V.A.V v T.L.V (DIV90/2013) [2015] ZANWHC 83 (17 September 2015)

V.A.V v T.L.V (DIV90/2013) [2015] ZANWHC 83 (17 September 2015)

The court held that only documents originating after litis contestatio (19 June 2013) are relevant to the divorce action, given that the parties are married out of community of property and without the accrual system. The applicant failed to establish the relevance of documents predating litis contestatio. Furthermore, the affidavit in support of the Rule 35(3) application should have been deposed to by the applicant herself, not her attorney, as no special circumstances justified the attorney's involvement. The respondent's concession to provide documents from 19 June 2013 onwards was accepted as reasonable and in the interests of justice.

Citation
[2015] ZANWHC 83
Parties
Applicant: V. V. A.; Respondent: V. T. L.
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
17 September 2015
Case Number
DIV90/2013
Procedural Posture
Civil Application / Application to Compel Discovery in Divorce Proceedings
Outcome
Application to compel discovery granted in part; respondent ordered to provide documents originating after 19 June 2013 or state under oath their whereabouts if not in possession. Costs to be costs in the divorce action.
Judges
R D Hendricks
Legal Topics
Discovery Procedure, Divorce Action, Relevance of Documents, Rule 35 Application
Civil Procedure Family and Children Discovery Procedure Divorce Action Relevance of Documents Rule 35 Application

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

V. V. A.

Applicant

V. T. L.

Respondent

Procedural Posture

Civil Application / Application to Compel Discovery in Divorce Proceedings

Legal Issues

  1. 1 Whether the respondent must make available for inspection documents listed in Annexure LS3 originating before and after litis contestatio.
  2. 2 Whether an attorney may depose to an affidavit in support of a Rule 35(3) application instead of the litigant.
  3. 3 Whether the requested documents are relevant to the issues in the divorce action.

Ratio Decidendi

The court held that only documents originating after litis contestatio (19 June 2013) are relevant to the divorce action, given that the parties are married out of community of property and without the accrual system. The applicant failed to establish the relevance of documents predating litis contestatio. Furthermore, the affidavit in support of the Rule 35(3) application should have been deposed to by the applicant herself, not her attorney, as no special circumstances justified the attorney's involvement. The respondent's concession to provide documents from 19 June 2013 onwards was accepted as reasonable and in the interests of justice.

Court Disposition

Application to compel discovery granted in part; respondent ordered to provide documents originating after 19 June 2013 or state under oath their whereabouts if not in possession. Costs to be costs in the divorce action.

Orders

  • The respondent is directed to make available for inspection those documents listed in Annexure LS3 to the application brought in terms of Rule 35(7) which originated after 19 June 2013 within ten days from the date of this order.
  • Alternatively, the respondent is required to state under oath within ten days from the date of this order that the documents referred to above are not in his possession, stating their whereabouts if known.