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[2017] ZAKZDHC 22
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D.S v D.B (13336/16) [2017] ZAKZDHC 22 (15 May 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
REPORTABLE
Case
No: 13336/16
In the
matter between:
D
S Applicant
and
D
B
Respondent
Coram:
Kruger J
Heard
:
8 May 2017
Delivered:
15 May 2017
ORDER
A.
APPLICATION IN TERMS OF RULE 33(4).
1.
The questions of
law/and or fact contained in paragraph 4 of the Plaintiff’s
particulars of claim (read with paragraph 4 of
the Defendant’s
plea) and paragraphs 1 and 2 of the Defendant’s special plea
under Case No. 13336/2014 are to be determined
separately by the
trial court in terms of Rule 33(4) and prior to any other questions
of law and/fact.
2.
The remaining issues
arising in the action are to be determined, if necessary, after the
final determination of the issues referred
to in 1 above.
B.
COUNTER -APPLICATION
1.
The Plaintiff’s
counter-application is dismissed.
C.
COSTS
1.
The Plaintiff, D B is
directed to pay the Defendant’s costs of the Rule 33(4)
application as well as the counter-application.
Such costs are:
(a) to be paid on the scale as between attorney and
client.
(b) to include the costs of two
counsel where the services of two counsel have been engaged.
JUDGMENT
KRUGER
J:
BACKGROUND
[1]
On the 18
th
November 2014, the Respondent/Plaintiff instituted an action out of
this Court, against the Applicant/Defendant. For the
sake of
convenience, the parties will be referred to as in the said action,
as Plaintiff and Defendant respectively. In the
said action,
the Plaintiff claimed a decree of divorce and further relief in
respect of maintenance and “an amount equal
to one half of the
net (sic) value of the Defendant’s estate”.
[2]
Paragraph 4 of the
particulars of claim provides:
“
The Plaintiff and the Defendant were
married to each other, according to the laws of England, in London,
England, on 18
th
August 2007.”
[3]
The Defendant has
defended the action. In a special plea he has averred:
“
1. The Defendant denies that the Plaintiff
and Defendant were married to each other either as alleged or at all.
2. The Defendant accordingly further denies that
this Honourable Court has jurisdiction in this action”.
[4]
The Action has not as
yet been set down for trial. Given the nature of the averments
in paragraph 4 of the particulars of
claim and the special plea
raised in response thereto, (as outlined above) and given the
Plaintiff’s reluctance to agree
to a separation of the issues,
the Defendant brought an application, in terms of the provisions of
Rule 33(4), for the separate
determination of the Plaintiff’s
averment as well as the special plea.
[5]
In response thereto the
Plaintiff sought to amend her particulars of claim and served the
relevant notice on the Defendant.
The Defendant objected to the
proposed amendment. For reasons unknown, the Plaintiff failed
to timeously bring an application
to effect the amendments and the
amendments duly lapsed. Thereafter the Plaintiff filed another
notice of her intention to
amend her particulars of claim. This
notice was in the exact terms as the previous one. The
Defendant once again objected
to the proposed amendment in exactly
the same terms as the previous objection.
[6]
The Plaintiff
thereafter opposed the application in terms of Rule 33(4) and has
filed a counter-application in terms of which she
seeks (a) to amend
her particulars of claim, in terms of Rule 28, and (b) that Sharon
Wapnick and her firm Tugendhaft Wapnick Banchetti
& Partners are
declared to have a conflict of interest and be directed to withdraw
as attorneys for the Defendant.
[7]
This
counter-application has been opposed by the Defendant and a lengthy
affidavit has been filed on his behalf. The Plaintiff
however
has elected not to file a replying affidavit thereto.
PROPOSED
AMENDMENT TO THE PLEADINGS
[8]
In her notice in terms
of Rule 28, the Plaintiff has sought to amend her particulars
of claim as follows:
“
1. By the deletion of the existing
particulars of claim and a substitution therefore of the particulars
of claim annexed hereto.”
[9]
The first eleven
paragraphs of the plaintiff’s proposed amended particulars of
claim are identical to the original particulars
of claim save that in
paragraph 11.1, the amount claimed by the Plaintiff as
“periodical payments” has been increased
from R50 000,00
per month to R100 000,00 per month. In addition thereto,
and in paragraphs 12 to 24 of the proposed
amendment, the Plaintiff
has sought to introduce alternate claims against the Defendant.
