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Law of civil Procedure
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Civil Procedure B Test 21. What is the purpose of discovery of documents in the action process (3)
The purpose of discovery is to enable all the parties to properly prepare their
cases with regard to the presentation of documentary evidence.1 All the
parties are thereby safeguarded against being surprised at trial which may
well result in unnecessary delays, postponements or costs.
2. During the pre-trial stage any of the parties can file a discovery notice
upon his/her opponent. Discuss the possible sanctions in respect to a
failure to discover. (7)
HCR 35 contains a number of possible sanctions in respect to a failure to
discover or for a defective discovery and these are:
a) A failure to discover a document or tape recording, as required by HCR
35(1), will prevent the party obliged to make discovery from using that
document or tape recording at trial. It can however be used by any other party.
Exceptionally, the court may allow the party who failed to disclose it, to use it on
such terms as the court may deem reasonable. Similarly, when a party fails to
produce a document or tape recording for inspection, the document or tape
recording may not be used at trial, save where the court on good cause shown
allows otherwise.
b) A party failing to provide discovery, in terms of HCR 35(1) or failing to allow
inspection of discovered documents in terms of a HCR 35(6) notice will, on
application by the party desiring discovery and inspection, be compelled by a
court to make such discovery or inspection. Failing such compliance the claim
1 Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1083 “by discovery the issues are narrowed”.
, may be dismissed or the defence struck out. [Note that discovery is made on
notice but that an application to compel compliance is made on application.]
c) A party failing to comply with a notice requiring production of documents and
tape recordings, and the making of copies or transcriptions thereof, shall not be
allowed, save with leave of the court, to use such document or tape recording at
trial. However, any other party may make use of such copy or tape recording.
d) When a party is prejudiced and unable to properly prepare for trial because
of the failure of the opposing party to discover timeously, the party may
approach the court for leave to postpone the trial. In considering the request the
court must also determine which party will be held liable for the payment of the
wasted costs occasioned by such a postponement. The party who renders
incomplete or defective discovery is generally held liable for such wasted costs
but this is not a fixed rule. The court has a wide discretion regarding costs and
takes all the relevant circumstances into account when reaching a decision. It is
also possible that in a given case, the court may not make a costs order, which
means that each party has to bear their own costs.
e) The general rule is that costs occasioned by discovery are, on application,
made costs in the cause.
3. Discuss the procedure to be followed by a party who intends to call an
expert witness during an upcoming trial. (5)
Expert evidence in the High Court [HCR 36(9)]
The party wishing to employ the services of an expert at a trial must notify the opposing
party in writing at least 15 court days before the trial. At least 10 court days prior to the
trial the party must deliver a written summary to the opposing party describing the
expert’s opinion.
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