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[2021] ZAGPJHC 710
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C.L.W v D.W NO (37634/2017) [2021] ZAGPJHC 710 (1 July 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 37634 / 2017
In
the matter between:
W[....],
C[....]
L[....]
Applicant
and
W[....],
D[....]
N.O
First Respondent
W[....],
A[....] H[....]
N.O
Second Respondent
MC
GLASHEN, TREVOR JOHN
N.O
Third Respondent
RICHARD,
GARTH LINCOLN N.O
Fourth Respondent
W[....],
B[....]
N.O
Fifth Respondent
W[....],
D[....]
Sixth Respondent
W[....],
A[....]
H[....]
Seventh Respondent
JUDGMENT
IN THE JONIDER APPLICATION
MODIBA
J:
[1]
This is an opposed joinder application in
terms of Rule 10(3) of the Uniform Rules of Court, brought by Mrs
W[....]. She seeks to
join the respondents as the second to eighth
defendants to her counterclaim in a divorce action pending before
this court. The
respondents are resisting the joinder.
[2]
Mrs W[....] also filed an application in
terms of Rule 30, alternatively Rule 30 (2)(b) and Rule 30A (Rule 30
application) to have
the respondents’ answering affidavit in
the joinder application struck out as an irregular step. The
respondents filed an
application to have certain paragraphs in Mrs
W[....]’s replying affidavit in the Rule 30 application set
aside as an irregular
step.
[3]
To move the joinder application ahead, by
agreement between the parties reached at the judicial case management
meeting held on
30 November 2020, both parties are no longer pursuing
the above interlocutory applications. The costs in each interlocutory
application
shall be costs in the divorce action.
[4]
Subsequently, the respondents filed an
application to strike out certain paragraphs in Mrs W[....]’s
replying affidavit filed
in the joinder application (the striking out
application). Mrs W[....] filed a notice of intention to oppose the
application but
is in default of filing an answering affidavit.
Therefore, the striking out application stands to be determined on an
unopposed
basis.
THE
JOINDER APPLICATION
[5]
Mrs W[....] is the defendant in the divorce
action. Mr W[....] is the plaintiff. He instituted the action in
October 2017. Mrs W[....]
has filed a counterclaim in the divorce
action.
[6]
If she is successful in the joinder
application, Mrs W[....] also seeks leave to amend her particulars of
claim in the counter-claim
to give effect to the joinder and to seek
relief against the joined respondents, jointly and severally with Mr
W[....], the one
paying the other to be absolved.
[7]
The first to fifth respondents are
co-trustees of the Tuscany Trust IT 2146/96 (the Trust). It is in
that capacity that Mrs W[....]
seeks to join them to the
counterclaim. In addition to being the founder and trustees of the
trust, the capacity in which they
are cited as the first and second
defendant in the joinder application, Mr W[....] Senior and Mrs
W[....] Senior are also the parents
of Mr W[....] and grandparents to
the minor children born during the marriage between the parties. Mr
W[....] Senior is also the
former sole proprietor of the Little
Tuscany Boutique Hotel (the hotel).
[8]
Mrs W[....] also seeks to join Mr W[....]
Senior and Mrs W[....] Senior in their personal capacities as the
former sole proprietors
of the Little Tuscany Boutique Hotel, as well
as Mr W[....]’s parents and the grandparents to the parties’
minor children.
[9]
The respondents have filed a counter
application. In the event that this court finds that Mrs W[....] has
made out a case for the
joinder of Mr W[....] Senior and Mrs W[....]
Senior in their capacity as the grandparents of the parties’
minor children,
in their counter application, the respondents also
seek a joinder of Mrs W[....]’s parents in a similar capacity.
[10]
The reason why Mrs W[....] seeks to join
the respondents to her counterclaim in the divorce action is that she
believes that unless
they are joined, she will be unable to enforce
any judgment for the payment of the accrual and spousal and
children’s maintenance
against Mr W[....]. Hence, she
simultaneously seeks an order, to amend her particulars of claim to
hold the respondents jointly
and severally liable with Mr W[....],
the one paying the other to be absolved, for any judgement in her
favour in her counterclaim
in the divorce action.
