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[2019] ZAECPEHC 16
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JM V GM and Others (3145/2015) [2019] ZAECPEHC 16 (26 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN THE HIGH
COURT OF SOUTH AFRICA
EASTERN CAPE
DIVISION
–
PORT ELIZABETH
Case
No.: 3145/2015
In the matter
between:
J[…] A[…]
M[…] (born C[…])
Applicant
and
G[…] S[…]
M[…]
First
Respondent
and
27 OTHERS
JUDGMENT
REVELAS J:
1.
The first respondent and the
applicant in these proceedings were married to each other on 9 March
1991 in Port Elizabeth,
out of community of property, incorporating
the application of the accrual system. Paragraph 5 of their
antenuptial contract
reads as follows:
“
5.
The following and future assets and contingent assets of the said
G[…] S[…]
M[…] and J[…] A[…] C[…],
together with any debts and obligations attendant upon the said
assets or
contingent assets, together with any assets acquired by
virtue of his or her possession or form possession of the said assets
and
contingent assets, shall be
excluded
from the accrual system:
5.1
All present and future benefits which may accrue to the said G[…]
S[…] M[…]
and J[…] A[…] C[…] in
terms of existing or future Trusts including in the instance of the
said G[…]
S[…] M[…] his interest in the C[…]
G[…] TRUST and the G.S M[…] TRUST.
5.2
All existing claims of the said J[…] A[…] C[…]
against her father,
C[….] R[…] C[…] for the
payment of monies loaned and advanced.”
2.
Two sons were born from the marriage
between the parties, namely C[…] and T[…]. Both
are now majors. The first
respondent moved out of the common home on
25 May 2015 and the parties have never lived together since. The
applicant and the first
respondent has subsequently became involved
in divorce proceedings in which the scale of litigation has reached
extravagant proportions.
In her particulars of claim, the applicant
pleaded that the first respondent controls the assets acquired by the
parties during
the marriage in a manner designed to deprive her of
the rightful share thereto and that the first respondent has gone out
of his
way to undermine her financially. The applicant has cited the
trustees of 26 trusts who have all defended the action brought by
her. (Two offshore trusts were joined recently)
3.
In the present instance there are
four applications before me. These interlocutory applications are all
aimed at establishing the
value of the assets of the trusts which
assets the applicant contends, ought to be taken into account when
the accrual to the first
respondent’s estate is calculated.
4.
The applicant maintains that in
terms of the provisions of section 7(2) of the Divorce Act she is
entitled to maintenance until
her death or remarriage, whichever
occurs first, on all the grounds and factors set out in section 7(2).
5.
The applicant averred that the first
respondent was a co-trustee of eight local trusts, and three trusts
that are established off-shore.
According to the applicant, the first
respondent contributed to the financing and acquisition of trust
assets from his personal
assets, he also endeavored to increase the
value of the trusts, maintained them and assisted with their running
costs through his
personal estate, treated the trusts assets as if
they were his own personal assets and has been in effective control
of these trust
with the tacit consent of his co-trustees.
According to the applicant, the trusts are beneficially controlled
and owned by
the first respondent. The applicant further
alleges that the acquisition of assets in the name of the trusts, the
Christim
Trust and the Highway Trust hold extensive assets and the
acquisition of assets in their name have been simulated transactions
which fall to be set aside to reflect that the first respondent is
the owner of such assets. These two trusts have recently joined
to
the proceedings.
6.
The applicant pleaded that the net
value of the assets held by the trustees of the trusts at the time of
dissolution of the marriage,
must be added to the net value of the
first respondent’s personal estate for purposes of calculating
the accrual, of the
first defendant’s estate in terms of
section 3
and
4
of the
Matrimonial Property Act, 88 of 1984
.
7.
The applicant also pleaded that
during the course of their marriage the first respondent’s
estate (inclusive of the value
of the net assets of the trusts) has
shown greater accrual than the applicant’s estate.
Accordingly, the applicant
will acquire a claim against the first
respondent equal to one-half of the difference between the parties’
estates.
