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[2018] ZAFSHC 10
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Semela v Semela and Another (1975/2010) [2018] ZAFSHC 10 (1 March 2018)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case number: 1975/2010
In the matter between:
THESI
JOHN
SEMELA
Applicant
and
NTOMBAMAHLUBI
CONSTANCE SEMELA
First Respondent
ABSA
PENSION
FUND
Second Respondent
HEARD ON:
8
FEBRUARY 2018
JUDGMENT
BY:
BOKWA, AJ
DELIVERED
ON:
01
MARCH 2018
A.
INTRODUCTION:
[1]
In
the main application, the Applicant seeks a declaratory order that it
is entitled to a 50 % share of the First Respondents pension
since
the date of the divorce, under case number: 4051/1998. In that
application the Applicant request that a degree of divorce
be amended
by inserting certain words to give proper effect to the order
accordingly.
[2]
The
First Respondent, by way of an Interlocutory application in terms of
Rule 30(1), applied to court to have certain paragraphs
of the
Applicant's Replying Affidavit as well as the Supplementary Affidavit
struck out. NS Daniso AJ heard that application on
13 October 2017
and granted the following order:
“
IT
IS ORDERED THAT:
1.
The
application to strike out is upheld and that paragraph 3.4 of the
Replying Affidavit as well as the entire Supplementary Affidavit
is
struck out.
2.
The
application is postponed
sine die.
3.
The
applicant to pay the wasted costs occasioned by the postponement.”
[3]
The matter came before P Molitsoane AJ,
on 16 November 2017 where he granted the following order:
“
IT
IS ORDERD THAT:
1.
Leave
is granted to applicant to file
a
Supplementary Affidavit."
[4]
When
the matter came before me on 8 February 2018, after hearing
arguments, I handed the following order:
“
1.
That leave to be granted to the Applicant to file a Supplementary
Affidavit; and
2.
That the First
Respondent pay the costs of the application."
[5]
What follows are my reasons for making
the orders.
B.
THE ISSUES
[6]
The
issues for determination was whether the Applicant had made out a
sufficient case to justify a discretion by court in its favour
to
allow Applicant to file a Supplementary Affidavit.
C.
BACKGROUND
FACTS:
[7]
The undisputed facts are that on 1
st
November 2017 the Applicant filed an Application for leave to file a
Supplementary Affidavit. The First Respondent filed its Notice
to
Oppose that Application on 22 October 2017. The First Respondent
filed an Answering Affidavit on 9th November 2017. The Deponent
to
that Affidavit was First Respondent's Attorney, Mr Jan Marais.
Applicant filed its reply on 12 December 2017 and the matter
was set
for hearing on 8 February 2018.
D
APPLICABLE
LEGAL PRINCIPLES:
[8]
Rule 6(5)(e), deals with the filing of
further Affidavits and states as follows:
"Within
10 days of the service upon him of the affidavit and documents
referred to in sub-rule (5) (d) (ii) the applicant may
deliver
a
replying
affidavit. The court may in its discretion permit the filing of
further affidavits."
[9]
The
court will usually not allow the introduction of a new cause of
action in a Replying Affidavit that supplants the cause of action
set
out in the Founding Affidavit. The Applicant stand or fall by his
Founding Affidavit.
[1]
[10]
While the general rule is that only the three sets of affidavits
referred to above are permitted, the
court may in its discretion
permit further sets.
[2]
[11]
The
courts are inclined towards the view that the parties should be
permitted to have the case adjudicated on the full facts. The
court
will not exercise its discretion in the absence of an explanation of
why it is necessary to file the affidavit concerned
and will always
act subject to considerations of fairness and justice and the absence
of prejudice of other parties.
D.
CONTENTIONS
ON BEHALF OF THE APPLICANT
[12]
The
crisp issue is whether the Applicant has been able to set out
material facts in his Supplementary Affidavit why it did not provide
the evidence it now provides in its Founding Affidavit of the main
application. This is how the Applicant explain on page 41 of
the
paginated bundle:
"I
depose of this affidavit in support of an application to supplement
the papers. The reason why I apply for such an order
is the
following:
2.1
I
was under the impression, and verily believed that the First
Respondent and I reached an agreement to amend the Deed of Settlement
to include my claim to half of her pension interest at the time of
the divorce;
2.2
The
reason why I was under this impression is because the First
Respondent and I were in good standing after the divorce order was
granted, and she indicated that she would have no problem with me
claiming half of her pension interest;
2.3
Another
reason why I was under this impression is due to the fact that the
First Respondent, on one occasion, called the Second
Respondent to
discuss my claim with them and she was informed that I need to bring
an application for the amendment of the divorce
order to enable them
to transfer half of the pension interest to me;
2.4
I
was informed that there is no way for me to claim half her pension
interest without the said order;
2.5
The
First Respondent and I agreed that I should approach my attorneys of
record for the said amendment;
2.6
Due
to the agreement that was reached, I informed my previous Attorney of
Record, Mrs. Oosthuizen, that the application would not
be opposed;
2.7
As
a
result
thereof, I suspect that Mrs. Oosthuizen did not regard it necessary
to include all the relevant facts in the application;
2.8
The
fact of the matter is that there are facts which would have been
included in the Founding Affidavit had I suspected that the
Application would be opposed;
2.9
The
First Respondent never gave any indication that she changed her mind
regarding the said amendment and I was surprised to learn
that she
opposed the main application;
2.10
After
she opposed the main application, I deposed of
a
Replying Affidavit, paragraph 3.4 of
which has been struck out on 12 October 2017;
2.11
The
affidavit contained statements which would have been included in the
Founding Affidavit had it been known that the First Respondent
would
oppose this application;
2.13
It also states how surprised I was when
/
learned that the
Application is opposed;"
[13]
In response to these submissions the deponent on behalf of the First
Respondent, being his attorney
states as follows:
"AD
PARAGRAPH 2.1
TO
2.14
OF
THE
FOUNDING AFFIDAVIT
The
Applicant seeks to explain why
a
proper case was
not made out in the founding affidavit in the main application and is
noted."