[11]
In the event that she is successful in the
joinder application, Mrs W[....] seeks costs against any respondent
who opposes the application.
[12]
It is common cause that the Trust is an
inter-vivo
trust, established with the objective of maintaining the
beneficiaries financially. To make a case for joinder, Mrs W[....]
alleges
that in terms of the Trust Deed the minor children and she
are Trust beneficiaries as defined. She therefore contends that:
12.1
she has an interest in the accounts of the
Trust to pursue and enforce her rights to payment of her share in the
matrimonial accrual
presently under the direct and indirect
management and/ or control of Mr W[....] and the co-trustees;
12.2
by virtue of being Mr W[....]’s
spouse, she has a legitimate expectation to be maintained by the
Trust. Further, she has a
maintenance claim against the Trust post
the divorce in terms of
section 7(2)
of the
Divorce Act 70 of 1979
;
12.3
as a guardian for the minor children who
are entitled to be maintained out of the Trust, she has an interest
in the finances of
the Trust;
[13]
Mrs W[....] further alleges that:
13.1
Mr W[....] Senior and Mr W[....] are the
effective mind and management of the Trust, the hotel and various
entities formed, financed
and managed by Mr W[....] Senior and Mr
W[....] during her life partnership and subsequent marriage to Mr
W[....] disposed of by
Mr W[....] with the co-trustee’s
cooperation, partnership, acquiescence and assistance;
13.2
Mr W[....], Mr W[....] Senior and Mrs
W[....] Senior are the
de-facto
beneficial owners of assets donated or alienated during the parties’
marriage by one or more of them to the Trust;
13.3
she has a substantial accrual claim against
the donated or alienated assets in the divorce action. If the parties
she seeks joined
are not joined to her counterclaim, she will not be
able to satisfy this claim. Hence, she seeks these parties held
jointly and
severally liable with Mr W[....] in her counterclaim.
[14]
The respondents deny that there is any
basis in law for the Trust to be held liable for Mr W[....]’s
obligations arising out
of the parties’ ante nuptial contract
(ANC) at the dissolution of the marriage. Mr W[....] contends that Mr
W[....]. senior
established the Trust in 1996 when Mr W[....] was
only 15 years old. He established the Trust for his wife and
children’s
benefit. He also established the hotel business in
the 90s. He grew it from a guest house to a fully-fledged boutique
hotel. He
retired from the hotel in 2018 due to ill-health. This
prompted the restructuring of the hotel for estate planning,
continuity
and viability purposes with effect from 1 March 2019,
approximately two years after the marriage between the parties broke
down
irretrievably.
[15]
As part of the restructuring, the hotel was
incorporated. The Trust holds shares in the hotel. The Trust is not a
trading entity.
It holds ownership in various immovable properties
including the properties from which the hotel business operates. The
latter
properties are subject to a mortgage loan. The hotel business
pays rental to the Trust which it in turns uses to maintain the
mortgage
loan.
[16]
Mrs W[....]’s assertions fall to be
rejected on the grounds of opposition advanced by the respondents.
[17]
The joinder of parties to pending legal
proceedings is regulated in terms of sub
rule 10
(3). It provides
that several defendants may be sued in one action either jointly or
in the alternative jointly and severally,
when the triable issue that
arise in an action stands to be determined on substantially the same
question of law or fact which,
if such defendants were sued
separately, would arise in each separate action. Hence, it has become
trite that the second leg of
the test for joinder is convenience.
[18]
To succeed in this application, this court
must accept the averments set out in the pleadings as correct and
determine whether these
are capable of supporting a cause of action
against the Trust as alleged by Mrs W[....].
[19]
Mr and Mrs W[....] are married to each
other out of community of property subject to the accrual system in
terms of a duly registered
ANC as provided for in Chapter 1 of the
Matrimonial Property Act. In terms of section 2 of this Act,
community of property and
community of profit and loss, is excluded
from the marriage between the parties.
