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[2017] ZAFSHC 65
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V R and Another v L (778/2017) [2017] ZAFSHC 65 (11 May 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION. BLOEMFONTEIN
Reportable:
NO
Of
interest to other judges: NO
Circulate
to Magistrates: NO
Case
number: 778/2017
In
the matter between:
J.
G. V.
R.
1
st
Applicant
E.
V.
R.
2
nd
Applicant
and
F.
W. C.
L.
Respondent
HEARD
ON:
4 MAY 2017
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
18 MAY
2017
I
INTRODUCTION
[1]
This is an application for the setting aside of two
subpoenae duces tecum
issued in divorce proceedings. There
is no doubt that emotions are running
high insofar
as the plaintiff in
the divorce action entered into an extra-marital affair with
the first applicant
in this application and these two parties
eventually married each other the weekend after the divorce
proceedings were finalised.
The defendant in the divorce action is
responsible for the issuing of the
subpoenae duces tecum.
Although
the bonds of marriage have been dissolved on 23 August 2016, the
hearing in respect of plaintiff's patrimonial claim based
on the
accrual system was postponed to 21, 22 and 24 February 2017. Those
days have come and passed in the meantime.
II.
THE PARTIES
[2]
The first applicant is J. G. V. R., a major male person. As mentioned
supra,
first applicant is now married to the plaintiff in the
divorce matter, M. A. L.. Second applicant is E. V. R., a major
female person
and the former wife of first applicant. Both applicants
are represented by the same firm of attorneys and Adv. AS Sieberhagen
appeared
before me on their behalf.
[3]
Respondent is F. W. C. L., a major male person and the defendant in
the divorce action instituted against him by M. A. L. under
case no.
637/2013. Adv. SD Wagener SC appeared before me on his behalf.
Ill
THE RELIEF CLAIMED
[4]
In terms of the notice of motion issued on 15 February 2017
applicants seek condonation for non-compliance with the rules of
court on the basis of urgency and furthermore, that the two
subpoenae
duces tecum
issued on 10 January 2017 under case no. 637/2013 in
terms whereof they were called upon to appear before the High Court
on 24 February
2017 and to submit the documents set out in the
annexures to the
subpoenae
be set aside. Applicants also seek
costs on an attorney and client scale.
IV
THE
FINAL
ORDER
OF
DIVORCE
DATED
23
AUGUST
2016.
[5]
On 23 August 2016 Mathebula AJ (as he then
was)
granted the
following orders:
"1.
That the bonds of marriage subsisting between plaintiff and
defendant be
and are hereby dissolved.
2.
2.1 The patrimonial claim in respect of
the provisions
of the Antenuptial Contract (accrual) is postponed to
21 February 2017, 22 February 2017 and 24 February 2017.
2.2
Both parties shall be entitled to amend their respective pleadings
regarding the claim(s) referred to in paragraph 2.1 supra
to further
and/or better define the dispute(s) relating to such claim. The
defendant's right to raise the issue of forfeiture remains
reserved.
3.
Each party shall deliver to the other party within 30 day (sic) from
date of this order,
a statement in terms of Section 7 of Act 88 of
1984 containing the following:
3.1
List of assets;
3.2
List of liabilities;
3.3
Accrual of his/her estate calculated in terms of Chapter 1 of Act 88
of 1984
as on date of divorce;
4.
Both parties shall afford each other full access to all financial
records and information
relating to their respective estates for
purposes of verification of the information referred in paragraph 3
supra, including information
and/or records in the possession or
custody of Du Preez Accountants, including but not limited to:
4.1
Bank Statements in respect of which the parties
has (sic) or had
signing powers
in the past five years.
4.2
Financial records in respect of any company, partnership, close
corporation
and/or trust in respect of which any party
has or had
direct and/or indirect interest
in the past five years.
5.
Costs are reserved for the determination by the trial court."
