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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
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2023-011921
In the matter between:
In the matter between:
S[…] D[…] C[...] Applicant
and
A[…] J[…] C[...] First Respondent
A[…] J[…] C[...] N.O. Second Respondent
G[…] N[…] C[...] N.O. Third Respondent
S[…] D[…] C[...]N.O. Fourth Respondent
THE MASTER OF THE HIGH COURT,
NORTH GAUTENG Fifth Respondent
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ _________________________
DATE SIGNATURE
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DJ Smit, AJ
Introduction
[1] This is an opposed application for a further and better reply to the applicant’s
(Ms C[...]) notices calling for further and better discovery under Rule 35(3) and
Rule 35(6). The case came before me in the opposed Family Court.
[2] A proper understanding of the discovery dispute requires some background.
Background
[3] Ms C[...] was married to the first respondent (Mr C[...]) on 2 February 1991. The
marriage was out of community of property, but with the accrual system. Two
major daughters were born from the marriage.
[4] Mr C[...] is the sole director of D C[...] & Co (Pty) Ltd, a company that
specialises in the sale of luxury watches and other jewel lery. Mr C[...], together
with the third respondent and Ms C[...], are the trustees of a family trust named
after Mr C[...] (the Trust ). The Trust holds all the shares in the jewellery
company but does not trade itself . Its beneficiaries are the C[...]s and their
major daughters.
[5] The marriage has broken down and Ms C[...] seeks a divorce. Insofar as is
relevant to the discovery dispute, Ms C[...] seeks an order for half of the net
accrual; spousal maintenance until death or remarriage; and an order in respect
of maintenance of the major daughters. It seems that in the divorce trial there
will be major disputes about at least the following:
a. Whether the Trust is a sham, and particular about the significance of an
agreement the C[...]s signed in which Mr C[...] allegedly admitted that the
Trust was his alter ego and that the Trust assets were effectively owned,
possessed and controlled by him. (Although I make no finding on this, it
seems that Mr C[...] does not deny the agreement or what it says, but only
whether it is binding on the Trust.)
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b. The value of the jewellery company and hence the value of the shares
held by the Trust.
[6] Given what Ms C[...] pleads regarding the Trust, she also seeks orders in the
divorce action according to which the value of the Trust’s assets form s part of
Mr C[...]’s estate. That is why the Trust and the Master (who takes no part in
these proceedings) are cited in the divorce and the discovery dispute.
[7] Whatever the underlying merits of the dispute in regard to the Trust, Mr C[...]
and the Trust mak e common cause in at least the discovery dispute.
Accordingly, in the rest of this judgment, I refer to them as “the respondents”
unless it is necessary to distinguish between respondents.
[8] It appears that the respondents have been less than forthcoming in relation to
discovery:
a. Summons in the divorce action was issued on 10 February 2023.
b. The respondents had to be forced to make discovery through an
application to compel. They delivered a discovery affidavit on 25 April
2024, and Mr C[...] then delivered a financial disclosure form.
c. On 26 June 2024, Ms C[...] served a notice in terms of Rule 35(3) and (6)
(first notice).
d. On 30 August 2024, Ms C[...]served a further notice in terms of Rule 35(3)
and (6) (second notice).
e. The first and the second notices were apparently not responded to, with
the result that Ms C[...]had to bring another application to compel, which
this court granted on 11 November 2024.
f. The respondents delivered a supplementary discovery affidavit. It is
common cause that certain – but by no means all – the documents
requested were discovered.
g. The respondents , having been compelled to do so by the order of
11 November 2024, responded on oath to the first and the second notice
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on 31 January 2025. It gave brief explanations for the items not
discovered.
h. On 13 February 2025, Ms Carrington’s attorney sent a letter to the
respondents’ attorney, which attached an annexure. I will refer to this
annexure as “SC7” since that is how it was referred to in the application to
compel serving before me. The letter recorded Ms C[...] ’s view that the
respondents’ discovery was incomplete. “SC7” recorded some 77 items
(some with subitems) in respect of which the discovery was allegedly
deficient, as well as (in brief) the contentions of the respondents in
refusing discovery as well as the contentions of Ms C[...] in response.
i. The respondents did not respond to the letter and Ms C[...] launched this
application on 21 February 2025.
Discussion
[9] While the respondents appear to have been (much) less than cooperative,
Ms C[...]’s discovery requests are on their face extremely broad (as well as, in
relation to certain items, not appropriately motivated). As is often the case in
divorce matters, this application displays all the hallmarks of an immovable
object meeting an irresistible force.
