CHAPTER 18
PREPARATION FOR TRIAL
(occurs after the close of pleadings)
 S34 of the Constitution provides that everyone is entitled to a fair trial
 The entire litigation process must adhere to this principle.
COMMENCES
 After the close of pleadings (litis contestatio)
 Once all the facta probanda (facts in issue) are identified.
 At this stage each party is:
 Informed of the case to be met
 Forewarned what to expect at trial
PURPOSE
 To allow each party to properly prepare for the trial and to simplify and expedite the trial
process.
ENTAILS
 A case is usually met by placing evidence (facta probantia) before the court to prove the
fact in issue (facta probanda).
 Preparation for trial therefore entails certain processes for the purpose of securing sufficient
facta probantia.
 These include:
 Discovery of Documents
 Expert Witnesses
 Medical Examinations
 Inspections
 Presentations of plans, diagrams and photographs ect.
NOTICE OF SET DOWN FOR TRIAL
 Entails requesting a trial date from the Clerk and informing the opposing party
 It informs both parties of the date, time and Court in which the case will be tried.
 REQUESTED: by the Plaintiff
 If he fails:
 Def. can apply or
 Def. can apply to have the case set aside
HIGH COURT
 No specific procedure
 Essentially:
 Party enrolling must give notice
 Registrar must inform all relevant parties by post or telefax
(provided it is ascertainable when the notice was received)
MAGISTRATE’S COURT
MCR22 and MCR27(5)
 Plaintiff is the:
 Dominus litis
 Must deliver the notice of set down 15 days after close of pleadings and 20 days before
trial
 If he fails:
 Def can apply in terms of HCR27(5)
 Def can apply to dismiss the claim with notice to Pl
EXPIRATION:
 Claim will be prima facie dismissed (unless Pl gives a valid reason for why he failed to set
down the matter)
 No evidence of an intention not to prosecute is needed in order to dismiss the claim
 Consequently, timeous set down does not mean that a claim cant be dismissed
DISCOVERY
HCR35
MCR23
DEFINITION
A process whereby a party to an action is afforded the opportunity to be informed of all the
documentary evidence, including tape recordings which the opposing party intends to use at trial.
PURPOSE
1. Enables the parties to properly prepare their cases with regard to the presentation of
documentary evidence [Durbach v Fairway Hotel]
2. Safe-guards the parties against surprise at trial which may result in unnecessary elys,
postponements or costs.
MADE BY
 The actual party to litigation
 If party is a body corporate: member or employee who has personal knowledge of the matter
and issues.
AGAINST WHOM
 Parties to the action
EXCEPTIONS: HCR35(5)
o Driver or owner of the vehicle insured in 3rd party insurance cases [HCR35(5)(a)]
o Cedent in matters in which Pl sues as cessionary [HCR35(5)(c)]
 Another party if docs are in their possession by a subpoena duces tecum to compel their
production.
FORM + CONTENTS
 Discovery Affidavit and Two Schedules
SCHEDULE 1
Documents which you have in your possession
PART A: All docs in your possession which you have no objection to producing
PART B: All docs in your possession which you have a VALID objection to producing
VALID OBJECTION = the doc is PRIVELEGED (drawn up in contemplation of litigation) or
WITHOUT PREJUDICE (bona fide offer to settle)
SCHEDULE 2
Documents which were in your possession but no longer are.
DISCOVERY PROCEDURE
HCR35
MCR23
APPLICABLE
- Only in action procedure
- HC may order discovery to apply to
applications [HCR35(13)]
- After the close of pleadings
- MCR is silent as to whether the discovery
procedure applies to applications
APPLIED FOR WHEN?
- After the close of pleadings
- Not before the action commences
[EXEPTION]
Discovery may be ordered by a judge before
the close of pleadings in exceptional circs for
the purposes of pleading [HCR35(14)]
- No later than 15 days prior to trial
DELIVERED WHEN?
- Within 20 days of notice
- Within 10 days of notice
WHAT TO DISCOVER?
- All relevant documents
- RELEVANT: those advantageous or detrimental to his own case or which may
-
advance or impede the case of your opponent
If only advance your case – no need to discover unless intend to use at trial
Only those docs which are or have been in the possession of the party making
discovery
Must specify the whereabouts of docs if no longer in your possession
WHAT NOT TO DISCOVER
- Privileged documents to which you have an objection
- PRIVILEGED = drawn up in contemplation of litigation
TEST:
1. Is the document relevant?
2. Do you have a valid objection?
2.1 On the basis of privilege: doc drawn up in contemplation of litigation
2.2 On the basis of “without prejudice”: any bona fide offer to settle is considered to be
“without prejudice”
[HCR35(2)] expressly excludes from discovery”
1. witness statements
2. communications between attorney and client and attorney and advocate
3. pleadings
4. affidavits
5. notices
6. docs that are “without prejudice”
7. docs falling within parameters of privilege against self incrimination
8. docs falling within marital privilege
9. docs falling within parameters of public privilege
10. all communications relating to evidence to be adduced at trial
2. INSPECTION AND COPIES
HCR35(6)
MCR23(3)
 The party making the discovery may be required (by an inspection notice) to allow for the
inspection and copying of the discovered docs and tape recordings.