(emphasis
added)
V
MATERIAL
BACKGROUND
AND
COMMON
CAUSE
FACTS
[6]
It is not my intention to give a full and detailed background of the
history of the litigation, but I am of
the view
that the following aspects need to be considered when the
evidence is evaluated infra.
[7]
R
espondent and his
former wife, A. L., to whom I shall refer herein as A. to avoid
confusion, (now married to first applicant), were
married to each
other in accordance with the accrual system. As mentioned, their
bonds of marriage were dissolved and the only
issues to be considered
in the further hearing of the matter is the patrimonial claim of A.
in accordance with the accrual system
and respondent's reliance on
forfeiture of the benefits based on the belated amendment of March
2017 to which I shall refer again
infra.
[8]
I have not been provided with copies of the pleadings in the divorce
action, but informed from the bar that respondent did not
initially
claim forfeiture of benefits in accordance with
s 9
of the
Matrimonial Property Act, 88 of 1984
. However, it is apparent that
respondent had this in mind at the stage when the parties agreed to
postpone the adjudication of
the patrimonial claim to February 2017.
[9]
No amendment was sought by respondent prior to the launching of
this application as anticipated
ex facie
the order of 23
August 2016. In fact, the respondent's counterclaim was amended
during March 2017 and after Mathebula J heard argument
and evidence
during the week of 21 February 2017. I shall return to the amendment
infra.
[10]
On 10 August 2016 two
subpoenae duces tecum
were issued by
respondent against applicants who were called upon to appear in court
on 26 August 2016, one of the trial dates allocated
for the divorce
matter. Applicants brought an urgent application under case no.
3861/2016 seeking
inter alia
setting aside of the
subpoenae.
That application is not before me, but I gather from the papers
that although it was opposed by respondent, he did not file an
opposing
affidavit. That application was postponed
sine
die
and has not been finalised yet.
[11]
On 10 January 2017 respondent issued the two
subpoenae duces tecum
relevant to this application which were served sometime
thereafter. These
subpoenae
are identical to the previous
subpoenae.
On 31 January 2017 applicants' attorney informed
respondent's attorney in a letter annexed as annexure 11J4" to
the founding
affidavit,
inter alia
as follows:
1.
that the documentation required were totally irrelevant to the
adjudication of the
accrual dispute in the divorce matter;
2.
his clients were not parties to the divorce matter;
3.
respondent's action is ma/a
fide
and an abuse of process;
4.
respondent knew from August 2016 that second applicant was not a
director of E Van
Rooyen en Seuns (Pty) Ltd anymore.
[12]
Respondent's attorney was requested to respond by 6 February 2017,
failing which the first application referred to
supra
might be
enrolled for finalization, alternatively a further application might
be brought to set aside the further
subpoenae
with punitive
costs.
[13]
No response was received from respondent's attorney and consequently,
the present application was issued on 15 February 2017
as mentioned
supra.
The application was opposed, as was the case with the
first application, and
in casu
an opposing affidavit was filed
on 9 March 2017, some two weeks after the first day of the adjourned
trial proceedings. Applicants
replied and the matter was set down for
hearing on Thursday, 4 May 2017. This was done, well-knowing that the
part-heard trial
between A. and respondent was postponed to be heard
by Mathebula J the next week, to wit from Monday 8 to Friday 12 May
2017.
[14]
It is clear that the matter, as is the case with the first
application of August 2016, has become moot insofar as the trial
dates have come and gone. This caused the parties to reconsider their
respective positions whereupon certain communication followed.
The
various letters written to each other were presented to me for
consideration notwithstanding the fact that these would otherwise
be
regarded as privileged, being settlement negotiations. I deal briefly
with the contents of the letters in the next paragraphs.
