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[2017] ZAFSHC 82
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K v K (4843/2015) [2017] ZAFSHC 82 (8 June 2017)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4843/2015
In
the matter between:
M
K
Applicant
and
Z
K
Respondent
JUDGMENT
BY:
SNELLENBURG, AJ
HEARD
ON:
18 MAY 2017
DELIVERED
ON:
8 JUNE 2017
[1]
The applicant applies for leave to amend her counterclaim in the
divorce action currently pending between the parties. The applicant
and respondent married each other in community of property on 18
December 1993. Although it is hard to discern at this stage of
their
marital relationship whether there were many blissful moments, they
did have three children of which two are still minor
at time of this
judgment. Marital problems ultimately culminated in the respondent
issuing summons against the applicant on 13
October 2015. In his
combined summons the respondent prays for a decree of divorce; orders
in connection with care, parental rights
and responsibilities and
maintenance relating to their children; division of the joint estate
and costs of the suit. The applicant
in turn served a plea and
counterclaim on 4 January 2016. In the counterclaim the applicant in
turn prays for a decree of divorce;
care, parental rights and
responsibilities and maintenance relating to their children; division
of the joint estate and costs of
the suit.
[2]
Litis contestatio
commenced on 8 March 2016 when the
respondent filed his plea to the applicant’s counterclaim.
Without delay the respondent’s
attorney gave notice in terms of
the provisions of Uniform rule 37(1) to convene a pre-trial
conference which duly took place on
5 April 2016 at the plaintiff’s
attorneys’ offices. The pre-trial conference lasted 20 minutes.
The minute reveals
amongst other matters that the parties at that
stage recorded no prejudice; reserved the right, under the heading
“Settlement
Proposals”, to hold a further pre-trial
conference; agreed that there were no issues identified that needed
to be decided
upon separately in terms of the provisions of Uniform
rule 33(4); would file discovery affidavits and the replies thereto
no later
than 29 April 2016 and agreed that the main points in issue
at the trial are the quantum of maintenance for the minor children,
how the joint estate should be divided and who should pay the costs
of the action. Hereafter the applicant served a request
for
further particulars on the respondent on 23 May 2016 and the
respondent served a request of similar nature on the applicant
on 30
June 2016. Neither of the aforementioned questionnaires have been
answered to date. Discovery also did not take place within
the agreed
time.
[3]
During August 2016 the applicant terminated the mandate of the
attorneys then acting on her behalf. The erstwhile attorneys
filed
the notice of withdrawal as attorneys of record on 10 August 2016. On
8 September 2016 the respondent issued an application
in terms of
s
20
of the
Matrimonial Property Act 80 of 1984
seeking the
immediate division of the joint estate and related relief [“the
division application”]. On 27 September
2016 the applicant’s
current attorneys came on record. The division application was
opposed by means of an answering affidavit
which was filed on 15
November 2016. In the aforesaid answering affidavit the applicant
foreshadowed her intention to amend the
counterclaim by deleting the
prayer for division of the joint estate and inserting a claim for
forfeiture of the patrimonial benefits
of marriage in favour of the
applicant as envisaged by
s
9
of the
Divorce Act, 70 of 1979
[“the
Divorce Act&rdquo
;]. The applicant hereafter gave notice
of the intended amendment in terms of the provisions of Uniform
rule
28
to which the respondent objected on the grounds which I will deal
with below. The respondent proceeded to file his replying affidavit
in the division application. In his answering affidavit the
respondent amongst other matters relied on the grounds for objection
to the amendment and persisted that the division application be
determined. The division application was however postponed pending
finalisation of this application.
[4]
The respondent objects to the amendment on the following grounds:
4.1 The parties reached
an agreement during the pre-trial conference that the main points of
dispute between the parties are the
quantum of maintenance for the
minor children, how the joint estate should be divided and who should
pay the costs of the action.
In terms of the pre-trial minute the
applicant waived, alternatively abrogated her perceived right to
claim forfeiture in terms
of
s
9
of the
Divorce Act.
