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[2023] ZAECMKHC 41
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E.V (born S) v J.H.V and Others (135/2020) [2023] ZAECMKHC 41 (28 February 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 135/2020
In
the matter between:
E[...]
V[...] (born
S[...])
Plaintiff
and
J[...]
H[...]
V[...]
First Defendant
J[...]
H[...] V[...]
N.O.
Second Defendant
J[...]
H[...] V[...]
N.O.
Third Defendant
J[...]
P[...] V[...]
N.O.
Fourth Defendant
THE
MASTER OF THE HIGH COURT,
BLOEMFONTEIN
Fifth Defendant
JUDGMENT
LAING
J
[1]
This is an application for the respondents to provide further and
better
particulars in response to the applicant’s request for
trial particulars.
Background
[2]
The applicant and the first respondent married each other on 17 April
1992, out of community of property and with the application of the
accrual system. Subsequently, the applicant instituted an action
for
divorce. She joined the second respondent in his capacity as trustee
of the Lizann Trust, as well as the third and fourth respondents
in
their capacities as trustees of the Kesieberg Boerdery Trust.
[3]
In the divorce action, the applicant seeks,
inter alia
, an
order declaring that the assets acquired by the above trusts are, in
effect, owned by the first respondent in his personal
capacity. She
also seeks an order declaring that the net value of the trust assets
must be considered when calculating accrual
in relation to the first
respondent’s estate. She further seeks an order directing the
first respondent to pay one-half of
the difference between the
accrual for the parties’ respective estates. She seeks, too, an
order directing the second to
fourth respondents to transfer the
trust assets to the first respondent in his personal capacity if he
holds insufficient assets
to satisfy the applicant’s accrual
claim.
[4]
The applicant delivered a request for trial particulars. The
respondents
delivered a reply, which the applicant contends is
insufficient.
[5]
In her founding affidavit, the applicant details the nature of the
request
made. She requested,
inter alia
: particulars of the
bank accounts operated by the first respondent, including the current
balances held therein; details of the
first respondent’s shares
or member’s interests, investments, and loan accounts;
information about any business entity
in which he held an interest;
particulars about his employment with C[...] F[...] C[...] (Pty) Ltd;
details of his gross and nett
income for the past five years;
information about his monthly expenditure, and his anticipated
financial obligations; and particulars
of trust assets and
liabilities.
[6]
The applicant asserts that the respondents have not supplied the
particulars
sought. Moreover, she alleges that their replies to the
request are vague and lack the necessary specificity.
[7]
On their part, the respondents argue that an accrual claim only
arises
on the date of the dissolution of the marriage, and not
before. Consequently, contend the respondents, any claim to that
effect
would be improper and irrelevant. There was no agreement
between the parties that accrual could be determined at this stage of
proceedings. There was, therefore, no need for the respondents to
supply the particulars sought.
[8]
Furthermore, the respondents point out that they have already
provided
details of the value of the first respondent’s estate.
They have also made discovery regarding the trusts and have furnished
documentation that the applicant previously requested in terms of
rule 35(3), notwithstanding the respondents’ attitude that
the
information was irrelevant to the dispute. They argue that the
applicant is in possession of all the particulars that she requires
in relation to the issues to be adjudicated at trial.
[9]
The respondents aver that they have discovered the financial
statements
of the business entities involved but admit that the first
respondent has not discovered any in his personal capacity. He does
not have any. Furthermore, the respondents state that the first
respondent has already provided particulars in relation to his assets
and liabilities, as well as information about his monthly expenditure
[10]
In reply, the applicant draws attention to the contradictory nature
of the particulars
that the first respondent supplied in relation to
his assets. Moreover, the trust documents, as discovered, were
outdated, unsigned
and incomplete. Without the particulars requested,
asserts the applicant, she is unable to prepare properly for trial or
to instruct
an accountant for purposes of preparing an expert report.
Issues
to be decided
[11]
The court, in the present matter, is simply required to determine
whether the applicant
is entitled to further and better particulars.