8.
The first respondent was also called
upon, in terms of
section 7
of the
Matrimonial Property Act, to
furnish full particulars in respect of his current assets and
liabilities, including the assets and liabilities, including the
assets and liabilities of the trusts. Only the first respondent
has complied with his obligations in this regard, will the
applicant
be in a position to quantify her claim.
9.
In the alternative, the applicant
pleaded that:
“
47.1.1 that at the
time of the conclusion of the
antenuptial contract the parties
contemplated that during the subsistence of their marriage, there
would be an accrual in their
respective estates; and
47.1.2 that the parties
would respectively be entitled to benefit from such accrual on
dissolution of their marriage.
47.2 It was
accordingly a tacit, alternatively implied term of the antenuptial
contract that neither of the parties
would frustrate the other’s
entitlement to benefit from any accrual in their respective estates
by wilfully disposing of
assets to the prejudice of the other party.
47.3 First
respondent, in material breach of the terms of the antenuptial
contract, wilfully disposed of his personal
assets, and/or assets in
which he had an interest, in the Trusts, the Christim Trust and the
Highway Trust and to the prejudice
of Applicant.
47.4 In consequence
of such breach, Applicant has suffered damages in an amount equal to
half of the net value
of the assets held in the name of the Trusts,
the Christim Trust and the Highway Trust.
47.5
The damages so suffered by Applicant represent the amount by which
Applicant’s share in the accrual
of First Respondent’s
estate has been reduced, given that the assets now held by the
Trusts, the Christim Trust and the Highway
Trust would otherwise have
been retained as assets personal to him.”
10.
The first respondent is a wealthy
man and the applicant believes that he is the alter ego of the many
trusts she has cited as defendants
in her action for divorce against
the first respondent, including the offshore trusts, the Christim
Trust and the Highway Trust,
who both have been joined recently as
parties to the present litigation.
11.
In her quest to establish the
financial position of the trusts, the extent of their assets and
liabilities and all related information,
the applicant has brought
several interlocutory applications.
12.
Four of these applications are to be
decided in this judgment. Firstly the applicant has brought an
application interns of
uniform Court
Rule 21(4)
to compel the
trustees of the trusts she has cited to reply to her request for
further particulars which was served on the trustees
on 15 June 2018,
within five days of such order failing which, the applicant would
apply on the same papers, as supplemented, to
have the first
respondent’s defence struck out. The relief sought in this
regard is only against the trusts.
13.
The applicant filed an application
for leave to amend her particulars of claim by introducing new
paragraphs 44.1 to 44.5 thereto.
She has also brought an application
in terms of Uniform Court
Rule 35(11)
for an order directing the
first respondent to produce documentation in his power and under
control relevant to issues in dispute
between the parties in the
divorce action, as specified in annexure “Y” to her
application. In the fourth application
the applicant seeks
leave to file a further affidavit in support of the aforesaid
application in terms of
Rule 35(11).
Application in terms of Uniform
Court
Rule 21(4)
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14.
The grounds for the trusts declining
to respond to the questions in the applicant’s request for
further particulars for trial
dated 15 June 2016, is that it
constitutes an abuse and is frivolous and vexatious. The trusts
and the first respondent are
of the view that the applicant’s
request for further particulars in this, or any other request, made
by her constitutes impermissible
interrogatories, are a matter for
evidence, and are not strictly necessary to enable the applicant to
prepare for trial.
15.
The trusts contend that the
particulars requested cover subject matter which does not arise from
the plaintiff’s case as pleaded
and information as requested is
not within the knowledge of the trusts.
16.
It is difficult to determine at this
stage whether the applicant is entitled to all of the particulars
sought by her. However,
should the respondents not be able to
adhere to the plaintiff’s request they should indicate that to
her. There is
no reason to prevent her from requesting further
discovery which as she requires for her preparation for trial.
In my view
the applicant’s request is not vexatious. It
has always been anticipated in an action of this kind, that extensive
particulars will be sought.
Application to
Amend
:
17.
