SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 24406/2016
In the matter between:
S[…] A[…] Y[…] Plaintiff/Respondent
versus
A[…] V[…] D[…] Defendant/Applicant
Coram: Adhikari AJ
Heard: 6 February 2024
Delivered: 6 February 2024
JUDGMENT DELIVERED ON 6 FEBRUARY 2024
ADHIKARI, AJ
[1] This is an opposed application for the postponement of a trial in a divorce
action. The divorce action was instituted during or about 2016 . It appears from the
2
pleadings and the practice notes filed by the parties that the issues which remain in
dispute include the valuation of the joint estate for the purposes of division thereof,
the defendant’s claim for rehabilitative maintenance and the extent of the plaintiff’s
contribution to the maintenance of the minor child born of the marriage. The
determination of these disputed issues requires evidence to be led regarding, inter
alia, the financial circumstances of the plaintiff (‘Mr Y[…]’).
[2] The defendant (‘Ms D[…]’), on the morning of 5 February 2024 delivered a
substantive application seeking the postponement of the trial sine die, with Mr Y[…]
to pay the wasted costs of the postponement. Ms D[…] contends that Mr Y[…] has
failed to make full discovery of all documents relevant to his financial position and
that consequently the matter is not trial ready.
[3] Mr Y[…] opposes the postponement and contends that the matter is trial
ready. Mr Y[…] did not deliver an answering affidavit in the postponement
application. At the commencement of proceedings on 6 February 2024, Ms Korf who
appeared on behalf of Mr Y[…] confirmed that Mr Y[…] did not intend to deliver an
answering affidavit and that she would proceed to argue against the postponement
based on the papers filed of record.
Legal principles relevant to postponement
[4] It is trite that t he trial judge has a discretion as to whether an application for a
postponement should be granted or refused. The discretion must be exercised
judicially, for substantial reasons and should not be exercised capriciously or upon
any wrong principle. Considerations of prejudice will ordinarily constitute the
dominant component of the total structure in terms of which the discretion will be
3
exercised. A court should be slow to refuse a postponement where the true reason
for a party's non -preparedness has been fully explained, is not due to delaying
tactics and where justice demands that the party should have further time for the
purpose of presenting its case. An application for postponement must always be
bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining
an advantage to which the applicant is not legitimately entitled.
[5] An application for a postponement must be made timeously, as soon as the
circumstances which might justify such an application become known to the
applicant. The court may in an appropriate case allow an application for
postponement even if the application was not timeously made , where fundamental
fairness and justice justifies a postponement . The court should weigh the prejudice
which will be caused to the respondent if the postponement is granted against the
prejudice which will be caused to the applicant if it is not. What the court has to
consider is whether any prejudice caused by a postponement can fairly be
compensated by an appropriate order for costs or any other ancillary mechanisms.
[6] Where the applicant for a postponement has not made the application
timeously, or is otherwise to blame with respect to the procedure which has been
followed, but the interests of justice nevertheless justif y a postponement in the
particular circumstances of a case, the court in its discretion might allow the
postponement but direct the applicant in a suitable case to pay the wasted costs of
the respondent occasioned by the postponement.
4
The merits of the postponement application
[7] It appears from the record that the trial was previously set down for hearing on
22 August 2023.
[8] Ms D[…]’s attorneys delivered a notice in terms of Rule 35(3) dated
20 July 2023 calling on Mr Y[…] to discover, inter alia, all bank statements in respect
of any account s held by him at any financial or banking institution s. In response,
Mr Y[…] deposed to an affidavit dated 16 August 2023, in which he stated that he
holds an account at Bidvest Bank and a credit card account at First National Bank
Private Wealth with an account number ending in 5000.
[9] However, the day before the hearing (that is at approximately 16h30 on
21 August 2023) Mr Y[…]’s attorney addressed correspondence to Ms D[…]’s
attorney annexing further bank statements that had not previously been discovered.
On examination of the se further bank statements it became apparent to Ms D[…]’s
attorney that Mr Y[…] in fact held an account with First National Bank (‘FNB’) which
had not previously been disclosed , that is a FNB Private Wealth current account
(‘the FNB Private Wealth current account’), with an account number ending in 6957.
[10] It bears emphasis that the fact that Mr Y[…] has this further FNB account was
not pertinently drawn to the attention of Ms D[…]’s attorney in the correspondence
addressed by Mr Y[…]’s attorney on 21 August 2023. Ms D[…]’s attorney only
became aware of the existence of this further bank account when he examined the
statements annexed to the correspondence that had been sent to him.
[11] It is contended in the affidavit in support of the postponement application that
five out of the sixty -seven statements in respect of the FNB Private Wealth current
5
account were made available to Ms Dreyer’s attorneys on the day of the last hearing,
that is on 22 August 2023 . Consequently Ms D[…]’s attorneys during
December 2023 directed a subpoena to FNB to obtain all of the bank statements in
respect of the FNB Private Wealth current account. FNB provided the statements on
11 January 2024. The delay in issuing the subpoena is not explained in the affidavit
in support of the postponement application . However, it is apparent that the FNB
Private Wealth current account statements have never been discovered by Mr Y[…].
