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[2016] ZAGPJHC 370
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L v L (40691/2016) [2016] ZAGPJHC 370 (12 December 2016)
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER:
40691/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
12
December 2016
L.,
A.
Applicant
and
L.,
W.
Respondent
JUDGMENT
[1] This is a reconsideration
application in terms of rule 12(6) (c) of the Uniform Rules of Court.
[2] The application arises from the
background set out below, the facts of which are common between the
parties:
[3] The applicant is A. L. (Mrs. L.).
The respondent is W. L. (Mr. L.). In 1999, a marriage out of
community of property was concluded
between the parties. Prior to the
marriage, the parties concluded an
ante
nuptial contract
(ANC), subjecting their respective estates to the accrual system. The
ANC determines their respective estates
at the commencement of the
accrual and excludes from the accrual, certain identified assets.
[4] Mr. L. has expressed his intention
to terminate the marriage by divorce. However, he is yet to
issue the summons commencing
the divorce action.
[5] On 15 November 2016, Mrs. L.
launched an application in terms of which she sought an order in the
following terms:
“
PART
A
1.
Condoning the
Applicant’s non-compliance with the rules of court and
entertaining this application as one of urgency in terms
of rule 6
(12) of the Uniform Rules of Court;
2.
Interdicting the
Respondent from transferring assets held by him or his nominees
and the Acacia Trust, Isle of Man, the Whitehall
Trust, Isle of Man,
the Providence Trust, Isle of Man and Whitehall Acacia Trust, Isle of
Man, into any living annuity including
but not limited to any living
annuity administered by Acacia International Retirement Scheme
(“Airs”) pending the final
determination of the relief
claimed in Part B;
3.
Interdicting the
Respondent from transferring any assets owned by him or his nominees
or held in the name of the trusts set out
in paragraph 2 above or
disposing of the assets save on not less than 30 days ‘ written
notice delivered by email to the
Respondent’s attorney of
record and to the Applicant pending the final determination of Part B
of this application;
4.
That the costs
of this application be reserved for determination of the court
hearing in Part B;
5.
Further and/or
alternative relief.
“
PART
B
1.
That there be an
immediate division of the accrual in accordance with the provisions
of
Section 8
(1) of the
Matrimonial Property Act, 88 of 1984
, read
together with the
ante
nuptial contract
concluded between the parties,
alternatively
on such other basis as the Court may deem just;
2.
That from the
date of granting of the order for an immediate division of the
accrual the proprietary system applicable to the marriage
between the
parties shall be one out of community of property and
community of profit and loss and that the accrual
system shall be
expressly excluded;
3.
That the costs of
the application including the costs of the application under Part A
(sic);
4.
Further and/or
alternate relief.”
[6]
On 17 November 2016, Mrs. L. obtained an order in terms of Part A of
the notice of motion. Makume J granted the order in urgent
court on
an
ex parte
basis. The
ex parte
order, together with the application, was served on Mr. L.’s
attorneys on the day the order was granted.
[7] On Thursday 24 November 2016,
approximately a week after he was served with the documents referred
to in paragraph 6 above, Mr. L.
filed a notice in terms of
Rule 12(6)
(c). He served the notice on Mrs. L.'s
attorney by email at approximately 12h00. The notice indicates that
the
application would be heard at 10h00 on Tuesday 29 November 2016.
[8] On 28 November 2016, Mr. L.
filed an answering affidavit. Prior to it being filed, it was served
on Mrs. L.'s
attorney at 12h00 on 28 November 2016. The
answering affidavit is brief. It only sets out the grounds on
which Mr. L.
seeks to have the
ex parte
order
reconsidered. Before I deal with the substance of the reconsideration
application, I first consider a procedural issue that
arises in the
application.
PROCEDURE FOR BRINGING AN
APPLICATION IN TERMS OF
RULE 6(12)
(c)
[9] The application raises a question
whether the requirements for bringing urgent applications both as set
out in the uniform rules
of court and in the practice directives of
this court apply to an application in terms of
rule 6(12)
(c). What
highlighted this issue is the inconvenience experienced not only by
the court but also by Mrs. L. occasioned
by the manner in
which the application was brought.