These alternate claims are;
(a)
In the event that a
Court finds that the marriage was not valid, then it is alleged that
there was a putative marriage and the Plaintiff
is entitled to the
consequences that flow therefrom;
(b)
A claim for breach of a
promise to marry, in the event that the Court does not find that
there was a putative marriage, and
(c)
In terms of a written
agreement concluded on the 2
nd
April 2007, the Defendant is liable to pay to the Plaintiff certain
cash payments and property.
[10]
The Defendant has
objected to the Plaintiff’s proposed amendments and has filed a
detailed notice outlining the grounds of
his objection. These
may be summarised as being,
inter
alia
, the
following:
a)
That the averments lack
sufficient particularity and are accordingly vague and embarrassing;
b)
That the alternate
claims which the Plaintiff seeks to introduce have prescribed;
c)
In the event that the
Court finds that there is no marriage between the parties, this Court
would lack jurisdiction in respect of
the proposed alternate claims;
d)
In addition thereto the
Defendant has alleged that any claims by the Plaintiff have been
compromised by virtue of a settlement agreement
dated 11
th
December 2007.
[11]
The Plaintiff has not
responded to these objections save to the limited degree that is
described hereinafter. In her heads
of argument and in argument
before me, Counsel for the Plaintiff has addressed only the issue of
jurisdiction. This will
be addressed later in this judgment.
[12]
The 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.” –
Cross
v Ferreira
1950(3) SA443 (CPD) at 447
.
[13]
“……
. The practical rule
adopted seems to be that amendments will always be allowed unless the
application to amend is
male 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 which it is sought
to amend
was filed.” –
Moolman
v Estate Moolman
1927
CPD 27
at 29
.
See also
Four
Tower Investments (Pty) Ltd v Andres Motors
2005(3) SA 39 (NPD) at paragraph 15.
[14]
“
The amendment must be
bona
fide
and if it is, it will be granted,
especially where the effect of refusing it would again bring the same
parties before the same
court on the same issue”.
Erasmus
– Superior Court Practice B1-180
;
Trans Drakensberg
Bank Ltd v Combined Engineering (Pty) Ltd
1967(3) SA 632(D) at 640 H
.
[15]
Counsel for the Plaintiff has submitted that should the proposed
amendment be disallowed, the Plaintiff would be entitled to
issue a
summons, claiming the alternative relief that she seeks in the
proposed amendment and the self-same issues would then come
before
the Court again. I disagree. This Court would lack the
necessary jurisdiction to entertain the “alternate
claims”
should the Plaintiff elect to issue a summons
out of this Court
.
This is simply because the Defendant is ordinarily resident and
carries on business in Gauteng. (This is common cause).
The
crucial element of “the same Court” is therefore lacking.
[16]
In considering whether an amendment is made
bona fide
, one
must also have regard to the objections raised. The Defendant
has averred that the alternate claims in the proposed
amendments have
prescribed. Although having been made aware of this crucial
objection prior to the launching of the application
to amend (and
indeed the filing of the second notice to amend), the Plaintiff has
not countered same nor has she filed a replying
affidavit to
challenge these averments. Counsel for the Plaintiff has also
not addressed this issue in her heads of argument
and in argument
before me has simply submitted that the claims have not prescribed.
[17]
In the proposed alternate claims the Plaintiff seeks damages for
alleged breach of promise to marry; alternatively for an order
declaring that there was a putative marriage and for an order placing
her in the same position that she would allegedly have been
had there
been a valid marriage (essentially damages); alternatively payment in
terms of a dishonoured agreement entered into on
the 2
nd
April 2007.
[18]
During argument however the Plaintiff abandoned the claim for breach
of the promise to marry and accordingly does not seek
to amend her
particulars of claim by including the relief sought as a consequence
of the alleged breach.
[19]
On the Defendants version and, at best for the Plaintiff,
prescription in respect of these alternate claims commenced to run
from the 11
th
December 2007. This is the date when
an agreement between the parties was entered into. The
provisions of the agreement
are, in my view extremely important and
place in perspective the knowledge, attitude and intention of the
parties. This agreement
provides,
inter alia
:
“
INTRODUCTION
1.
D
and D have had an on off relationship for the past two years which
they hoped would result in a marriage. This has not occurred
and their relationship and has irretrievably broken down. D and
D have agreed to terminate the relationship and part company.
2.
On
29 August 2007 D and D concluded an agreement to regulate such an
event.
3.
