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[2020] ZAGPPHC 92
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Coetzee v Coetzee N.O and Others (78882/15) [2020] ZAGPPHC 92 (9 January 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION: PRETORIA
CASE
NO:78882/15
9/1/2020
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
In
the matter between:
MYNETE
COETZEE
APPLICANT
And
MARISKA
COETZEE N.O
MARISKA
COETZEE
SECOND RESPONDENT
THE
MASTER OF THE HIGH COURT PRETORIA
THIRD RESPONDENT
CELENE
DENNIS (Formerly COETZEE)
FOURTH RESPONDENT
STEPHAN
COETZEE
FIFTH RESPONDENT
JUDGMENT
1.
This is an
interlocutory application by the Applicant who are the respondents in
the main application, for the purpose of easy reference,
the parties
are referred to as in the main application.
2.
The
Respondents application to this court seek to set aside a
supplementary founding affidavit which was filed by the Applicant
in
the main application, as they contend it constitutes an irregular
proceeding in terms of Rule 30.
3.
The
Applicant on or about the 17
th
September 2015 issued an
application against the First and Second Respondent.
4.
The
required answering and replying affidavits were exchanged between the
parties and the application was set down for hearing on
the 13th
March 2017.
5.
The
matter was set down before the then Acting Justice Mbongwe and where
after the parties agreed to the terms of a draft order
which draft
order was subsequently and duly made an order of court.
6.
In
the main application the following order was made:-
6.1
That the First and Second
Respondent be directed to provide the Applicant with the outstanding
bank statements as referred to I
Paragraph 23 of the First
Respondent's answering affidavit within 30 days from the date of
granting the order.
6.2
If the statement referred to in
paragraph 1 above are not available and/or not obtainable from the
relevant financial institutions
within 30 days from the date of this
order, the First Respondent ids directed to deliver and serve an
affidavit within 10 days
thereafter on the Applicant setting steps
taken to obtain the statement, and the reasons why the statements are
not available,
and the reasons why the statements are not available.
6.3
The Applicant be directed to
serve and file within 21 days from the date of this order with the
First and Second Respondent's attorneys
of record,
a
list of further documents required,
which list must clearly specify the nature and dates of the documents
so
required,
only insofar
as
it
is relevant and it relates to the First Respondent's dealings with
the property and assets of the Trust registered with the Fourth
Respondent under reference number IT7073/2003
6.4
That the First Respondent be
directed to serve and file within 21 days from the date of the
request made in terms of paragraph 3
hereof, the documents required;
6.5
If the documents referred to in
paragraph 3 above are not available and/or not obtainable within 21
days from the date of the request
made in terms of paragraph 3
herein, the First Respondent is directed to deliver and serve an
affidavit within 10 days thereafter
on the Applicant setting out the
steps taken to obtain the documents, and the reasons why the
documents are not available;
6.6
If the documents requested by the
Applicant in terms of paragraph 3 above are not relevant to the First
Respondent's dealing with
the property and assets of the Trust, or
privileged, the First Respondent is directed to deliver and serve
within 10 days thereafter
on the Applicant an affidavit setting out
the reasons why such document will not be made available;
6.7
That the First Respondent be
directed to debate the aforesaid documents and account with the
Applicant within 21 days after the
receipt of the documents and/or
affidavits served and filed as required in terms of paragraph 4 and 5
hereof·,
6.8
Any dispute between the Applicant
and the First Respondent arising from the aforesaid debatement in
regards to assets and/or funds
of the Trust found in the debatement
to have been wrongfully removed from the Trust, shall be referred to
the High Court of South
Africa by way of
action
or application for final determination within 30. days after the
debatement.
7.
Subsequent
to the court order in the main application made there was a meeting
between the parties and their respective legal representatives,
where
a dispute in respect of the proceeds of policy held with Discovery
Life ensued, the Applicant contention was that the proceeds
of the
policy belong to the Trust while on the other hand, the First
Respondent contention was that the proceeds of the policy
belong to
her personally.
8.
The
Applicant demanded from the First Respondent that she should repay
the proceeds of the Discovery Life Policy to the Trust within
15
days, failing which the Applicant would cause a supplementary
founding affidavit to be delivered and the First Respondent disputed
the liability to repay the proceeds of the policy to the Trust and as
a result the Applicant delivered a supplementary founding
affidavit
on the 14
th
January 2019.
9.
The
Respondent in terms of the rule on the 29th January 2019 filed a
notice informing the Applicant of the purported irregularity
and
requesting that the Applicant within fifteen days withdraw the
affidavit and/or take steps to rectify the irregular steps.
10.
The
question to be asked is whether the filing of the supplementary
affidavit is an irregular step as the matter is res judicata
and/or
whether the proper interpretation of paragraph 8 of the order of
Acting Judge Mbongwe read with prayer 4 of the Notice of
Motion
permits the Applicant, necessary leave to file a further
supplementary affidavit to her founding affidavit.
11.