The trusts vehemently opposed the
application to amend the applicant’s particulars of claim on
the basis that the proposed
new paragraphs amount to allegations of
fraud involving impropriety and dishonesty. In addition, the
second and further respondents
objected to the amendment, maintaining
that there were lacking in particularly.
18.
Significantly, the first respondent,
the husband of the applicant, chose not to oppose the application in
his personal capacity,
only in his capacity as a trustee. The
amendments relate to his conduct, the applicant’s accrual
claim, and the antenuptial
contract entered into between the
applicant and the first respondent. The trusts have
specifically indicated that if required
to plead to the “newly
advanced simulation and rectification claims” they would assert
that they are the legal and
beneficial owners of their respective
assets to the exclusion of the first defendant and any accrual
regime.
19.
The trusts set out the applicant’s
proposed changes and additions her existing particulars of claim by
underlining the amendments
and additions, and placing the deletions
or omissions in square brackets in the text below. I have followed
the same method
in the text below together with the trusts
remarks in relation to each paragraph.
“
44.1
The assets of the Trusts, the Christim Trust and the Highway Trust
are beneficially owned and controlled by first
defendant and the
[aforesaid] trust assets therefore from part of first defendant’s
personal
estate;
44.2
Were
ostensibly transferred to, acquired by and held in the name of the
trusts referred to in paragraph 44.1 at the instigation
of the first
defendant for the improper purpose of excluding trust assets from his
personal estate and thus diminishing the accrual
of the plaintiff
;
(This is a wholly new paragraph)
44.3 Alternatively
to the aforegoing, and in any event, the transfer* to and acquisition
of assets [in the name
of] by the Trusts, the Christim Trust and the
Highway Trust were simulated transactions which fall to be set aside
to reflect that
the first defendant is the owner of such assets;
(This replaces the existing paragraph 44.2, which had not been an
alternative.
*It also now adds “transfer”)
44.4
In the
premises the antenuptial contract concluded between the parties and
in particular clause 5 read with clause 5.1 thereof,
does not
preclude the plaintiff from sharing in the assets of the trusts
therein contemplated which are personally owned by the
first
defendant
; (This paragraph was objected to in Annexure
“JAW1”. However, there followed an amended notice
of amendment
in response to the notice of objection being “JAW3”.
That included a prayer for rectification which opens the
door for
direct evidence of intention. The Trusts stated that they
accept that issues concerning the interpretation of the
antenuptial
contract must therefore go to trial.)
44.5
In any
event, at the time of conclusion of the antenuptial contract first
defendant assured plaintiff and the parties thus orally
agreed, that
the exclusion of assets more fully described in paragraph 5 of the
anenuptial contract did not represent their true
intention and was
not intended to be given effect to nor represent their true intention
and was not intended to be given effect
to nor intended to undermine
her accrual claim, but was contained in the antenuptial contact
merely to appease first defendant’s
father and to that extent
was simulated
. (the comments re paragraph 44.4 apply)
44.6
In seeking
to contend that the trust assets are separate from his personal
assets and in seeking further to rely upon the provisions
of clause 5
of the antenuptial contract, the first defendant has breached that
agreement
. 44.6 In the alternative to paragraph 44.4, 44.5
and 44.6 the plaintiff [pleads rectification]. For the purposes
of
this application, this proposed paragraph is uncontentious.
The plaintiff has now met the objection which had been raised
in
paragraphs 6 and 7 of the Trusts’ Notice of Objection.
The Trusts stated that fully reserve their right to plead
to this
paragraph in due course and make no admissions.
20.
Since no mention is made of any
prejudice that would be suffered by the respondents if the amendment
were allowed, which is the
main consideration in determining whether
or not to grant an amendment, and no inability to plead to the
proposed amendments has
been specifically averred, there seems to be
no reason not to grant the application to amend. The allegation
of
mala fides
on the part of the applicant can be dealt with during
cross-examination at the trial as it will be a matter of evidence.
Application in
terms of
Rule 35(11)
:
21.