[10] As a result:
a. I do not intend to deal with the dispute based on the respondents’ main
defence to this application, namely that it was incompetent for Ms C[...]’s
attorney simply to attach “SC7” to his founding affidavit in this application,
with the case for discovery made out in the annex rather than in the
affidavit itself. I note that , even if arguably competent, this way of
proceeding has made it very difficult for the court sensibly to deal with the
matter. I do not consider it to have prejudiced the respondents, however:
they had an opportunity to respond on oath to the discovery notices (by
way of their affidavit of 31 January 2025) and one would assume that their
responses would not have changed by the time they had to file an
answering affidavit in this application. I also note that “SC7” sets out the
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ambit of the dispute on each item. I note further that the respondents have
had a further opportunity after argument to expand on their answers to the
requests, which answers I have taken into account in what follows.
b. Ms C[...]’s way of proceeding has had the effect of limiting her to
extremely cursory submissions on each item which are, in some cases,
insufficient to make out a case for discovery. This is, as it were, an own
goal that illustrates the undesirability of her approach.
c. Further, as in all discovery disputes, the Court has a discretion as to
whether to compel discovery or inspection.
1 The interests of justice will be
best served by the parties getting on with discharging their discovery
obligations and proceeding to trial.
d. It is impractical to deal with each of the 77 requested items in detail below.
I have studied the parties’ affidavits, “SC7”, their heads of argument and
their further submissions which followed oral argument. I have also noted
the concessions made by both parties after oral argument. I simply record
my findings on each contested item in brief below.
e. I will order that the costs in this application are to be costs in the divorce.
This is justified by the fact that neither party has been the clear winner in
this tussle, as appears below.
[11] I turn to my find ings on each item. In regard to items 1 to 67, they relate to the
first notice. In regard to the items that follow on that, they relate to the second
notice. Where Ms C[...] indicated, in or after oral argument, that she does not
persist with the request, I do not deal with the item in question.
Findings on each item
[12] Item 1: Mr C[...] has stated under oath that there are no further bank accounts
in his possession. Interpreted in context, that means that there are no bank
statements other than those already discovered or subpoenaed. The court will
1 Continental Ore Construction v Highveld Steel & Vanadium Corporation Ltd 1971 (4) SA 589
(W) at 564H-595E.
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not go behind the respondents’ oath unless Ms C[...] has made out a case that
they must be mistaken.2 No order will be made in regard to item 1.
[13] Items 2 & 3 : Ms C[...]’s complaint in regard to these items is that the
respondents have not stated under oath, as required, what the whereabouts
are of these documents, if known. The respondents take the view that they are
not required by Rule 35(3) to state the whereabouts of the documents if they
state that the documents are not in their possession. In this, they are mistaken.
Rule 35(3) clearly requires a party who states that a document is not in their
possession to state its whereabouts, if known. The respondents will be ordered
to furnish a further and better reply, this time consistent with Rules 35(3) and
(6).
[14] Items 4 and 5: After argument, the respondents tendered what it considers to
be the outstanding documents in regard to these items. I will make no order on
them. Ms C[...] may approach the court again, on duly supplemented papers,
should she consider that the discovery remains defective.
[15] Items 6, 8 , 13 , 17, 40 , 44, 62 and 63; Items 1, 2, 3, 8 and 9 of the second
notice: The respondents’ answers are prima facie sufficient and conclusive. If
Ms C[...] is able to provide evidence that the answers are mistaken or lay
another basis for their relevance, she may approach the court again, on duly
supplemented papers which sets out the necessary evidence in an affidavit.
[16] Items 14, 42, 43; Item 5 of second notice: The respondents promised answers
to these items and will be ordered to furnish them.
[17] Item 20.1: Ms C[...] has sought registration forms for all vehicles owned by Mr
C[...] or the Company over a specific period. Mr C[...] ’s answer is evasive, and
he will be ordered to furnish a further and better reply, this time consistent with
Rules 35(3) and (6).
[18] Item 20.3: Ms C[...] has sought credit agreements in relation to all vehicles
[18] Item 20.3: Ms C[...] has sought credit agreements in relation to all vehicles
purchased by the Company over a specific period. This request is overbroad
and unmotivated.
2 Id at 597E-598G.
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[19] Items 25 to 28: Ms C[...] has sought copies of minutes and resolutions of
directors’ meetings and shareholders’ meetings in respect of “the entities” from
inception of those entities to date. This request is problematic in at least three
respects: First, insofar as the Trust is defined as an “entity”, trusts do not h old
directors’ or shareholders’ meetings. Second, no basis has been laid for the
relevance of these documents for any other “entities”. Third, at least prima
facie, requesting such minutes and resolutions from inception appears
overbroad. No order will be made in this regard. Of course, as in all other
instance where an order is refused, Ms C[...] may approach the court again on
duly supplemented papers should she be able to cure these defects.
[20] Item 31: Ms C[...] has sought a wide array of documents regarding travel
undertaken by Mr C[...] – on his own or with a third party – from January 2018
to date. It seems to me that, on its face, this request is relevant to Mr C[...] ’s
financial means. An order will be made in this regard.
[21] Items 34, 36, 45 & 46: Ms C[...] has sought documents reflecting details of profit
share/dividends/awards/distributions/payments declared or made by the entities
(as defined) for the period (as defined) or for specific periods specified in each
item. It seems to me that, considering the case sought to be made out by Ms
C[...] on the nature of the Trust, the se requests are relevant to Mr C[...]’s
financial means and are framed with sufficient specificity for the respondents to
know what is sought . Although essentially the same request has inelegantly
been framed five times, an order will be made in this regard.
