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[2011] ZAGPPHC 42
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Marias v Marias (56513/2008) [2011] ZAGPPHC 42 (31 March 2011)
NOT
REPORTABLE
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(NORTH
GAUTENG
HIGH
COURT)
Case
number: 56513/2008
Date:
31 March 2011
In
the matter between:
DESMOND
DAWID
MARAIS
.............................................................................
Plaintiff
And
ADELE
MARAIS
...........................................................................................
Defendant
JUDGMENT
PRETORIUS
J,
The
defendant applies to court for an order in terms of which the
plaintiff is ordered to comply with the request for further
particulars
in terms of rule 21 (4) and to deliver within ten days of
the granting of this order to deliver further responses in accordance
with rules 35 (3) and 35 (6) and to make available for inspection the
documents required as set out in the notice of motion.
The
defendant applies, in the alternative, that the plaintiff's claim and
the plaintiff's defence to the defendant's claim in reconvention
should be dismissed.
This
application is in relation to a matrimonial action which is set down
to be heard in this court on 9 Mei 2011. The disputes
in the action
relates to the amount of maintenance for the minor child, aged two
and half years; whether the plaintiff is liable
to pay rehabilitative
maintenance for the defendants and whether the plaintiff is liable
for payment of a settlement amount.
On
2 August 2010 the defendant's request for further particulars in
terms of rule 21 (2) was delivered and the ten days for plaintiff's
reply thereto expired on 17 August 2010.
Defendant's
first rule 35 (3) notice was delivered on 19 March 2010, the second
rule 35 (3) notice was delivered on 25 March 2010
and the third rule
35 (3) was delivered on 3 August 2010.
The
defendant's rule 30 A (1) notices in respect of the first and second
rule 35 (3) notices was delivered on 10 August 2010 and
the rule 30 A
(1) notice in respect of the third rule 35 (3) was delivered on 19
August 2010.
The
trial date has been set for 9 May 2011 for the divorce action. The
key issues pertain to maintenance for the minor child, rehabilitative
maintenance for the defendant and the liability and extent of a
resettlement allowance for the defendant.
It
is strictly necessary for both parties to provide particulars of not
only their assets and liabilities, but also of their income
and
expenditure. On 26 March 2010 the plaintiff's attorneys complained
when the defendant's discovery affidavit had not been served
and
mentioned that the monthly income and monthly expenditure were
necessary to enable the plaintiff to prepare for trial. At that
early
stage the plaintiff indicated that the information which is presently
not being supplied to the defendant is important for
the adjudication
of the action.
Defendant's
request
for
further
particulars:
The
complaint in regards to the answer given by the plaintiff as to the
question of the value of his assets is a legitimate complaint
as no
present value or market value was set out in the statements supplied
by the plaintiff. A statement of assets and liabilities
dated 23
March 2010 was served on the defendant, which only set out the
properties at cost price and does not set out the value
on 7 November
2008 or at present. It is clear this information in necessary for the
defendant to ascertain the financial position
of the plaintiff at
present and to prepare for trial. The trusts, company and close
corporation mentioned in this document are
not properly set out and
it cannot be ascertained as to what the plaintiff's share, if any, is
in the respective entities.
It
is clear from the plaintiff's response to these allegations that all
the financial statements had not been delivered as the plaintiff
sets
out:
"Ek
heg egter hierby aan, gemerk bylaag "DDM7", wat aandui dat
dit my baiansstaat is vir die tydperk soos op 31 Desember
2009. Daar
was nie veel verandering in my bate posisie vanaf 31 Desember 2009
tot 23 Maart 2010 nie. Die werklike bates het nie
verander nie en
weens die huidige ekonomiese kiimaat het die waarde van die bates ook
geensins verander nie."
There
is no proof to confirm and sustain these averments by the plaintiff.
No recent statement of the value of the assets and liabilities
is
attached.
The
defendant further requested the plaintiff's total gross income for
four periods from 1 March 2007 up to February 2011. The plaintiff
replied that as soon as the financial statements become available
they will be delivered to the defendant and that the defendant
should
be able to determine the income and expenditure from the statements
which had already been delivered. It is clear that the
financial
statements for the periods 2007 - 2008; 2008 - 2009 and 2009 - 2010
should have been available and no reason is furnished
why these
financial statements could not be furnished.