The documentation initially sought
by the applicant was listed in annexure “X” to the notice
of motion. Subsequent
to the launching of the affidavit, and
prior to the filing of the replying affidavit, documentation was
exchanged between the parties,
resulting in a new annexure, being
annexure “Y” in which the documentation presently sought
is detailed.
22.
In this application the application
seeks no relief against the second and further respondents, only
against the first respondent.
23.
The applicant contends that the
documents listed in annexure “Y” which is under in the
power or control of the first
respondent which are relevant to the
issues in dispute and without which she will be materially prejudiced
in the prosecution of
her claims. According to the applicant
the Highway Trust owns significant assets that have been externalised
by the first
respondent and in which the applicant assents she has an
interest. According to the applicant, the first respondent and
his
brothers have been externalising funds generated in South Africa
through a company called Anesbury Limited.
24.
I have already referred to other
interlocutory applications which all relate to financial discovery.
Extensive financial discovery
has already been made in this case.
Thus far there are more than 80 files with discovered documents.
However, the applicant contends
that the first respondent has not
disclosed the true nature of his involvement in the several local
trusts and the offshore trusts.
25.
In her founding affidavit the
applicant has carefully set out how the various trust are associated
with the first respondent and
his two brothers. What has
emerged is a highly complex structure, managed and controlled by the
first respondent using his
local and offshore advisors. For instance,
Rosebank Ltd and Rosemont Ltd are the advisors to the McWilliams
brothers offshore.
Rosebank Ltd is the trustee of the Highway
Trust, the Motorway Trust and the Colbruce Trust are referred to as
the three “Monaco
Trusts”. In its capacity as
trustee of the three Monaco trusts, Rosebank Ltd is the shareholder
of three issued shares
of Anesbury Investments Ltd, a company
registered in the British Virgin Isles. The applicant rejects
the first respondent’s
advice that the three Monaco trusts are
so-called “blind trusts” or that the Red Cross is their
true beneficiary.
26.
The applicant infers from
documentation that has been provided by the respondents or
subpoenaed, that through a structure conceived
twenty years ago, the
first respondent and his brothers have been externalising funds
generated in South Africa through Anesbury
and the three Monaco
Trusts. An entity called Uniondalle is also involved and is the owner
of a flat in which the applicant’s
sister lives and which the
applicant uses when in London.
27.
The applicant has also attached an
interim report by Allan Greyling of Accountants at Law, who carried
out a forensic audit in B[…]
M[…] Industries in respect
of the value of the BMI Trust Shareholdings, the trust related to the
first respondent and the
latter’s income. It is apparent
form this interim report that the first respondent’s role and
interest in the
various trusts and companies referred to is rather
underplayed.
28.
According to the interim report,
Anesbury owns significant shares in local entities that are managed
and controlled by the first
respondent. The primary holding is
the BMI Trust. With Anesbury the latter trust is co-shareholder
of a number of entities,
the value of which, according to Greyling,
exceeds R1,28 billion as at February 2016. According to a
financial statement,
Anesbury owns at least a third of these assets,
which amounts to more than R400 million and the first respondent is a
director
of all of the local entities in which Anesbury has an
interest.
29.
The applicant has made several
attempts to secure the documentation she requires to prosecute her
action against the first respondents
and the trusts. She
maintains that in her pursuits, she has encountered a high level of
obstruction from the first respondent
and the trusts.
30.
She listed the following examples.
Letters requesting documentation were not responded to and no
documentation was provided in certain
instances where the
significance of the documents were made plain by the applicant;
only after an application to compel compliance,
was the notice in
terms of
section 7
of the Act provided; no documentation
relating to the offshore trusts and offshore structures, was included
in any discovery,
several letters were sent to the respondent’s
attorneys, expressing the applicant’s disputes factors with the
discovery
requested in vain.
31.
Discovery is intended to assist in
discovering the truth to enable the just determination of the case.
The object of the rules
of discovery is to ensure the fair trial of
the action in accordance with the due process of the court.
32.
