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[2022] ZAFSHC 298
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PJ v HJ (A55/2022) [2022] ZAFSHC 298 (10 November 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: A55/2022
In
the matter between:
P[....]
J[....]
Appellant
and
H[....]
J[....]
Respondent
CORAM:
LOUBSER, J et MPAMA, AJ
HEARD
ON:
10 OCTOBER 2022
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
10 NOVEMBER 2022
[1]
This is an appeal concerning the question whether a party in divorce
proceedings in
the Regional Court can be compelled to furnish certain
further particulars to enable the other party to prepare for trial.
In the
court
a quo
, the Regional Court Magistrate ordered the
Appellant to provide answers to certain paragraphs of the
Respondent’s request
for further particulars for the purposes
of trial. It is in respect of this order that the Appellant now comes
into higher contention.
[2]
A request for further particulars for trial is governed by the
provisions of Rule
16 of the Magistrate’s Court Rules. The
provisions of the Rule relevant to the present case, are the
following:
16(1) Subject to subrules
(2), (3) and (4) further particulars shall not be requested.
16(2)(a)
After the close of pleadings any party may, not less than 20 days
before trial,
deliver a notice requesting only such further
particulars as are strictly necessary to enable him or her to prepare
for trial.
16(4) If a party who has
been requested in terms of this rule to furnish any particulars fails
to deliver them timeously or sufficiently,
the party requesting the
same may apply to court for an order for their delivery or for the
dismissal of the action or the striking
out of the defence, whereupon
the court may make such order as it deems fit.
[3]
In the Court
a quo
, the Respondent delivered a notice
requesting further particulars, but afterwards she was of the view
that paragraphs 5 and 6 of
her request were not sufficiently, or at
all answered. She then launched an application to compel in terms of
Rule 16(4). This
application was successful, as indicated above. It
is clear from the final words of the subrule that a court retains a
discretion
to grant or refuse an order for the delivery of further
particulars.
[4]
A Court sitting as a court of appeal will only interfere with the
exercise of a discretion
where it appears that the lower court had
not exercised its discretion judicially, or that it had been
influenced by the wrong
principles or a misdirection on the facts, or
that it had reached a decision which in the result could not
reasonably have been
made by a court directing itself to all the
relevant facts and principles.
[1]
[5]
To consider whether the Magistrate has exercised her discretion
correctly, the facts
of the matter must be considered first. It
appears from the pleadings that the Appellant and the Respondent were
married to each
other out of community of property with inclusion of
the accrual system. The Appellant sued for a divorce, and the
Respondent defended
the action. In his particulars of claim, the
Appellant claimed
inter alia
a decree of divorce, that he be
ordered to pay the reasonable maintenance needs of the minor child,
and compliance with the antenuptial
contract. Maintenance for the
Respondent is not mentioned in the particulars of claim.
[6]
The Respondent thereafter filed a plea and a counterclaim. In the
plea, most of the
allegations in the particulars of claim are either
admitted or confessed and avoided. The parties, however, agreed that
the marriage
relationship between them has broken down irretrievably.
[7]
In her counterclaim, the Respondent
inter alia
claimed
maintenance for herself until death or remarriage. In response to
this claim for maintenance, the Appellant pleaded the
following: “The
contents hereof are denied. Plaintiff pleads specifically that
Defendant is able to provide for her own maintenance
needs. Defendant
is a qualified forensic social worker in private practice for
nineteen (19) years and with twenty-five (25) years
experience.
Defendant holds two (2) university degrees and is currently busy
qualifying for her doctorate degree”.
[8]
Soon hereafter both parties requested by way of notices in terms of
Section 7 of the
Matrimonial Property Act that they be provided with
the full value of the assets and liabilities of the other party’s
estate
“in order to determine the accrual” in the
respective estates. Both parties complied with the request contained
in
these notices.
[9]
Merely a week after the Respondent filed her Section 7 notice, she
also filed a request
for further particulars for trial purposes. This
request contained a long list of questions relating to the
Appellant’s financial
position, but for present purposes I
quote only paragraphs 5 and 6 of the request for further particulars,
which read as follows:
“
5. Particulars in
respect of any company, corporation, firm, business, venture or
syndicate of whatsoever description (“the
entity”) in
which the Plaintiff holds any interest, whether direct or indirect
(through his interest in any trust or any
other entity). Plaintiff is
requested to provide full particulars regarding any income or benefit
received by him from such entity
in each tax year for the past three
financial years, including:
5.1
dividends/profit distributions accrued or received by him;
5.2
trustee’s remuneration accrued or received by him;
5.3
salary and/or commission accrued or received by him;
5.4
director’s fee accrued and/or received by him;
5.5
bonuses received or accrued by him;
5.6
drawings made on loan accounts by Plaintiff;
5.7
interest accrued on credit loan accounts;
5.8
loans advanced to Plaintiff;
5.9
telephone, traveling and entertainment allowances paid by the entity
on Plaintiff’s behalf or allowance
received by Plaintiff in
cash or in kind;
5.10 credit card
payments made by the entity on Plaintiff’s behalf or use of a
corporate credit card;
5.11 medical aid
and pension fund contributions paid on Plaintiff’s behalf;
5.12 contributions
paid by entity to short term insurance premiums and premiums in
respect of investments and life policies
in respect of Plaintiff's
life.
