Magistrates' Courts Act, 1944 (Act No. 32 of 1944)RegulationsRules Regulating the Conduct of the Proceedings on the Magistrates' Courts of South Africa23. Discovery of documents |
(1)
| (a) | Any party to any action may require any other party thereto, by notice in writing, to make discovery on oath within 20 days of all documents and tape, electronic, digital or other forms of recordings relating to any matter in question in such action, whether such matter is one arising between the party requiring discovery and the party required to make discovery or not, which are or have at any time been in the possession or control of such other party. |
| (b) | A notice in terms of paragraph (a) shall not, save with the leave of a magistrate, be given before the close of pleadings. |
(2)
| (a) | A party required to make discovery shall within 20 days or within the time stated in any order of a magistrate make discovery of such documents on affidavit similar to Form 13 of Annexure 1, specifying separately — |
| (i) | such documents and tape, electronic, digital or other forms of recordings in his or her possession or that of his or her agent other than the documents and tape recordings mentioned in paragraph (b); |
| (ii) | such documents and tape, electronic, digital or other forms of recordings in respect of which he or she has a valid objection to produce; and |
| (iii) | such documents and tape, electronic, digital or other forms of recordings which he or she or his or her agent had but no longer has in his or her possession at the date of the affidavit. |
| (b) | A document shall be deemed to be sufficiently specified if it is described as being one of a bundle of documents of a specified nature, which have been initialled and consecutively numbered by the deponent. |
| (c) | Statements of witnesses taken for purposes of the proceedings, communications between attorney and client and between attorney and advocate, pleadings, affidavits and notices in the action shall be omitted from the schedules. |
| (3) | If any party believes that there are, in addition to documents or tape, electronic, digital or other forms of recordings disclosed in terms of this rule, other documents, including copies thereof, or tape, electronic, digital or other forms of recordings which may be relevant to any party thereto, the former may give notice to the latter requiring him or her to make the same available for inspection in accordance with subrule (6), or to state an oath within 10 days that such documents are not in his or her possession, in which event he or she shall state their whereabouts, if known to him or her. |
| (4) | A document or tape, electronic, digital or other forms of recording not disclosed as requested in terms of this rule may not, save with the leave of the court granted on such terms as to it may seem meet, be used for any purpose at the trial by the party who was obliged but failed to disclose it, provided that any other party may use such document or tape, electronic, digital or other forms of recording. |
(5)
| (a) | Where the Road Accident Fund as defined in the Road Accident Fund Act, 1996 (Act No. 56 of 1996), is a party to any action by virtue of the provisions of that Act, any party thereto may obtain discovery in the manner provided in paragraph (d) against the driver or owner, as defined in that Act, of that vehicle. |
| (b) | Paragraph (a) shall apply mutatis mutandis to the driver of a vehicle owned by a person, state, government or body of persons referred to in the Road Accident Fund Act, 1996. |
| (c) | Where the plaintiff sues as a cessionary, the defendant shall mutatis mutandis have the same rights under this rule against the cedent. |
| (d) | A party requiring discovery in terms of paragraph (a), (b), or (c) shall do so by notice similar to Form 14 of Annexure 1. |
(6)
| (a) | Any party may at any time by notice similar to Form 15 of Annexure 1 require any party who has made discovery to make available for inspection any document or tape, electronic, digital or other form of recording disclosed in terms of subrules (2) and (3). |
| (b) | A notice provided for in paragraph (a) shall require the party to whom notice is given to deliver to him or her within 5 days a notice similar to Form 15A of Annexure 1, stating a time within 5 days from the delivery of such latter notice when the document or tape, electronic, digital or other form of recording may be inspected at the office of his or her attorney or, if he or she is not represented by an attorney, at some convenient place mentioned in the notice, or in the case of bankers' books or other books of account or books in constant use for the purposes of any trade, business or undertaking, at their usual place of custody. |
(7)
| (a) | A party receiving a notice similar to Form 15A of Annexure 1 mentioned in subrule (6)(b) shall be entitled at the time therein stated, and for a period of 5 days thereafter during normal business hours and on any one or more of such days, to inspect such document or tape, electronic, digital or other form of recording and to take copies or transcriptions thereof. |
| (b) | A party's failure to produce any such document or tape, electronic, digital or other form of recording required for inspection shall preclude him or her from using it at the trial, save where the court on good cause shown allows otherwise. |
