Most of the principles in the South African law of evidence stem from the English system of adversarial (accusatorial) trials; an important aspect of which is that parties are not entitled to be informed, prior to trial, of the evidence which the opposing party intends to present at trial. One of the major exceptions to this principle is that parties to litigation are entitled to be informed of all documentary evidence (including tape recordings) that the opposing party intends on using at the trial. The purpose of this discovery procedure is to enable all parties to adequately prepare for trial.

After the close of pleadings, a party may, on notice, request the opposing parties to make discovery. The party required to make discovery must, within 20 days of receipt of the notice, deliver a discovery affidavit listing:

• All documents in a party’s possession that relate to a matter in question in the litigation and that the party intends to produce
• All documents that the party has a valid objection to producing (i.e., privileged documents)

The other party is entitled to inspect and make copies of the discovered documents.

South African courts have held that a party is only obliged to discover documents which either directly or indirectly damage its own case or which advance the case of the opposing party — documents which tend only to advance the case of the party making the discovery or which tend to damage the case of the opposing party need not be discovered (Carpede v. Choene). This rule is subject to certain exceptions. Documents that do not need to be discovered include statements of witnesses taken for the purposes of the proceedings; communications between the attorney and client and attorney and advocate; and pleadings, affidavits and notices in the action. In a sense, privileged documents do need to be discovered, insofar as they must be listed in the discovery affidavit, although they need not be handed over to the opposing party.