4.2 The
factual matrix
underlying the notice of intended amendment disclosed that the
proposed amendment is not bona fide but made with
an ulterior motive
(the respondent uses the phrase “as its true aim”) to
provide a ground upon which to resist the
division application. The
division application was necessitated by applicant’s conduct
which has a severe prejudicial impact
on the respondent’s
interests in the joint estate and which conduct is likely to diminish
the value of the respondent’s
undivided half share in the joint
estate.
4.3 If the amendment is
allowed it will set the divorce action on a new course and
necessitate the respondent to revisit a number
of substantial and
procedural issues that have been disposed of at great cost. It will
result in significant delay in finalising
the matter.
4.4 The amendment will
result in severe prejudice, the nature of which cannot be off-set by
a cost order.
[5]
As result of the objection the applicant applies for leave to effect
the amendment. The applicant explains in her affidavit
in support of
the application that when she first consulted her attorney the
attorney considered and discussed the content of the
summons with
her. She advised her erstwhile attorney of the true grounds for the
breakdown in the marital relationship and the
respondent’s
unacceptable conduct towards her. She was advised that she would need
to file a plea and counterclaim which
the attorney would draw based
on the information supplied by the applicant during the consultation
(the applicant’s instructions).
Regarding the patrimonial
system governing their marriage the applicant’s erstwhile
attorney explained to her that where
parties are married in community
of property the law requires that such joint estate be divided when
the marriage is dissolved.
The applicant understood the division as a
‘
fait accompli’
. As layperson she accepted the
advice of her attorney and had no reason to doubt the correctness
thereof. After her current attorneys
were appointed they instructed
counsel and she, her attorney and counsel subsequently had a
comprehensive consultation in order
to oppose the division
application. Pursuant to her instructions she was advised, for the
first time, that she was entitled to
claim forfeiture of the
patrimonial benefits of the marriage in community of property. To
that end the applicant refers to the
content of her answering
affidavit in the division application where she gives an overview of
the grounds on which she relies for
an entitlement to rely on the
provisions of
s
9
of the
Divorce Act. The
applicant denies
that the amendment is merely a ploy to defeat the division
application, is made mala fide or that it will result
in prejudice
that cannot be remedied by a cost order. The applicant avers that she
will be severely prejudiced if she is not granted
leave to amend as
her right to claim forfeiture will in effect be finally disposed of.
Regarding waiver the applicant denies that
her erstwhile attorney was
authorised to waive or abrogate any of her rights in terms of the
Divorce Act. The
applicant claims that should leave to amend not be
granted to her, her right to a fair trial will be adversely infringed
upon.
[6]
In the answering affidavit the respondent elaborates on the grounds
of objection to the proposed amendment. Save for the gist
of the
grounds for objection referred to above, the respondent avers that
the applicant’s erstwhile attorney as part of a
leading law
firm would have applied her mind to whether any grounds for
formulating a claim for forfeiture existed and would have
advised the
applicant to incorporate such claim in her counterclaim, if based on
her instructions, there were any prospects of
success in pursuing of
such claim. Regarding the pre-trial conference the respondent
explains that the applicant is bound to the
agreement concluded
between the parties, duly represented by their attorneys, regarding
the issues that would serve for determination
during the trial,
namely the quantum of the maintenance for the children; how the joint
estate would be divided and which party
must pay the costs of the
action. The respondent also relies on the fact that it is not the
applicant’s case that her attorney
acted without instructions
during the pre-trial conference. It is contended by the respondent
that the pre-trial conference is
not without legal consequence and
parties are bound to the issues delineated in the pre-trial minute.
The respondent persists with
the contention that the proposed
amendment amounts to nothing more than a tactical ploy to defeat the
division application. It
is contended that an overarching approach
reveals that the application to amend lacks bona fides, is without
merit and will cause
severe prejudice to the respondent which cannot
be cured by a cost order. The respondent lastly joins issue with the
allegations
regarding the basis for a forfeiture claim and argues
that on a balanced conspectus of objective facts the intended claim
for forfeiture
is ill-conceived and still-born.