The
plaintiff did not list each individual source of income from the
separate entities, as requested, but supplied the defendant
with a
letter from Equifin dated 13 May 2009 in which Equifin stated:
"Volgens
inligting en verduidelikings ontvang vanaf Mnr D D Marais
(Bestuurstate
28
Februarie
2009),
kan
bevestig
word
dat
mnr
D
D
Marais
'n
bruto
maandelikse
inkomste,
voor
kapitaal
besteding,
van
R
100
000
verdien."
This
letter only sets out the gross monthly income which does not take the
matter any further as it is mentioned that this amount
was before
capital
expenditure
had been taken into account and no further information is given.
The
plaintiff was requested to furnish the present market value of the
immovable and movable properties mentioned in item
C2
of
the plaintiff's supplementary discovery affidavit.
The
defendant is once again met with the response that defendant can
inspect the documents at the plaintiff's auditors. It is not
the duty
of the defendant to visit plaintiff's auditors. The plaintiff has to
deliver the necessary information to the defendant.
The
same answer is given when particulars of the trust are requested. The
defendant is met with the answer that the plaintiff does
not have the
documents in his possession and that the defendant's attorneys will
be notified when the auditor's supply the statements.
Again the
plaintiff is obliged to furnish the necessary statements. It is
clear
that
the financial issues in the action are the issues, in both the claim
and counterclaim, which will be
dealt
with
in the divorce action. The fact that the plaintiff has denied that he
is
liable
for
the amount maintenance claimed for the minor
child
and
denied
that
defendant is entitled to maintenance for herself or a resettlement
allowance makes the financial position of the parties crucial
in the
action.
In
Civil
Procedure
in
the
Supreme
Court,
LTC
Harms
at
p B1-153 the learned author sets out:
"The
particulars must be necessary for purposes of trail. The purpose is
to prevent surprise at the trial and to inform a party
with greater
precision what the other party intends to prove In order to enable
the former to prepare his case to meet those allegations.
The object
is not to tie the other party down and limit his case unfairly."
The
plaintiff did not allege that the defendant is not entitled to the
further particulars, but alleged that the particulars are
not yet
available or that the defendant can see the relevant documents at the
plaintiff's auditors. The court finds that the plaintiff
has to
provide the further particulars as requested.
Dicovery
-
rule
35
(3):
On
19 March 2010 the defendant's notice in terms of rule 35 (3) was
served and in paragraph 4:
"The
plaintiff's income tax returns and income tax assessments for the tax
years commencing from the tax year ending 28 February
2007." was
requested.
The response once again was that the defendant can obtain the
documents from Equifin Chartered Accountants. The plaintiff
did not
give any explanation as to why the plaintiff cannot obtain the
documents and provide them to the defendant.
On
25 March 2010 the defendant's second rule 35 (3) notice was served.
The defendant requested the Z-counts generated by the eight
cash
registers operated by the business conducted by the plaintiff. Once
again the response was that the Z-count was not in the
plaintiff's
possession.
On
3 August 2010 the third rule 35 (3) notice was served. On 18 August
2010 the attorney for the plaintiff requested an extension
until end
October 2010 for the plaintiff's response, which was not granted. The
response was received on 31 August 2010. The response
received in
regards to item C4 of the plaintiff's initial discovery affidavit and
item C1 of plaintiff's supplementary discovery
affidavit were once
again that the relevant documents were with the plaintiff's auditors.
The same applied to paragraph 3.7 of
the notice in regards to item C2
of plaintiff's supplementary discovery affidavit and paragraph 4.2 of
the notice in regards to
paragraph 2.1.1 of plaintiff's reply to the
first rule 35 notice regarding the Desmondi Incentive Trust, as well
as paragraph 5.2
of notice in regards to paragraph 2.1.2 of the
plaintiff's reply to the first rule 35 notice.
After
an inquiry by the defendant's attorney on 10 September 2010 about the
documentation as mentioned above he received a response
on 14
September 2010 advising:
"U
kan die dokumente gaan insien by die ouditeure, Soos u weet is die
ouditeure besig om antwoorde op u vrae voor te berei
en sal dit die
ouditeure se werk vertraag as die dokumente nou daar weggeneem word.
Ons versoek u om aan ons vyf datums te verskaf
sodat ons met die
ouditeure kan reel dat u insae kry op die inligting op 'n tyd wat die
ouditeure en u pas."
On
8 October 2010 the defendant's attorney addressed a letter to
plaintiff's attorney, Mr Kruger, requesting a response to the further
particulars. He contacted Mr Kruger, telephonically on 21 October
2010 after he had received no response. Mr Kruger assured him
that he
would get all the relevant information in the last week of October
2010. On 26 October 2010 the defendant's attorney received
a fax from
Mr Kruger which was accompanied by a financial statement of Des
Marais Familie Trust, without making any reference to
the outstanding
financial statements. On 4 November 2010 the plaintiff's attorney
once again reminded Mr Kruger of his undertaking.