[10] For ease of reference, I quote
the relevant rules and practice directive below:
“
8.1 When an urgent
application is brought for the Tuesday at 10h00 the applicant must
ensure that the relevant papers are filed
with the Registrar by the
preceding Thursday at 12h00.
8.2 The Registrar’s
office must ensure that the court files of all urgent applications
set down for the Tuesday at 10h00 are
brought to the clerk of the
judge hearing the urgent applications by 10h00 on the preceding
Friday.
[11] When I received the files for the
urgent court cycle commencing Tuesday 29 November
2016, Mr. L.'s answering
affidavit had not been filed.
Only the notice in terms of
rule 12(6)
(c) had been filed. As a
result, when I read the papers, I was not privy to the grounds on
which Mr. L. sought the
ex parte
application
reconsidered. Until Mr. L.’s answering affidavit had been
served on Mrs. L.'s attorney, he (Mrs. L.'s
attorney),
was in a similar position as the court. He was unapprised of the case
his client was required to meet in the reconsideration
application. I
became aware that the answering affidavit had been filed when
Mrs. L.'s replying affidavit was filed as part
of an indexed and
paginated bundle of the application short of an hour before the court
sat on Tuesday 29 November 2016. As indicated,
I had already read the
papers as filed when the application was received from the
Registrar’s office. A busy urgent court
roll with several
extremely urgent matters in which voluminous papers had been filed,
as well as the limited time leading to the
sitting of the court did
not afford me the opportunity to revisit the papers. As a result,
when my attention was drawn to the matter
in court, I was not ready
to deal with it.
[12]
I expressed the view that the matter ought to be struck off from the
roll for non-compliance with paragraph 8.1 of the practice
directive.
Not all the documents on which Mr. L. sought to rely had been
filed by Thursday 12h00.
[1]
As already
stated, his answering affidavit was only filed towards the end of the
day a day prior to the hearing of the matter. It
was only brought to
my attention on the day the matter was due to be heard, not affording
me the opportunity to adequately prepare
to hear the matter. This is
one of the reasons that prompted Wepener J to deliver a written
judgment in
In
re Several Matters
to provide clarity on the responsibility of the party setting down an
urgent application. Mr. L.'s counsel contended that
the
application is rendered urgent by the fact that the order was granted
ex
parte
and for that reason, Mr. L. is entitled to have it reconsidered
on 24 hour notice to Mrs. L.. For that reason, the
rules
and practice directives that apply to urgent applications do not
apply to a reconsideration application. His counsel further
contended
that since Mr. L. filed the notice in terms of
Rule 12(6)
(c) on
Thursday, for hearing on Tuesday, he had given Mrs. L. more than
adequate notice to prepare for the application. I
do not agree.
[13] Although the notice in terms of
Rule 12(6)
(c) was served on Mrs. L. on Thursday, given
that it was not accompanied by an answering affidavit, there is
nothing
her attorney and counsel could have done to prepare to argue
the application as they were not privy to the grounds on which he
sought the application reconsidered. They were only apprised of
Mr. L.'s case on 28 November 2016 after the answering affidavit
had been filed. They prepared a replying affidavit which was only
filed on Tuesday 29 November 2016. As mentioned above, my attention
was only drawn to this document when the matter came up in court. I
then stood the matter down to Wednesday 30 November 2016 to
allow me
to study the papers and to hear argument on urgency.
[14]
Rule 12(6)
(c) does not stipulate
the period within which a reconsideration application may be brought.
Mr. L.'s counsel’s argument
on urgency centered on
rule 6(8)
which allows a respondent in an
ex parte
application brought
and an order granted in the ordinary course
,
to anticipate its
reconsideration on 24 hours’ notice to his opponent. Counsel
for Mr. L. contended that the application
should be struck from
the roll with costs for lack of compliance with the requirements set
out in the practice directive in respect
of urgency. I do not
agree with this contention.