[7]
This is in summary the background against which this application must
be determined.
[8]
T
he
primary object of allowing an amendment is to obtain a proper
ventilation of the dispute between the parties, to determine the
real
issues between them, so that justice may be done.
[1]
Our courts have for almost 90 years endorsed and followed the
approach
to amendments as enunciated in the matter of
Moolman
v Estate Moolman and Another
1927 CPD 27
at 29
:
“
The
question of amendment of pleadings has been considered in a number of
English cases. See for example: Tildesley v Harper
(10 ChD 393)
;
Steward v North Met Tramways Co
(16 QBD 556)
and the practical rule
adopted seems to be that amendments will always be allowed unless the
application to amend is mala fide
or unless such amendment would
cause an injustice to the other side which cannot be compensated by
costs, or in other words unless
the parties cannot be put back for
the purposes of justice in the same position as they were when the
pleading it is sought to
amend was filed.”
[9]
With regards to the discretion for allowing
or refusing an amendment the Appellate Division enunciated the
applicable test in
Caxton Ltd and
Others v Reeva Forman (Pty) Ltd and Another
1990 (3) SA
547 (A)
at 565G
as follows
:
“
Although
the decision whether to grant or refuse an application to amend a
pleading rests in the discretion of the Court, this discretion
must
be exercised with due regard to certain basic principles.
”
The
Chief Justice then referred to the “principles … well
summed up
”
in the matter of
Trans-Drakensberg Bank Ltd (Under
Judicial Management) v Combined Engineering (Pty) Ltd and Another
1967
(3) SA
632
(D) at 640 H
–
641 C
where it was held:
“
Having
already made his case in his pleading, if he wishes to change or add
to this, he must explain the reason and show prima facie
that he has
something deserving of consideration, a triable issue; he cannot be
allowed to harass his opponent by an amendment
which has no
foundation. He cannot place on the record an issue for which he has
no supporting evidence, where evidence is required,
or, save perhaps
in exceptional circumstances, introduce an amendment which would make
the pleading excipiable.”
The
Chief Justice also referred to the matter of
Krogman v
Van Reenen
1926 OPD 191
at 195
:
“
. .
.
.he must show, for instance, that the matter involved in the
amendment is of sufficient importance to justify him in putting the
Court and the other party to the manifold inconveniences of a
postponement.
. .”
[10]
The application for leave to amend must also be determined against
the backdrop of the nature of civil litigation in our law.
The nature
of civil litigation in our adversarial system was explained by Theron
JA and Wallis JA, speaking on behalf of the court
in the matter of
Fischer and Another v Ramahlele and Others
2014 (4)
SA 614
(SCA) par 13
as follows:
“
Turning then to
the nature of civil litigation in our adversarial system, it is for
the parties, either in the pleadings or affidavits
(which serve the
function of both pleadings and evidence),
[2]
to set out and define the nature of their dispute, and it is for the
court to adjudicate upon those issues.
[3]
That is so even where the dispute involves an issue pertaining to the
basic human rights guaranteed by our Constitution, for '(i)t
is
impermissible for a party to rely on a constitutional complaint that
was not pleaded'.
[4]
There are
cases where the parties may expand those issues by the way in which
they conduct the proceedings.
[5]
There may also be instances where the court may mero motu raise a
question of law that emerges fully from the evidence and is necessary
for the decision of the case. That is subject to the proviso that no
prejudice will be caused to any party by its being decided.
[6]
Beyond that it is for the parties to identify the dispute and for the
court to determine that dispute and that dispute alone.”
[11]
Parties are generally limited to their pleadings.
“
The object of
pleading is to define the issues so as to enable the other party to
know what case he has to meet. The parties are,
therefore, limited to
their pleadings: a pleader cannot be allowed to direct the attention
of the other party to one issue, and
then at the trial attempt to
canvas another. However, since pleadings are made for the court . . .
it is the duty of the court
to determine what are the real issues
between the parties and, provided no possible prejudice can be caused
to either party, to
decide the case on these real issues. . . .The
general principle is that the parties will be held to the issues
pleaded unless
there has been a full investigation of the matter
falling outside the pleadings...”