[22] Items 37 -39: After argument, the respondents tendered inspection of these
documents at the relevant auditors’ offices. An order will be made in this
regard. The respondents contend that Ms C[...] should be liable for the auditors’
fees to facilitate the inspection. The court cannot, at this stage, make an order
fees to facilitate the inspection. The court cannot, at this stage, make an order
in regard to the auditors’ costs: insofar as the respondents incur disbursements
to the auditors, these would presumably be costs in the divorce action which a
different court has to determine.
[23] Item 51: Ms C[...] has sought copies of all correspondence between the Trust
and the auditors of the Trust from inception to date. While the respondents
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contend that the request is overbroad, not sufficiently specific and does not
motivate for its relevance, these documents seem on their face to be relevant to
the cause of action Ms C[...] seeks to make out regarding the Trust. The
respondents will be ordered to furnish a further and better reply, this time
consistent with Rules 35(3) and (6).
[24] Item 55: Ms C[...] has sought copies of proof of all amounts paid by the entities
(as defined), to Mr C[...] pursuant to any expense claim submitted by Mr C[...] to
the entity during the period (as defined). While the respondents contend that
the request is overbroad, not sufficiently specific and does not motivate for its
relevance, these documents seem on their face to be relevant to the cause of
action Ms C[...] seeks to make out regarding the Trust. The respondents will be
ordered to furnish a further and better reply, this time consistent with Rules
35(3) and (6).
[25] Item 56: Ms C[...] has sought c opies of d ocumentation reflecting details of all
bonuses declared by the entities (as defined) and received by any person
including Mr C[...] and a particular third party during the period (as defined).
While the respondents contend that the request is overbroad, not sufficiently
specific and does not motivate for its relevance, these documents seem on
their face to be relevant to the cause of action Ms C[...] seeks to make out
regarding the Trust as well as to Mr C[...] ’s financial means and the reasons for
the divorce. The respondents will be ordered to furnish a further and better
reply, this time consistent with Rules 35(3) and (6).
[26] Item 65 : Ms C[...] has sought c opies of documents reflecting proof of all
amounts paid by the company on legal fees with Attorneys Wright Rose Innes
during the period (as defined) including but not limited to documentation
reflecting payment of each amount, the amount paid and the date of payment.
The respondents contend that the request is overbroad, not sufficiently specific
The respondents contend that the request is overbroad, not sufficiently specific
and does not motivate for its relevance. Under normal circumstances, the
respondents’ explanation that these documents are not relevant would have
been final (in accordance with the principles regard the oath of a deponent to a
discovery affidavit) as well as, on its face, plausible. In these circumstances,
however, Ms C[...] had made out a case for their relevance in the first notice.
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She annexed emails to that notice that showed that Mr C[...] had said to her (on
the face of the emails) that he and his brother – an attorney at Wright Rose
Innes (the third respondent in his capacity as trustee) – had “concocted
invoices for R300,000 to get money out of the business ”, part of which was
used to fund a ski trip. In this light, these documents seem on their face to be
relevant to the cause of action Ms C[...] seeks to make out regarding the Trust.
The respondents will be ordered to furnish a further and better reply, this time
consistent with Rules 35(3) and (6).
[27] In the order, I will not specify whether Mr C[...] (in his personal capacity) or the
Trust (whether by way of Mr C[...] in his representative capacity or in another
way), must comply with the order. I will simply refer to “the respondents”. The
party who needs to comply with the order is the party in respect of whom the
particular discovery request was made.
Order
[28] I make the following order:
a. The respondents are directed to provide responses that comply with the
provisions of Rule 35(3) and Rule 35(6) in respect of items 2, 3, 14, 20.1,
31, 34, 36, 42, 43, 45, 46, 51, 55, 56 and 65 of the Notice in terms of Rule
35(3) and (6) dated 26 June 2024.
b. The respondents are directed to provide a response that complies with the
provisions of Rule 35(3) and Rule 35(6) in respect of item 5 of the Notice
in terms of Rule 35(3) and (6) dated 30 August 2024.
c. The respondents are directed to deliver the responses referred to in
paragraphs (a) and (b) above within ten days of the grant of this order.
d. The respondents are directed to make available for the inspection of the
applicant, her legal representatives and her expert witness(es) at the
offices of the auditors of D C[...] & Co (Pty) Ltd, within ten days of the
grant of this order, those documents referred to in items 37, 38 and 39 of
the Notice in terms of Rule 35 (3) and (6) dated 26 June 2024.
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e. The costs of this application will be costs in the divorce action.
___________________________
DJ SMIT
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Date of hearing: 26 March 2026
Date of judgment: 8 June 2026
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For the Applicant:
For the First to Third Respondents:
G Greenstein (attorney) instructed by
Greenstein Attorneys
C Read instructed by Warrener De
Agrela & Associates