CASE NO.: I 2848/2009
IN THE HIGH COURT OF NAMIBIA 
In the matter between:

and

CORAM:     UNENGU, AJ
Heard on: 01 February 2011 Delivered:   18 February 2011

JUDGMENT

[4] Rule 35(3) basically provides for an additional remedy to any party involved in a litigation with another to ask for additional documents or tape recordings which may be relevant to any matter in question. The party asking such documents must believe that such documents are in possession of the other party. As previously indicated, applicant and respondent are engaged in a divorce action, now, applicant wants respondent to discover additional documents like his bank statements from the day of their marriage until present, his payslips, also from the month of marriage until the month when these payslips are discovered and other documentations relating to immovable properties owned by him. These documents according to the applicant, are relevant in establishing the respondent's financial standing currently and in the past which in turn will show that respondent was able to make the contributions he alleges; that he indeed made such payments, what amounts, if any, respondent expended towards the common household and the minor children as opposed to what the applicant expended and what amount of maintenance for the minor children will be justified.

authority of the deponent to the founding affidavit. However, respondent abandoned

the application by the respondent were as set out on pages 13 - 16 of the opposing
affidavit. For the sake of clarity I shall list them hereunder as follows:
"1. The additional documents required by the applicant are irrelevant to the disputes in the pending main action for divorce;
2. The documents pertain to the respondent's finances and estate, and the parties are married out of community of property;
3. In his counterclaim, the respondent has claimed custody and control over the minor children and currently it is only the custody and control (including payment of maintenance) of the child, Nicholas, which is still in dispute and the latter is currently the subject of an investigation by psychologists from both parties;
4. The historic financial statements required by the applicant -going as far back as 20 (twenty) years - have thus no relevance to the matter of custody, control and maintenance;
5. He states under oath that he does not have his bank statements and salary slips from 1991 in his possession and states that the request for further discovery is aimed at harassing him."
[6] Both applicant and respondent submitted written Heads of Argument which they amplified with oral submissions on the date of hearing. At the beginning of the trial Ms Bassingthwaighte counsel for the respondent applied for condonation for the late filing of the Heads of Argument which application was not opposed by Ms Van der Westhuizen, counsel for the applicant as the delay was not prolonged and the applicant did not suffer any prejudice as a result thereof. Condonation was granted. This was due to the explanation given by respondent which I found to be acceptable in the circumstances. The reason for the delay was also acceptable.

principle relating to rule 35(3):
"It seems to me that every document relates to the matter in question in the action which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words 'either directly or indirectly' because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry which may have either of these two consequences."

[8]     This case and other authorities cited, Ms Van der Westhuizen wanted to
persuade the Court to agree with the contention of plaintiff that the documents she
wants respondent to discover are relevant to the issues to be resolved in the divorce
action between herself and the respondent. In conclusion, counsel argued that sub-
rule (3) does not give respondent a discretion to discover or not to discover the
documents requested. She expressed the view that respondent who is claiming more
than N$700 000.00 should not refuse to discover documents which may support such
a claim.  The only reason, she thinks, why respondent is refusing to discover the
documents is, the fear that these documents may humper his case if discovered.
Consequently, counsel prayed for an order in the following terms:
"1. THAT the Defendant be directed, to make the documents listed in the Plaintiff's Rule 35(3) Notice available for inspection within FIVE (5) DAYS of granting of the order, alternatively to state on oath within FIVE (5) DAYS of the granting of the order that such documents are not in his possession, in which event he shall state its whereabouts, if known to him, and failing compliance therewith;

2. Authorising the Plaintiff to apply on the same papers, duly amplified (if necessary), for an order striking out the Defendant's defence and dismissal of the  Defendant's counterclaim with costs;

3. Directing the Defendant to pay the costs of this application, which costs to include the costs of one instructing and one instructed counsel."

[11] Be that as it may. It is no longer an issue between the parties that the documents requested in this application are not relevant to the main action and that they should not be discovered. Counsel for respondent said that they are relevant and they can be discovered. She only asked for the period to be reduced which applicant is opposing.

[13]   Rule 35(3) amongst other provides that	the former may give notice to the

[14] It is therefore, clear from the aforesaid that the law does provide an alternative remedy to a party who is not in possession of the documents requested to state under oath within 10 days of the notice that such documents are not in his or her possession and state their whereabouts, if, known to him or her. This option was available to the respondent but opted to oppose the discovery. That being the case, applicant was compelled to approach the court to force respondent to discover. The conduct of respondent in this regard did not only result in wasted costs for applicant but also unnecessary delay in the finalization of the matter. Respondent knew or at least was advised that the additional documents requested by applicant were necessary and relevant to the matter between them. For respondent to counterclaim the request and to contend that the request for further discovery was aimed at harassing him is misleading and a waste of Court time.

[15] That being so, I come to the conclusion that applicant has proved that the additional documents requested in the notice are relevant to the main action, in particular to the issue of maintenance of the minor children and also to the claim of the respondent. Therefore, any order to be made in respect of the documents, time will not be limited to one year or six months, as requested by counsel for the respondent. Similarly, the court is not prepared to reduce the costs to be granted.

[16]   In the result I make the following order:
1.	That the defendant is directed to make the documents listed in the Plaintiff's Rule 35(3) Notice available for inspection within five (5) days of granting of this order, alternative to state on oath within five (5) days of the granting of this order that such documents are not in his possession in which event he should state its whereabouts, if known to him, and failing compliance therewith;
2.	The Plaintiff/Applicant is authorised to apply on the same papers duly amplified (if necessary) for an order striking out Defendant's/Respondent's defence and dismissal of the Defendant's/Respondent's counterclaim with costs;
3.	The Defendant/Respondent is directed to pay the costs of this application. Costs to include one instructing and one instructed counsel.

UNENGU, AJ