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[2021] ZAGPJHC 9
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N.I.M v M.M (34446/2019) [2021] ZAGPJHC 9 (18 February 2021)
SAFLII
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Certain
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HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
(1)
REPORTABLE: Electronic reporting only.
(2)
OF INTEREST TO OTHER JUDGES: No.
(3)
REVISED.
18
February 2021
Case
no: 34446/2019
In
the matter between:
N[....]
I[....] M[....]
Applicant
and
M[....]
M[....]
Respondent
Case
Summary
: Practice –
Separation of issues in terms of r 33(4) of Uniform Rules of Court –
The parties entered into a customary
marriage in community of
property and some years later into a civil marriage that excludes
community of property, community of
profit and loss and the accrual
system – An issue in the divorce action is whether the civil
marriage and antenuptial contract
should be set aside as void
ab
initio
– Applicant seeks such
issue to be separated and decided before any other question in the
action.
Separation
not appropriate,
given
the anticipated course of the litigation between the parties as a
whole, that it will facilitate the proper, convenient and
expeditious
disposal of the litigation between the parties and that it will be
appropriate and fair to both of them.
JUDGMENT
MEYER J
[1]
The applicant, Mr N[....] I[....] M[....], seeks a separation of
issues in terms of
r 33(4) of the Uniform Rules of Court in a pending
divorce action, which the respondent, Mrs M[....] M[....], has
instituted against
him on 2 October 2019.
[2]
From the pleadings in the divorce action, which have closed, the
affidavits in this
application and counsel’s heads of argument
it transpires that it is common cause that the marriage relationship
between
the parties has broken down irretrievably and that there are
no reasonable prospects of the restoration of a normal marriage
relationship
between them. Both parties seek a decree of
divorce.
[3]
It is also common cause between the parties that both of them should
have full parental
responsibilities and rights in respect of the two
minor children born of their marriage. They are
ad idem
that
the respondent should have primary residence in respect of the two
minor children and that the applicant should have reasonable
rights
of contact with them subject thereto that his contact should not
interfere with their social, educational, religious and
extra-mural
activities.
[4]
The respondent initially claimed no maintenance for herself and
maintenance ‘for
the minor children in the amount of R40 000.00
per month.’ Two days before the filing of her answering
affidavit
in this application, she filed a notice of intention to
amend her particulars of claim to include a claim of maintenance for
herself
and to increase the maintenance claim in respect of the two
minor children to ‘the amount of R40 000.00 per child per
month. In respect of herself, she intends to claim the
following:
‘
9.1 Payment
of the sum of R50 000.00 per month for a period of 5 (five)
years from the date of the divorce, with
such amount increasing at
the rate of the CPI on the anniversary of the divorce annually;
9.2 The
Plaintiff’s medical, dental, hospital surgical, ophthalmic,
orthodontic and prescribed pharmaceutical
expenses, for a period of 5
(five) years from the date of the divorce;
9.3 The
Defendant to transfer into the Plaintiff’s name, at no costs to
herself, a residential dwelling
of her choice, having a value of no
less than R13 000 000.00 (Thirteen Million Rand);
9.4 The
Defendant to make available the sum of R1 500 000.00 (One
Million Five Hundred Thousand
Rand) to enable the Plaintiff to
purchase household furniture and effects;
9.5 The
Plaintiff to retain the motor vehicle currently in her possession as
her sole and exclusive property
and that the Defendant purchase for
the Plaintiff on the fifth anniversary of the divorce a new vehicle
of her choice in the same
category as the Plaintiff’s current
vehicle.’
[5]
The applicant objects to the amendment. He denies his liability
to pay any maintenance
to the respondent and the
quantum
of
her claim. He admits his liability to pay maintenance in
respect of the two minor children but denies that the amounts
claimed
by the respondent represent their actual and reasonable
requirements. I accept for present purposes (without deciding
the issue) that the respondent will be permitted to amend her
particulars of claim in accordance with her notice of intention to
amend.
[6]
The respondent is a freelance actress and it is common cause that the
applicant is
‘a world class disc-jockey’ by profession.