[15]
On 25 April 2017 Honey Attorneys wrote a letter on behalf of A. to
respondent's attorneys, Prinsloo Inc of Pretoria. Attached
thereto
were certain bank statements. It was also stated that for
purposes of adjudication of the accrual claim, A. would
no longer
rely on the loan obtained from first applicant and the claim of her
attorneys pertaining to her legal costs. These amounts
were reflected
as liabilities in the amounts of R266 196,38
and R332 385A8 respectively
in
A.'s statement of assets and liabilities prepared in terms of
s
7
of Act 88 of 1984.
[16]
In response to the aforesaid letter Prinsloo Inc wrote a letter to
applicants' Kimberley attorneys, Duncan and Rothman, on
25 April 2017
and mentioned the following relating to A.'s alleged abandoning of
her loan from first applicant:
"As
a result thereof, we are of the respectful opinion that your clients'
application set down for 4 May 2017 should not proceed.
Given these
new facts, we are prepared to withdraw the subpoenas brought against
your clients. Kindly advise whether, in the circumstance,
your
clients are amendable to withdraw their application, each party to
pay their own costs. In the event that your clients
wish to
proceed with the application, kindly note that we will ask the Court
to grant a special costs order against your clients,
in that the
application is now moot and unnecessary."
[17]
On 26 April 2017 Duncan and Rothman requested clarification as to
whether all
subpoenae duces tecum
against their clients, i.e.
those of 10 August 2016, 1O January 2017 (relevant in
casu)
as
well as further
subpoenae
dated 10 April 2017 in respect of
the forthcoming part-heard trial starting on Monday, 8 May 2017,
would be withdrawn. It was suggested
that in the event of withdrawal
of the three sets of
subpoenae,
the applications against
respondent would be withdrawn on the basis that applicants' party and
party costs in respect of both applications
be paid by respondent.
[18]
Prinsloo Inc responded the same day, indicating that respondent
would be prepared to withdraw
all
subpoenae
issued against applicants, "given the new
facts contained in Honey Attorneys letter dated 25 April 2017."
However, respondent
was not prepared to tender any costs as
requested and the following was stated:
"Furthermore,
we reiterate due to the new facts contained in the letter from Honey
Attorneys dated 25 April 2017, the matter
should not proceed, and
proceeding with the application will incur unnecessary legal costs."
Duncan
and Rothman noted the contents of the letter, but informed
respondent's attorney of the instructions to proceed with
the
application.
[19]
Hereafter heads of argument were prepared and filed by applicants'
and respondent's counsel on 26 and 27 April respectively.
VI
THE DISPUTES
[20]
The matter has become moot insofar as the
subpoenae
that
applicants wanted to set aside cannot be enforced anymore. They were
called upon to appear on 24 February 2017 and that day
has come and
gone. The only issue to be considered at this stage is, in essence,
who should pay costs. In order to consider that,
I have to apply my
mind to the merits and in this regard counsel presented arguments on
the merits as well.
[21]
Applicants rely on the following factors for the contention that the
application should have succeeded on the merits:
1.
the documentation required are totally irrelevant for
adjudication of the accrual dispute between A. and respondent;
2.
identical
subpoenae
were issued in August 2016 which caused
applicants to issue application proceedings which have not been
finalised yet and bearing
in mind the particular circumstances,
respondent acted ma/a
fide
and in abuse of process when he
caused the new
subpoenae
to be issued;
3.
respondent
was aware,
since August 2016, that second applicant
was no longer a director of E Van Rooyen en Seuns (Pty) Ltd;
4.
the request to supply the
documentation set
out in the
subpoenae
infringes on applicants' right of privacy.
Applicants
made two points clear: firstly, that the only dispute to be
adjudicated in the action between A. and respondent
(based on the
pleadings as in February 2017) was the calculation of the accrual in
the respective estates of the parties and that
respondent's pleadings
had not been amended in order to seek forfeiture of the benefits that
might have accrued to A.; and secondly,
the documentation required
from second applicant belonged to E Van Rooyen and Seuns (Pty) Ltd
whilst she was to the knowledge of
respondent no longer a director of
the company.