This will depend, primarily, on the nature of the relief sought in
the divorce action.
[12]
We proceed to outline the applicable principles below.
Legal
framework
[13]
A request for trial particulars is permitted under rule 21(2), which
provides as follows:
‘
After the close of
pleadings any party may, not less than twenty days before trial,
deliver a notice requesting only such further
particulars as are
strictly necessary to enable him to prepare for trial. Such request
shall be complied with within ten days after
receipt thereof.’
[14]
If the
other party fails to provide the requested particulars, then the
requesting party may apply to court under rule 21(4). The
court has a
discretion to grant any such order as may seem appropriate in the
circumstances.
[1]
[15]
The courts
have held that the purpose of allowing a party to request further
particulars for trial is to prevent surprise, to ensure
that the
parties can be told with greater precision what the other party
intends to prove so as to enable his or her opponent to
prepare his
or her case and combat counter-allegations, but (nevertheless) not to
tie the other party down or to limit his or her
case unfairly at
trial.
[2]
[16]
The purpose
of requesting further particulars is not to secure evidence that will
emerge during cross-examination. However, a party
is not prevented
from requesting particulars when it would result in the disclosure of
evidence where the absence of such particulars
would cause
embarrassment or prejudice in the preparation of his or her case.
[3]
[17]
It is also necessary to mention the Matrimonial Property Act 88 of
1984 (‘MPA’).
The relevant provisions are set out as
follows:
‘
3.
Accrual system
.—(1)
At the dissolution of a marriage subject to the accrual system, by
divorce
or by the death of one or both of the spouses, the spouse
whose estate shows no accrual or a smaller accrual than the estate of
the other spouse, or his estate if he is deceased, acquires a claim
against the other spouse or his estate for an amount equal
to half of
the difference between the accrual of the respective estates of the
spouses.
(2)
Subject to the provisions of section 8(1), a claim in terms of
sub-section (1) arises at
the dissolution of the marriage and the
right of a spouse to share in terms of this Act in the accrual of the
estate of the other
spouse is during the subsistence of the marriage
not transferable or liable to attachment, and does not form part of
the insolvent
estate of a spouse.
4.
Accrual of estate
.—(1)
(a) The accrual of the estate of
a spouse is the amount
by which the net value of his estate at the
dissolution of his marriage exceeds the net value of his estate at
the commencement
of that marriage.
(b)
…
(2)
…
5.
…
6.
…
7.
Obligation to furnish particulars of value of estate
.— When
it is necessary to determine the accrual of the estate of a spouse or
a deceased spouse, that spouse or the executor
of the estate of the
deceased spouse, as the case may be, shall within a reasonable time
at the request of the other spouse or
the executor of the estate of
the other spouse, as the case may be, furnish full particulars of the
value of that estate.’
[18]
The respondents in the present matter have relied on the provisions
of section 3(1) as
the primary basis for their opposition to the
application. The application of the above principles will be
considered in the paragraphs
below.
Application
to the facts
[19]
The respondents argue that the applicant and first respondent are
still married. They are
not yet divorced. Accordingly, with reference
to section 3(1) of the MPA, any accrual claim that the applicant may
have will only
arise upon the dissolution of the marriage.
Consequently, there is no legal basis for the quantification of the
claim since the
date of quantification has not yet arisen. The
further particulars sought by the applicant are irrelevant until an
order for divorce
has been granted.
[20]
In support
of their argument, the respondents refer to
AB
v JB
,
[4]
where Tsoka AJA held that:
‘…
The
provisions of the MPA are clear and unambiguous. In terms of section
3 thereof, a spouse acquires a right to claim an accrual
at the
“dissolution of a marriage”. An exception arises in terms
of section 8 of the MPA. In terms of this section,
a spouse is
entitled to approach the court for immediate division of the accrual,
where his or her right to share in it at dissolution
of the marriage
“will probably be seriously prejudiced by the conduct or
proposed conduct of the other spouse”. It
is only then that the
date for determination of an accrual is brought forward, instead of
at “dissolution of the marriage”.