[15]
On the authority in
Lorenco
and Others v Ferela (Pty) Ltd and Others (No1),
[2]
rule 6(8)
also applies to
ex
parte
applications obtained on an urgent basis. However, I am of the view
that
rule 6(8)
does not give an applicant carte
blanche
to assert his entitlement to bring a reconsideration application on
24 hours’ notice to do so in a manner that is inconvenient
to
the court and prejudicial to his opponent. The circumstances of each
case and considerations of convenience and fairness are
pivotal when
the court exercises its discretion to enroll a
rule 12(6)
(c)
application.
[16] The rationale behind
rule 6(8)
is
to limit the exposure of a party against whom an order was granted in
his absence to the effects of such an order by giving
him the right
to have the order reconsidered at 24 hour’s notice. Mr. L.
did not take full advantage of this rule. He
could have brought the
application on Friday 18 November 2016. He offered no reason why he
did not do so. He waited a full week
before he took action in terms
of this rule. A close look at the course he followed reveals that he
followed the customary Thursday
to Tuesday rule envisaged in 8.1 of
the practice directive because he filed the application on Thursday
for hearing on Tuesday.
Having taken a week to file the application,
there is no reason why he did not file his answering affidavit
simultaneously with
the notice in terms of
rule 6(12)
(c). He had a
full week to prepare it. The time when he filed it created an
inconvenience to the court. It was also prejudicial
to Mrs. L..
I say so mindful of the fact that
rule 12(6)
(c) is silent on the
filing of an answering affidavit.
[17]
The rule is couched in wide terms. There are divergent judgments on
whether the court is limited to only reconsider the application
on
the papers served before it when the
ex
parte
order was granted or whether the party bringing a
rule 6(12)
(c)
application is entitled to file opposing papers. Joffe J in
Rhino
Hotel & Resort (Pty) Ltd v Forbes and Others
[3]
prefer the
former position while in L
orenco,
ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others
[4]
and
Oosthuizen
v MIJS
[5]
the court
favours the latter position. In my view, the broad scope of
Rule
6(12)
(c) should not be tempered with. Leaving the scope broad allows
a party bringing the application to adopt a strategy that best
advances his case in the most effective manner. The approach
preferred in
Rhino
Hotel & Resort
will be effective where the applicant only wishes to attack the
ex
parte
application on the papers as they served before the court that
granted the order. The latter scenario would benefit a party who
wishes to place evidence before the court to show why the
ex
parte
order should be set aside. In such a case, an answering affidavit
ought to be filed simultaneously with a
rule 6(12)
(c) notice to
avoid inconvenience and prejudice that arose in this case. On the
authority
in
ISDN Solutions (Pty) Ltd
,
the applicant will be entitled to file a reply.
[18]
Given that the parties were ready to argue the matter when it served
before me on Wednesday 30 November 2016, I enrolled it
because
although Mr. L. delayed to bring the application, the delay was
not so inordinate that it defeated the purpose of
rule 6(8).
This was
the scenario in
ISDN
Solutions (Pty) Ltd
[6]
where the court found that due to the delay in bringing the
application, as well as the fact that the hearing of the main
application
was eminent, entertaining a
rule 6(12)(c)
application
under those circumstances would not serve the intended purpose.
[19] Mr. L. only delayed by one
(1) week. Despite my misgivings with the manner in which he brought
the application, the inconvenience
he caused the court and the
prejudice he caused the applicant is not of such a nature as to
obliterate his rights in terms of
rule 6(8)
, particularly because the
inconvenience and prejudice may be remedied with a cost order.
[20]
I now turn to deal with Mr. L.'s grounds for the reconsideration
application. It is apposite to mention at this juncture that
the
answering affidavit was deposed to by Mr. L.’s attorney. Mr. L.
opted not to personally depose to an affidavit. On his
attorney’s
advice he also opted not to serially respond to the allegations
contained in the founding affidavit because doing
so will, to use his
attorney’s formulation “
give
credence to the applicant’s obvious attempt to force the
respondent to answer the interrogatories that her attorney posed
in a
letter of 26 October 2016”.