[22]
In his answering affidavit of 9 March 2017 respondent elected to deal
with A.'s claim that she was indebted to first applicant
in an
amount of R266 196,38 and that the
subpoenae
were necessary to
obtain documentation to investigate this claim. Nothing is said of
the liability pertaining to legal costs.
[23]
Insofar as respondent is of the view that A. should forfeit the
benefits of the accrual system, he in no uncertain terms relies
on
the fact that an
interim
maintenance order was granted in
A.'s favour in June 2013 and that she received these
interim
payments until finalization of the divorce action
notwithstanding the fact that she and first applicant have been
living together
from January 2013 and that he supported her
financially during that time. This, he says, amounted to fraudulent
action and the
trial court may eventually find it to be material
misconduct in accordance with the provisions of
s 9
of the
Matrimonial Property Act, 88 of 1984
.
[24]
Furthermore it is respondent's case that during October 2009 to
November 2015 A. misappropriated funds in the amount of R1
266 310,00
belonging to Kirfjohl CC, a close corporation in which both of them
were members and it is necessary to obtain the documents
requested in
the
subpoenae
to establish whether the funds were channelled
to first applicant's bank accounts.
[25]
It is not explained when respondent became aware of A.'s alleged
unlawful behaviour and why respondent did not
utilise
Rule 43(6)
procedure in order to have the
interim
maintenance
order terminated or decreased. Also, it is not explained
why Kirfjohl CC could not claim the amount allegedly
misappropriated
from A.. I accept, however, that misappropriation of the
close corporation's funds will affect the
value of the membership
of the close corporation's members.
[26]
Notwithstanding the facts apparent from the papers and submissions by
counsel, one aspect that cannot be disregarded is that
respondent was
quite prepared to withdraw the
subpoenae
on receipt of
information that A. would not rely on the loan allegedly made to her
by first applicant as a liability in her estate.
Ex facie
the
correspondence referred to
supra
respondent did not regard the
documentation required in the
subpoenae
relevant anymore.
However, it needs to be emphasised that Prinsloo Inc were adamant
that the matter should not proceed on 4 May
2017 as unnecessary costs
would be incurred, but Duncan and Rothman insisted that the moot
matter be argued for the court to determine
costs.
VII
EVALUATION OF THE EVIDENCE AND SUBMISSIONS BY THE PARTIES IN
THE LIGHT OF THE AUTHORITIES AND STATUTORY
PROVISIONS
[27]
I agree with Mr Wagener's submission that I should consider whether
respondent was entitled to issue the two
subpoenae duces tecum
at
the stage when they were issued
. I underlined the particular
phrase to emphasise the importance of the submission pertaining to
timing. These
subpoenae
were issued on 10 January 2017. At
that time respondent's pleadings had not been amended as anticipated
in the court order of 23
August 2016 and therefore A.'s patrimonial
claim relating to the accrual system was the only live issue. Much
has been said about
the fact that the parties to the divorce matter
were obliged to provide financial records over a period of five years
to indicate
their interest in other entities. It is clear that
financial records had to be provided by the parties in the divorce
matter, i.e.
A. and respondent, pertaining to entities in which they
had a direct or indirect interest over the past five years. Nothing
was
said of third parties and in any event, those third parties such
as the applicants in casu, were not part of any agreement
that
might have been entered into and which was made an order of
court.
[28]
While appreciating that applicants would probably bring a similar
application to have the
subpoenae
set aside, as they did in
2016, respondent waited to the last moment to have the
subpoenae
issued and served. Consequently, the dispute could not be
adjudicated prior to the hearing of the first date of trial, to wit
21
February 2017, which date was already agreed upon in August 2016.
I would have expected respondent in the circumstances to have
issued
the
subpoenae
soon after August 2016 to
ensure that any dispute in that regard was properly adjudicated long
in advance of the
new trial dates.