The respondent’s averment in her answering affidavit ‘that
the Applicant is an extremely wealthy individual, earning up to
R100 000 000.00 (One Hundred Million Rand) per annum’
is not disputed by the applicant in his replying affidavit nor is
issue taken with the following averments made by her:
’
18.1 I admit that
the issues relating to contact and care will be settled as the minor
children have always been in my primary
care, whilst the Applicant
travels the world to pursue his profession as a world class disc
jockey, earning up to a minimum fee
of US$ 150 000.00 (One
Hundred and Fifty Thousand US Dollars) to US$ 299 000.00 (Two
Hundred and Ninety Nine Thousand
US Dollars) according to the Booking
Agency Website where the Applicant’s profile is listed.
18.2 The Applicant is
a South African DJ, known as Black Coffee, and considered the second
richest musician in Africa,
with a net worth of US$ 60 million (Sixty
Million US Dollars), according to Glusea.com. . . . ‘
[7]
The applicant does not dispute his ability to pay maintenance for
either the minor
children or the respondent. In this regard, he
states
inter alia
the following in his founding affidavit:
‘
6.2 I
furthermore do not dispute my ability to pay maintenance in respect
of the minor children as claimed by
the Respondent at all, and will
be readily able to comply with any reasonable order relating to the
quantum
of maintenance which the Court may find that I have to
pay in respect of the minor children, should the issue not be settled
between
the Respondent and I’.
And in his replying
affidavit he states:
‘
4.2 I
have repeatedly stated that I do not dispute my ability to pay
maintenance for the children, but deny that
the quantum of
maintenance claimed by the Respondent is just and equitable in the
circumstances.’
[8]
The applicant is further confident that all issues relating to
parental responsibilities,
his reasonable contact with the minor
children and maintenance payable in respect of the minor children
‘would be readily
settled’ between him and the
respondent. In their heads of argument the respondent’s
counsel also accept that
the issues relating to parental
responsibilities, reasonable contact and maintenance ‘are in
effect non-issues’.
[9]
I now turn to what the parties are
ad idem
constitutes the
real issue for determination in their divorce action. The
parties entered into a customary marriage in community
of property on
14 May 2011. On 5 January 2017, they entered into a civil
marriage. Prior to entering into the civil
marriage, they
concluded an antenuptial contract in terms whereof they excluded
community of property, community of profit and
loss and the accrual
system, which antenuptial contract was duly executed and registered
on 21 December 2016 (the antenuptial contract).
In terms of
clause 4 of the antenuptial contract, the parties further agreed that
upon dissolution of the marriage, the applicant
would pay to the
respondent an agreed amount of R4 million in complete discharge of
all his patrimonial obligations to the respondent,
including spousal
maintenance.
[10]
In her particulars of claim, the respondent avers that the ‘civil
marriage concluded by
the Parties in terms of the above ANC is
unlawful,
contra bones mores
, unconscionable and falls to be
set aside and declared
null
and
void ab initio
’.
Pursuant to those averments, she claims the following order:
‘
2.
The civil marriage concluded on 5 January 2017, is declared null and
void;
3.
The Ante-nuptial Contract concluded on 21 December 2016 by the
Parties is hereby declared
unlawful and is setting (
sic
)
aside;
4.
Division of the joint estate;
5.
An order appointing a Receiver and Liquidator’.
[11]
In his plea, the applicant pleads that the parties intended and
agreed to enter into a civil
marriage out of community of property
and to register an antenuptial contract before entering into the
civil marriage. They
agreed to perform the traditional
rituals and customs of uniting their two families in terms of their
culture. He denies
that the civil marriage entered into between
them, or their antenuptial contract, is unlawful,
contra bones
mores
, unconscionable and fall to be set aside and declared null
and void
ab initio
. In this regard, he counterclaims:
‘
2.
An order declaring the marriage relationship entered into between the
parties as valid and legal;
3.
An order declaring that the terms of the Ante-nuptial contract
entered into between the parties
are valid and enforceable.’
