In South Africa's adversarial legal system, the discovery process stands as a major exception to the general principle that parties are not entitled to pretrial disclosure of an opponent's evidence. This procedure ensures that all parties can adequately prepare for trial by entitling them to be informed of all documentary evidence, including electronic records, relevant to the matter.
After the close of pleadings, any party may request discovery from the other parties. The party required to make discovery must, within 20 court days, deliver a sworn discovery affidavit. This affidavit must list all documents in the party's possession that relate to the matter in question, separating them into documents it intends to produce and those it contends are subject to a valid objection to production, such as privileged documents. The opposing party is then entitled to inspect and make copies of all non-privileged documents.
The test for relevance in discovery is broad. A document must be discovered if it "can directly or indirectly advance the case of the party requiring discovery or damage the case of the party making discovery" (Swissborough Diamond Mines v. Government of the Republic of South Africa). This obliges a party to discover documents that may be detrimental to its own case or beneficial to its opponent.
While documents protected by legal privilege are exempt from inspection, they must still be listed in the discovery affidavit. These protected documents include witness statements prepared for the proceedings, communications between attorney and client, and communications between attorney and advocate. These materials are protected by litigation privilege, as confirmed in Mason v. Mason NO, which held that such materials are exempt from disclosure if prepared in anticipation of litigation. A significant recent issue is the need for e-discovery modernization. The Rules Board for Courts of Law issued a request for comment on 27 May 2024, highlighting that the current rules are deficient for handling electronically stored information, leading to the loss of valuable metadata and increased costs.