[29]
As mentioned, I haven't read the pleadings in the divorce matter,
but bearing in mind the allegations made by respondent
in the papers
before me, there can be no doubt that the relationship between him
and A. (and probably first applicant) has become
quite toxic. This
apparently has an effect on the attorneys as well which
prevented them from finding some common ground
in order to ensure
that this application was not argued on an opposed basis. Unnecessary
costs have been incurred - in fact wasted
- and it is now my duty to
decide who should pay these costs.
[30]
Sections 35 and 36(5) of the Superior Court Act, 10 of 2013 are
applicable. Section 35 deals with the manner of securing attendance
of witnesses or production of any documents in proceedings while
section 36(5) reads as follows:
"(5)
When a subpoena is issued to procure the attendance
of any person as a witness or to produce any
book, paper or
document in any proceedings, and it appears that -
(a)
he or she is unable to give any evidence or to produce any book,
paper
or
document which would be relevant to any issue in such
proceedings;
or
(b)
such book, paper or document could
properly
be
produced
by
some
other
person;
or
(c)
to compel him or her to attend would be an
abuse of the process of
the
court,
any judge of the court concerned may, notwithstanding anything
contained in this section, after reasonable notice by the Registrar
to the party who sued out the subpoena and after hearing that party
in chambers if he or she appears, make an order cancelling
such
subpoena."
Rule
38(1) of the Uniform Rules of Court stipulates that a
subpoena
duces tecum
shall specify the document or thing required by the
witness to be produced to the court at the trial.
[31]
Before I consider the issue of relevance raised by applicants,
it is necessary to make the following comments. Facts and material
facts only, should be pleaded in pleadings, and not evidence. A
distinction must be made between the facts that have to be proved,
the
facta probanda
and the facts (the evidence or
facta
probantia)
that would prove those facts.
(See Moaki v
Reckitt
and Colman (Africa) Ltd
1968 (3) SA 98
(A) at 102A and Makgae v
Sentraboer
(Kooperatief) Bpk
1981 (4) SA 239
(T) at 244F-H).
[32]
Bearing in mind the applicable principles, it would have been
required of respondent to not only rely specifically on the fact
that
A. should forfeit the benefits arising from the accrual
system, but to state the material facts on which his
claim
is based. Respondent has failed to do this, although in the amendment
to the counterclaim which was filed belatedly
as indicated
supra,
he does now rely on
section 9
of the
Matrimonial Property Act, 88
of 1984
for forfeiture of A.'s right to accrual. The only allegations
pertaining to the circumstances giving rise to the breakdown of the
marriage and any substantial misconduct on the part of A. are the
following:
1.
she improperly obtained a maintenance
order
pendente
lite
when
she did not have a need for maintenance;
2.
she proceeded to enforce the maintenance order whilst there was no
need for maintenance, and
3.
she delayed finalization of the divorce action
unreasonably in
order
to obtain the advantages of the maintenance order.
[33]
On respondent's own version A. and first applicant started
to cohabitate from January 2013 although this is denied
by first
applicant who states under oath that the correct date is July 2013.
Fact of the matter is that the two have been staying
together for a
long period since obtaining of the
interim
maintenance order.
It is not respondent's case that he was unaware of this until
recently and I find it strange
that he did
not apply for rescission of the order
or decrease of the maintenance amount in accordance
with the
provisions of Rule 43(6) of the Uniform Rules Court.
[34]
It is clear that the marriage relationship has broken down prior to
January 2013. It is debateable whether, and even
whilst
accepting that the right to accrual must be adjudicated on date of
divorce, substantial misconduct by any of the parties
after an
irreversible breakdown has taken place could be taken into
consideration in adjudicating forfeiture of benefits. It is
unnecessary to decide the issue, especially insofar as Mr Wagener is
of the view that the application should be adjudicated based
on the
prevailing facts at the date when the
subpoenae
were
issued. Bearing in mind the dispute between the parties in the
divorce action, I cannot find that any of the documents mentioned
in
the
subpoena
of second applicant are relevant to
the dispute. Even if I'm wrong, all these documents could
properly be
produced by anyone of the present directors of E Van
Rooyen and Seuns (Pty) Ltd. These documents are the property of
and
supposedly under control of the company and not second applicant
in her personal capacity. As mentioned, she is not a director of
the
company anymore and could not be directed to bring documents to court
that belong to or are in the possession of a separate
entity.
