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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025-177461
In the matter between:
In the matter between:
N[…] : C[… ] M[…] Applicant
and
N[…] : N[… ] Respondent
JUDGMENT
NDLOKOVANE, AJ
Introduction
[1] This is an interlocutory application brought by the Applicant , Mr C […] M[… ]
N[…] , in terms of r ule 35(7) of the Uniform Rules of Court, to compel the
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _________________________
DATE SIGNATURE
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Respondent, Ms N […] N[…] , to comply with a notice in terms of rule 35(3)
dated 6 May 2026.
[2] The application arises from pending divorce proceedings instituted by the
Respondent against the Applicant under case number 2025/177461. The
parties were married in community of property on 28 April 2022. Mr N[...] is a
Defendant in those proceedings , and Ms N[...] is the Plaintiff. For ease of
reference, Mr N[...] will hereinafter be referred to as the Applicant and Ms
N[...], the Respondent.
[3] The present application concerns the proper scope of discovery and the
Respondent's alleged failure to make proper discovery in terms of the Uniform
Rules. The Applicant contends that the Respondent's discovery affidavit,
belatedly delivered on 6 May 2026, is manifestly deficient and that the
Respondent has failed to comply with the Applicant's Rule 35(3) notice calling
for further discovery.
Background
[4] The Respondent instituted divorce proceedings against the Applicant on 30
September 2025. Pleadings have closed. The matter is at the discovery
stage.
[5] On 18 February 2026, the Applicant served a n otice in terms of r ule 35(1),
requiring delivery of a discovery affidavit within twenty (20) court days. The
period expired on 18 March 2026 without delivery and without any
communication from the Respondent.
[6] On 19 March 2026, the Applicant served a notice in terms of r ule 30A( 1),
affording the Respondent a further ten (10) court days to remedy the default.
That period expired on 7 April 2026, again without delivery and without any
communication.
[7] On 7 April 2026, the Applicant issued and served an application in terms of
rule 30A ( 2) read with r ule 35(1) to compel delivery of the Respondent's
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discovery affidavit. That application was set down on the unopposed motion
roll for 27 May 2026.
[8] On 6 May 2026, approximately seven weeks after the Rule 35(1) due date,
and just twenty -one (21) days before the hearing of the compelling
application, the Respondent caused a d iscovery affidavit to be electronically
filed. A true copy is marked annexure “MN-A”.
[9] Upon receipt of the d iscovery affidavit, the Applicant became aware that the
discovery was manifestly deficient. On the same date, 6 May 2026, the
Applicant served a notice in terms of r ule 35(3) calling for further documents.
A true copy is marked annexure “MN-B”.
[10] The rule 35(3) notice expressly notified the Respondent that the documents
were required to be produced for inspection and copying within ten (10) court
days, failing which the Applicant would apply for an order compelling
compliance.
[11] Calculated from 6 May 2026, the ten (10) court days prescribed by r ule 35(3)
expired on Wednesday, 20 May 2026.
[12] As at the date of the Applicant's founding affidavit (22 May 2026), the
Respondent had not:
12.1 produced any of the documents or recordings called for in the rule
35(3) notice;
12.2 delivered an affidavit in terms of the second leg of rule 35(3);
12.3 delivered any notice or affidavit objecting to the rule 35(3) notice;
12.4 requested an extension of time; or
12.5 made any communication whatsoever in response to the r ule 35(3)
notice.
[13] The Applicant thereafter launched the present r ule 35(7) application on 22
May 2026.
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The Respondent's Answering Affidavit
[14] The Respondent filed an answering affidavit on 29 July 2026. The affidavit is
late, having been filed approximately two months after the period prescribed
for answering affidavits under rule 6(5)(d)(ii) had expired.
[15] The Respondent seeks condonation for the late filing. She explains that she
has been subjected to “incessant litigation” brought by the Applicant, including
a Rule 43 application (dismissed on 31 March 2026) and an urgent application
(struck off the roll on 14 April 2026). She states that she is not in a financial
position to keep fielding these applications.
[16] The Respondent raises two points in limine:
16.1 Lis pendens : The Applicant has an earlier application pending before
this Court, dated 31 March 2026, in which he seeks substantially the
same relief relating to rental income from the immovable property. That
application was struck off the roll for lack of urgency on 16 April 2026
but remains pending. The Respondent contends that the present
application cannot proceed in the face of the pending application.
16.2 Res judicata : The Applicant brought a Rule 43 application on 25
November 2025, which was dismissed by Acting Judge Smit on 31
March 2026. The court found that the issues raised by the Applicant
were matters to be dealt with at the trial. The Respondent contends
that the relief sought herein is res judicata.
[17] Both parties are unrepresented in these proceedings. The Court has had
regard to the fact that both parties are lay litigants and has approached the
matter with due allowance for their respective positions.
Analysis
Condonation for the Late Filing of the Answering Affidavit
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[18] The Respondent's answering affidavit is substantially out of time. The notice
of motion was served on 18 May 2026. The period for delivering an answering
affidavit expired on or about 1 June 2026 (fifteen court days after the expiry of
the ten court days for the notice of intention to oppose). The answering
affidavit was only filed on 29 July 2026, a delay of approximately two months.
