By Mzuvukile Sirenya and Carl van Rooyen

Rule 35(12) of the Uniform Rules stands alone from the other discovery provisions under r 35 in that the wording does not require that the document concerned must be one ‘relating to any matter in question’, as required in r 35(1), or that it must be ‘relevant to any matter in question’, as stated in r 35(3), nor is there a provision similar to r 35(2)(c), which provides for a ‘valid objection to produce’. The only requirement on the face of it is that reference should be made to a document or tape recording in the opposing party’s pleadings or affidavit. The result of which allows a party to a proceeding, any time before the hearing, on delivery of a notice to inspect and make copies of such documents.

The wording of r 35(12) resulted in the cases dealing with compliance with r 35(12) not being harmonious. However, it would seem that the Supreme Court of Appeal (SCA) in the case of Centre for Child Law v Hoërskool Fochville and Another 2016 (2) SA 121 (SCA) has approved the approach followed by the court a quo. That approach being:

• Confidentiality of a document per se is not a valid objection to a r 35(12) request for discovery.
• Rule 35(12) should not be literally interpreted and despite the absence of wording indicating that relevance or privilege could form a basis for objecting to discovery, only relevant documents should be subjected to discovery in terms of the rule and privilege could be a valid objection to a request for discovery under the rule.
• The burden to adduce evidence to show that a document is not relevant or privileged is on the party who raises the objection. This burden, however, should not be confused with an onus. The court has a general discretion in terms of which it is required to strike a balance between the conflicting interests of the parties to a case. In the exercise of this discretion a court will decide whether a document is irrelevant or privileged.

It is against this backdrop that deponents to affidavits should be mindful of the potential trap imbedded in r 35(12). Many affidavits are drafted with the standard phrases such as: ‘Certain facts are taken from those parts of the properly kept continuous records of the applicant that are under my supervision and control to which I have access’ coupled sometimes with: ‘Except to the extent that the records are specifically referred to in these proceedings, they are irrelevant’. These phrases are included in affidavits containing some financial and other types of information that the deponent extracted from the records of a company. The first phrase is included normally for two reasons, namely –

• in an attempt to get around the hearsay rule; and
• because the deponent regards the records as confidential as he or she does not want to attach the actual records to the affidavit.

The second phrase is included probably in an attempt to limit discovery if so requested.

The courts have consistently ruled, see for example, Unilever PLC and Another v Polagric (Pty) Ltd 2001 (2) SA 329 at (c), that ‘records’ are documents as contemplated in r 35(12). It follows, therefore, that a reference to ‘properly kept continuous records’ is a reference to documents and the opposing party can ask for discovery of those records in terms of r 35(12).

Rule 35(12) creates a prima facie obligation on a party served with a r 35(12) notice to discover the records. If there is an objection to the r 35(12) notice the party objecting has the burden to adduce evidence that the documents are not relevant or are privileged. ‘Records’, in the context of the phrases referred to, will not be privileged but relevance could form the basis of an objection to discovery. A litigant, raising relevance as an objection in the context of the standard phrases referred to, faces a somewhat uphill battle. The reason for this is that financial information in an affidavit has been extracted from records and consequently, therefore, the records pertaining to the financial information will probably always be relevant.

Litigants often attempt to use confidentiality as justification not to discover under r 35(12). Confidentiality requires a value judgement between the public interest in discovery and the interest in protecting confidentiality (see Riddick v Thames Board Mills Ltd [1977] 3 All ER 677). However, the courts have made it clear that a party is not to be denied
r 35 (12) relief merely because the party from whom the documents are requested require protection (see Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 (W)).

In the Constitutional Court, Moseneke DCJ, in 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) at para 27 pointed out that, often there will be times where a claim of confidentiality is sought over information being called to be discovered, other considerations of fairness may arise. It is the right to a fair trial, enshrined in the Bill of Rights, which underpins the discovery procedure which may, as Moseneke DCJ pointed out, arise when confidentiality is claimed.

The courts may impose suitable conditions under which inspection may take place while still affording the party seeking inspection a reasonable opportunity of achieving its purpose (see the Moulded Components matter). It, therefore, follows that confidentiality is not per se a bar to discovery under r 35(12).

In summary, draftspersons of affidavits should be wary of using precedents containing standard phrases that might result in a party being forced to disclose documents that it might have regarded as confidential and/or irrelevant.

Mzuvukile Sirenya LLB (NMMU) is a candidate attorney and Carl van Rooyen BIur LLB (NWU) is an attorney at Spoor & Fisher in Pretoria.

This article was first published in De Rebus in 2017 (Jan/Feb) DR 22.