In the main, the answering affidavit decries the competency of an
application in terms of section 8 of the Matrimonial Property
Act
[7]
(MPA) in the circumstances of this case. It then deals with the
purported material non-disclosure of an agreement between the
parties, concluded through the exchange of letters dated 14 and 15
November 2016. His attorney contends in the answering affidavit
that
the
ex
parte
order ought to be set aside on that ground alone. I deal with this
contention in more detail below. In her heads of argument, Mr.
L.’s
counsel went further and relied on facts not set out in the answering
affidavit. Such facts do not merit consideration
as they are not
properly before court. Only contentions based in law merit
consideration, even though they were only raised in
Mr. L.’s
counsel’s heads of argument for the first time.
[21] On the authority in the seminal
Plascon Evans
judgment, I adjudicate this application on the
facts disputed by the respondent, on common cause facts or on facts
not disputed
or unreasonably disputed by the respondent. Therefore,
given that the facts in the founding affidavit largely stand
undisputed,
unless they are so far-fetched that it is unreasonable to
rely on them, the application stands to be determined by them.
[22] The high water mark of Mr. L.’s
objection to the
ex parte
application is that it is an attempt
by Mrs. L. to use application proceedings to achieve an objective
that is ordinarily pursued
in terms of section 3 of the MPA. She
would be entitled to obtain information on Mr. L.’s assets
through the normal trial
process. Her application forces Mr. L. to
account for his financial affairs under oath before divorce summons
are issued, despite
the fact that in a letter dated 31 October 2016,
Mr. L. undertook to account for his financial affairs in due course.
[23] I disagree that this application
is inappropriate for the relief sought and granted. The main
application is premised on section
8 of the MPA. It provides as
follows:
“
8.
Power of court to order division of accrual
(1)
A court may on the application of a spouse whose marriage is subject
to the accrual system and who satisfies the court that
his right to
share in the accrual of the estate of the other spouse at the
dissolution of the marriage is being or will probably
be seriously
prejudiced by the conduct or proposed conduct of the other spouse,
and that other persons will not be prejudiced thereby,
order the
immediate division of the accrual concerned in accordance with the
provisions of this Chapter or on such other basis
as the court may
deem just.”
[24] The relief sought in Part B is
designed to protect Mrs. L.’s right to share in the accrual
against Mr. L.’s prejudicial
conduct as complained about in the
founding affidavit. The relief in Part A is designed to protect the
accrual by preserving Trust
and personal assets from being
transferred for the sole purpose of frustrating the relief sought in
Part B. I find nothing inappropriate
about the litigation strategy
adopted by Mrs. L. to protect her rights. Section 8 was designed by
the legislature to deal with
the scenario presented in this case. The
issuing of divorce summons is not a prerequisite for such an
application. Mr. L. has exercised
his right to have the
ex parte
order reconsidered. This application will be considered on its
merits, in the light of applicable legal principles.
[25] Mr. L. also has an
opportunity to oppose Part B of the application, which will only be
determined in due course. In my
view, there is no merit to the
complaint set out in paragraph 22 above.
[26] As indicated above, Mr. L.
brought the application on the ground of non-disclosure of material
facts. In her heads of argument,
his counsel raised the following
additional grounds:
[26.1] Material non-joinder; and
[26.2] Failure to meet the
requirements of an interim interdict.
In the light of what I have stated in
paragraphs 20 to 21 above, I deal with the additional grounds only in
as far as they relate
to questions of law.
NON-DISCLOSURE
OF MATERIAL FACTS
[27] Mr. L. contends that Mrs. L.
committed a material non-disclosure when she failed to disclose in
her founding affidavit that
there was an agreement between the
parties that Mr. L.’s attorney would accept service of the
section 8 application. This
agreement is apparent from correspondence
exchanged between the parties dated 14 and 15 November 2016. Had she
so disclosed, Makume
J would not have granted the
ex parte
order. Makume J would have insisted on compliance with that agreement
and postponed the application for service of the application
to be
effected as agreed between the parties. In my view, this ground of
objection stands to fail.