[35]
As is
the case with the documents required from E Van Rooyen
and Seuns (Pty) Ltd, I fail to see any relevance in the documents
that respondent
requires from first applicant, save for those
mentioned
infra.
I am not persuaded by respondent's contention
that it was necessary to inspect
these documents
to establish whether first applicant was
in a financial position to make loans to A.. I fail to understand
what documents such
as first applicant's tax returns, to mention one
example, have to do with the dispute between the respondent and A..
The same applies
to the request that first applicant has to provide a
full description of all assets owned by him, including a certain
motorcycle.
I have reason to believe that respondent was on a
witch-hunt due to his emotional condition after having lost his
erstwhile wife
to a person whom he believed participated in
defrauding him and/or his close corporation. Respondent probably had
in mind to establish
that the funds allegedly misappropriated by A.
from Kirfjohl CC were channelled to first applicant. This is
absolutely irrelevant
pertaining to the aforesaid matrimonial
dispute. The only possible item in the schedule to the
subpoena
that might be regarded as relevant is item 1.7, to wit documents
such as bank statements, receipts and invoices to investigate A.'s
alleged indebtedness to first applicant. I will deal with this issue
infra.
[36]
First applicant's passport and cellphone records of three telephone
numbers are
inter
alia
required. There
can be no doubt that these are irrelevant in respect of the accrual
dispute. It is not respondent's case in the
amended counterclaim that
A. entered into an extra-marital affair and that such affair either
caused the breakdown in the marriage
or that it should be considered
as material misconduct in order to substantiate the forfeiture claim.
Although the judgment can
be distinguished on the facts, I'm of the
view that the
dicta
of Griesel J in
Meyers v Marcus and
Another
2004 (5) SA 315
(CPD) at paras [26] – [33] should
be applied in
casu
as well. First applicant's personal
financial position is irrelevant to the disputes between A. and
respondent. It is also irrelevant
whether he travelled abroad with A.
in the absence of an allegation of adultery.
[37]
I was tempted to make a finding that respondent's issuing of the
subpoenae duces tecum
constituted an abuse of
process. No doubt a
subpoena duces tecum
must have a
legitimate purpose and save for the documents required in item 1.7 of
the annexure to the
subpoena duces tecum
against first
applicant, the other documents required are really irrelevant
for purposes of adjudication of the
disputes as the pleadings stood
in January 2017. I am mindful of the fact that abuse of process
should only be found in exceptional
circumstances and the court
should be cautious to come to such a conclusion. This issue was dealt
with for the first time to my
knowledge about ninety years ago in
Hudson v Hudson and Another
1927 AD 259
at 268 and more
recently the Supreme Court of Appeal stated the following and I quote
from
Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at 734G - 735A:
"Ordinarily,
a litigant is of cause entitled to obtain the production of any
document relevant to his or her case in the pursuit
of the truth,
unless the disclosure of the document is protected by law. The
process of a subpoena is designed precisely to protect
that right.
The ends of justice would be prejudiced if that right was impeded.
For this reason the Court must be cautious in exercising
its
discretion to set aside a subpoena on the grounds that it constitutes
an abuse of process. It is a power which will be exercised
in rare
cases, but once it is clear that the subpoena in issue in any
particular matter constitutes an abuse of the process, the
Court will
not hesitate to say so and to protect both the Court and the parties
affected thereby from such abuse."
Bearing
in mind the totality and extent of the documents required
- the majority being irrelevant - I was tempted to
find that
respondent used the rules of court for a purpose extraneous
to the objective of facilitating the pursuit
of the truth. See
Beinash
supra
at 734G. However, I decided against such
outcome.
