeal.

Explanation Of the Reasoning Behind The Decision

The court ruled that the Plaintiff had no alternative but to demand discovery to safeguard his rights for a fair division of the joint estate in the divorce. Preventing this would be unjust.

The Order Made by The Court

  1. The appeal succeeds.
  2. The order of the court a quois hereby set aside and replaced with the following order.
  3. “The defendant is ordered to make discovery to the plaintiff of all the documents listed in Annexure “A” of his notice to compel, and in terms of Rules 23(3), and 23(6) and 23(8) of the Rules of the Magistrates’ Courts Rules.  This order shall be complied with within fifteen (15) days of this judgment.
  4. Failing compliance with order number three (3) above, the plaintiff is hereby granted leave to apply to this Court (Palmridge Regional Court), on the same papers (duly amplified as necessary), for an order striking out the Defendant’s defence to the Plaintiff’s claim with costs.”
  5. The Respondent is ordered to pay the costs of this appeal.

Implications for Divorce and Family Law

The court will order the other party to discover documents that are pertinent to the action, if it considers that such documents are relevant. The party has a prima facie case and there is no bona fide defence to persuade it to refuse the application.

Analysis Of the Impact of The Case on Divorce and Family Law in South Africa

The court can order the production of requested documents for discovery if it deems them relevant to the case, ensuring fairness, justice, and transparency. Such documents must be provided to facilitate the conclusion of the legal action.

Lessons To Be Learned from The Case for Potential Clients

Clients should be informed that their legal case might involve a discovery process, necessitating the submission of all pertinent documents.

Failure to provide sufficient documents requires a valid defence to convince the court.

Otherwise, the court is likely to mandate discovery, resulting in costs, further burdening an already expensive matter.

Recommendations For Individuals Facing Similar Situations.

Engage in the discovery process transparently; misleading the court can lead to striking your defence and cost orders against you.

Judges and Legal Teams

Judge: D S S Mosidi

Acting Judge: P Kenndy

Legal Teams for the Appellant


Legal Team for Respondent

Buthelezi Attorneys

Book a Consultation

    Send me a copy