In
his amended counterclaim, he claims a declarator that the provisions
of clause 4 of the antenuptial contract entered into between
the
parties are
contra bonos mores
, and therefore null and void,
which claim he withdrew by notice dated 19 December 2020.
[12]
On 5 June 2020, the respondent instituted a Rule 43 application
against the respondent.
Therein, she claimed
inter alia
a contribution towards her legal costs in the amount of R4
million based thereon that she intends to appoint a forensic auditor
to undertake a forensic investigation of the respondent’s
offshore and local assets and to do a comprehensive investigation
to
determine the value of the ‘joint estate’ that, according
to her, still exists between the parties and in which
she is entitled
to share. In her founding affidavit she also states
inter
alia
that ‘[t]he legal challenges to investigate all these
assets would require research, legal opinion and advise by senior
Counsel.
An application for access to information may also be
necessary’ and that extensive trial preparation would be
required, which
will ‘include the discovery of extensive
documentation, Rule 35(1) processes, and then probably an application
to compel
the required discovery of documents and information’.
(On 11 November 2020, after I had reserved judgment in the present
application, an order was made in the Rule 43, application
inter
alia
for the respondent to make ‘an initial’
contribution to the applicant’s legal fees of R100 000.)
[13]
In the present application, the applicant contends that the question
relating to the validity
of the civil marriage and the antenuptial
contract entered into between him and the respondent will
conveniently be decided before
and separately from any other question
in the action. It, according to the applicant, involves factual
evidence relating
to the background and circumstances under which the
civil marriage and the antenuptial contract were entered into, as
well as legal
argument, which will require a preliminary hearing of
no more than a day. He contends that the issue is discreet and
a determination
thereof would also obviate the need for any further
litigation between the parties in respect of the relief claimed in
prayers
4 (division of the joint estate) and 5 (appointment of a
receiver and liquidator) of the respondent’s particulars of
claim.
A resolution of the issue sought to be separated,
according to the applicant, might also avoid the expensive
undertaking of a forensic
investigation that the respondent and her
legal representatives intend to embark upon. In his replying
affidavit, he states
the following:
‘
4.3 I
have brought this application to avoid having to incur substantial
unnecessary legal expenses as envisaged
by the Respondent in the
affidavit deposed to by the Respondent in the Rule 43 application,
where she stated under oath that she
requires a contribution of R4
million in order to enable a “
forensic investigation
”
into my financial affairs for purposes of determining
inter alia
the
quantum
of the Respondent’s claim against half
of the alleged “
joint estate
”.
4.4 It is
a matter of logic and common sense that in the event of the
Respondent’s claim that we are
married in community of property
being dismissed, and the Court upholding the civil marriage which we
entered into, as well as
the Antenuptial Contract that we entered
into, it would follow that such intended “
forensic
investigation
” will be unnecessary.’
[14]
Rule 33(4) of the Uniform Rules of Court reads as follows:
‘
If,
in any pending action, it appears to the court
mero motu
that
there is a question of law or fact which may conveniently be decided
either before any evidence is led or separately from
any other
question, the court may make an order directing the disposal of such
question in such manner as it may deem fit and may
order that all
further proceedings be stayed until such question has been disposed
of, and the court shall on the application of
any party make such
order unless it appears that the question cannot conveniently be
decided separately.’
[15]
There is an abundance of authorities on the notion of ‘convenience’
contemplated
in r 33(4). I mention a few. In
Molotlegi
and another v Mokwalase
[2010] 4 All SA 258
(SCA), Bosielo JA
explained the notion thus:
‘
A
court hearing an application for a separation of issues in terms of
rule 33(4) has a duty to satisfy itself that the issues to
be tried
are clearly circumscribed to avoid any confusion. It follows that a
court seized with such an application has a duty to
carefully
consider the application to determine whether it will facilitate the
proper, convenient and expeditious disposal of litigation.
The notion
of convenience is much broader than mere facility or ease or
expedience. Such a court should also take due cognisance
of whether
separation is appropriate and fair to all the parties. In addition,
the court considering an application for separation
is also obliged,
in the interests of fairness, to consider the advantages and
disadvantages which might flow from such separation.