In terms of Rule 35(1) of the
Uniform Rules of Court, a party called upon to make discovery is
required to state on oath all documentation
relating to any matter in
question in the action which is or has at any time been in the
possession or control of such other party.
33.
In terms of Rule 35(3) of the
Uniform Rules of Court, if a party believes that there are, in
addition to documents disclosed as
aforesaid, other documentation
which may be relevant to any matter in question in the possession of
any party thereto, the former
may give notice to the latter requiring
him to make the same available for inspection or to state on oath
that such documents are
not in his possession in which event he shall
state their whereabouts, if known to him.
34.
Rule 35(11) of the Uniform Rules of
Court, provides that the court may, during the course of any
proceedings, order the production
by any party thereto under oath of
such documents in his power or control, relating to any matter in
question in such proceeding
as the court may think meet.
35.
Applicant delivered a notice in
terms of Rule 35(1) on 9 December 2015. Pursuant thereto, first
respondent, on behalf of all
of the defendants, delivered a discovery
affidavit on 21 April 2016. In the ultimate paragraph of the
discovery affidavit,
which was dated 20 April 2016, first respondent
states on oath as follows:
“
To the
best of my knowledge and belief, I have not now and never have had in
my possession, custody or power of my attorneys or
agents, or any
other person on my behalf, any document or copy of or extract from
any document relating to any matter in question
in this cause other
than the documents set forth in First and Second Schedules hereto.”
(
sic
) [our
emphasis]
36.
At the time of attesting to the
affidavit, the respondents were well aware of the issues in dispute
between the parties and of the
documentation that applicant sought
and deemed relevant to the issues in dispute, as it was detailed in
correspondence between
the parties’ attorneys, including
annexures JM24, JM25 and JM26.
37.
Consequent upon the discovery in the
respondents’ first discovery affidavit, and which the applicant
deems inadequate, the
applicant delivered a series of notices in
terms of Rule 35(3). These notices were served and responded to
as follows:
(a)
30 June 2016, responded to on 13 October
2016;
(b)
22 December 2017, responded to by first
respondent 0n 30 January 2018 and by the Trusts on 28 February 2018;
(c)
28 June 2018, responded to by first
respondent on 27 July 2018 and the Trust on 27 August 2018 following
an application to compel
them to do so.
38.
A further six discovery affidavits
were delivered by first respondent. The trusts have not
delivered any further discovery
affidavits. The documents that
have been provided are attached to their Rule 35(3) replies.
39.
Most of the documentation that
remains outstanding relates to the affairs of the offshore Trusts and
the entities in which they
have an interest. The applicant contends
that to the extent that such documentation is not in the possession
of the respondents
or of the subpoenaed witnesses, the documentation
is in the power and/or control of first respondent. The
applicant contends
that she is unable to subpoena the documentation
because the relevant intermediaries, who, according to the
applicant, have
the documentation in their possession, are
outside of the jurisdiction of the South African courts.
40.
The applicant asserts that first
respondent has the power and control over the relevant documentation
that is in the possession
of the offshore intermediaries who are the
named trustees of the offshore Trusts, who are in turn, albeit in
different guises,
are the named shareholders and directors of the
offshore entities, including Anesbury and Uniondale.
41.
It can hardly be disputed that the
applicant would be prejudiced in her preparation for trial and in
presenting the evidence allowing
the just determination of the issues
in dispute, if she is denied the documentation that she seeks in
annexure “Y,”
which she submits is in first respondent’s
power and/or control.
42.
There is no justiciable prejudice
that can be occasioned to first respondent should he be directed to
comply with his obligations
flowing from the Rules of Court and in
any event, the first respondent does not allege any prejudice should
he be directed to comply
with the order sought by Applicant in this
application. It is clear that first respondent’s stance in not
providing documentation
under his power or control to the applicant
necessitated this application.
43.
The respondents contend that the
applicant has cast her net impossibly wide and the precise details
are requested in respect of
the C[…] G[…] Trust, G[…]
M[…] Trust, the G[…] M[…] Family Trust, the 23
Hallack Road
Trust, Garry’s Investment Trust, the MID Trust,
The McSher Trust, the BMI Trust, the Christim Trust and the Highway
Trust.