See Farlam et al Erasmus,
Superior Court Practice at B1/129 – 130;
Du Toit obo
Dikeni v Road Accident Fund
2016 (1) SA 367
(FB) par 43
.
[12]
It is highly desirable that any new issues sought to be raised by
parties should be introduced prior to the commencement of
the trial,
in other words amendments should preferably be made before the issue
is inquired into during the trial. See for instance
Levenstein
v Levenstein
1955 (3) SA 615
(SR)
.
[13]
The respondent’s first ground of opposition to the application
is premised on the contention that the applicant cannot
resile from
the pre-trial agreement where the parties, whilst both were
represented by their attorneys, agreed to the limitation
(the
respondent preferred the reference ‘delineation of issues’)
of issues that would serve for determination at the
trial.
[14]
The facts of this case differ from the cases referred to by the
respondent.
[7]
The applicant
seeks leave to include the claim for forfeiture so that she may rely
on it during the trial. She does so well in
advance of the trial. The
respondent will be entitled, should he so be inclined, to persist
with the defence that the applicant
waived or abrogated her right to
rely on the forfeiture provisions. I have my reservations regarding
the contention that the applicant
in this instance and on the facts
of this matter waived or abrogated her right to rely on the
forfeiture, but I need not determine
this issue and it is best left
for trial if it remains extant. In my view it does not bar the grant
of leave to amend.
[15]
The respondent’s second ground of opposition is premised on the
contention that the application is made mala
fide to pre-empt and
defeat the division application which application was necessitated by
the applicant’s conduct which
is highly prejudicial to the
respondent’s interests in the joint estate.
[16]
In
Frankel Pollak Vinderine Inc v Stanton NO
2000
(1) SA 425
(W) at 447G-H
the court explained the concept of mala
fides as follows:
“
Bona fides is
precisely what it says, good faith. It is a state of mind, just as is
mala fides (bad faith): there can be no constructive
bad faith - it
cannot be imputed to a man because the law lays down certain
requirements and he ought to have known them. If he
was ignorant of
the law or its requirements and acted in good faith, honestly (judged
by the state of his mind), he was bona fide.”
Mala
fides requires an inference that an improper result is intended.
[17]
Such a finding is not justified by the facts of this matter.
[18]
Counsel for the applicant conceded that should the amendment be
granted it will pre-empt the division application. The concession
was
fairly made. Counsel for the respondent argued that the amendment’s
sole purpose is to defeat the division application
at this stage
whilst her conduct necessitated the application in the first place.
[19]
The applicant indeed only disclosed her intention to seek an
amendment to rely on forfeiture of the benefits of the marriage
in
community of property for the first time in her answering affidavit
to the applicant’s division application. She did so
after the
consultation with her newly appointed attorney and counsel and
pursuant to the advice she received. She disclosed the
intended
amendment as one of the grounds of opposition to the division
application, not the only ground of opposition. It is therefore
correct that the amendment is intended to pre-empt the division
application. But that does not mean that an improper result is
intended, or put differently that such result would be improper. The
result the applicant intends to achieve is not only to defeat
the
division application but also to seek forfeiture at trial. Whilst one
can understand the respondent’s dismay at the turn
of events,
it does not justify the inference of an intention to achieve an
improper result. If the forfeiture is successful eventually
cadit
quaestio
.
[20]
The respondent complains of the fact that the amendment will set the
divorce action on a new course and necessitate the respondent
to
revisit a number of substantial and procedural issues that have been
disposed of at great cost. It is contended that this will
result in
significant delay in finalising the matter. This ground of complaint
does not justify dismissal of the application in
this instance. It is
not clear what the substantial and procedural issues consist of that
would need to be revisited. No details
were advanced. As for the
costs already incurred, no particulars were given, but these matters
can be properly ventilated at the
eventual trial. The preparation
already done will obviously remain relevant.