Where there is a
likelihood that such separation might cause the other party some
prejudice, the court may, in the exercise of
its discretion, refuse
to order separation. Crucially in deciding whether to grant the order
or not the court has a discretion
which must be exercised
judiciously. The court cannot simply grant such an application
because it is unopposed. I regret to say
that the court below failed
in this respect. See
Denel
(Edms) Bpk v Vorster
2004 (4) SA 481 (SCA)
paragraph 3 [also reported at
[2005] 4 BLLR 313
(SCA) –
Ed].’
[16]
In
Denel (Edms) Bpk v Vorster
2004 (4) SA 481
(SCA) para 3,
Nugent J said the following:
‘
[3]
Before turning to the substance of the appeal, it is appropriate to
make a few remarks about separating issues. Rule 33(4) of
the
Uniform Rules - which entitles a Court to try issues separately
in appropriate circumstances – is aimed at
facilitating
the convenient and expeditious disposal of litigation. It should not
be assumed that that result is always achieved
by separating the
issues. In many cases, once properly considered, the issues will be
found to be inextricably linked, even though,
at first sight, they
might appear to be discrete. And even where the issues are discrete,
the expeditious disposal of the litigation
is often best served by
ventilating all the issues at one hearing, particularly where there
is more than one issue that might be
readily dispositive of the
matter. It is only after careful thought has been given to the
anticipated course of the litigation
as a whole that it will be
possible properly to determine whether it is convenient to try an
issue separately. But, where the trial
Court is satisfied that it is
proper to make such an order - and, in all cases, it must be so
satisfied before it does so - it
is the duty of that Court to ensure
that the issues to be tried are clearly circumscribed in its order so
as to avoid confusion.
The ambit of terms like the 'merits' and the
'
quantum
'
is often thought by all the parties to be self-evident at the outset
of a trial, but, in my experience, it is only in the simplest
of
cases that the initial
consensus
survives.
Both when making rulings in terms of Rule 33(4) and when issuing its
orders, a trial Court should ensure that the
issues are circumscribed
with clarity and precision. It is a matter to which I shall return
later in this judgment.’
[17]
In
Consolidated News Agencies (Pty) Ltd (In Liquidation) v Mobile
Telephone Networks (Pty) Ltd and another
2010 (3) SA 382
(SCA),
Navsa JA said this:
‘
[89]
. . . Piecemeal litigation is not to be encouraged. Sometimes it is
desirable to have a single issue decided separately, either
by way of
a stated case or otherwise. If a decision on a discrete issue
disposes of a major part of a case, or will in some way
lead to
expedition, it might well be desirable to have that issue decided
first.
[90] This
court has warned that in many cases, once properly considered, issues
initially thought to be discrete are found to be
inextricably linked.
And even where the issues are discrete, the expeditious disposal of
the litigation is often best served by
ventilating all the issues at
one hearing. A trial court must be satisfied that it is convenient
and proper to try an issue separately.
(Footnotes
omitted.)
[18]
In
Hotels, Inns and Resorts SA (Pty) Ltd v Underwriters at Lloyds
and others
1998 (4) SA 466
(C) para 10, Hlophe J (as he then was)
said this:
‘
The
Rule enjoins the Court to accede to the application and make the
necessary order 'unless it appears that the questions cannot
conveniently be decided separately'. It is incumbent on the applicant
to satisfy the Court that the application be granted. Convenience
must be demonstrated and the Court must have sufficient information
to enable it to decide meaningfully upon the application. It
has been
held that 'convenient' connotes not only 'facility or ease or
expedience', but also 'appropriateness' in the sense that
the
procedure would be convenient if, in all the circumstances of the
case, it appeared to be fitting, and fair to the parties
concerned.