[19] The factors to be considered in an application for condonation are the degree
of lateness, the explanation therefor, the prospects of success, and the
importance of the matter .1 These factors are interrelated and must be
considered cumulatively.2
[20] The Respondent's explanation for the delay is that she lacked the funds to
instruct her attorneys. Both parties are now unrepresented. The financial
constraints she describes are not implausible. Moreover, the Respondent's
answering affidavit does raise substantive arguments, even if they are largely
procedural in nature (the lis pendens and res judicata points). The interests of
justice are best served by permitting the Respondent to place her version
before the Court and having the matter determined on its merits, rather than
on procedural technicalities.
[21] The prejudice to the Applicant is limited. The hearing of this matter has been
delayed, but the Applicant has had the opportunity to file heads of argument
and to respond to the Respondent's answering affidavit. In the circumstances,
I grant condonation for the late filing of the answering affidavit.
Lis Pendens
[22] The doctrine of lis pendens requires the same parties, the same cause of
action, and the same subject matter .
3 Even where these requisites are met, a
1 In this regard, see Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-F.
2 In this regard, see Grootboom v National Prosecuting Authority [2013] ZACC 37; 2014 (2) SA
68 (CC); 2014 (1) BCLR 65 (CC) at paras 22-23.
68 (CC); 2014 (1) BCLR 65 (CC) at paras 22-23.
3 Nestlé (South Africa) (Pty) Ltd v Mars Inc [2001] ZASCA 76; 2001 (4) SA 542 (SCA) at para
16.
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stay remains discretionary, governed by considerations of fairness and
convenience.4
[23] The earlier application (dated 31 March 2026) sought urgent relief relating to
rental income from the property. That application was struck off the roll for
lack of urgency on 16 April 2026. The present application is brought under
rule 35(7) and concerns discovery. The relief sought is different. The cause of
action is different. The present application is not lis pendens.
[24] The earlier application is not "pending" in the sense required by the doctrine.
It was struck off the roll. The Applicant is entitled, as Crutchfield J expressly
confirmed in the leave judgment of 15 May 2026, to set the application down
on the ordinary opposed roll. The present application is not an attempt to re-
litigate the same issue; it is a separate application brought under a different
Rule.
Res Judicata
[25] The doctrine of res judicata requires, among other things, that the issue in
question was actually and finally determined by a competent court in prior
proceedings between the same parties.
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[26] The rule 43 application was dismissed by Acting Judge Smit on 31 March
2026. The court held that the issues raised by the Applicant were matters to
be dealt with at the trial. The court made no finding on the merits of the
Applicant's claim to rental income. The court expressly stated:
“Therefore, I make no finding regarding the lawfulness or not of the wife's actions in
instructing the tenants to pay the rental income to her... or whether the husband is
or should be entitled to any part of this income from the joint property... These are
matters for the trial Court.”
[27] The res judicata plea must therefore fail. The issue was not decided on the
merits. The court reserved the issue for the trial.
4 Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC [2013] ZASCA 129;
2013 (6) SA 499 (SCA) at paras 34-36.
5 Prinsloo NO v Goldex 15 (Pty) Ltd [2012] ZASCA 28; 2014 (5) SA 297 (SCA).
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The Manifest Deficiency of the Discovery Affidavit
[28] A discovery affidavit is prima facie conclusive as to its contents. The court will,
however, go behind a discovery affidavit where it can be shown, from the
discovery affidavit itself, the documents referred to, the pleadings, admissions
made, or the nature of the case, that there are reasonable grounds for
supposing that the party has other relevant documents in their possession.6
[29] The Respondent's d iscovery affidavit lists only ten categories of documents,
and contains a generic, formulaic claim of legal -professional privilege in
Schedule B without identifying any specific document. The discovery is
manifestly inadequate when measured against the Respondent's own
pleadings and her own Financial Disclosure Form.
[30] The Respondent pleads in her Particulars of Claim that the joint estate is
indebted to one Reggie Paddy in the amount of R 900 000.00 and to one
Makhosazana Khumalo in the amount of R 80 000.00. The documents
discovered in respect of these alleged loans are not, on their face, loan
agreements, acknowledgements of debt, or written instruments creating
obligations. The documents discovered are:
30.1 In respect of the alleged R 80 000.00 loan from Makhosazana
Khumalo: a Nedbank Personal Loan Pre- Agreement Statement in the
name of Mrs Khumalo, evidencing a loan from Nedbank to Mrs
Khumalo, not a loan from Mrs Khumalo to the joint estate.
30.2 In respect of the alleged R 900 000.00 loan from Reggie Paddy: a
handwritten ledger and credit card statements in the name of Mr
Paddy, not a loan agreement or acknowledgement of debt.