[12] It is contended in the affidavit in support of the postponement application that
an analysis of the FNB Private Wealth current account statements reveals that:
[12.1] Mr Y[…] has made payments totalling R190 567.00 into an
investment account despite the fact that he had stated in his affidavit
dated 16 August 2023 that he did not have any investments held at
any institutions.
[12.2] Mr Y[…] has made payments totalling R296 504.70 into what
appears to be a pension fund despite the fact that he has to date not
disclosed that he has any pension benefits.
[12.3] The payment reference in respect of the payments into what appears
to be a pension fund refers to “Magtape Credit Citibank Sidwell Ar
Pension” however, Mr Y[…] has never disclosed that he holds an
account with Citibank.
[12.4] Mr Y[…] has been making payments to the Overstrand Municipality
in respect of an undisclosed immoveable property.
6
[12.5] Mr Y[…] has received numerous unexplained payments from foreign
bank accounts, despite the fact that he stated in his affidavit dated
16 August 2023 that he has no income in South Africa other than a
salary of $4 000.00 per month that he earns from his employment as
a chef on a cruise ship.
[13] These contentions are not in dispute as Mr Y[…] has elected not to deliver an
answering affidavit.
[14] On 12 January 2024 Ms D[…]’s attorney drew the aforementioned issues to
the attention of Mr Y[…]’s attorney and called on Mr Y[…] to, inter alia, make full
discovery of his financial circumstances. In addition, Ms D[…]’s attorney requested
that Mr Y[…] sign a document granting his consent for Ms D[…]’s attorneys to obtain
documents from his employer relating to his income and employment benefits (‘the
consent form’) . Ms D[…]’s attorney further advised that unless the request s were
complied with by 18 January 2024, a postponement of the trial would be sought.
[15] On 23 January 2024 Mr Y[…]’s attorney responded , in essence, denying that
his client had failed to make full discovery of his financial circumstances. The
explanation provided by Mr Y[…]’s attorney for the discrepancies between his client’s
statements on oath and the content of the bank statements received under
subpoena is unsatisfactory to say the least . No attempt is made to explain the
apparent payments into an investment account, the payments to the Overstrand
Municipality are not explained and the various foreign currency payments are not
explained. A garbled explanation is given with respect to the payments made into
the Citibank account . In addition , it appears that Mr Y[…] refused to sign the
consent form.
7
[16] Further correspondence was exchanged between the respective attorneys
which did not advance the matter, save that on 31 January 2024 Mr Y[…]’s attorney
provided the signed consent form to Ms D[…]’s attorney. Ms D[…]’s attorneys ha d
understandably not had sufficient time prior to the hearing date of 6 February 2024 to
obtain documents from Mr Y[…]’s employer given that the signed consent form was
only provided on 31 January 2024.
[17] Ms D[…]’s contention that that Mr Y[…] has failed to make full disclosure of
his financial situation appears to be well founded. Further, it is apparent that Mr Y[..]
sought to mislead both Ms D[…] and the court in his affidavit of 16 August 2023,
when he stated on oath that he only has two bank accounts. It is now not in dispute
that he has at least one other bank account (that is the FNB Private Wealth current
account) and it appears from the bank statements that have been subpoenaed that
he has another bank account held with Citibank.
[18] Mr Y[…] has elected not to respond to the serious allegations made against
him in the affidavit in support of the postponement application. He has failed to give
any explanation on oath for the discrepancies between what he has previously
stated on oath and what appears ex facie the bank statements that have been
subpoenaed. In the absence of any explanation from Mr Y[…], I can only conclude
that he has been dishonest with this court and has in fact lied on oath in an attempt
to hide his true financial circumstances from both Ms D[…] and the court.
[19] Ms Korf suggested in argument that there is no need for a postponement as
these discrepancies are matters which can be dealt with under cross -examination
and that the parties have agreed to the appointment of a receiver who can be vested
8
with the necessary powers to determine the nature and extent of the assets in the
joint estate and to make a decision as to the division of the joint estate.
[20] It appe ars from the evidence before me , in particular, Mr Y[…]’s previous
statements on oath and the content of the bank statements obtained under
subpoena, that not only has Mr Y[…] has failed to make full discovery in respect of
his financial circumstances but that he has a propensity for dishonesty when it
comes to disclosure of his financial circumstances.