(
Minister of Agriculture v Tongaat Group Ltd
1976 (2) SA 357
(D) at 363D;
Braaf v Fedgen Insurance Ltd
1995 (3)
SA 938
(C) at 940C.) The convenience of all concerned must be
taken into consideration by the Court. Thus clearly where evidence is
such that it would substantially overlap, no purpose would be served
in granting the application to separate issues. While no doubt
it
might be convenient to the applicant to grant the application, surely
it would be inconvenient to the other party and the Court.
The
hearing could be unduly protracted. It is, after all, in the
interests of justice that litigation must be finalised without
inordinate delay. Such interests are better served by the disposal of
the whole matter in one hearing (
Sharp v Victoria West
Municipality
1979 (3) SA 510
(NC) at 511H;
Minister of
Agriculture v Tongaat Group Ltd
(supra at 362G).’
[19]
In
CC v CM
2014 (2) SA 430
(GJ), Mokgoatleng J said the
following:
[25]
In applying the provisions of rule 33(4), a court will consider
whether questions of law or fact may be decided separately
before
others or whether the issues sought to be separated may be
conveniently separated. In considering the question of convenience,
a
court will have regard to its convenience, as well as the convenience
of the parties and the possible prejudice either party
may suffer if
separation is granted. The court is obliged to order separation
unless it determines that the issues cannot be conveniently
separated.
[26]
I concur with Hancke J in
ABSA Bank v Botha
1997 (3) SA
510
(O) at 513C, where in considering the predecessor to rule
33(4) he concluded that —
'the
present rule differs from the previous one in the sense that the
court should grant such an application unless it is inconvenient,
in
other words the court is obliged to order separation except were the
balance of convenience does not justify such separation
'. [My
emphasis.]
[27]
The purpose of rule 33(4) is to determine the fate of a plaintiff's
claim (or one of the claims) without the costs of a full
trial.
'An
important consideration will be whether or not a preliminary hearing
for the separation decision of specified issues will materially
shorten the proceedings. The convenience must be demonstrated and
sufficient information must be placed before the Court to enable
it
to exercise its discretion in a proper and meaningful way.'
See
Optimrops
1030 CC v First National Bank of Southern Africa Ltd
[2001]
2 All SA 24
(D) at 26
f
–
g
;
Sibeka
and Another v Minister of Police and Others
1984 (1) SA 792
(W) at 795H;
Denel (Edms) Bpk v Vorster
2004 (4) SA
481
(SCA) ((2004) 25
ILJ
659;
[2005] 4 BLLR
313)
at 485A – B;
Rauff v Standard Bank Properties (A
Division of Standard Bank of SA Ltd) and Another
2002 (6) SA 693
(W) at 703.
(See
Erasmus
Superior Court Practice
at B1 – 236.)
[28] 'The
nature and extent of the advantages which would flow from the
granting of the separation order sought in terms of
rule 33(4) should
be weighed up against the disadvantages. The court is obliged, to
order the separation of issues unless it appears
that the issues
cannot conveniently be decided separately. Accordingly it is for the
respondent to satisfy the court that the separation
application
should not be granted.'
[See
Erasmus
Superior Court Practice
B1 – 235].
See
Braaf
v Fedgen Insurance Ltd
1995 (3) SA 938
(C) at 939. De Wet J
pointed out in
Vermeulen v Phoenix Assurance Co Ltd
1967
(2) SA 694
(O) at 697 'that there should exist substantial
grounds to justify the exercise of the power to grant separation of
issues
pursuant to Rule 33(4) . . .'. See
Minister of
Agriculture v Tongaat Group Ltd
1976 (2) SA 357
(D) at 363C –
D;
Yeoman Credit Ltd v Latter
[1961] 2 All ER 294
(CA) at 299 per Harman LJ; and cf
Carl-Zeiss-Stiftung v
Herbert Smith & Co and Another
[1968] 2 All ER 1002
(CA).’
[20]
Applying these legal principles to the facts of the present case, I
am not satisfied that it
will be appropriate to grant the order
separating the issues as contended by the applicant. The
irretrievable breakdown of
the marriage between the parties is common
cause. I accept for present purposes, as contended by both
parties, that the questions
of parental rights and obligations,
including the primary residence of the minor children and contact
with them, as well as maintenance
in respect of them and for the
respondent must be considered as non-issues and will in all
likelihood be settled between the parties.