 Party must (within 5) days furnish a notice stating where and when these docs may be
inspected.
 The inspecting party then has a 5 day period within which to insect and copy the docs.
 This usually takes place at the attorney’s office of the discovering party.
 Bankers books and accounts are inspected at their usual place of custody.
3. PARTICULARS OF DATES AND PARTIES
HCR35(8)
 A party to an action may by notice, request another party to specify in writing the particulars
of dates and other parties contained in any docs or tape recordings intended to be used at
trial.
 The notified party must not less than 15 days before trial deliver the notice stating:
 dates of and parties to as well as the general nature of any doc in his possession
 any particulars which he may have to identify any docs no longer has in his possession:
(he must furnish the name and address of the 3rd party now in possession of that doc.)
4. ADMISSIONS (NOTICE OF AVAIL)
HCR35(9)
 Provides for the party making discovery to require the opposing party to admit the formal
validity of the discovered documents.
 This is done by notice and requires an admission that the discovered docs are in fact what
they purport to be (within 10 days of notice).
 This does not amount to an admission of the truth contained therein but rather the
authenticity.
IF THERE IS ADMISSION
 Docs can be used without any other proof than:
 that they are the docs referred to in the notice and
 that notice of avail was given
REFUSAL TO ADMIT:
 Docs must first be proved by the party giving notice before he can use them at trial.
 Non-admitting party may be ordered to pay costs of proof.
5. FURTHER DISCOVERY
HCR35(3)
 If a party believes there are, in addition to the docs and tape recordings already disclosed in
the discovery affidavit, other relevant docs in the power/possession of the opposing party
these must be disclosed.
 The opposing party MUST MAKE such docs available upon notice.
 FAILING WHICH: he must state on oath (within 10 days):
 Why they are no longer in his possession and
 Describe their current whereabouts
 Party requiring the docs must describe them with sufficient particularity to allow the
discovering party to determine what is being called for.
 Onus of identifying and describing the further docs is on the party calling for them.
 COURTS:
 Regard the discovery affidavit as prima facie conclusive
 Order further discovery ONLY if it can be shown:
 That there are reasonable grounds for assuming that the opposing party has docs
which he has failed to discover. [Federal Wine & Brandy v Kantor]
[Federal Wine & Brandy v Kantor]
Held: reasonable grounds must appear from the affidavit itself, the docs already discovered, the
pleadings, admissions and nature of the case.
6. PRODUCING ORIGINALS
HCR35(10)
 Notice can be given to the discovering party to produce the originals at trial without calling
any witnesses.
 Not less than 5 days before trial or
 During course of trial if permitted by court
COURTS POWER
HCR35(11)
The Court has the power to call for any documents during the course of the trial which are in
either party’s possession and are relevant to any issue in question.
7. SANCTIONS
FAILURE TO DISCOVER under HCR35(1) or to ALLOW INSPECTION under HCR35(6):
1.
[HCR35(4)]
[MCR60(2)]
Prevents the party obliged to discover from using that doc at trial whilst his opponent still can.
(unless Court allows its use on such terms as it deems reasonable or upon good cause)
2.
[HCR35(7)]
[MCR60(3)]
Party can be COMPELLED upon application to make the discovery or inspection.
FAILING WHICH:
3.
Claim: may be dismissed or
Defense: may be struck out in terms of the GENERAL RULE relating to non-compliance:
[UNIFORM RULE 30A]
(1) Where a party fails to comply with rules or request made or notice given, any party may
notify the defaulting party that he intends (after 10 days) to apply for an order for such a
rule to be complied with or that the claim or defense be struck out.
(2) Failing compliance within 10 days, an application can be made (on notice) to Court.
4.
If a party is prejudiced and unable to prepare for trial bec of this: the requesting party may ask
the Court for a postponement.
 Court must then determine which party will be held liable for the wasted costs
 Usually it is the party rendering incomplete or defective discovery
 But generally Court has a wide discretion.
 General Rule: costs occasioned by discovery are on application made costs in the
cause.