Furthermore, in terms
of section 4 of the MPA the net value of the accrual of the estate of
a spouse is determined at the dissolution
of the marriage.’
[5]
[21]
The respondents assert that the applicant’s accrual claim may
(or may not) arise
at the dissolution of the marriage. It was still
possible that a court could refuse to grant a divorce order or
postpone the proceedings
where it was not satisfied that the marriage
relationship had broken down irretrievably. Consequently, because no
accrual claim
had yet arisen, there was no legal basis upon which it
could be quantified at this stage. The further particulars requested
by
the applicant were irrelevant.
[22]
In
LD
v JD
,
[6]
say the respondents, Gilbert AJ followed the above principles and
held that the accrual claim was contingent in nature until it
vested
upon the dissolution of the marriage.
[7]
Furthermore, the same principles found application in the full bench
decision of
PJ
v HJ
,
[8]
in the Free State Division, where the court dealt with a request for
further particulars in divorce proceedings. Loubser J held
that:
‘…
The first
question is then whether the trial Magistrate was correct in finding
that the particulars were relevant as far as the
issue of accrual is
concerned. Unfortunately she was not correct in this respect.
Section
4
of the
Matrimonial Property Act provides
that the accrual of the
estate of a spouse is the amount by which the net value of his estate
at the dissolution of his marriage
exceeds the net value of his
estate at the commencement of that marriage. It follows that at the
trial proceedings for a divorce,
the right to accrual has not yet
accrued. It will only accrue when the divorce order is granted, and
only at that time must the
accrual be determined. For purposes of the
divorce proceedings, the issue of accrual is therefore irrelevant.
Particulars in respect
thereof cannot be “strictly necessary”
to prepare for trial.
…
In addition, the
trial Magistrate ignored the fact that the Respondent had already
obtained the information relating to accrual
after she had served her
notice in terms of Section 7 of the
Matrimonial Property Act.’
[9
]
[23]
Consequently, contend the respondents, the applicant is entitled, at
best, to particulars
pertaining to the trusts. However, these would
be limited to the issues regarding the order sought by the applicant
for a declarator
that the assets acquired by the trusts are, in
effect, owned by the first respondent in his personal capacity.
[24]
The
principles enunciated in
AB
v JB
are well-established and accord with the language of
sections 3
and
4
of the MPA. An accrual claim is only acquired upon the dissolution of
a marriage.
[10]
The
determination of the net value of the accrual for an estate can only
be determined upon such date unless the exception under
section 8
applies.
[25]
The decision in
PJ v HJ
, however, requires closer analysis.
Here, the facts were that the appellant had instituted divorce
proceedings in the Regional
Court, claiming,
inter alia
, a
decree of divorce, an order that he pay reasonable maintenance for
the minor child, and compliance with the antenuptial contract.
The
respondent counter-claimed, seeking,
inter alia
, maintenance
for herself. The appellant pleaded that the respondent was able to
provide for her own maintenance needs. Both parties
issued notices in
terms of
section 7
of the MPA, requesting details of the value of the
assets and liabilities in each other’s estate for purposes of
determining
accrual. Details were subsequently supplied by both
parties. Shortly afterwards, the respondent filed a request for
further particulars
for trial, consisting of a lengthy list of
questions about the appellant’s financial position. The
appellant refused the
request, stating that the particulars were not
necessary for trial and were irrelevant. This prompted the respondent
to make application
to compel.
[26]
The
magistrate in the Regional Court referred to the decision of the
Supreme Court of Appeal (‘SCA’) in
ST
v CT
,
[11]
where Majiedt JA and Rogers AJA emphasised the duty of a spouse, in
terms of
section 7
of the MPA, to make full and frank disclosure of
the particulars pertaining to the value of his or her estate. The
failure to do
so could lead to the drawing of an adverse inference
that a party had hidden assets.