6.
Plaintiff is requested to furnish full and precise particulars of:
6.1 His
gross and net income (after payment of tax) for each month during the
past three financial years to date
and the sources thereof;
6.2 His
anticipated gross and net income for the next twelve months (from
whatsoever source) and the sources thereof.”
[10]
The Appellant replied as follows to the request contained in the
above paragraphs 5 and 6: “The
particulars requested herein are
not necessary for the purposes of trial, are irrelevant to the
disputes between the parties and
are therefore refused”.
[11]
This curt reply prompted the Respondent to file an application to
compel in terms of Rule 16(4).
It is this application that forms the
subject matter of this appeal. In an affidavit accompanying the
application, it is stated
that the Appellant’s answer is
inadequate in that the Appellant cannot refuse to make full
disclosure having regard to the
pleadings, “in particular the
Defendant’s counterclaim for spousal maintenance”. The
Appellant opposed this application,
but he refrained from filing any
opposing affidavit.
[12]
In her judgment, the trial Magistrate referred at some length to the
provisions of the Matrimonial
Property Act dealing with the accrual
system. She then referred to the matter of
ST
v CT
[2]
where it was held that when accrual is imperative, the spouse
concerned must clarify what has been excluded, and must make full
disclosure as required by Section 7 of the Matrimonial Property Act.
In relation to the issue of maintenance, she stated that full
disclosure would be required for the court to determine whether there
is a need for maintenance and whether the other party can
indeed
afford to pay that maintenance. She emphasized that the request for
further particulars pertained to these very issues,
namely
maintenance and accrual. After taking into account that the Appellant
had failed to file any opposing affidavit, the trial
Magistrate came
to the following conclusion: “In light of the above, I can only
conclude that the particulars requested is
indeed relevant for
purposes of trial preparation as it directly relates to an accrual of
the respondent’s estate”.
[13]
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.
[3]
For purposes of the divorce proceedings, the issue of accrual is
therefore irrelevant. Particulars in respect thereof cannot be
“strictly necessary”
[4]
to prepare for trial.
[14]
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.
[15]
The second question is whether the trial Magistrate was correct in
finding that the particulars
sought were relevant as far as the issue
of maintenance is concern. As a point of departure, this question
must be answered with
reference to the pleadings filed in the main
action. In her counterclaim, the Respondent claims to be entitled to
spousal maintenance.
She therefore bears the onus of proving that she
is entitled to maintenance, and to prove the quantum and the duration
thereof.
This claim by the Respondent was met by a mere denial by the
Appellant in his plea to the counterclaim. His denial does not
involve
any positive averment of some fact relating to the claim for
maintenance.
[16]
In the matter of
Rall
v Rall
,
a judgement of this Division,
[5]
Claasen, AJ found that a party cannot be required to give particulars
in relation to a bare denial. He referred, amongst others,
to the
judgement in
Carte
v Carte
[6]
and
Von
Gordon v Von Gordon
,
[7]
where the same approach was adopted in similar circumstances. In the
Carte-matter
,
Howard J, as he then was, had the following to say at 319 C-D: “The
request is simply designed to elicit details of evidence
which will
be canvassed at the trial, and the Court has long since set its face
against compelling the delivery of such particulars
in matrimonial
actions. In my view proceedings to elicit or compel the delivery of
particulars such as those constitute an abuse
of the Court’s
process and should lie discouraged.”
[17]
In the Von Gordon-matter, Bresler, J stated at 213 B-D that “I
do not know of a single
precedent for the request as framed in the
circumstances of the present case, and this is perhaps the most
cogent answer of all
to it, namely, the realisation that the
information sought can be secured in Court as it has uniformly been
secured in the past
by means of relevant cross-examination”.
[18]
The learned Magistrate in the court
a quo
failed to follow the
judgement in Rall, as she was bound to do by virtue of the doctrine
of precedent. She was therefore guided
by wrong principles, and she
failed to exercise her discretion judicially. The Magistrate’s
reliance on the case of
ST v CT
, quoted above, was also
misplaced since the Respondent was not entitled to elicit further
particulars where the Appellant had made
a bare denial.
[19]
As for costs, I find no reason to deviate from the general rule.
The following orders are
therefore made:
1.
The appeal is upheld with costs.
2.
The orders of the Court a quo are set aside and replaced by the
following:
“
The application to
compel the delivery of further particulars for purposes of trial is
dismissed with costs.
P.
J. LOUBSER, J
I
concur:
L.
MPAMA, AJ
For
the Appellant: Adv. N Snellenburg SC
Instructed
by:
Symington De Kok Attorneys
Bloemfontein
For
Respondent: Adv. J. C. Coetzer
Instructed
by:
DDKK Attorneys Inc, Polokwane
c/o
Honey Attorneys, Bloemfontein
[1]
Mabaso
v Law Society, Northern Provinces, and Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC)
at para 20
[2]
2018
(5) SA 479 (SCA)
[3]
AB v JB
2016 (5) SA 211 (SCA)
[4]
Rule
16(2)(a)
[5]
Under
case number 2369/2009
[6]
1982
(2) SA 318 (D)
[7]
1961
(4) SA 211
(T)