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[2023] ZAFSHC 342
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K.V v C.J.V (157/2017) [2023] ZAFSHC 342 (29 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE HIGH COURT OF
SOUTH AFRICA
FREE STATE
PROVINCIAL DIVISION
Case
No: 157/2017
In the matter between:
K
V
Plaintiff
and
C
J V
Defendant
Coram:
Opperman, J
Heard:
6 June 2023, the heads of argument
were submitted on 16 June 2023, 27 June 2023 & 4 July 2023, the
matter was again argued in
open court on 14 August 2023
Delivered:
29 August 2023.
The
judgment was handed down electronically by circulation to the
parties’ legal representatives
via
email and released to SAFLII on 29 August 2023. The date and time of
hand-down is deemed to be 15h00 on 29 August 2023
Judgment:
Opperman, J
Summary:
Costs dispute in divorce on separated
issue for auditing of accrual that was referred by agreement between
parties
JUDGMENT
[1]
In
Fleming v
Johnson & Richardson
1903 TS
319
325 Innes, CJ said:
It is a sound rule that
where a plaintiff is compelled to come to Court and recovers a
substantial sum which he would not have recovered
had he not come to
Court, then he should be awarded his costs.
[2]
As the case number indicates; the history
of this case goes back as far as 2017. Extensive litigation took
place and numerous orders
were issued. Unfortunately, the dust has
not settled yet.
[3]
The parties agreed, in the settlement that
was made an order of court, that the costs of the divorce action
would be “costs
in the cause”. It is commonplace that the
last remaining issue for adjudication was the defendant’s claim
for accrual,
which the parties seemingly laid to rest by agreeing on
the appointment of a receiver to quantify the amount to be paid to
defendant.
[4]
The issue of the costs incurred in the
quantification of the accrual by the chartered accountant(s)
eventuating from the referral,
has now arisen from the ashes.
[5]
The settlement order dated 2 August 2019
that send the issue of accrual to a receiver/chartered accountant
reads as follows:
1.
A chartered accountant to be nominated by the chairperson, for
the time being, of the South African Institute of Chartered
Accountants is appointed as a receiver in the divorce action between
the parties with the powers and obligations as set out in
Annexure
“A”
[1]
hereto.
2. The Respondent is
ordered to pay the costs of the application.
[6]
All the preceding orders, and there were
many, dealt with the costs of each aspect inchmeal; issue for issue
and order for order.
It is water under the bridge and this court does
not have authority to deal with it. It is not relevant to the
specific aspect
in hand. It also, now, serves within the realm of the
Taxing Master’s jurisdiction.
[7]
The hearing/settlement in which the matter
ended up being referred to a chartered accountant was agreed to be
for the account of
the plaintiff.
[8]
In their heads of argument counsel for Mr
V/plaintiff claims that:
75. It is
respectfully submitted that the proper order is that each party
should pay their own costs of the divorce action,
which, to be
precise, shall be the costs of the Divorce Claim, the Rule 43
application and the Accrual Claim and that the defendant
should be
ordered to pay the costs of the present proceedings, such cost to
include the costs that stood over in respect of the
proceedings on 6
June 2023.
[9]
In their heads of argument counsel for Mrs
V/defendant argued that:
39. It is humbly
submitted that the plaintiff should be ordered to pay the defendant’s
costs of suit on a party and
party scale, which costs will include
the costs of the divorce, the rule 43 application and the accrual,
excluding the costs of
4 December 2018.
40. It is further
humbly submitted that the plaintiff should also be ordered to pay the
costs that stood over on 6 June 2023
on a party and party scale.
[10]
The above cannot be correct because all the
issues except for the costs of the accrual audit and the costs of
this application that
happened on 6 June 2023 and 14 August 2023
remains for adjudication.
[11]
This application consisted of an enormous
amount of evidence that had to be considered and some confusion also
reigned on the 6
th
of June 2023. It was exacerbated by the fact that this court was not
involved in the litigation that happened before this application;
counsel for both parties apparently also not. In the end the parties
agreed that it is only the costs incurred for the audit of
the
accrual that must be adjudicated.
[12]
Mrs
V was the successful party in the accrual audit. The conduct and the
evidence of Mr V caused the issue to be litigated and the
accrual to
be audited. This is what happened:
1.
The plaintiff did not play open cards with the court in regard
to his net asset value. Counsel for the defendant summarized the
situation aptly:
18.
18.1
In the
plaintiff’s first answer to the defendant’s notice in
terms of section 7 of the Matrimonial Property Act 88 of
1984 (
Act
88 of 1984
),
delivered on 2 March 2018, the plaintiff indicated that his net asset
value amounted to
R8
247 894.25
.
[2]
18.2
In the
plaintiff’s second answer to the defendant’s second
notice in terms of section 7 of Act 88 of 1984, delivered
on 8 March
2019, the plaintiff indicated that his net asset value, with tax
adjustments, was
R7 979 886.96
.
[3]
19.
19.1
In the
final amended account of the receiver dated 6 November 2020 the
receiver calculated that an amount of
R4
579 919.00
was
payable by the plaintiff to the defendant in respect of the
accrual.
[4]
19.2 The following is
evident from the final amended account of the receiver:
19.2.1 The total
“
included
” asset value of the plaintiff was
R11 948 931.00
;
19.2.2 The total
“
included
” liabilities of the plaintiff was
R446 164.00
;
19.2.3 The net
disclosed and included liabilities of the plaintiff amounted to
R11 502 767.00
(R11 948 931.00 -
R446 164.00);
19.2.4 The receiver
calculated the accrual as at 4 December 2018, being the date of the
divorce.
2. Mrs V was
substantially successful and received an amount of R4 579 919.00 in
respect of the accrual on the calculations
by the auditor that stands
uncontested.
3. The amount of
the accrual that the defendant received was substantially more than
her settlement offer of R2 900 000.00.
If she did not institute the
application as she was forced to do by the misinformation of the
plaintiff, she would have been seriously
prejudiced. The litigation
caused justice.
4. The defendant’s
application for the appointment of a receiver, which was settled, led
to the finalisation of the
defendant’s accrual claim. The
plaintiff was also ordered to pay the defendant’s costs of the
said application. The
defendant was therefore substantially
successful in the litigation on the issue of accrual.
[13]
ORDER
1. The plaintiff to
pay the costs incurred for the
quantification of
the accrual.
2. The plaintiff
shall also pay the costs of this application and,
inter alia
,
incurred on 6 June 2023 and 14 August 2023.
M OPPERMAN, J
APPEARANCES
For plaintiff:
W.A. VAN ASWEGEN
Instructed by:
Kleingeld Attorneys
Bloemfontein
For defendant:
W GROENEWALD
Instructed by:
David Dewar
Cape Town
c/o
Strauss Daly Incorporated Attorneys
Bloemfontein
[1]
Annexure
“A” does not take the issue of costs any further and
will therefore not be quoted in the judgement.
[2]
Record, “Index to Notices”, Plaintiff’s Answer in
terms of section 7, pages 102 – 104.
[3]
Record, “Index to Notices”, Plaintiff’s Answer in
terms of section 7, pages 27 to 29.
[4]
The final amended account of the receiver dated 6 November 2020 was
handed in as in exhibit in court on 6 June 2023.