[12]
The magistrate stated that full disclosure was required for the court
to decide the question of maintenance. Furthermore, she held
that the
request for further particulars concerned the issues of both
maintenance and accrual. The particulars were relevant for
trial
preparation since they related to the accrual in the respondent’s
estate.
[27]
As apparent
from the extract, the full bench found that the magistrate had not
been correct regarding the issue of accrual.
[13]
The right to accrual had not yet vested. For purposes of the divorce
proceedings, the court held that the issue of accrual was
irrelevant.
Regarding the issue of maintenance, the court examined the pleadings
and pointed out that the respondent’s claim
for maintenance was
met by the appellant’s bare denial. The court, citing
Rall
v Rall
,
[14]
found that a party cannot be required to provide particulars in such
circumstances, especially when the information sought could
simply be
secured by means of cross-examination.
[15]
[28]
It is the respectful view of this court that the facts in
PJ v HJ
are distinguishable from those in the present matter. The respondent
in the above proceedings did not seek, in terms of her counter-claim,
an order for the determination and payment of accrual. She merely
sought maintenance for herself. Strictly speaking, the question
of
accrual was not an issue that was directly before the Regional Court.
In the present matter, the applicant seeks, against the
first
respondent, a decree of divorce and spousal maintenance. Furthermore,
she seeks, against the first to fourth respondents,
declarators to
the effect that the assets acquired by the trusts are owned by the
first respondent in his personal capacity and
that the net value
thereof be considered when calculating accrual. She seeks, too, an
order for payment of accrual. She seeks,
finally, an order directing
the second to fourth respondents to transfer the assets to the first
respondent in his personal capacity
if he cannot satisfy the
applicant’s accrual claim. The situation is somewhat different
from that which confronted the Regional
Court in
PJ v HJ
.
[29]
That the applicant’s accrual claim is contingent upon the
court’s granting
of a decree of divorce is a principle that
must be accepted on the strength of the legislation and the case law.
So, too, is the
principle that the determination of the net value of
accrual in relation to the respondent’s estate can only be made
upon
the dissolution of the marriage. There is, however, no reason
why the applicant cannot seek a decree of divorce and the
determination
and payment of accrual in terms of the same action.
[30]
The
applicant referred to the decision in
JA
v DA
,
[16]
where Sutherland J remarked that:
‘…
Without
challenging the correctness of the finding that enforceability must
await the date of dissolution, it does not seem to me
inappropriate
to sue for both a divorce and an order pursuant to
s 3
of the MPA in
a single action, in which the accrual order is made dependent upon
the granting of a divorce order. For policy reasons,
if no other, and
the obvious saving of costs and avoidance of delay, the
double-barrelled approach is preferable, a view shared
by Olivier J
but which he reluctantly disavowed because of what, in his view,
would be infidelity to could probably overcome that
danger of
infidelity. Practical factors alone ought to determine whether any
post-dissolution revisions to provisional calculations
become
necessary. However, it is plain that there cannot be any basis to
calculate the value of the estates at a moment earlier
than the
dissolution.’
[17]
[31]
As pointed
out by the applicant, the above approach was approved (
obiter
)
by Tsoka AJA in
AB
v JB
,
[18]
and followed by Binns-Ward J in
TN
v NN and others
.
[19]
Furthermore, in
LD
v JD
,
[20]
Gilbert AJ observed that:
‘…
Although
the accrual claim only arises or vests upon the dissolution of the
marriage in terms of
section 3(1)
[of the MPA] and therefore is only
capable of being valued after it has arisen, the parties during the
divorce proceedings can
lead evidence to establish the value of the
accrual claim and so enable the court to award a quantified monetary
judgment in respect
of the accrual claim contemporaneously upon
granting the divorce. This has the advantage of avoiding a more
costly and delayed
two-stage process to the litigation, where in the
first stage the divorce is granted with the resultant dissolution of
the marriage
giving rise to the accrual claim, and then a second
stage in which the value of the accrual claim itself is
determined.’