[28]
I quote the relevant paragraphs from the above letters below:
[28.1] The letter dated 14 November
2016, addressed by Mrs. L.’s attorney to Mr. L.’s
attorney states as follows:
“
2.2
Kindly confirm that you are authorized to accept service of my
client’s application”
[28.2] The letter dated 15 November
2016, addressed by Mr. L.’s attorney to Mrs. L.’s
attorney states as follows:
“
2.
We are authorized to accept service of your client’s
application in terms of
section 8
of the
Matrimonial Property Act on
behalf of our client.”
[29] The subject of this agreement is
the
section 8
application. It is apparent from paragraph 5 above that
the order sought in this application comprises of two parts - Part A
for
interdictory relief and Part B for relief in terms of
section 8.
In her founding affidavit Mrs. L. set out reasons why she seeks the
relief in Part A on an
ex parte
basis. The reasons relate to
her apprehension, based on threats by Mr. L., to conceal his assets
to avoid being subjected to asset
strip, as well as placing the
matrimonial home on the market without informing her. She contends
that the purpose of the relief
sought and granted in Part A would be
defeated by giving notice to Mr. L.. Most of the assets she seeks
preserved are liquid and
can be transferred at a click of a button as
soon as notice of the
section 8
application is served on him.
[30] The agreement reflected in
paragraph 28 above does not refer to an application for an interdict.
In his letter, Mrs. L.’s
attorney referred to ‘application’
without any details as to its nature. In his response Mr. L.’s
attorney referred
to a
section 8
application. Given Mrs. L.’s
reasons for seeking the relief set out in Part A on an
ex parte
basis, as well as the formulation used by her attorney in the
quotation above, it could not have been her intention to serve notice
of the application on Mr. L.’s attorney prior to obtaining the
interdict. There is therefore no basis for the suggestion
that the
agreement incorporates service of the application for an interdict.
Such an agreement would be tantamount to an agreement
not to obtain
an interim interdict on an
ex parte
basis. It was Mrs. L.’s
clear intention to surprise him with the
ex parte
order so
that he is constrained from giving effect to his threats to hide the
assets before the
section 8
application is determined. Mr. L.’s
suggested interpretation of the agreement in respect of service is
not supported by the
context and content of the relevant letters.
[31] In the premises, this ground of
objection also stands to be rejected.
MATERIAL
NON-JOINDER
[32] Mr. L. complains that Mrs. L.
failed to join the following trusts that have a direct and
substantial interest in the relief
sought and granted: Acacia Trust,
the Whitehall Trust, the Providence Trust and the Whitehall Acacia
Trust (individually referred
to by their respective names and
collectively referred to as ‘the trusts’). According to
Mrs. L., all the Trusts are
registered in the Ilse of Man –
outside the jurisdiction of this court. Counsel for Mr. L. contended
that the court order
prevents the Trusts from transferring or
disposing of their assets. The order also interdicts Mr. L., his
nominees and the Trusts
from transferring trust assets to Acacia
International Retirement Scheme (AIRS). AIRS ought to be before court
to protect any contractual
or other right it has to claim the
transfer of assets from any of the Trusts. AIRS is also registered
outside the jurisdiction
of this court. Mr. L. further contended that
the order stands to be set aside on this ground alone.
[33] It is trite that a party with a
direct and substantial interest in any order which cannot be
sustained or carried into effect
without prejudicing him or her ought
to be joined, unless the court is satisfied that the party has waived
its entitlement to be
joined (
Amalgamated Engineering Union v
Minister of Labour
1949 (3) SA 637
(A) at 657).
[34] No evidence has been placed
before court, illustrating how the court order is prejudicial to the
Trusts or to AIRS. What clearly
appears from how the order is
formulated is that the subject of the interdict is the person of Mr.
