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[2012] ZAGPJHC 213
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KB v DB (35189/2011) [2012] ZAGPJHC 213 (27 July 2012)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
)
CASE
NO
: 35189/2011
DATE
:
2012-07-27
In the matter between
K
B
Applicant
and
D
B
Respondent
JUDGMENT
WILLIS
J
:
[1] The parties are in
the throes of a divorce action. On the papers before me, the assets
in question are considerable. It appears
from the papers before me
that this is likely to be an acrimonious divorce action.
In fact, it already is an acrimonious
divorce action.
[2] The issue before me
is whether to order the further particulars that have been sought by
the plaintiff, relating to the accrual
that exists on the papers,
between herself .and the defendant. The pertinent aspect of the
inquiry relates to assets alleged by
the plaintiff to be overseas,
held in various trusts.
[3] The difficulty is
that the defendant has not pleaded to these allegations in the
plaintiff’s particulars of claim.
The defendant took
exception thereto. That exception was dismissed and that is subject
to
an appeal which,
apparently, will be heard in August.
[3] The defendant has
protested that the request for further particulars is premature and,
in this regard, has relied on his interpretation
of
Section 7
of the
Matrimonial Property Act 88 of 1984
. Counsel for the
plaintiff has referred me to the case of
Le Roux v Le Roux
[2010] JOL 26003 (NCK).
[4] It would be wrong for
me to express a final view on the matter, relating to the
interpretation of
Section 7
and the judgment of Olivier J in
Le
Roux v Le Roux
. I think that I may, however, fairly
record that I disagree with counsel’s interpretation of
Section
7
in as much as he protests that the interpretation given by Olivier
J is wrong.
[5]
Prima facie
,
it seems to me that Olivier J is correct when he says at paragraph
52:
"52. In
terms of the provisions of
Section 7
of the
Matrimonial Property Act,
a
spouse will be entitled to request particulars of the other
spouse’s estate:
‘
when
it is necessary to determine the accrual of the estate of a spouse.’
"There
is no suggestion that it could only become necessary
after
(my emphasis) the marriage has been dissolved and therefore
after
(my emphasis) a claim for payment in terms of
Section 3
has already
been acquired.”
[6] I do, however, agree
with counsel for the defendant that it is premature to seek
particulars relating to issues where the pleadings
have not yet been
closed. To me, it seems illogical and irrational. The
pleadings first need to
be closed. I accept that the defendant may well have a sense of
frustration but, it seems to me, that
the pleadings will indeed close
within a matter of weeks and then the matter can be reconsidered.
[7] Accordingly, I
propose to make an order postponing the application for particulars
until a date to be determined after the close
of pleadings in this
matter. Obviously, in regard to costs, it seems to me that the
only appropriate order that I can make
is that costs be reserved but
I hope that counsel for the defendant will convey to the defendant my
prima facie
views as to the particularity that may ultimately
be required once pleadings have been closed.
[8] The following is the
order of the court:
ORDER
1.
The application is postponed
sine die,
for a reconsideration once the pleadings in this
matter have been closed.
2. The costs
of this application incurred to date are reserved.
- - - - - - - - - - -
Counsel for the
applicant: P.A. Van Niekerk SC.
Attorneys for the
applicant: Ian Levitt Attorneys
Counsel for the
respondent: K.W. Luderitz SC.
Attorneys for the
respondent: Cyril Ziman & Associates
TRANSCRIBER'S
CERTIFICATE
I, the undersigned,
hereby certify that,
in as far as it is audible
, the
aforegoing is a
VERBATIM
transcription of the
proceedings as has been contracted with transcriptionist, to be
transcribed by iAfrica Transcriptions and
which had been recorded by
Digital Court Recording Services by means of a digital recorder in
the matter of:
KAREN
TESSA BROUZE
Applicant
and
DAVID SOLOMON BROUZE
Respondent
CASE
NO
: 35189/2011
RECORDED
AT
: Johannesburg High Court
DATE
HELD
: 27 July 2012
NO
OF CD’s
: 1 (One)
NUMBER
OF PAGES
: 29
PLEASE
NOTE
:
Court recording
equipment not utilised correctly by court stenographer, thus
resulting in an unclear and sometimes inaudible recording.