[21]
[32]
The above
approach is a pragmatic and sensible response to the costs, delays
(and trauma) of divorce proceedings. At the same time,
it is in
alignment with the provisions of
sections 3
and
4
of the MPA and
remains consistent with the principles indicated in
AB
v JB
.
[22]
[33]
Returning
to the request for trial particulars under
rule 21(2)
, regard must be
had to the pleadings to decide whether the particulars are strictly
necessary for trial preparation.
[23]
The applicant raises squarely, in her particulars of claim, the
determination of the ownership of the trust assets, the net value
thereof, the transfer thereof to the first respondent in his personal
capacity, and the calculation and payment of accrual overall.
No
order has been made, at this stage, for the separation of issues.
[24]
[34]
Particulars pertaining to the respondent’s financial affairs,
as well as trust assets
and liabilities, are entirely relevant to the
applicant’s claim. She cannot prepare properly for trial
without the information
sought.
[35]
In passing,
it would not be inappropriate to reiterate the principle expressed by
the SCA in
ST
v CT
.
[25]
A spouse must make full and frank disclosure of the value of his or
her estate. Whereas the context thereof was
section 7
of the MPA, it
is the respectful view of this court that the principle applies in
equal measure when a spouse relies on the provisions
of
rule 21
to
request further particulars in circumstances where inadequate
information has been furnished. The applicant drew the attention
of
the court to
DEB
v MGB
,
[26]
where Gorven AJA remarked that:
‘…
The
attitude of many divorce parties, particularly in relation to money
claims where they control the money, can be characterised
as “catch
me if you can”. These parties set themselves up as immovable
objects in the hope that they will wear down
the other party. They
use every means to do so. They fail to discover properly, fail to
provide any particulars of assets within
their peculiar knowledge and
generally delay and obfuscate in the hope that they will not be
“caught” and have to disgorge
what is in law due to the
other party.’
[27]
[36]
The provisions of
rule 21
are indeed susceptible to abuse. The
qualification that a party is only entitled to such particulars as
are strictly necessary
to enable him or her to prepare for trial was
obviously intended to mitigate against such a risk. Nevertheless, to
expect a party
in divorce proceedings to obtain, predominantly
through cross-examination, sufficient evidence to produce a clear
enough picture
of the other party’s financial affairs when a
substantial amount of complex and specialised information is involved
would
appear to run contrary to the openness and transparency
encouraged by the SCA in the decisions mentioned earlier. A
responsible
and mature response to a timely request for further
particulars to allow for proper trial preparation, including the
possible involvement
of experts as the present matter suggests, would
seem to support the pragmatic and sensible approach espoused by
Sutherland J in
JA v DA
.
[37]
Trial proceedings, especially matrimonial matters, should not be akin
to tooth extraction.
If the rules permit the fair and necessary
disclosure of particulars to streamline and expedite the dissolution
of a marriage,
inevitably a distressing experience for the spouses
and families involved, then effect ought to be given thereto.
Relief
and order
[38]
Insofar as the respondent contends that the particulars sought by the
applicant are irrelevant
until a decree of divorce has been granted,
the case law seems to indicate otherwise. The vesting of the
applicant’s accrual
claim and the determination of accrual
regarding the first respondent’s estate can only occur upon the
dissolution of the
marriage. Nevertheless, the applicant is not
prevented from seeking a decree of divorce, declarators in relation
to the trust assets,
and orders pertaining to the calculation and
payment of accrual, in terms of the same action. The further
particulars sought by
the applicant are relevant to the above issues
and are necessary for proper trial preparation.
[39]
It is not the intention of this court to decide precisely what the
respondent is still
required to provide. The applicant has merely
sought further and better particulars. Where necessary, she can
return to court on
the same papers, amplified where required, to seek
further relief.