L.. He does not dispute that
he is a protector of the Trusts as
alleged by Mrs. L. and that he is entitled in that capacity to
appoint and remove trustees and
to approve the distribution of Trust
assets. The Trusts as legal entities or the Trustees are not subject
to the interdict.
[35] Mr. L.’s failure to set out
in his answering affidavit averments demonstrating how the order
substantially and adversely
affect the interests or rights of the
Trusts renders a fatal blow to this ground of objection. His mere
reliance on material non-joinder
without supporting it with facts
does not sustain the relief he seeks.
[36] In the premises, the above ground
also stands to be rejected.
FAILURE
TO MEET THE REQUIREMENTS OF AN INTERIM INTERDICT
[37] Mr. L. contends that Makume J
ought not to have granted the interim interdict because Mrs. L.
failed to meet the requirements
for such relief.
[38] It is trite that for an
application for an interim interdict to be successful, according to
the decision in the well-known
1914 case of
Setlogelo v Setlogelo
,
the applicants ought to meet the following requirements:
[38.1] The existence of a
prima
facie
right.
[38.2] A well-grounded apprehension of
irreparable harm if the interim relief is not granted and the
ultimate relief is granted.
[38.3] The balance of convenience
favours the granting of the interdict.
[38.4] The absence of a suitable
alternative remedy.
Prima Facie Right
[39]
When determining whether the applicant has satisfied these
requirements, I am also guided by the nuanced approach to this
exercise articulated by Holmes J in
Olympic
Passenger Services (Pty) Ltd v Ramlagan.
[8]
The
relevant extract from this judgment is worth quoting:
“
It
thus appears that where the applicant’s right is clear, and the
other requisites are present, no difficulty presents itself
about
granting an interdict. At the other end of the scale, where his
prospects of ultimate success are nil, obviously the
court will
refuse an interdict. Between these two extremes falls the
intermediate cases in which, on the papers as a whole,
the
applicant’s prospects of ultimate success may range all the way
from strong to weak.
The expression ‘prima
facie established though open to some doubt’ seems to me a
brilliantly apt classification of these
cases. In such cases,
upon the proof of a well-grounded apprehension of irreparable harm,
and there being no ordinary alternative
remedy, the court may grant
an interdict.
“
It
has a discretion, to be exercised judicially upon a consideration of
all the facts. Usually this will resolve itself into
a nice
consideration of all the prospects of success and the balance of
convenience. The stronger the prospects of success,
the less
need for such a balance to favour the applicant: the weaker the
prospects of success, the greater the need for the
balance of
convenience to favour him.
“
I
need hardly add that by balance of convenience is meant the prejudice
to the applicant if the interdict be refused, weighed against
the
prejudice to the respondent if it be granted.”
[40]
Mr. L. contends that the relief granted is draconian in that it
prevents him and the Trusts from participating in AIRS, a retirement
scheme that he formed. The Trusts are also prevented from
transferring assets to the AIRS. It also freezes all his assets. The
question for determination is whether Mrs. L. lacks a
prima
facie
right to constrain him and the
Trust in this manner. As already stated above, the interdict does not
operate against the Trusts
and AIRS. It only operates against him.
The fact that relief is perceived by the person against whom it is
granted as draconian
does not, in and of itself warrant that it
should be set aside.
[41]
Mr. L. is a man of immense wealth. His wealth is haboured in the
Trusts. The trust assets are part of his estate. Therefore,
they form
part of the accrual. Mrs. L. is entitled, by virtue of the property
regime that regulates their marriage, to share in
the accrual. In my
view, herein lies Mrs. L.’s prima
facie
right
to protect the accrual against
the dissipation of Trust assets. As the protector of the Trusts, Mr.
L. singularly holds enormous
power to deal with these assets. The
interdict is not designed to affect the day to day functioning of the
Trusts or AIRS. I find
nothing draconian about the terms of the
interdict. Mr. L. makes a frail attempt to demonstrate how the
interdict is prejudicial
to him personally. He states that the assets
that he is prohibited from transferring are the source of his wealth.