[20]
The parties made a declaration regarding
the value of their respective estates at the commencement of their
marriage (commencement
values). At the end of their marriage by
divorce or death of one of them, the value of their estates as at 17
September 2017 (termination
value), being the date on which their
marriage broke down irretrievably, will be used to determine the
accrual. The commencement
values will be deducted from their
respective termination values. So is the parties’ liabilities,
any assets accruing to
their respective estates after 17 September
2017, inheritances, donations and benefits accruing to any party
including substitute
assets and the fruits thereof, to which any of
either Mr or Mrs W[....] becomes entitled from an inter-vivos trust
created by a
third party for the benefit of any of them. The Trust
here is such a trust. The latter items are excluded from the
calculation
of the accrual in terms of clause 4 of the ANC.
[21]
Also excluded from the calculation of the
accrual, in terms of clause 5.1.1 of the ANC is any claim on a loan
account or cash received
from the sale of an asset by the selling
spouse to an inter-vivos trust, provided that the inter-vivos trust
guaranteed the selling
spouse’s obligations to the other spouse
for the assets so sold.
[22]
Assets, substitute assets and the fruits
thereof acquired by the Trust on behalf of a spouse if, but for the
acquisition of the
Trust, the assets would have been acquired by that
spouse are included in the calculation of the accrual.
[23]
Any activities or transactions that
occurred in each parties’ estate after 17 September 2017 are
irrelevant for the purpose
of calculating the accrual.
[24]
Clauses 4 and 5 of the ANC takes care of
the concerns that prompted Mrs W[....] to launch this application. It
provides her with
adequate protection of whatever accrual she is
rightfully entitled to in terms of the ANC.
[25]
Therefore, to the extent that Mr W[....]
transferred, alienated or donated any of his assets to the trust
prior to 17 September
2017, such assets are deemed to be part of his
estate and will be reckoned for the purpose of calculating the
accrual. It is hardly
necessary to join the trustees to enforce any
claim that Mrs W[....] may have against Mr W[....] in this regard.
[26]
The party with the lesser accrual will be
entitled to 50% of the difference between the accrual of the spouse
whose accrual is less
and that of the spouse with a greater accrual.
If Mr W[....]’s accrual is greater, Mrs W[....]’s accrual
claim lies
against him and not against any third party.
[27]
In light of this legal position, Mrs
W[....] fails to meet the test for joinder for the purpose of
attributing liability for the
accrual claim against Mr W[....] to the
trustees, Mr W[....] Senior and Mrs W[....] Senior. To the extent
that she intends holding
the respondents liable for her accrual in
the event that she is entitled to any, Mrs W[....]’s joinder
application is legally
incompetent.
[28]
Joinder for the purpose of claiming spousal
maintenance from the trust is also legally incompetent because:
28.1
the maintenance benefit only accrues when
the Trustees exercise a discretion to pay it. They are yet to
exercise such a discretion
in her favour;
28.2
the court has no powers to direct the
Trustees to exercise their discretion in Mrs W[....]’s favour;
28.3
any entitlement that Mrs W[....] may have
to maintenance as a spouse against the Trust will end on the divorce
date;
28.4
any post-divorce spousal maintenance that
Mrs Weir Smith intends pursuing against Mr W[....] lies against Mr
W[....] and not against
the Trust as Mrs W[....] will no longer be a
Trust beneficiary as defined.
[29]
For the same reasons articulated in
paragraph 28.1 and 28.2 above, joinder for the purpose of claiming
maintenance on behalf of
the minor children against the Trust is also
incompetent.
[30]
The primary responsibility to maintain
children lies with both parents. The grandparents’ liability to
maintain their grandchildren
is a contingent liability, arising only
in the event that the parents lack the means to maintain the
children. Both Mr and Mrs
W[....] are economically active and have
the responsibility to maintain their children according to their
respective abilities.
[31]
Under these circumstances, Mrs W[....] also
fails to meet the test for joinder for the purpose of claiming
maintenance from Mr W[....]
Senior and Mrs W[....] Senior in their
capacity as the minor children’s grandparents.
[32]
In the premises, the joinder application
stands to fail with costs.
[33]
The respondents’ application to join
Mrs W[....]’s parents was only conditional upon Mrs W[....]’s
application
for the joinder of Mr W[....] Senior and Mrs W[....]