[40]
The only question remaining is that of costs. The court enjoys a wide
discretion in that
regard and sees no reason why the successful party
is not entitled to her costs. The applicant argued for the costs of
two counsel,
but not with much conviction. The determination of the
issues raised by the pleadings may, in due course, warrant the
involvement
of two counsel but not for purposes of the present
proceedings.
[41]
In the circumstances, the following order is made:
(a)
the first to fourth respondents are directed to provide further and
better particulars
in relation to paragraphs 2.2, 2.3, 2.5, 2.7, 6
(including paragraphs 6.1 to 6.10), 7.1, 8, 9, 12 to 14.12, and 15 to
19.9, of
the applicant’s Request for Trial Particulars, dated
10 June 2022; and
(b)
the first to fourth respondents are directed to pay the costs of the
application
jointly and severally, in the event of one paying the
others being absolved.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
For the plaintiff:
Adv
Nepgen with Adv Williams, instructed by Neville Borman & Botha
Attorneys, Makhanda
For the 1
st
to 4
th
defendants:
Adv
Reinders, instructed by Netteltons Attorneys, Makhanda.
Date
of hearing:
28 November 2022.
Date
of delivery of judgment:
28 February 2023.
[1]
Van
der Walt v Van der Walt
2000
(4) SA 147
(E), at 150E-F;
Bester
NO v Target Brand Orchards (Pty) Ltd
(unreported, WCC case no 22593/2019, dated 21 December 2020), at
paragraph [46].
[2]
Samuels
v William Dunn & Company South Africa (Pty) Ltd
1949
(1) SA 1149
(T), at 1158. The principles have been adopted
consistently in subsequent cases, e.g.
Thompson
v Barclays Bank DCO
1969 (2) SA 160
(W), at 165;
Schmidt
Plant Hire (Pty) Ltd v Pedrelli
1990 (1) SA 398
(D), at 402; and
EH
Hassim Hardware (Pty) Ltd v Segabokeng Building Construction CC
(unreported, GP case no 69167/2017, dated 27 September 2021), at
paragraph [16].
[3]
Annandale
v Bates
1956 (3) SA 549
(W), at 551;
Von
Gordon v Von Gordon
1961
(4) SA 211
(T), at 213; and
Lotzoff
v Connel
1968 (2) SA 127
(W), at 129.
[4]
2016 (5) SA 211 (SCA).
[5]
At
paragraph [16].
[6]
[2021]
1 All SA 909 (GJ).
[7]
At
paragraph [14]. The court pointed out that the accrual claim could
vest earlier if an immediate division of the accrual was
granted in
terms of
section 8(1)
of the MPA.
[8]
2022
JDR 3356 (FB).
[9]
At
paragraphs [13] and [14]. The footnotes have been omitted.
[10]
In
LD
v JD
(n
6, supra), Gilbert AJ described it as a deferred equalization claim,
at paragraph [13].
[11]
2018
(5) SA 479 (SCA).
[12]
At
paragraphs [33] to [36].
[13]
See
n 9, supra.
[14]
Unreported,
FS case no 2369/2009.
[15]
The
court also referred to
Carte
v Carte
1982 (2) SA 318
(D) and
Von
Gordon v Von Gordon
1961 (4) SA 211 (T).
[16]
2014
(6) SA 233 (GJ).
[17]
At
paragraph [20].
[18]
See
n 4, supra, at paragraph [19].
[19]
2018 (4) SA 316
(WCC), at paragraph [29}.
[20]
See
n 6, supra.
[21]
At
paragraph [17].
[22]
See
n 4, supra.
[23]
Hardy
v Hardy
1961
(1) SA 643
(W), at 646;
Swart
v De Beer
1989 (3) SA 622
(E);
DFPT
Finance NPC v Vintage Distributors (Pty) Ltd
(unreported, WCC case no 9095/18, dated 23 November 2021).
[24]
Either
of the parties may yet apply for the separation of issues, e.g. the
determination of the divorce claim, under
rule 33(4).
[25]
See
n 11, supra.
[26]
[2014]
JOL 32339 (SCA).
[27]
At
paragraph [39].