This
agreement supersedes, replaces and novates the agreement concluded on
29 August 2007.
4.
In
full and final settlement of all and any claims which D may have
against D (without conceding that there are any) from whatever
cause
and however arising; - …….”
[20]
The Plaintiff accepted the benefits under this agreement and it is
noted that she has not tendered restitution of same.
[21]
As is evident from the aforesaid excerpts of the agreement, the
parties acknowledged that they were not married to each other.
They also acknowledged that their relationship has irretrievably
broken down. Prescription, in respect of all claims that
the
Plaintiff may have had against the Defendant, commenced to run, in my
view, from the 11
th
December 2007. (The Defendant has
averred that it commenced earlier – 29
th
August 2007
– but in light of the decision that I have arrived at, it does
not take the matter any further.)
[22]
Counsel for the Plaintiff has submitted that the claim in respect of
the putative marriage has not prescribed and that prescription
will
only start to run from the date that the Court concludes that there
is no valid marriage between the parties. I disagree.
The
identity of the “debtor” (as defined in the Prescription
Act) and the facts from which the “debt” arose
was all
known to the Plaintiff from the 11
th
December 2007 at the
very latest. Prescription in respect of all and whatever claims
the Plaintiff had in respect of the
alleged putative marriage
commenced to run from the 11
th
December 2007. It was
then that she opted for the settlement tendered and waived whatever
other claims that she may have
had.
[23]
Counsel for the Defendant has submitted that as the notice to amend
(upon which this application is based) is dated 14
th
March
2016, the alternate claims have thus accordingly lapsed and the
application for amendment ought to be refused as no meaningful
purpose would be served in allowing an amendment which would be met
by a plea of prescription. There is indeed merit in this
submission. See
Park Finance Corporation (Pty) Ltd v Van
Niekerk
1956(1) SA669(T) at 674(G)
;
Associated
Paint and Chemical Industries (Pty) Ltd t/a Albestra Paint and
Lacquers v Smit
2000(2) SA789 (SCA) at paragraph 20.
[24]
I am of the view that as the proposed alternate claims have
prescribed, the application for leave to amend cannot be said to
be
bona fide
and the application must fail on this ground alone.
[25]
The defendant has also alleged that the proposed alternate claims
have not been properly pleaded and are excipiable on the
grounds that
they are,
inter alia
, vague and embarrassing. I do not
intend to repeat all the objections raised by the Defendant as “vague
and embarrassing”.
What is clear however is that the
Plaintiff has elected not to deal with or answer these objections.
Counsel for the Plaintiff
has also not addressed this aspect in her
heads of argument. In argument before me, counsel for the
Plaintiff elected to
repeat the proposed amendments and submitted
that it is not known how the particulars therein are vague and
embarrassing.
[26]
In
Cross v Ferreira
(supra) at 449(H)
, van
Winsen AJ (as he then was) held:
“
While
the practice is not entirely uniform on this point, the weight of
authority seems to favour the view that if the pleading
as sought to
be amended would be excipiable, this affords a ground upon which the
Courts may, in the exercise of its discretion,
refuse the application
for the amendment.”
[27]
This view has been consistently followed and confirmed by our
Courts.
See
Alpha (Pty) Ltd v Carltonville Ready Mix Concrete CC and others
2003(6) SA289(W) at 293 J
;
Krischke v Road Accident Fund
2004(4) SA 358 at paragraph 9.
[28]
A perusal of the proposed amendment, together with the Defendant’s
objection thereto, reveals that the proposed particulars
of claim
will be excipiable. For example, there is a lack of
particularity regarding the alleged “engagement agreement”;
the basis upon which Annexure “B” to the proposed amended
particulars constitutes an antenuptial contract; the particularity
relating to the alleged advice given to the Plaintiff that by
marrying the Defendant he would not be compelled to give evidence
against her in her criminal trial; there is no allegation that the
Plaintiff
bona fide
believed that she and the Defendant were
married in community of property (this is an essential averment in
respect of a putative
marriage); or that the “marriage”
was indeed in community of property which would be the basis for the
Plaintiff’s
claim for an amount equal to one half of the nett
value of the Defendant’s estate. These are but a few
examples which,
in my view, show that the proposed amended pleading
is so fundamentally flawed that the proposed amendment should be
disallowed.
[29]
I am therefore not inclined to grant the proposed amendment on the
basis that same would be excipiable.