[21]
I also accept that the respondent’s reliance on cases such as
CC v CM
,
Levy v Levy
[1991] ZASCA 81
;
1991 (3) SA 614
(A) and
O v O
(6912/2013)
[2017] ZAWCHC 136
(21 November 2017) does not advance
her objection to the separation of issues which the applicant seeks.
In
CC v CM
, the court ordered a separation of the issue
whether the marital relationship had irretrievably broken down in a
divorce action
from the other issues of maintenance and
redistribution of patrimonial benefits. The court held that
‘the factor tilting
the balance of convenience’ was that
the
consortium
between the parties had ceased nearly a decade
ago (para 31). It further held that ‘a separation order
should be granted
where a marriage in fact, substance and law appears
to have irretrievably been broken down (para 39). It also held
that the
‘need decreed by public policy considerations to as
soon as possible normalise the lives of the parties bound to a
moribund
broken-down marriage was highlighted in
Levy v Levy
[1991] ZASCA 81
;
1991
(3) SA 614
(A), which militates against parties being shackled to a
dead marriage’. A similar conclusion was reached in
O v O
paras 35-39. Relying on these authorities the respondent’s
counsel argues that a divorce action should be treated differently
from other actions in which a separation of issues in terms of r
33(4) are sought. Convenience dictates, so he argues, that
all
the issues be tried at the same time in order to prevent the parties
from ‘being shackled to a dead marriage’.
However,
CC v CM
and
O v O
are clearly distinguishable from the
present case. The question here is not whether a decree of
divorce should be granted
before the determination of the other
issues in the divorce action at a later stage.
[22]
The core issue
in casu
is which matrimonial property system
regulates the marriage relationship between the parties. In
terms of s 10(1) of the Recognition
of Customary Marriages Act 120 of
1998 (the RCM Act) parties to a customary marriage are competent to
enter into a civil marriage
with each other provided the husband’s
other customary marriages (if any) are dissolved. If a couple
who is married
at customary law also enters into a civil marriage
with each other, their marriage is in community of property unless
they conclude
an antenuptial contract. Section 10(2) of the RCM
Act provides as follows:
‘
When
a marriage is concluded as contemplated in subsection (1) the
marriage is in community of property and of profit and loss unless
such consequences are specifically excluded in an ante-nuptial
contract which regulates the matrimonial property system of their
marriage.’
[23]
Professors Jacqueline Heaton and Hanneretha Kruger
South African
Family Law
4
th
Ed. At 236-7 argue that the RCM Act-
‘
[u]nfortunately
does not adequately regulate the consequences of the interface
between the couple’s customary marriage and
their subsequent
civil marriage. . . .
The
memorandum which accompanied the Recognition of Customary Marriages
Bill states that clause 10(2) of the Bill (which reads like
section
10(2) of the Act) “ensures that there is no implication that
the customary marriage is superseded by a civil marriage
when the
parties have contracted both” and that the parties “are
merely seen as converting from one set of consequences
to another”.
However, the Act does not clearly set out the consequences of the
“conversion”. Does
the “conversion”
mean that the customary marriage continues to exist with the result
that the spouses are simultaneously
married according to two systems
of law? If so, how are those instances when there are
fundamental differences between the
two systems to be handled?
For example, what if a couple entered into a customary marriage in
community of property, while
their subsequent civil marriage is
subject to the accrual system? In these circumstances the patrimonial
consequences of the two
types of marriages differ fundamentally.
If one type of marriage is not to be regarded as subservient to the
other, the recognition
ought simultaneously to be given to both
systems, but it is legally impossible to do so in a case such as
this.
It
is submitted that careful reading of the wording of section 10(2)
reveals that, in the above example, community of property operates
until the date of the civil marriage and that section 10(2) applies
as from that date. This is so for the following reason:
section 10 (2) prescribes the matrimonial property consequences in
“the marriage” “[w]hen a marriage is concluded
as
contemplated in subsection (1)”. Section 10(1) governs
the capacity of spouses who are married at customary law
to “contract
a marriage with each other under the Marriage Act”, that is,
their capacity to conclude a civil marriage.
