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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)   REPORTABLE: NO

(2)   OF INTEREST TO OTHER JUDGES: NO

(3)   REVISED: YES/NO

Case number: 6488/2020

 

In the matter between:

 

MANKAZANA-MOKOA NOMTHANDAZO                                                          APPLICANT

 

And

 

MOKOA-MANKAZANA MPHO                                                                              DEFENDANT

 

JUDGMENT

PHAHLAMOHLAKA A.J.

 

INTRODUCTION

[1] This is an application to compel discovery in terms of Rule 35(3) of the Uniform Rules of Court. The issue this court is required to determine is whether the production of the Respondent’s Road Accident Fund documents is relevant to the proceedings and fall within the ambit of the divorce proceedings between the parties.

FACTUAL BACKGROUND

[2] The plaintiff instituted divorce action against the defendant inter alia, in the following terms:

2.1  A decree of divorce

 

2.2  Directing that the defendant pays to the plaintiff the sum of R 3000.00 per month for a period of 12 months as rehabilitative maintenance commencing on the 1^st day of the month after the date of divorce.

 

2.3  Directing that each party is liable to pay his/her own debts incurred during the subsistence of the marriage, but not to the detriment of the creditors.

 

2.4 Directing that the household contents are to be divided equally (50%) between the parties

  [3] The Respondent served her discovery affidavit on the 29^th of September 2020. The Applicant was not satisfied with the discovered documents because according to the Applicant the Respondent had not discovered “the substantial funds from the Road Accident Fund Claim”. As a result the Applicant served a notice in terms of Rule 35(3) on the Respondent. Because the Respondent never responded to the Rule 35(3) notice the Applicant now approached this court seeking an order compelling the Respondent to discover. The application is opposed.

THE APPLICABLE LAW

[4] Rule 35(3) provides that if any party believes that there are, in addition to documents or tape recordings disclosed as aforesaid, other documents (including copies) thereof or tape recordings which may be relevant to any matter in question in the possession of any party thereto, the former may give notice to the latter requiring him to make the same available for inspection in accordance with subrule (6), or to state an oath within ten days that such documents are not in his possession, in which event he shall state their whereabouts, if known to him.”

[5] The information requested in terms of Rule 35(3) must be relevant. The issue of relevance was dealt with in the judgment of Rellams Pty Ltd v James Brown and Hammer[1] where it was held as follows; “ After remarking that it was desirable to give a wide interpretation to the words of a document relating to any matter in question in the action, BRED LJ stated the principle as follows:

‘ It seems to me that every document relates to the matter in question in the action which it is reasonable to suppose, contains information which may-not which must-either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.” In endorsing the principle DE VOS J said the following in Onsite Waste Management v Wasteserve Waste Management and Another[2] ” It is obvious to me that the Court will go beyond the discovery affidavit if it satisfied that from the nature of the case or the documents in issue it is necessary to order that all and proper discovery is made.”

[6] Section 18(a) of the Matrimonial Property Act[3] provides that “Notwithstanding the fact that a spouse is married in community of property-

(a) any amount recovered by him or her by way of damages, other than damages for patrimonial loss, by reason of a delict committed against him or her, does not fall into the joint estate but becomes his or her separate property.”

DISCUSSION

[7] The applicant deposed to an affidavit in which she says that it came to her knowledge that the Respondent had received substantial amount of money from the Road Accident Fund and therefore this information should be discovered. However, in the affidavit the Applicant does not say how the information regarding a claim from the Road Accident Fund is relevant to the main action.

[8] In her opposing affidavit the Respondent states that the Road Accident Fund claim, being a claim that is founded in delict, is irrelevant to the issues that will be before court in the main action between the parties. She goes further to say: “my claim against the Road Accident Fund, and such proceeds in respect of the claim, do not become or did not become an asset in the joint estate.”

[9] In order for the Applicant to succeed she must show that the information she is seeking is relevant to the main action between the parties and that the Respondent’s claim against the Road Accident Fund constitutes an asset in the joint estate.

[10] In her particulars of claim the Applicant as the Plaintiff prays that each party retains all other assets currently registered in that party’s name or in that party’s possession. Clearly the Applicant has not shown how the particulars required are relevant to the Particulars of Claim.

[11] Counsel for the Respondent referred me to the judgment of Mazibuko and Another v National Director of Public Prosecutions 2009 (6) SA 479 SCA at 492 at paragraphs 29 and 30 where the following was said: : 29. Although there is not much judicial authority for the above position, there are some considerable support from academic writers that even during the existence of the marriage in community of property, parties can be allowed to keep separate property which does not form part of the joint estate…” and

30. The Matrimonial Property Act has ushered in drastic changes regarding the inviolability of the joint estate.”

[12] I am in agreement with the above quoted passage and it is relevant to the facts in this application.

CONCLUSION

[13] I am therefore of the view that that the Applicant has not shown that the particulars she is seeking are relevant and that the Respondent’s claim against the Road Accident Fund constitutes an asset in the joint estate.

ORDER

[14] Consequently I make the following order:

    14.1 The Application is dismissed with costs.

                                                                         

                                                                            

                                                                           KGANKI PHAHLAMOHLAKA

                                                                           ACTING JUDGE OF THE HIGH COURT

                                                                           GAUTENG DIVISION, PRETORIA

                                                                                         

HEARD ON:                                             10 August 2021

FOR THE PLAINTIFF:                          Adv MF Jooste

INSTRUCTED BY:                                   Lombard and Weyers Inc Attorneys

FOR THE DEFENDANT:                       Mr B Mc Donald (Attorney)

DATE OF JUDGMENT:                          05 November 2021

 

 

 

 

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