Senior succeeding. Since it has failed, there is no basis to consider
the
respondents’ counter application.
APPLICATION
TO STRIKE OUT
[34]
Mrs W[....]’s filed a replying
affidavit in the joinder application. It is dated 18 December 2020.
It consists of 99 pages
without annexures. Inclusive of annexures, it
consists of over 570 pages. The respondents object to this affidavit
on the basis
that:
34.1
it is extremely prolix;
34.2
it contains mainly new matter and
irrelevant allegations;
34.3
it contains scandalous and vexatious
matter;
34.4
the annexures are unduly prolix and
repetitive, having being included in either the founding or the
answering affidavit.
[35]
They contend that it stands to be struck
out in terms of Rule 6(15), alternatively the specified paragraphs
and annexures stand
to be stuck out unless the court is satisfied
that striking the replying affidavit out will be prejudicial to
Mrs
Weir Smith.
[36]
The
specified paragraphs and annexures stand to be struck out for the
reasons advanced by the respondents.
Any
inconvenience that Mrs W[....] stand to suffer as a result of
striking out
the
specified paragraphs and annexures is not demonstrated.
.
[37]
This court frowns upon the prolix replying
affidavit and was unduly burdened thereby. It is one of the main
factors that negatively
impacted the prompt adjudication of the
joinder application.
[38]
Any inconvenience resulting from the delay
in delivering this judgment is regretted.
[39]
The following order issues:
ORDER
1.
The joinder application is dismissed with
costs.
2.
By agreement between the parties, Mrs
W[....]’s application in terms of Rule 30, alternatively Rule
30(2)(b) and Rule 30A
as well as the respondents’ application
to strike out certain paragraphs in Mrs W[....]’s replying
affidavit in the
said application is withdrawn.
3.
Costs in the applications referred to in
paragraph 2 of this order shall be costs in the divorce action.
4.
The following paragraphs and annexures from
the applicant’s replying affidavit dated 18 December 2020 are
struck out on the
grounds set out in the supporting affidavit filed
by the respondents on the basis of them containing new matter in
reply, which
matter is irrelevant, scandalous and vexatious:
4.1
Paragraphs 6 – 14
4.2
Annexure “RA1” referred to in
paragraph 8 including but not limited to the following annexures
thereto U3, U4, U5, U6,
U7, U8, U22, U23, U24, U25, U26, U29 and U30
4.3
Paragraph 16 and annexure RA2 thereto
4.4
Paragraphs 17, 60, 61, 62,63, 65-65.8, 66,
67, 68, 86 87, 88 and 89 and the annexures referred to therein
4.5
Paragraph 18 and the sub-paragraphs thereto
and annexure RA3 thereto
4.6
Paragraphs 19 to 33 and 36
4.7
Paragraphs 52 and the sub-paragraphs
thereto and paragraph 53
4.8
Paragraphs 57 and 59
4.9
Annexures RA10, RA12, RA 13 and RA 14
4.10
Annexure RA16
4.11
Paragraphs 69 to 76 and annexures RA15 and
16 thereto
4.12
Paragraphs 79 to 81 and annexures RA17 to
RA20
4.13
Paragraphs 83 to 91
4.14
Annexure RA24
4.15
Paragraphs 127 to 128 and annexures RA26 to
RA28 thereto
4.16
Paragraph 129 and the sub-paragraphs
thereto
4.17
Paragraphs 135 to 138
4.18
Annexures RA30 and RA33
4.19
Paragraph 235
5.
Mrs W[....] shall pay the costs of the
striking out application.
MADAM
JUSTICE
L T MODIBA
JUDGE
OF THE HIGH COURT,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
APPEARENCES
Applicant,
Ms C[....] L[....] W[....] (In person)
Counsel
for the respondents, M Feinstein
Instructed
by M Pienaar, Schuler Heerschop Pienaar Inc. Attorneys
Date
of hearing: 2 February 2021
Date
of judgment: 01 July 2021
Mode
of delivery:
this judgment is
handed down electronically by circulation to the parties’ legal
representatives by email and loading on Caselines.
The date and time
for hand-down is deemed to be 2 pm on 01 July 2021.