| (8) | If any party fails to give discovery as aforesaid or, having been served with a notice under subrule (6)(a), omits to give notice of a time for inspection as provided for in subrule 6(b) or fails to give inspection as required by that subrule, the party desiring discovery or inspection may apply to a court, which may order compliance with this rule and, failing such compliance, may dismiss the claim or strike out the defence. |
| (9) | Any party to an action may after the close of pleadings give notice to any other party to specify in writing particulars of dates and parties of or to any document or tape, electronic, digital or other form of recording intended to be used at the trial of the action on behalf of the party to whom notice is given, and the party receiving such notice shall not less than 15 days before the date of trial deliver a notice— |
| (a) | specifying the dates of and parties to and the general nature of any such document or tape, electronic, digital or other form of recording which is in his or her possession; or |
| (b) | specifying such particulars as he or she may have to identify any such document or tape, electronic, digital or other form of recording not in his or her possession, at the same time furnishing the name and address of the person in whose possession such document or tape, electronic, digital or other form of recording is. |
| (10) |
| (a) | Any party proposing to prove any document or tape, electronic, digital or other form of recording at a trial may give notice to any other party requiring him or her within 10 days after the receipt of such notice to admit that such document or tape, electronic, digital or other form of recording was properly executed and is what it purports to be. |
| (b) | If a party receiving a notice under paragraph (a) does not within the said period admit as required, then as against such party the party giving the notice shall be entitled to produce the document or tape, electronic, digital or other form of recording specified at the trial without proof other than proof, if it is disputed, that the document or tape, electronic, digital or other form of recording is the document or tape, electronic, digital or other form of recording referred to in the notice and that the notice was duly given. |
| (c) | If a party receiving a notice under paragraph (a) states that the document or tape, electronic, digital or other form of recording is not admitted as required, it shall be proved by the party giving the notice before he or she is entitled to use it at the trial, but the party not admitting it may be ordered to pay the costs of its proof. |
(11)
| (a) | Any party may give to any other party who has made discovery of a document or tape, electronic, digital or other form of recording notice to produce at the hearing the original of such document or tape, electronic, digital or other form of recording, not being a privileged document or tape, electronic, digital or other form of recording, in such party's possession. |
| (b) | A notice under paragraph (a) shall be given not less than 5 days before the hearing but may, if the court so allows, be given during the course of the hearing. |
| (c) | If any notice under paragraph (a) is so given, the party giving the same may require the party to whom notice is given to produce the said document or tape, electronic, digital or other form of recording in court and shall be entitled, without calling any witness, to hand in the said document or object, which shall be receivable in evidence to the same extent as if it had been produced in evidence by the party to whom notice is given. |
| (12) | The court may, during the course of any proceeding, order the production by any party thereto under oath of such document or recording in his or her power or control relating to any matter in question in such proceeding as the court may deem fit, and the court may deal with such document or tape, electronic, digital or other form of recording, when produced, as it deems fit. |
(13)
| (a) | Any party to any proceeding may at any time before the hearing thereof deliver a notice similar to Form 15B of Annexure 1 to any other party in whose pleadings or affidavits reference is made to any document or tape, electronic, digital or other form of recording to produce such document or tape, electronic, digital or other form of recording for his or her inspection and to permit him or her to make a copy or transcription thereof. |
| (b) | Any party failing to comply with a notice under paragraph (a) shall not, save with the leave of the court, use the relevant document or tape, electronic, digital or other form of recording in such proceeding provided that any other party may use such document or tape, electronic, digital or other form of recording. |
| (14) | The provisions of this rule relating to discovery shall mutatis mutandis apply, in so far as the court may direct, to applications. |
| (15) | After appearance to defend has been delivered, any party to any action may, for purposes of pleading, require any other party to make available for inspection within 5 days a clearly specified document or tape, electronic, digital or other form of recording in his or her possession which is relevant to a reasonably anticipated issue in the action and to allow a copy or transcription to be made thereof. |
| (16) | For purposes of this rule a tape recording includes a sound track, film, magnetic tape, record or any other material on which visual images, sound or other information can be recorded. |