He uses them
to run his international finance business. Freezing
these assets constrains his ability to generate wealth. However, he
fails to
demonstrate how the interdict constrains him from generating
wealth. The interdict does not place an absolute bar against the
transfer
of trust assets. The interdict does nothing more than
prohibit the person of Mr. L. from transferring trust assets to a
living
annuity or if he intends transferring trust or personal assets
to a recipient other than a living annuity, to give 5 days’
written notice to Mrs. L.’s attorney prior to doing so. He also
fails in his answering affidavit to demonstrate how the interdict
constrains him from conducting personal day to day transactions.
[42] As stated in paragraph 3 above,
Mr. L. has personal assets that fall outside the accrual. Mrs. L.
lacks a
prima facie
right to constrain him from disposing of
these assets as she is not entitled to share in these assets. Mrs. L.
has established
a
prima facie
right to restrain Mr. L. from
transferring trust assets to a living annuity or if he intends
transferring trust or personal assets
to a recipient other than a
living annuity, to give 5 days’ written notice to Mrs. L.’s
attorney prior to doing so.
This prohibition does not extend to
assets that are excluded from the accrual. Paragraph 3 of the order
granted by Makume J stands
to be amended to release Mr. L. from
restraint from dealing with assets that fall outside the accrual.
A well-grounded apprehension of
irreparable harm
[43] When he considered the
ex
parte
application, Makume J considered the following facts set
out in the founding affidavit. Mr. L.’s assets (most of which
are
liquid) are tied up in off-shore trusts to avoid detection. He
has not responded to Mrs. L.’s request to provide her with
a
list of his assets. He undertook to do so at the meeting of the
parties and their legal representatives on 26 September 2016
and on 6
October 2016. He still has not made this information available. He
has deferred the meeting between the parties and their
legal
representatives until an accounting of his assets is incomplete. His
view is that there is nothing urgent about the matter.
Not only has
he failed in his answering affidavit to explain the delay in
complying with this request, he has also not provided
a date on which
he will comply with the request. He has threatened to arrange his
affairs in such a way as to frustrate the Mrs.
L.’s right to
share in the accrual. He also informed Mrs. L. that he is not
prepared to be subjected by Mrs. L. and her attorney
to asset strip.
He obtained legal advice to insulate his assets from the accrual by
transferring them to a living annuity. He acted
on these threats by
withdrawing an investment he had donated to Mrs. L.. He only returned
it after being threatened by her attorney.
He has put the matrimonial
home on sale without discussing with or informing Mrs. L..
[44] Despite the seriousness of these
allegations, Mr. L. has opted not to answer to them in his answering
affidavit. These allegations
show that Mrs. L. has a well-founded
apprehension of irreparable harm.
[45]
Mr. L. contends that the interdict ought not to have been granted
because Mrs. L. has sufficient alternative remedies. The
alternative
remedies postulated by Mr. L. are:
[45.1] a request in
terms of
section 7
of the
Matrimonial Property Act.
>
[45.2] remedies available to a party
seeking to access information in a trial action such as discovery,
request for further particulars
and requests for admissions.
[45.3] Subpoenas
duces tecum
against third parties.
[46] The remedies in 45.2 are only
competent in a trial action. Summons are yet to be issued. Therefore
these remedies are not available
to Mrs. L.. Mrs. L. attempted to
request the information she is entitled to in terms of
section 7.
Two
months after such a request, the information has not been
forthcoming. As stated above, in his answering affidavit, no firm
commitment is made regarding the timeframe within which the request
for information will be satisfied. To the extent that the remedies
in
45.1 and 45.3 require notice to Mr. L. or to third parties, I do not
consider them to be sufficient remedies because giving
notice will
defeat the objective of the relief sought and granted in Part A. Even
if Mrs. L. was to pursue these remedies on an
ex parte
basis,
they would not preserve the accrual, which is the purpose served by
the interdict. The interdict is a sufficient remedy
in the light of
the threats made by Mr. L., some of which he has started acting on to
dissipate the accrual.
