Properly utilized, it is likely to remove the element of surprise, improve the accuracy of the trial (and in the process weed out frivolous disputes), increase the number of settled cases, and possibly lower the costs of the litigation. By the same token, litigants must be slow to use this fact gathering tool for purposes beyond what it is designed for and embark on fishing expeditions for documents. Simply stated, discovery abuse. This was precisely what was brought to bare by the Supreme Court of Appeal (“SCA”) in Democratic Alliance and Others v Mkhwebane and Another in relation to Rule 35(12), where the SCA considered an appeal in a Rule 30A interlocutory application, compelling the production of documents requested under Rule 35(12). Having done so, the SCA has affirmed and made clear the true ambit of the Rule, which is by all means crucial to any litigant moving forward.
The matter stems from an application brought by the respondents seeking an order directing the appellants to retract certain defamatory statements made at a press conference. In opposing the main application, and prior to the appellants filing an answering affidavit, the appellants delivered a notice in terms of Rule 35(12) which read 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.”
The appellants called for a total of seven documents referred to in the affidavit as well as its annexures. Five of the seven documents called for were disclosed, with two documents being refused. This refusal, to disclose two documents, brought about the Rule 30A interlocutory application, compelling the disclosure thereof.
The SCA approached the matter by determining the following issues, namely:
- whether the production of documents referred to in pleadings or affidavits in terms of Rule 35(12) includes reference to documents in annexures; and
- the relevance of documents sought.
Firstly, in relation to reference of documents made in annexures, the SCA commenced with a comparison of the rules pertaining to discovery against Rule 35(12) and held that the Rule is clearly different to the rules of discovery which apply, in conventional terms, after the close of pleadings or the filing of affidavits. On the other hand, the SCA continued, affirming that Rule 35(12) is employed to compel the production of documents before the close of pleadings or the filing of affidavits. Moreover, the purpose of which, is to entitle a party to the production of documents in order for such party to consider its position. It is for this reason, as recognized by the SCA, that Rule 35(12) is framed in wide terms and is not restricted, as in the case of rules applicable to conventional discovery. Following this, the SCA had regard to the interpretation of ‘reference’ made in the Rule, where prima facie it appeared to the SCA that mere reference to a document or tape recording entitles one to call for its production and compel compliance.
With this approach, it was held that direct or indirect reference to a document is sufficient for purposes of Rule 35(12), subject to relevance. What will in fact not be sufficient is where a party seeks documents by drawing an inference to substantiate whether or not the document sought exists. Mere supposition of a document does not suffice. Moreover, by extension, in relation to annexures, it was accepted that nothing in the rule suggests that the production of documents would not apply to documents referenced in annexures. It is on this basis that the SCA held documents referenced in annexures to the pleadings or affidavits includes documents referenced in annexures, subject to relevance.
On the question of relevance, the SCA accepted from previous authorities that the documents called for had to be relevant to issues between the parties to the matter. The lack of relevance would justify a limitation to the Rule and rightly be denied production.
The difficulty however, is where the line should be drawn as to what is relevant and what is not. In this regard, the SCA again had regard to the purpose of Rule 35(12) in terms of which documents may be called for at any time before the hearing of the matter and need not be bound until pleadings have closed as the purpose of the Rule is aimed at enabling one to consider one’s position regardless of whether a defence is known or not at that stage. With this context, the SCA held that reliance on a document by a party is a good indicator of the document’s relevance, however it is not the only indicator as to whether the document is relevant in light of the purpose of Rule 35(12). A document may not be relevant to the party to which it is sought from, but may be relevant and material to the party requesting its production as it may relate to issues of the requesting party’s defence or may be relevant to issues that might arise given that the requesting party, in employing Rule 35(12), is entitled to consider its position and arrive at a defence.
The dictum of the SCA brings an entire new dynamic to the Rule. If there was any uncertainty as to whether documents referred to in annexures attached to the pleadings or affidavits fall within the ambit of the Rule, the SCA has now made it undoubtedly clear that, absence privilege or possession, such documents must be produced, even in documents referred to in annexures.
The only caveat is relevance. However, whilst relevance is limited to the issues to the matter, it is not assessed on such issues that have already been crystallised, but rather on issues or aspects that may arise from what is canvassed in the pleadings or affidavits as well as any defences or grounds of opposition that may be available or arise to a party in order for such party to better assess its position and assist in asserting its opposition to the matter.
The decision of the SCA undeniably draws new boundaries insofar as Rule 35(12) is concerned, and litigants should be wary of its extent – regardless of whether a litigant is requesting documents or providing documents under a Rule 35(12).
This article is authored by Rakhee Bhoora, Roy Hsiao and Kedibone Seroka.
