A.J v J.J and Others (4366/2016) [2020] ZAWCHC 63 (24 June 2020)

A.J v J.J and Others (4366/2016) [2020] ZAWCHC 63 (24 June 2020)

The court held that the phrase 'in his/her power or control' in Rule 35(11) refers to documents physically in a party's possession or to which the party has a legally enforceable right of access. The ability to obtain documents without such a right does not create a legal obligation to disclose. The first respondent, as trustee or director, is obliged to produce documents relating to the trusts and entities where he holds such positions, provided he has the legal right to access them. Where the first respondent's responses were inadequate or failed to definitively ascertain the existence of documents, he is directed to produce them under oath or state under oath that no such documents...

Citation
[2020] ZAWCHC 63
Parties
Applicant: A J; Respondent: J J; Respondent: J J N.O.; Respondent: Christel Sadler N.O.; Respondent: The Master of the High Court, Western Cape Division; Respondent: L C Abelheim Limited
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 June 2020
Case Number
4366/2016
Procedural Posture
Interlocutory Application / Application for Production of Documents Under Rule 35(11) Pending Divorce Trial
Outcome
Application granted in part; first respondent directed to produce specified documents under oath within 20 court days; costs reserved for trial court.
Judges
Slingers
Legal Topics
Discovery of Documents, Trusts in Divorce, Rule 35 Application, Section 7 Divorce Act, Offshore Assets, Legal Control of Documents
Civil Procedure Family and Children Discovery of Documents Trusts in Divorce Rule 35 Application Section 7 Divorce Act Offshore Assets Legal Control of Documents

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Parties

A J

Applicant

J J

Respondent

J J N.O.

Respondent

Christel Sadler N.O.

Respondent

The Master of the High Court, Western Cape Division

Respondent

L C Abelheim Limited

Respondent

Procedural Posture

Interlocutory Application / Application for Production of Documents Under Rule 35(11) Pending Divorce Trial

Legal Issues

  1. 1 Whether the first respondent is obliged to produce documents under Rule 35(11) relating to offshore accounts, trusts, and entities.
  2. 2 Whether the requested documents are in the power or control of the first respondent for purposes of discovery.
  3. 3 Whether the applicant is entitled to discovery of documents held by trusts and entities where the first respondent is a trustee or director.

Ratio Decidendi

The court held that the phrase 'in his/her power or control' in Rule 35(11) refers to documents physically in a party's possession or to which the party has a legally enforceable right of access. The ability to obtain documents without such a right does not create a legal obligation to disclose. The first respondent, as trustee or director, is obliged to produce documents relating to the trusts and entities where he holds such positions, provided he has the legal right to access them. Where the first respondent's responses were inadequate or failed to definitively ascertain the existence of documents, he is directed to produce them under oath or state under oath that no such documents...

Court Disposition

Application granted in part; first respondent directed to produce specified documents under oath within 20 court days; costs reserved for trial court.

Orders

  • The first respondent is directed to produce, under oath, statements in respect of offshore banking and investment accounts held by him, the Tafika Trust, Piorex (Pty) Limited, Domestly, and K2 Design Group Inc for the period 1 January 2011 or the date of opening of such account or investment, until date of reply, or...
  • The first respondent is directed to produce, under oath, documentation submitted by him, the Tafika Trust, or the entities to the South African Reserve Bank, Financial Services Department, or South African Revenue Service in respect of any foreign exchange transactions during the period 1 January 2011 to date of...