[14]
It must therefore be accepted that these averments are accepted by
the Respondent. What follows in
my view is evidence which is not only
material but exceptional which the Respondent offered no answer to.
The Applicant stated
further as follows in his Supplementary
Affidavit:
"2.15
The facts that I need to supplement to the papers are as follows:
2.15.1
On 24 August 2010 just past 09h00 I received
a
call from
a
certain Ingrid
Plaatjie from Schoeman Maree Attorneys;
2.15.2
Ingrid Plaatjie told me to
go
to their offices
immediately and that if I do not attend "something would happen"
to me that day;
2.15.3
Notwithstanding being represented, Ingrid Plaatjie called me
directly;
2.15.4
I immediately went to the offices
of
Mr.
Majo/a,
my attorney of
record at that state, and requested his staff
to
see him. I
arrived at Mr Majola's office just past 10h00 on the same day;
2.15.5
I
was
informed
that Mr. Majola was not there and that his staff was unable
to
reach him on his
cell phone.
2.15.6
Notwithstanding the fact that I needed Mr. Majola urgently, I was
informed that he was not
available. I did not have Mr. Majola's cell
phone number and
was
informed that the
staff could not give me his number.
2.15.8
I attended their offices, this being the first and only time I ever
went to their offices;
2.15.9
Upon my arrival between 11hOO and 12h00 the same day, I was called
into the office where I
met with Ingrid Plaatjie and the First
Respondent;
2.15.10
Ingrid Plaatjie informed me that
all the documents were ready
for
my
signature;
2.15.11
I told her that I was not going
to
sign
anything and she started threatening
me;
2.15.12
She threatened me with arrest,
litigation, execution of my property and that I would not arrive home
that day;
2.15.13
I told her that I could not sign
the Deed of Settlement due to the fact that I
am
partially blind and cannot read the
Deed;
2.15.14
I lost all the sight in my left
eye and more than 50
%
sight
in my right eye following an accident in 2007;
2.15.15
Ingrid Plaatjie informed me that
I must just sign the Deed of Settlement;
2.15.16
I attempted to read the Deed of
Settlement but was unable to do so due to my visual impairment."
[15]
In answer to these extraordinary averments made by the Applicant, the
Deponent on behalf of the First
Respondent answers as follows on page
54 of the paginated bundle:
"AD
PARAGRAPH 2.15.1
TO
2.15.30
It
is recorded that all of these events allegedly took place on the 24
th
of August 2010.
AD
PARAGRAPH 2.15.31
TO
2.15.55
The
recordal of certain events are a recordal of events without any
indication of the actual dates thereof. In view of submission
hereunder this evidence will not take the matter any further
AD
PARAGRAPH 2.16 TO 2.17
It
is submitted that these evidence also do not take the matter any
further.
[16]
In an answering affidavit, the Respondent is required to set out
which of the Applicant's allegations
he admits and which he denies
and to set out his version of the relevant facts.
[17]
In dealing with the Applicants allegations of fact, the Respondent
should bear in mind that the Affidavit
is not a pleading and that a
statement or lack of knowledge, coupled with a challenge to the
applicant to prove part of his case,
does not amount to a denial of
the averments of the Applicant.
[18]
The Deponent's Affidavit in the First Respondent1s Answering
Affidavit, fall woefully short to the
nature and form of an Answering
Affidavit in Application proceedings. Firstly, it is not clear why
the First Respondent did not
depose to the Affidavit but rather his
attorney. In answering, the attorney does not demonstrate his
knowledge of the material
facts and to counter the averments made by
Applicant. A distinct impression was created in the mind of this
court that the Respondent
tried every trick in the book not to allow
the material facts to be properly ventilated by the court. This is so
in the light of
the fact that the First Respondent did not put a
version before this court but rather choosing her attorney to do so
on her behalf,
which assignment was a dismal failure in my view.
These facts are exceptional and warrant this court to use its
discretion in favour
of the Applicant to file a further Affidavit. I
was of the view that there was no prejudice to the Respondent in the
event that
such a discretion was granted.
[19]
It is for these reasons that I gave the order of 8 February 2018 as
set out in paragraph
4 above.
I R O BOKWA, AJ
On
behalf of applicant: Mrs I L DE
WET
Instructed by:
BLOEMFONTEIN JUSTICE CENTRE
On
behalf of respondents: Adv K NAIDOO
Instructed by:
O/B MAREE &
PARTNERS
[1]
Director of Hospital Services v Mistry
1979 (1) SA 626
(A; GNH
Office Automation CC v Provincial Tender Board [1996)
3 All SA 87
(Tk) 100; Winbledon Lodge (Pty) Ltd v Gore NO (2002) 1 All SA 218 (C
[2]
Meyer v Kritzinger
1968 (2) SA 749
(O); SY Sandocan
2001 (3) SA 824
(D); York Timbers Ltd v Minister of Water Affairs and forestry
(2003) 2 All SA 710
(T),
2003 (4) SA 477
(T); Afric Oil (Pty) Ltd v
Ramadaan Investments CC
2004 (1) SA 3S(N)
381 - 39B