Mr Kruger responded
on 16 November 2010:
"Ons
plaas op rekord dat ons in ons Reel 21 (2) antwoord in paragrawe 14
en 15 u meegedeel het dat die inligting wat u benodig
by ons klient
se ouditeure, mnre. Fourie & Botha is. Die dokumente en rekenings
is by hulle om dit behoorlik te rekonsilieer
en in
7?
behoorlike
vorm vir u en vir die hof voor te berei. U kan hulle kontak om
afskrifte van al die dokumente en rekeninge te bekom indien
u nie in
'n verwerkte vorm soek nie of indien u dit self wil verwerk. Ons
instruksies is dat die ouditeure teen die einde van November
2010 sal
klaar wees met die verwerking van die dokumente."
The
plaintiff does not deny that the defendant is entitled to the
documents, but the plaintiff does not comply with the provisions
of
rule 21 (2) and the provisions of rule 21 (2) and the provisions of
rule 35 (3) and 35 (6) although the plaintiff has had ample
opportunity to do so. The plaintiff's excuse throughout has been that
the documents are at the auditors and that it will be delivered
to
the defendant at a later stage. It is clear that these documents are
essential for the proper preparation for trial by the defendant.
There is no affidavit by the plaintiff that any of the documents are
privileged or that the defendant is not entitled to the documents
or
that the documents are irrelevant and unnecessary for trial. The
court must therefore accept that the information sought by
the
defendant is necessary for preparation for trial and/or to narrow the
disputes between the parties before trial.
The
court has considered the pleadings, the affidavits and the arguments
by counsel. It is clear that the plaintiff is not complying
by hiding
behind the fact that the required documents and facts are with the
auditors and will be furnished in due course. The
plaintiff should
ensure that the documents are delivered to the defendant's attorney
in the prescribed manner so that the trial
can commence on 9 May
2011. The acrimony between the parties is not conducive to having all
the facts and documents available before
trial. Any further delay in
providing the relevant documents will most probably lead to another
postponement.
The
court finds that all the plaintiff has to comply with the rules and
makes the following order:
1. The
plaintiff is ordered in terms of rule 21 (4) to deliver, within 5
days from the date of this order, a further reply to the
defendant's
request for further particulars (served on 2 August 2010), in which
further reply the plaintiff shall provide the further
particulars as
requested by the defendant in the following paragraphs of the
defendant's aforesaid request, namely:
1.1
Paragraph 9.1 (including subparagraphs 9.1.1 and 9.1.2)
1.2
Paragraph 9.2 (including subparagraphs 9.2.1 and 9.2.2)
1.3
Paragraph 9.3 (including subparagraphs 9.3.1, 9.3.2, 9.3.3 and
9.3.4)
1.4
Paragraph 9.4
1.5
Paragraph 11.1
1.6
Paragraph 13.1
1.7
Paragraph 14.2
1.8
Paragraph 15.2
1.9
Paragraph 16
2. The
plaintiff is ordered in terms of rule 30A(2) to deliver, within 10
days from date of this order, a further response in accordance
with
subrules (3) and (6) of rule 35 to make available for inspection the
documents required by the defendant in the hereinafter
mentioned
paragraphs of the defendant's rule 35 (3) notices:
2.1
Paragraph 4 of the defendant's rule 35 (3) notice served on 19 March
2010.
2.2
The following paragraphs of the defendant's third rule 35 (3) notice
served on 3 August 2010:
Paragraph
1 (re item C4 of plaintiff's (initial) discovery affidavit).
Paragraph
2 (re item C1 of plaintiff's supplementary discovery
affidavit).
Paragraph
3.7 (re item C2 of plaintiff's supplementary discovery
affidavit).
Paragraph
4.2 (re the Desmondi Incentive Trust).
Paragraph
5.2 (re the Desmondi Empowerment
Trust).
3.
Cost of this application will be costs in the divorce action.
Judge
Pretoruis
Case
number : 56513/2008
Heard
on : 29 March 2011
For
the Applicant / Plaintiff : Adv De Klerk SC
Instructed
by : Rynhardt Kruger
For
the Defendant : Adv Peters SC
Instructed
by : Wandrag & Marais INC
Date
of Judgment : 31 March 2011