It
appears and seems to me that the contention of the Respondent it is
that the application under case number 78882/2015 , was disposed
of
by the order of Acting Justice Mbongwe on the 13th March 2017 as a
result the matter is res judicata.
12.
Further
the Respondent objects to the filing of the supplementary affidavit
as an irregular step in that:
12.1
The Applicant" took almost two
years after the order of Acting Justice Mbongwe which allegedly
disposed of the matter.
12.2
The supplementary affidavit was not
accompanied by any Notice of Motion, and it is therefore not clear,
what relief is sought as
there are no prayers in the form of Notice
of Motion.
13.3
That the matter was rendered res judicata by the order of Justice
Mbongwe.
14.
The Applicant
contends that she is entitled to supplement her founding affidavit
and that the matter is not res judicata, she states
that the main
application was one for the statement and debatement of the account
and which directed at a process of two stages,
the first stage as the
statement of account and the second stage, the debatement of the
account.
15.
She
further states that the debatement in itself it comprises of two
steps:
15.1
Debatement between the parties in
private proceedings;
15.2
Debatement before the court of those
issues remaining in the dispute after the debatement in private.
16.
She
contends that the second step of the second stage remains in dispute
and in the main application proceedings and to be place
in this court
for adjudication.
17.
Secondly
, the Applicant states that resulting from the Prayer 4 of the Notice
of Motion and Paragraph 8 of the order, it cannot
be said that the
matter is res judicata, further having in regard to the fact that the
order expressly refers to the final determination
of the matter
within thirty days.
18.
Prayer
4 of the Notice of motion reads as follows:
"The
First Respondent is ordered and directed to return to the trust all
assets and funds of the Trust found in the debatement
to have been
unlawfully removed from the Trust"
And
Paragraph
8 of the Order of reads as follows:
'Any dispute
between the Applicant and the First Respondent arising from the
aforesaid debatement in regards to assets and/or funds
of the Trust
found in the debatement to have been wrongfully removed from the
Trust, shall be referred to the High Court of South
Africa by way of
action or application for final determination within 30 days after
the debatement."
19.
The
Applicant contends that on a proper interpretation of paragraph 8, it
clearly provides that whatever remains in the dispute
after the first
step of the second stage, shall proceed back to court for the second
step of the second stage.
20.
As
much as I agree with the Applicant that paragraph 8 of the order
opened the doors for the Applicant to approach the court should
a
dispute arise from the debatement, but did not mean that the
Applicant should approach the court on the same papers in the same
application, which results in further "supplementary answering
affidavit" and/or "supplementary replying affidavit"
and even burden the court with cross referencing.
I
further agree with Counsel Reinders that it is the executive part of
the judgment which defines what the Court requires to be
done or not
to be done so that a Defendant or Respondent may know what to do. The
Court's directions must be found in the order
and not elsewhere.
Where the meaning of an order is clear and unambiguous, it is
decisive and cannot be restricted or extended
by anything else stated
in the judgment.
As
Nicholas AJA pointed out in Administrator Cape, and Another v
Ntshwaqela and Others 1990 (1) SA (A) at 715 F -1:
"
[Trollip
JA] said ( at 304 D-H) that the basic principles applicable to the
construction of documents also apply to the construction
of a court
's judgment or order: the court's intention is to be ascertained
primarily from the language of the judgment or order
as
construed
according to the usual well known rules.
As
in the case of any
document, the judgment or order and the court's reasons for giving it
must be read as a whole in order to ascertain
its intention. If on
such reading, the meaning of the judgment or order
is
unambiguous, no extrinsic fact or evidence is admissible to
contradict, vary, qualify, or supplement it. Indeed, in such
a
case not even the court that gave the judgment or order can be
asked to state what its subjective intention
was
in giving it.
But if any uncertainty in meaning does emerge, the extrinsic
circumstances surrounding or leading up to the court's
granting the
judgment or order may be investigated and regarded in order to
clarify it.
I take note that
nowhere in the order a leave is granted to any party to deliver the
supplementary affidavit. It is trite that there
are normally three
sets of affidavits in the motion proceedings. However, the Court have
a wide discretion in to allow the filing
of further affidavits in
terms of Rule6 (5) ( e), however the rule does not specify the manner
in which the party should approach
the court for leave to file a
further affidavit or at what time during proceedings leave should be
sought. This matter is different
and distinguishable to other cases
where the supplementary affidavit were file as in this present matter
the supplementary affidavit
were filed after an order was made.
21.
I
understand the order of Acting Justice Mbongwe to mean that should
any dispute arise from the debatement then the Applicant could
approach the by way of a new and fresh action of proceedings and
application for final determination within a period of 30 (thirty
)
days after such debatement.
As
a result I made the following order:
1.
The Applicant's filing of the
supplementary affidavit is declared as an improper and irregular step
and is set aside.
2.
The Applicant is ordered to pay the cost
of the application
Signed
and dated at Pretoria on this the 09
th
day of January 2020
Ephraim
Seima AJ
Pretoria
09-01-2020
For the
Applicant:
Adv. G
P Van Rhyn
For the
Respondent:
Adv. S
J Reinders