[31] The Respondent has not discovered the documents called for in the rule 35(3)
notice, including the written loan agreements, acknowledgements of debt,
6 Continental Ore Construction v Highveld Steel and Vanadium Corporation Ltd 1971 (4) SA
589 (W) at 597 H; also see Mineral-Loy (Pty) Ltd v Highveld Steel & Vanadium and Another
[2018] ZAGPPHC 853 at para [19].
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documentary proof of payment, and communications between the
Respondent and the alleged creditors.
[32] The Respondent operates a TymeBank account which is not disclosed in her
sworn Financial Disclosure Form and which she has not discovered. The
Applicant has provided proof of the existence of this account.
[33] The Respondent has not discovered the municipal valuation notices, lease
agreements, tenant payment records, or rental ledgers in respect of the
immovable property, despite these being directly relevant to the disputed
valuation and rental income.
[34] The Respondent has not discovered any invoices, ledgers, accounting
records, or SARS returns corroborating her self-employment disclosure.
[35] The documents called for in the r ule 35(3) notice are directly relevant to the
pleaded disputes. The test for relevance is whether the document may,
directly or indirectly, enable the party requiring discovery to advance his own
case or to damage the case of his adversary.
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[36] Every category of documents called for in the r ule 35(3) notice is directly
relevant to a pleaded matter in question. The Respondent has not delivered
any affidavit in terms of the second leg of r ule 35(3) and has therefore not
placed before the Court any sworn denial of possession or control in respect
of the documents sought.
Pattern of Non-Compliance
[37] The procedural history of this matter reveals a pattern of non- compliance by
the Respondent:
37.1 On 18 February 2026, the Applicant served a r ule 35(1) notice. The
Respondent failed to comply.
7 Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
(CA) at 63; also see Swissborough Diamond Mines (Pty) Ltd and Others v Government of the
Republic of South Africa and Others 1999 (2) SA 279 (T).
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37.2 On 19 March 2026, the Applicant served a r ule 30A(1) notice. The
Respondent failed to comply.
37.3 The Respondent only delivered her discovery affidavit on 6 May 2026,
approximately seven weeks late, and only when compelled by an
imminent rule 30A application.
37.4 The Respondent has not responded to the rule 35(3) notice in any way.
[38] The Respondent's failure to respond to formal procedural notices is
concerning. However, the Court is mindful that the Respondent has been
unrepresented and may not have fully appreciated the consequences of her
failure to engage with the discovery process.
Prejudice to the Applicant
[39] Both parties are unrepresented in this matter. The information asymmetry
between the parties is substantial: virtually every record relevant to the
disputed financial and accounting issues is exclusively within the
Respondent's possession or under her control.
[40] Without the documents called for, the Applicant is unable to:
40.1 prepare properly for trial;
40.2 test the Respondent's pleaded version on its own documentary basis;
40.3 quantify or particularise his counterclaim for accounting of rental
income; and
40.4 exercise his rights of discovery as contemplated by the Uniform Rules.
[41] The orderly conduct of the trial demands that this asymmetry be addressed at
the discovery stage.
Conclusion
[42] The Respondent's answering affidavit is late, but condonation is granted in the
interests of justice.
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[43] The Respondent's points in limine of lis pendens and res judicata must fail.
The earlier applications do not bar the present application.
[44] The Respondent's discovery is manifestly deficient. The documents called for
in the r ule 35(3) notice are directly relevant to the pleaded disputes. The
Respondent has failed to produce the documents or to deliver an affidavit in
terms of the second leg of rule 35(3).
[45] The Respondent's pattern of non-compliance with formal procedural notices is
concerning. However, the Court is mindful that the Respondent is a lay litigant
who has been subjected to a number of interlocutory applications. The
Applicant is also a lay litigant who has been compelled to bring multiple
interlocutory applications to secure basic discovery.
[46] In the circumstances, the Applicant is entitled to the relief sought.
Order
[47] In the result, the following order is made:
1. The Respondent's application for condonation for the late filing of the
answering affidavit is granted.
2. The Respondent is ordered, within ten (10) court days of the date of this
Order to:
2.1 produce for the Applicant's inspection and copying, the
documents and recordings called for in the Applicant's n otice in
terms of rule 35(3) dated 6 May 2026; alternatively
2.2 deliver an affidavit in respect of each item set out in the said r ule
35(3) notice that is not produced, stating on oath that the
document or recording in question is not in her possession or
under her control and, if known to her, stating the whereabouts
thereof, in accordance with the second leg of Rule 35(3).
3. In the event that the Respondent fails to comply with paragraph 2 above
within the prescribed period, the Applicant is granted leave to approach
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this Honourable Court on the same papers, duly supplemented where
necessary, for further relief in terms of rule 35(7), including, but not limited
to, an order striking out the Respondent's claim in the main action and
granting judgment in favour of the Applicant on his counterclaim.
4. Each party shall pay its own costs of this application.
___________________________
N NDLOKOVANE
Acting Judge of the High Court
Gauteng Division
Johannesburg
APPEARANCES
For the Applicant : C[…] M[…] N[…] (in person)
For the Respondent : N[…] N[…] (in person)
Date of Hearing : 31 July 2026
Date of Judgement : 10 September 2026