The applicant also seeks particulars since the creation
of these trusts.
44.
It may very well be that the
applicant has indeed cast the net very wide but that is a natural
consequence of the nature of her
claim against the first respondent.
It has always been foreseen that the applicant’s case would
involve a quest for
financial details, information and documents
pertaining to the various trusts linked to the first respondent.
If the particulars
sought is not at hand or non-existent the
respondents may indicate their inability to respond and the reasons
therefore.
45.
With regard to costs, the applicant
submitted that
inter alia
,
that the first respondent’s conduct including the manner in
which he has opposed this application, his failure to provide
reasons
for not providing the documentation sought, and his general
obfuscation in providing documentation reasonably sought by
applicant
would justify costs on the scale as between attorney and client, and
the costs of two senior counsel. I do not agree.
46.
It is correct that discovery sought
in terms of Uniform Court Rule 35(11) is to occur during trial
proceedings. I do not understand
the rule to be limited only to trial
proceedings. In a case where the quest for discovery is so prolific
as has been in the present
matter, it would be more efficacious to
have the discovery made prior to the trial than during the trial. On
the other hand, the
plaintiff might not prove her case as she has set
it out in its amended form, in which case much of the discovery may
turn out
to have been a waste of time. Given the extent to which the
applicant seeks discovery, it would be unfair to burden the first
respondent
with a costs order at this stage in respect of this
application.
The Application for Leave to File a
Further Affidavit
47.
The plaintiff brought this
application after judgment had been reserved in respect of the three
other interlocutory applications.
The application was brought
on an urgent basis and was opposed. The parties were in
agreement that I consider this applications
together with the three
applications in question and determine the outcome in the present
judgment.
48.
The applicant’s application
was brought due to the fact that in December 2018 and February 2019
she received further documentation
the contents of which the
applicant regards as material to her care. The first document
referred to is a letter dated 29
August 2018 addressed to the first
respondent and marked for the attention of the first respondent’s
chartered accountant,
Mr D Honeyball and Mr K Simon.
49.
The letter indicates that the first
respondent obtained relief in terms of Regulation 24 of the Exchange
Control Regulations and
makes provision for the repatriation of USD
678 486.00 in the respondent’s name and that the total
value for which the
relief is sought, amounts to USD 10 498 770.90.
The applicant points out that this document was never discovered
despite it being in the possession of the first respondent and his
accountants.
50.
On 5 December 2018 the applicant
received further documentation from the first respondent’s
financial consultant, Mr J Troskie.
The first respondent had
given Mr Troskie a power of attorney signed by himself. This
document was attached to the founding
affidavit as well as Mr
Troskie’s reply to a subpoena, e-mail correspondence between
the first respondent and Mr Troskie
in August 2017 and an opinion
written by Mr Troskie at the behest of the first respondent as to
whether the offshore structure
involving the Highway Trust and the
entities it holds was lawful.
51.
The applicant has attached these
documents to the affidavit with the purpose of demonstrating the
first respondent’s control
over the trusts and appears to be
the ultimate owner of the assets in the Highway Trust.
52.
The applicant relies on paragraph
6.2.1 of the opinion referred to which reads:
“
Although
the offshore trusts were created by an offshore company, there is
very little doubt that the
de facto
control of the offshore trusts are by
the M[…] brothers. Without such conclusion there may be
argument that the structure
does not make commercial sense.”
53.
The applicant points out that
despite a specific request, for the correspondence relating to the
SVDP application in one of the
annexures to the first respondent’s
application to filea supplementary affidavit, the document was not
discovered.
The first respondent stated it was not in his
possession. However, it is clear that it was under his control,
at least.
54.
It was further stressed that in his
affidavit in the aforementioned application, the first respondent
alleged that there was no
factual or legal basis for the applicant’s
assertion that the assets of the Highway Trust are beneficially owned
by him and
should form part of his personal estate for purposes of
calculating the applicant’s accrual claim.
