Jewish Life Digital Edition November 2014 | Page 77
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THE PARTIES MAY ALSO SERVE AND FILE A DOCUMENT
CALLED A REQUEST FOR FURTHER PARTICULARS FOR
TRIAL, IN WHICH THEY SEEK CLARIFICATION OF THE
CLAIMS IN THE OTHER PARTY’S PLEADINGS.
that party will issue a notice in terms of
Rule 35(3), which requests copies of specific documents.
Should one party fail to file his/her discovery affidavit or reply to a notice in
terms of Rule 35(3) when called on to do
so, the party calling for discovery/Rule
35(3) reply can bring an application to
compel the other party to file his/her discovery affidavit or Rule 35(3) reply. The
applicant will ask for a costs order against
the defaulting party.
The parties may also serve and file a
document called a request for further
particulars for trial, in which they seek
clarification of the claims in the other
party’s pleadings.
In terms of Rule 37, a pre-trial meeting
must be held six weeks before the trial,
and minutes of the meeting filed five
weeks before the trial. The purpose of a
pre-trial meeting is to try and narrow
down the issues which will be adjudicated
at the trial. The pre-trial conference is
also a good time to explore the possibility
of settlement of the matter, if the matter
has not settled yet. The parties will each
serve a pre-trial agenda (called a Rule
37(4) notice), setting out the admissions,
issues in dispute, and other practical issues relating to the running of the trial.
The parties will then exchange their replies to one another’s Rule 37(4) notices
and hold a pre-trial meeting, and the
minutes will be filed. Generally, it will be
the plaintiff who will draft and file the
minutes of the meeting.
If either or both of the parties are intent on calling any witnesses, be they expert witnesses such as psychologists or
forensic accountants, or lay witnesses
such as family and friends or business acquaintances, they will file specific notices
and follow the procedures set out in the
rules of court. It is beyond the scope of
this article to explore this in more detail.
LAST STEP IN TRIAL PREP
The final step in trial preparation is to produce the trial bundles – the specific documents which both parties wish to use at
the trial. This may or may not be all the
documents which have been discovered. A
party cannot use any documents which
he/she has not discovered in a trial bundle.
The trial will then run for as long as it
has been set down to be heard.
At the end of the trial, the judge hearing
the matter will hand down judgment and
make an order of court, which is binding on
the parties, until it is replaced by another
court order. The judgment may not be
handed down immediately, in which case
the parties will return to court with their
respective legal teams on the date set by the
judge for the handing down of judgment.
The parties have little control over the
terms of the order and are at the mercy of
the judge. Along with the high costs of litigation, this is one of the reasons I prefer
collaborative divorce, mediation or settlement discussions to litigation, as in all
these processes, provided you have been
properly guided, you have a direct say in
the final terms of any court order.
One final thought before I wrap up this topic; SA is one of the only jurisdictions,
if not the only jurisdiction, which recognises the importance of a religious divorce in addition to a civil divorce. The introduction into our law of section 5A of
the Divorce Act means a court can refuse to grant a civil divorce if “it appears to a
court in divorce proceedings that despite the granting of a decree of divorce by
the court the spouses or either one of them will, by reason of the prescripts of
their religion or the religion of either one of them, not be free to remarry unless
the marriage is also dissolved in accordance with such prescripts or unless a barrier to the remarriage of the spouse concerned is removed”. The court must be
satisfied that the spouse within whose power it is to have the marriage dissolved
or the barrier to remarriage removed has taken all the necessary steps to do so.
This means that in all matters where a Get is necessary, it is important to plead
the terms of Section 5A if there is even the slightest chance that the husband will
not grant a Get. It is also important that settlement agreements include the details of how and when the Get will be given to the wife to ensure that the agreement does not fall foul of Section 5A. Where a Get has been granted prior to the
granting of a divorce or the institution of the divorce proceedings, it is not necessary to deal with this issue in the papers.
Now that I have canvassed the litigation process, next month I will look at
some of the terminology used b 䁅