Arlow v Arlow (21132/05) [2008] ZAGPHC 399 (19 November 2008)

Arlow v Arlow (21132/05) [2008] ZAGPHC 399 (19 November 2008)

The court held that the respondent's objections to discovery were technical and without merit. The respondent, as director and shareholder, has control over the financial statements and ledgers of the companies and trust, and is obliged to discover these documents. The claim of privilege was unsupported and not raised by any entitled party. The trust's financial statements are relevant to the accrual and maintenance issues. The respondent must provide full access to the ledgers and statements, not merely extracts he deems relevant. Regarding bank statements, the respondent must identify all accounts held in his name for the past two years and provide statements, as these are within his...

Citation
[2008] ZAGPHC 399
Parties
Applicant: Magdalena Johanna Jacoba Arlow; Respondent: Dennis Arlow
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
19 November 2008
Case Number
21132/05
Procedural Posture
Urgent Application / Application to Compel Discovery Under Rule 35(7) Prior to Divorce Trial
Outcome
Application granted; respondent ordered to comply with discovery and pay costs.
Judges
Murphy
Legal Topics
Discovery of Documents, Matrimonial Property, Maintenance, Rule 35 Application
Civil Procedure Family and Children Discovery of Documents Matrimonial Property Maintenance Rule 35 Application

Case Brief

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Parties

Magdalena Johanna Jacoba Arlow

Applicant

Dennis Arlow

Respondent

Procedural Posture

Urgent Application / Application to Compel Discovery Under Rule 35(7) Prior to Divorce Trial

Legal Issues

  1. 1 Whether the respondent is obliged to discover and provide the specified financial documents and bank statements under Rule 35(3).
  2. 2 Whether the respondent's objections regarding possession, privilege, and relevance of the documents are valid.
  3. 3 Whether the respondent's conduct in replying to the Rule 35(3) notice warrants a costs order against him.

Ratio Decidendi

The court held that the respondent's objections to discovery were technical and without merit. The respondent, as director and shareholder, has control over the financial statements and ledgers of the companies and trust, and is obliged to discover these documents. The claim of privilege was unsupported and not raised by any entitled party. The trust's financial statements are relevant to the accrual and maintenance issues. The respondent must provide full access to the ledgers and statements, not merely extracts he deems relevant. Regarding bank statements, the respondent must identify all accounts held in his name for the past two years and provide statements, as these are within his...

Court Disposition

Application granted; respondent ordered to comply with discovery and pay costs.

Orders

  • The respondent is ordered to reply to the applicant's Rule 35(3) notice, specifically paragraphs 1, 2, 3, 4, 11, 12, 13 and 29, in accordance with the directions of this judgment within 10 days of this order.
  • The respondent is ordered to pay the costs of this application.