Litigation Publications

OBJECT OF DISCOVERY
The object of discovery is to ensure that before trial both parties are made aware of all the documentary evidence that is available. By this means the issues are narrowed and the debate of points which are indisputable is eliminated.

WHAT DOES DISCOVERY ALLOW?
Discovery requires the opponent to specify on oath the documentation in its possession or under its control which relate to the action. Discovery in the High Court also requires one to specify which documents were in one's possession or control but which are no longer so.

Discovery also allows for the inspection and copying of documents.

IMPORTANCE OF DISCOVERY
Discovery is a vital part of litigation for the following reasons:

- As a general rule, a document may not be used in evidence at trial unless it has been set out in the schedule(s) of the discovery affidavit. Such a document may only be used in exceptional circumstances and with leave of the court.

- Failure to discover may result in judgement being given against the defaulting party in the main action.

- Documents, which may harm a litigant's case, must be ascertained as soon as possible to limit any damage that may be caused.

- Discovery to a large extent reduces the 'surprise' element.

- The list of documents supplied by the opposition may be of help either in supporting the litigant's case or in destroying the opposition's allegations.

DOCUMENTS THAT NEED NOT BE 'DISCOVERED'
Privileged documents need not be 'discovered' in that one may refuse the opposition permission to inspect such documents. Privileged documents must still be listed in the schedule(s). The grounds for privilege are as follows:

- Privilege against self incrimination
- Marital Privilege
- Without prejudice settlements
- Legal - Professional privilege
- Matters of National Security

DOES ONE HAVE TO ASK FOR DISCOVERY?
No, however failure to ask for discovery may result in a disorderly presentation of one's case and the court may show its disapproval with an adverse costs order.

PROCEDURAL ASPECTS
The procedure in respect of discovery in the High Court and the Magistrate's Court is very similar. Discovery in the High Court is regulated by Rule 35 and in the Magistrate's Court by Rule 23.

HIGH COURT (R35)

When?
Close of Pleadings or earlier with leave from the court.

Reply
20 court days after receipt of request to discover.

Which documents?
- Documents and tape recordings in one's possession.

- Privileged documents (however, such documents need not be made available for inspection).

- Documents and tape recordings that were in one's possession but which are no longer so.

How?
Verified by affidavit to which two schedules are annexed.

- The first schedule contains a list of the documents in one's possession as well as a list of privileged documents.
- The second schedule contains a list of documents no longer in one's possession.

MAGISTRATE'S COURT (R23)

When?
Close of pleadings, but at least 15 court days before trial.

Reply
10 court days after receipt of request to discover.

Which documents?
Documents in ones possession or control which relates to the action and are intended for use in the action or which tend to prove or disprove either party's case.

How?
Verified by affidavit to which a schedule consisting of two parts is annexed.

- Part 1 - Part 1 is a list of all the documents that tend to prove or disprove either party's case.

- Part 2 - Part 2 is a list of all privileged documents.

COST ORDERS

PURPOSE OF COST ORDERS
The purpose of an award of costs is to indemnify a successful party who has incurred expenses in instituting or defending an action.

DIFFERENT TYPES OF COST ORDERS
Costs fall into one of two categories, namely Party and Party and Attorney and Client costs.

Party and Party costs do not include all costs, but only costs that have been necessarily and properly incurred.

Attorney and Client costs are further sub-divided as follows:
- Where one's client is to pay them, the costs are known as attorney and own client costs

- Where the losing party in litigation is to pay, such costs mean all reasonable costs incurred on behalf of the client, although not strictly necessary. These costs are taxed according to the tariffs, but generous leeway is given.

SPECIFIC TYPES OF COST ORDERS

- Costs de bonis propriis
Awarded against person acting in a representative capacity. Such costs are a penalty for improper conduct and the representing person must pay out of his own pocket.

- Wasted costs
Costs are wasted when the services occasioned by them are of no use to the parties in the action, e.g. subpoenas, notice of set down.

- Reserved costs
These costs are reserved for argument and determination by a trial court when the trial court can more effectively determine liability for costs of an interim application.

Caveat: Settlement Agreements - ensure costs have been 'unreserved'. Failure to do so will result in the reserved costs not being included in the settlement agreement.

- Costs in the cause
Party liable for costs in the main action will then also be liable for costs of an interim application.

- Costs here and below
Order made by court of appeal when awarding costs to the party whom has won both in the court of first instance and the court of appeal.

- Qualifying expenses
These are the expenses necessarily incurred by a witness who has to qualify himself to give evidence upon same matter, e.g. investigations, experiments, research.

AWARD OF COSTS IN COURTS DISCRETION
Rules for court's guidance:
- General rule is that the successful party is entitled to his costs.

- Where a successful application is made for the grant of an indulgence the general rule is that costs do not follow the event.

- In determining the successful party, the court should not only look at the form, but also the substance of the judgement, e.g. inflated claims, partial success
- The court can for good reason deprive a party of his costs, in whole or in part, e.g. excessive demands, taking unnecessary steps, vexatious proceedings, technical success only
- The court can, for good reason, order the successful party to pay all or part of the other parties costs, e.g. misleading statements.

- The court can, in special circumstances, order one party to pay the costs of the opponent on an attorney and client scale, e.g. dishonesty, fraud, grave misconduct.

- The court may order the unsuccessful party, suing or being sued, to pay costs de bonis propriis, e.g. material departure of responsibility of office.

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