[21] However, because Mr Y[…] is employed abroad and appears to have made
payments into undisclosed foreign bank accounts and received payments from
undisclosed sources including foreign bank accounts, Ms D[…] is, at this stage,
largely dependent on Mr Y[…] making full and frank disclosure of the full extent of his
financial circumstances. In addition, without full discovery having been made in
respect of Mr Y[…]’s financial circumstances the court seized with the divorce action
will not be in a position to determine the appropriate valuation of the joint estate for
the purposes of division thereof , or to determine the quantum of Ms D[…]’s claim for
rehabilitative maintenance , if any, or to determine the quantum of Mr Y[…]’s
contribution to the maintenance of the minor child . This is manifestly not in the
interests of justice.
[22] As Mr Ferreira who appeared for Ms D[…] correctly submitted, in the absence
of proper discovery it is difficult to see how Mr Y[…]’s evidence could be effectively
challenged on cross -examination at the trial . Presumably Mr Y[…] would simply
deny (as he has done to date) the existence of additional financial resources that he
has failed to disclose. Without proper discovery there would be no basis on which to
challenge his testimony in this regard. For this reason Mr Ferreira correctly in my
9
view submitted that a forensic audit would be necessary. This is one of the purposes
for which a postponement is sought.
[23] As regards Ms Korf’s suggestion that all of these difficulties would be obviated
by the appointment of a receiver, the same issues of concern arise, in particular
given that it appears that Mr Y[…] has financial assets held offshore which he has
failed and in fact refused to disclose. The receiver would be in no be tter position
than the court is in in the absence of the results of a forensic audit to determine the
extent of Mr Y[…]’s undisclosed assets.
[24] It was submitted on behalf of Ms D[…] that the matter ought to be postponed
and referred back to the pre-trial roll, and that she intends to:
[24.1] Bring a further application to compel Mr Y[…] to make full discovery
based on the information which appears from the bank statements
received under subpoena;
[24.2] Appoint a n expert to conduct a forensic audit to determine the true
extent of Mr Y[…]s financial position;
[24.3] Request further particulars for trial; and
[24.4] If necessary, seek to amend her plea.
[25] In light of Mr Y[…]’s conduct to date, I am satisfied that the matter is not trial
ready and that a referral back to the pre -trial roll would be the most appropriate
course of action so that the matter can be properly case managed.
[26] Although the application for postponement has been made rather late in the
day, I am satisfied that the need for a postponement has been fully explained and
10
that it is in the interests of justice for the matter to be postponed to allow Ms D[…]
sufficient time to properly conduct her defence. Consequently, I am satisfied that the
postponement is not a delaying tactic.
[27] Mr Y[…] was timeously warned of Ms D[…]’s concerns regarding the content
of the bank statements and of her intention to seek a postponement if he did not
provide all of the documents which he is required to discover . Ms Korf submitted
that Mr Y[…] is able to provide answers to the apparent discrepancies that appear
from the bank statements as compared to his version under oath, however, Mr Y[…]
elected not to place any explanation before this court on affidavit. I must thus accept
that there is no explanation for his conduct. Ms Korf suggested that the matter be
referred to oral evidence, however, there is no basis for me to do so given that there
is no factual dispute capable of referral to oral evidence in that Mr Y[…] elected to
oppose the postponement application without filing any answering papers.
[28] If Mr Y[…] had timeously provided this apparent explanation for the
discrepancies that appear from the bank statements, there would have been no need
for this postponement application to have been brought in the first place. In the
circumstances, any prejudice occasioned by the postponement could have been
avoided if Mr Y[…] had provided the aforesaid explanation timeously or indeed if he
had made full and proper discovery as he ought to have done . He chose not to do
so and must live with the consequences of his election.
[29] For these reasons I am satisfied that the matter is not trial ready and ought to
be postponed. I am of the view that it would be appropriate to direct that the matter
be removed from the trial roll and for the parties to re-enrol the matter on the pre-trial
11
roll as soon as reasonably possible so that the further conduct of the matter can be
regulated in an orderly fashion under the direction of a case management judge.
[30] As to the issue of costs, I am mindful of the fact that this is the second
postponement sought by Ms D[…] and that the postponement has been made at a
late stage. There is no explanation as to why Ms D[…]’s attorneys , having been
alerted to the existence of the FNB Private Wealth current account in August 2023,
waited until December 2023 to subpoena the bank statements. Although the
postponement application was not timeously made, for the reasons already
addressed I am satisfied that considerations of fairness and justice nonetheless
justify the granting of a postponement. I am satisfied that Ms D[…] was compelled to
bring this postponement application as a consequence of Mr Y[…]s lack of full and
frank disclosure. Consequently, I am of the view that this is an appropriate matter in
which each party should pay their own costs.
In the result I make the following order:
1. The trial is postponed sine die.
2. The parties are directed to approach the Registrar of the Court to re -enrol the
matter on the pre-trial roll at the earliest available date.
3. Each party shall pay their own costs in respect of the postponement
application.
_______________
ADHIKARI, AJ
12
APPEARANCES:
Applicant’s Counsel: Adv F Ferreira
Instructed by: Webster Attorneys
Respondents’ Counsel: Adv A Korf
Instructed by: Malan Lourens Viljoen