Section 10(2)
therefore only deals with the consequences of the civil marriage.
Thus, in the above example, all assets acquired
before the civil
marriage are governed by the rules regarding community of property,
while all assets acquired as from the date
of the civil marriage are
the spouses’ separate assets subject to accrual sharing upon
dissolution of the civil marriage.
Adopting the same reasoning
in respect of the other consequences of the “conversion”
of a customary marriage into a
civil marriage, one concludes that the
rules regulating the customary marriage and its consequences operate
until the civil marriage
is entered into and thereafter the rules
regulating the civil marriage operate. In other words, the
consequences of the customary
marriage come to an end at the date of
the civil marriage, but the termination is not retroactive.’
(Footnotes
omitted.)
[24]
It is trite that when a court grants an order
of divorce any community of property previously
existing between the
spouses automatically ends, even though no order for the division of
the estate is made. The
community of
property previously existing between the spouses then requires an
equal division of a joint estate after payment of
liabilities.
(
Joseph v Joseph
1951
(3) SA 776(N)
at 778-9
;
Meyer v Thompson NO
1971
(3) SA 376
(D) at 377F.) The parties can divide the estate by
agreement or they can appoint a liquidator to do so. W
here
they do not agree, the duty devolves upon the court to divide the
estate, and the court has the power to appoint a liquidator
to effect
the division on its behalf. (
Gillingham
v Gillingham
1904
TS 609
Innes CJ said at 613.)
[25]
In assessing the quantum to be awarded in a claim for a contribution
towards costs in a matrimonial
suit to enable a party seeking the
contribution to present her case adequately before the court, regard
is had to the circumstances
of the case, the financial position of
the parties and the particular issues involved in the pending
litigation. In
Carey v Carey
1999 (3) SA 615
(C) it was
held that:
‘
.
. . the applicant was entitled to a contribution towards her costs
which would ensure equality of arms in the divorce action against
the
respondent. The applicant would not be able to present her case
fairly unless she was empowered to investigate the respondent’s
financial affairs through a forensic accountant appointed by her.’
[26]
The issues relating to the validity of the civil marriage and
antenuptial contract on the one
hand and the applicant’s
financial affairs on the other may well be inextricably linked, even
though, at first sight they
appeared to be discrete. Even if
the trial court in due course may find that the civil marriage and
antenuptial contract
concluded between the parties are valid and
enforceable, it may also find, as argued by professors Heaton and
Kruger persuasively
and logically, that all assets acquired before
the date of the civil marriage are governed by the rules regarding
community of
property, while all assets acquired as from the date of
the civil marriage are the spouses’ separate assets.
[27]
After careful thought has been given to the anticipated course of the
litigation between the
parties as a whole, I am not satisfied that
the separation of issues which the applicant seeks will facilitate
the proper, convenient
and expeditious disposal of the litigation
between them and that it will be appropriate and fair to both of
them. The expeditious
disposal of the litigation between them
will, in my view, rather be best served by ventilating all the issues
at one hearing. The
respondent may well not be able to present her
case fairly unless she is empowered to investigate the applicant’s
financial
affairs through a forensic accountant appointed by her.
Whether the respondent is entitled to a contribution from the
applicant
towards the costs of such intended forensic investigation,
and the amount of any such contribution, are matters not for decision
now.
[28]
In the result the following order is made:
The
application is dismissed with costs, including those of two counsel.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Judgment:
18 February 2021
Heard:
27 October 2020
Applicant’s
Counsel: Adv PA
van Niekerk SC
Instructed
by:
KS Dinaka Attorneys, Arcadia, Pretoria
C/o Hinda Mendelow
Attorney Inc., Orchards
Respondent’s
Counsel: Adv TJ Machaba SC (assisted by
Adv T Eichner-Visser)
Instructed
by:
Jerry Nkeli Associates Inc., Rosebank