[21]
The fourth ground of objection, namely that the amendment will result
in severe prejudice, the nature of which cannot be off-set
by a cost
order relates to the aforementioned consequences, specifically the
consequences of the division application and the conduct
complained
of that gave rise to the division application. The applicant contends
that there are remedies available i.e. an interdict
should the
respondent be able to make a case. There is a lot of force in the
argument on behalf of the respondent, but it must
be borne in mind
that the allegations are seriously disputed. The costs of the
division application is a matter that can be addressed
in that
application.
[22]
In viewing the matter holistically I am satisfied that the applicant
intends to raise an issue deserving of consideration,
in other words
a triable issue that should be ventilated. There are no grounds
necessitating the dismissal of the application.
It follows that leave
to amend should be granted.
[23]
It remains to consider the liability for costs of the application.
The applicant seeks an indulgence in the true sense of the
word. The
respondent’s opposition was reasonable in light of the
circumstances of this matter. The issues that respondent
raised were
not frivolous but to the contrary deserving of consideration. In my
view the appropriate order would be that the applicant
pays the costs
of the application. Insofar as it is necessary to specify, the cost
order below includes the costs of the application
on opposed basis.
[24]
Accordingly, IT IS ORDERED THAT:
1. Leave is granted to
the applicant in terms of the provisions of Uniform rule 28(4) to
amend the counterclaim in case number:
4843/2015 in accordance with
the content of the applicant’s notice of intention to amend
dated and filed on 25 November 2016;
2. The applicant effect
the amendment within 10 (TEN) days from date of this order;
3. The applicant pays the
costs of the application.
_____________________
N.
SNELLENBURG, AJ
APPEARANCES:
On
behalf of the applicant:
Adv C.D. Pienaar
Instructed
by:
Mr C.H. Du Plessis
Honey Attorneys
Bloemfontein
On
behalf of the respondent: Adv
W.A. Van Aswegen
Instructed
by:
Mr G.H. Bradshaw
McIntyre & Van der
Post
Bloemfontein
[1]
Blaauwberg
Meat Wholesalers CC v Anglo Dutch Meat (Export) Ltd
(2004)
1
ALL SA 129
(SCA) at 133 H – I;
Picardy
Hotels Ltd v Thekwini Properties (Pty) Ltd
2009
(1) SA 49.
Aslo see
Rosenberg
v Bitcom
1935 WLD 115
at 117
where
the
court already held that
“
Although
it has been stated that the granting of the amendment is an
indulgence to the party asking for it, it seems to me that
at any
rate the modern tendency of the Courts lies in favour of an
amendment whenever such an amendment facilitates the proper
ventilation of the dispute between the parties.”
[2]
Hart
v Pinetown Drive-In Cinema (Pty) Ltd
1972
(1) SA 464
(D) at 469C – E.
Molusi
and Others v Voges NO and Others
2016 (3) SA 370 (CC)
[3]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) paras 15 and 19.
[4]
Phillips
and Others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006
(1) SA 505
(CC) para 39.
[5]
Shill
v Milner
1937 AD 101
at 105.
[6]
CUSA
v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009
(2) SA 204
(CC) para 68;
Barkhuizen
v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC) para 39;
Maphango
and Others v Aengus Lifestyle Properties (Pty) Ltd
2012
(3) SA 531
(CC) paras 109 – 114.
[7]
The respondent relies on the judgments in
AJ
Sheppherd (Edms) Bpk v Santam Versekeringsmaatskappy Bpk
1985
(1) SA 39
(A)
and
Chemfos
Ltd v Plaasfosfaat (Pty) Ltd
1985 (3) SA 106
(A)
.
Both the referenced cases confirms the general principle that a
party is to be confined to the cause on which he had relied
at the
trial as if he indicated in his pleading that such cause of action
was his sole cause of action. Chemfos also referred
to the fact that
parties are bound