[38]
A.'s reply to the notice in terms of rule 35(3), made under
oath as required, clearly directed respondent's attention
to the
financial affairs of first applicant and E Van Rooyen and Seuns (Pty)
Ltd. It is also clear from the electronic bank transfers
that other
entities such as JGVR Vervoer and Van Rooyen Eiendomme
were involved in making payment on behalf of first
applicant to A.'s
attorneys. I am prepared to accept, on this narrow issue, that there
was room to obtain documents pertaining
to A.'s alleged debt in order
to investigate the claim fully. If this was the only issue to be
considered, first applicant
would have had extreme
difficulty to persuade me to grant the application. As stated
supra
no
subpoena
should have been issued against
second applicant and it is unnecessary to deal with the position of
the particular company
any further. No doubt, the application was
instituted primarily at the instance of first
applicant who also deposed
to the founding affidavit.
Ex facie
the
application papers second respondent's involvement in
drafting the affidavits and instructing attorneys was
limited.
[39]
If the parties were on friendly terms, and hereby I
include the legal representatives as well, they would
have
found common ground and come to an agreement at an early stage and at
the latest on 25 April 2017. Respondent was prepared
to withdraw all
three sets of
subpoenae,
"given these new facts" but
applicants' attorneys insisted on the matter being heard on an
opposed basis,
two court days before the first day of the
postponed hearing. The parties now seek punitive costs orders
against each
other. It is difficult to fathom the logic of proceeding
with an opposed application on 4 May 2017 to determine costs only.
Respondent's
attorneys made a laudable settlement proposal which if
accepted, would have prevented the costs in respect of the
drawing
of heads of argument, travelling to Bloemfontein,
accommodation costs and the costs of the opposed hearing. Mr Wagener
had to travel
back to Pretoria just to return to Bloemfontein over
the weekend for the trial that started the following Monday, 8 May
2017.
[40]
I have considered the submissions of Mr Wagener as well as the
judgment in
Venmop v Cleverlad Projects
2016 (1) SA 78
(GJ) at
para [33].
As mentioned earlier, there is a toxic relationship
between the parties which is apparent from the papers before me and
to a certain
extent both parties can be blamed for being vexatious,
putting the other side to unnecessary trouble and expense which they
ought
not to bear. Save for the one issue mentioned above, it cannot
be said that the application was lacking in merit. However, I am
not
impressed with applicants' approach as reflected in the
correspondence referred to
supra.
[41]
Having considered all aspects, those dealt with herein as well as
others that might not have been stated in this judgment,
I am
satisfied that in the exercise of my discretion none of the parties
should be burdened with the costs of the other party.
They must blame
themselves or call upon their legal representatives to explain why a
relatively simple dispute turned into a financial
nightmare. The
application has become moot for the reasons mentioned
supra
and
it is not necessary to make any order in that regard, save to mention
that I might not have dismissed the application if it
had not become
moot. However, the parties are equally to be blamed for the
predicament they find themselves in. The application
could have been
set down for the first day of the postponed divorce matter, or
insofar as costs only remained relevant, it could
have been reserved
and argued at the end of the divorce trial. Each party
shall bear their own costs.
VIII
ORDERS
[42]
The following orders are issued:
1.
Insofar as the two
subpoenae duces tecum
issued against first
and second applicants respectively have lapsed, no order is made in
respect of the application to set them
aside.
2.
The parties shall bear their own costs in respect of this
application, to wit application 778/2017.
_________________
J.P
DAFFUE, J
On
behalf of the applicants:
Adv. AS Sieberhagen Instructed
by:
Duncan & Rothman Attorneys
c/o Honey Attorneys,
Bloemfontein
On
behalf of the respondent:
Adv. SD Wagener SC
Instructed
by:
Prinsloo Attorneys c/o Symington & De Kok
Bloemfontein