In South African law, the disclosure of documents is regulated by two distinct provisions: Rule 53 and Rule 35 of the Uniform Rules of Court. While Rule 53 focuses on producing a record in administrative reviews, Rule 35 governs the discovery of documents in civil litigation. Although these rules are intended to operate separately, courts have occasionally allowed their overlap to serve the broader interests of justice.
This article examines the key differences between these rules, their role in ensuring fairness and transparency, and the circumstances under which judicial discretion permits deviations. Recent case law underscores the need to strike a careful balance between upholding procedural principles and avoiding the abuse of these exceptions.
Rule 53 – Review Proceedings
Rule 53's primary object is to facilitate and regulate review applications.1 It enables the institution of review proceedings by an aggrieved party seeking appropriate relief where his rights or interests have been prejudiced by wrongful administrative action"2. The rule further mandates the administrative body or a public authority to furnish a comprehensive record of its decision-making process to the court,3 which affords the applicant an opportunity to interrogate the decision, whereafter such applicant can elect to amend and supplement its grounds for review in the form of a supplementary founding affidavit.4 In essence, the rule aims to assess whether the decision was made lawfully, reasonably, and within the powers granted to the administrative body, helping to prevent arbitrary decision-making.
The record's content includes all information relevant to the impugned decision, apart from privileged information. Relevance in review proceedings is assessed insofar as it relates to the decision being reviewed and not the case pleaded in the founding affidavit.5 In fact, the applicant's case is only fully stated at the stage of filing its supplementary affidavit – having first had sight of the record of the decision maker being reviewed. The operation of this rule works vastly different from that of Rule 35 discovery, discussed below.
Rule 35 – Action proceedings
After pleadings have closed, the court rules require discovery, which is, in essence, the exchange of documents between parties. Rule 35 mandates that parties request each other to disclose the relevant documents. Discovery allows parties to be made aware of and understand all the documentary evidence that will be presented on each side and to consider the effect of the discovered documents on their own case.6 Discovery allows for the narrowing of issues and the elimination of debate over points that are incontrovertible.7
Documents under rule 35 are only discoverable if they are relevant, and relevance is determined with reference to the case set out in the pleadings.8 Unlike in a Rule 53 record, requesting information under Rule 35 is strictly limited to documents directly relevant to the pleaded case, such as emails, contracts, and similar documents. Anything requested outside this scope would be considered a "fishing expedition".9
Case Law: Deviations
In Moulded Components and Rotomoulding South Africa (Pty) Ltd, the court acknowledged that while Rule 35 is rarely used in motion proceedings, such usage may be permitted in exceptional circumstances.10 Accordingly, there has been a steady incline of instances where the request for a deviation of this nature is sought. In support of such deviation, it was further held in PFE International And Others that the court rules were made to facilitate the adjudication of cases, further empowering courts to regulate their own processes as long as the interests of justice were considered.11 The general trend herein, though, is that courts are more inclined to exercise their discretion in favor of allowing discovery in motion proceedings where discovery is asked for by a respondent who requires documents to answer the case it has to meet.12
Courts are generally not opposed to granting the leave for deviation from the rules if the reasons for such deviation are compelling enough. In African Bank Limited v Buffalo City Municipality 2006 (2) SA 130 (Ck), a few factors were laid out as the benchmark for considering whether discovery should be permitted such factors being, inter alia:
- the principles of fairness and equity;
- the stage of the proceedings when the application for discovery is made;
- the extent of the discovery sought; a request for general discovery may indicate a fishing expedition while a request for specific discovery may indicate a sincere application for discovery.
In Makate, the Court found that the further documents sought by the applicant did, in fact, fall outside the ambit of Rule 53(1)(b) and directed discovery to be made.13 This is because the documents being sought were a central aspect of the dispute between the parties, and not permitting such deviation just because it was not covered under Rule 53 would, in essence, lead to injustice.14 The court's amenability to such deviation, though, has resulted in the courts being plagued with requests for such deviation where no compelling reasons for same exist. However, the court's dismissal of such cases has shown the stern hand of the court in this regard and should caution many against employing this abuse of process.
While both Rule 53 and Rule 35 involve the production of documents, they serve different functions in the judicial system. Rule 53 enables the court to review administrative decisions properly and promotes fairness and transparency in the administrative process. Rule 35 involves exchanging relevant documents in civil litigation, promoting fairness between opposing parties before a trial begins. Although the conflation of these rules may be permissible, litigants are cautioned against exploiting such deviations for improper purposes.
Footnotes
1. Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 CC para 13.
2. Ntombela and Another v Murray N.O and Others (3807/2020) [2021] ZAFSHC 317 para 16.
3. Uniform Rules of Court Rule 53(1)(b).
4. Helen Suzman Foundation (n2 above) para 13.
5. Helen Suzman Foundation (n2 above) Para 24.
6. Cape Town City Council v South African National Roads Authority and others 2015 (3) SA 386 (SCA) para 36.
7. Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1082.
8. Helen Suzman Foundation (n2 above) para 26.
9. Helen Suzman Foundation (n2 above) para 26.
10. Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 W at 407D – E.
11. PFE International And Others v Industrial Development Corporation of South Africa Ltd 2013 (1) SA 1 (CC) at para 30.
12. Cancom (Pty) Ltd and Others v TMT Services and Suppliers (Pty) Ltd and Others (21394/2019) [2021] ZAWCHC 12 at para 13.
13. Makate v Joosub NO and Another (57882/19) [2020] ZAGPPHC 248 (30 June 2020) at para 61.
14. Makate (n14 above) at para 60.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