[47] Mr. L. has not set out any facts
to suggest that the balance of convenience favours him. As a
protector of the Trusts, he holds
a lot of power in respect of the
assets haboured in the Trusts. Most of these are liquid. They can be
disposed of or transferred
at a touch of a button, giving effect to
his intention to hide the assets, avoid an asset strip and defeat any
attempts by Mrs.
L. to share in the accrual. Unless he is constrained
from doing so, the inconvenience that Mrs. L. stands to suffer is
immense.
The interdict is of an interim nature. It only operates
pending the determination of the relief in Part B. It contains an
absolute
bar of transfer of assets to a living annuity. Given the
adverse consequences of such a transfer, such a prohibition is
reasonable
in the circumstances. Assets transferred to a living
annuity are completely removed from the portfolio of the transferor
for a
number of years, at the end of which he is only entitled to
monthly annuity income. Once removed, these assets will be out of
reach
for Mrs. L. and will no longer form part of the accrual.
[48] Mr. L. is still able to transfer
assets to another entity or scheme provided he gives 5 days written
notice to Mrs. L.’s
attorney. In the absence of contrary
evidence, I find that the balance of convenience favours Mrs. L..
[49] In the premises, save for
modifying the order granted by Makume J as alluded in paragraph 42
above, the order stands to be
confirmed.
[50] Each party requested costs in the
event of their success. In my view, save for the wasted costs
of 28 November 2016 which
as stated in paragraph 17 stand to be borne
by Mr. L., it is premature to determine a cost award at this stage.
Although Mr. L.
is partially successful in that the order by Makume
J, stands to be slightly modified, given that he has not made out a
case for
the relief he seeks, being the discharge of the order by
Makume J, I am not persuaded that he is entitled to costs
particularly
because the order by Makume J largely stands to be
confirmed. However, full argument on costs was not advanced because
customarily,
cost disputes are settled in the ordinary course. The
appropriate resort to take is to reserve costs to afford parties an
opportunity
to present comprehensive argument on the issue.
Furthermore, costs in the application that served before Makume J
were reserved
for the determination of the court that hears Part B.
It may be appropriate for the costs of both the application for the
ex parte
interdict as well as the reconsideration application
to be considered in tandem. That decision I leave to the parties.
[50] I therefore make the following
order:
ORDER
[1] Paragraphs 1, 2 and 3 of the order
granted by Makume J on 17 November 2016 stand to be confirmed.
[2] Paragraph 3 of the order granted
by Makume J on 17 November 2016 does not extend to assets excluded
from the accrual in terms
of
ante
nuptial contract concluded
between the parties on 14 December 1999 and registered at the
Johannesburg Deeds Registry on 22 December
1999 under reference
number: H5996/99.
[3] Save for the
wasted costs of 28 November 2016 to be borne by the respondent (Mr.
L.), which costs shall include the costs of
senior counsel, the costs
of this application are reserved.
__________________________________________
L
T MODIBA
JUDGE
OF THE HIGH COURT
COUNSEL FOR THE APPLICANT:
Mr.
I. V. Maleka SC
Instructed by:
Billy
Gundelfinger Attorneys
COUNSEL
FOR THE RESPONDENT:
Mrs. I Opperman SC, assisted by Mr. D Watson
Instructed
by:
Clarks Attorneys
Date of hearing:
29, 30
November, 01 December 2016
Date
of judgment:
12 December 2016
[1]
See also judgment by Wepener J in In Re: Several Matters on the
Urgent Roll
[
2012] ZAGPJHC 165:
[2012] 4 All SA 570
(GSJ);
2013 (1) SA 549
(GSJ)
(18 September 2013).
[2]
1998 (3) SA 281
at 290A-C.
[3]
2000 (1) SA 1180.
[4]
1996 (4) SA 484.
[5]
2009 (6) SA 266.
[6]
Cite the relevant paragraph.
[7]
Act
88 of
1984.
[8]
1957 (2) SA
382
at 383C-G.