55.
The applicant maintains that the
aforesaid documents also contradict the first respondent’s
statements to the effect that
he had no vested right in the Highway
Trust’s assets and is unable to produce the documentation
relevant to the financial
affairs and conduct of the Highway Trust.
In my view, it would be in the interest of justice to allow the
further affidavit. The
same considerations apply to the costs of this
application as in the main application in terms of Rule 35(11),
Costs
56.
The applicant should succeed in her
applications for leave to amend her particulars of claim and her
application in terms of Uniform
Rule 21(4). There is no reason
why costs should not follow the result.
57.
With regard to the application in
terms of Rule 35(11), I intend to reserve those costs. There
have been several interlocutory
applications thus far and the
applicant is clearly out to obtain as much documentation and
information regarding the first respondent’s
role and interest
in the various trusts. However, as indicated above, it is possible
that the applicant might not be able to prove
her case as amended,
and a court may find that the relevant part of the antenuptial
contract concluded between the applicant and
the first respondent
means what it says, in which case she would not be able to prove her
claim to the extent she has set out to
do. Much of the
discovery made thus far and further discovered still to be made under
Rule 35(11) would then may have been
made in vain. It seems
somewhat unfair that the first respondent should bear those costs at
this point. The same considerations
should not apply to the
applicant’s application in terms of Rule 21(4), in which she
sought particulars required to prepare
for trial and with which there
has only been partial compliance and thus necessitated her to bring
the present application.
58.
In the circumstances I made the
order attached hereto.
_____________________
E REVELAS
Judge of the
High Court
Appearances
:
For
the Applicant
:
Adv M.J Fitzgerald SC and T.A Dicker SC, instructed by Catto
Neethling Wiid Inc., Cape Town, c/o Greyventeins Inc., Port
Elizabeth
For
the First Respondent
:
Adv B Gassner SC and Adv S Miller, instructed by Miller Du Toit Cloet
Inc., Cape Town, c/o Kaplan Blumberg Attorneys, Port
Elizabeth
For
the Trusts
:
Adv L Kuschke SC and Adv J Bernstein, instructed by Bowman Gilfillan,
Cape Town, c/o Pagdens Attorneys, Port Elizabeth
Dates heard: 19
September 2018 and 14 March 2019
Date
delivered: 26 March
2019
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE
DIVISION
–
PORT ELIZABETH
Case
No.: 3145/2015
In the matter
between:
J[…] A[…]
M[…] (born C[…])
Applicant
and
G[…] S[…]
M[…]
First
Respondent
and
27 OTHERS
ORDER:
Having considered the submissions made
by counsel for the various parties herein, and having read the papers
filed of record, the
following orders are made.
1.
The applicant is granted leave to file a
further affidavit in support of her application in terms of Uniform
Rule 35(11).
2.
The first respondent is directed to produce
or indicate the whereabouts of the documentation specified in
Annexure “Y”,
(substituted for annexure “X”
to the applicant’s notice of motion) in terms of Uniform Court
Rule 35(11) within
14 (fourteen) days of this order.
3.
The applicant is granted leave to amend her
particulars of claim as proposed to be set out in paragraphs 44.1 to
44.5 thereof.
4.
The second to sixteenth respondents are
directed in terms of Uniform Court Rule 21(4) to reply to paragraphs
1 to 14 and 16 to 18
of the applicant’s request for trial
particulars dated 15 June 2018, within 14 (fourteen) days of this
order, failing which
their defences will be struck out.
5.
The second to sixteenth respondents are
liable, jointly and severally, for the applicant’s costs,
including the costs of two
counsel, in the applicant’s
application for leave to amend her particulars of claim and her
application in terms of Uniform
Court Rule 21(4), on the scale as
between party and party.
6.
The costs of the application in terms of
Uniform Court Rule 35(11) and the applicant’s application to
file one further affidavit
in support of the aforesaid application
are reserved for determination by the trial court.
BY
ORDER OF THE COURT
_________________________
E REVELAS
JUDGE OF THE HIGH COURT