[30]
The Defendant has also averred that this Court would lack
jurisdiction to entertain the proposed alternate claims. The basis
for this is that the alternate claims do not fall within the ambit of
a “divorce action” as defined in the
Divorce Act No. 70
of 1979
.
[31]
Section 2(1)
of the
Divorce Act 70 of 1979
provides:
“
(1) A court shall have jurisdiction in a
divorce action if the parties are or either of the parties is –
a)
Domiciled in the area of jurisdiction of
the court on the date of which the action is instituted; or
b)
Ordinarily resident in the area of
jurisdiction of the court on the said date and have or has been
ordinarily resident in the Republic
for a period of not less than one
year immediately prior to that date.”
“
Divorce Action” is defined in the
Divorce Act as
follows:
“”
Divorce
Action” means an action by which a decree of divorce or other
relief in connection therewith is applied for, and includes
–
(a)
an
application
pendente lite
for an interdict or for the interim custody of, or access to, a minor
child of the marriage concerned or for the payment of maintenance;
or
(b)
an
application for a contribution towards the costs of such action or to
institute such action, or make such application,
in
forma pauperis
, or for the substituted
service of process in, or the edictal citation of a party to, such
action or such application;”
[32]
Counsel for the Plaintiff has submitted that the words “a
decree of divorce or other relief in connection therewith”
are
to be interpreted broadly so as to include a claim for divorce or
where the validity of the marriage is disputed (as
in causu
),
a claim for a putative marriage or a breach of promise to marry.
[33]
In making this submission, counsel has relied on judgments relating
to
Rule 43
applications.
Rule 43
applies “whenever a
spouse seeks relief from the Court” in respect of maintenance
pendente lite
; interim access or custody, and a contribution
towards costs in a pending matrimonial action. In
Gunston
v Gunston
1976(3) SA 179 (W)
the Court held that
“matrimonial actions” include actions for divorce,
restitution of conjugal rights, nullity of a
marriage and judicial
separation” – at 182 B. This, in my view is clearly
within the ambit of the provisions
of the
Divorce Act cited
supra
.
In
Rousalis v Rousalis
1980(3) SA 446 (C)
the
Court considered its jurisdiction in a divorce action in which a
party claimed (in addition to a decree of divorce) orders sounding
in
money arising out of an alleged dissolution of a partnership.
It was held that the dispute did not concern “other
relief in
connection” with a decree of divorce as intended in
Section 2
of the
Divorce Act and
that the Court accordingly lacked jurisdiction
in respect of that relief. It was held that having regard to
Section 2
of the Act, the Court has jurisdiction to order maintenance
and costs as relief in connection with a decree of divorce but that
there was no principle or provision which would entitle the Court to
settle a partnership dispute where the Defendant was domiciled
and
resident outside the jurisdiction of the Court. (At pages 449
to 450.)
[34]
The proposed alternate claims, in my view, do not fall within the
ambit of the decree of divorce nor can it be said to be ancillary
to
a divorce action. It is common cause that the Defendant does
not reside or carry on business within the area of this Court’s
jurisdiction. As a result, this Court does not have
jurisdiction in respect of the alternate claims as set out in the
proposed
amendment.
[35]
It is also important to note that the alternate claims are
conditional on the Court finding that there was
no
marriage
between the parties. If there is no marriage, then there cannot
be a divorce and similarly no “divorce action”
as defined
in
Section 2(1)
of the
Divorce Act. Accordingly
, this Court
would lack the necessary jurisdiction.
[36]
Counsel for the Plaintiff has submitted that in terms of the
principle of “
causae continentia
, this Court will have
jurisdiction over the alternative relief or claims. The
principle of
causae continentia
is defined as:
“
more
than one claim against different persons or in respect of different
things in different jurisdictional areas may be joined
in one process
before one Court if it can be said that together they really
constitute one case, in that the one begins where the
other ends ……”
–
LAWSA 2
nd
Edition, Volume 11, at paragraph 553.
[37]
In my view the principle of “
causae contenentia
”
will apply in circumstances where the Court originally has
jurisdiction. Causes of action can then be added to the
existing action. In
casu
however, given the manner in
which the proposed alternate claims have been pleaded (as discussed
earlier in this judgment) this
Court does not have jurisdiction.
In any event, as stated earlier in this judgment, if it is found that
there is no marriage
between the parties, then the Court cannot have
jurisdiction.
[38]
Finally, the Defendant has objected to the proposed amendment on the
basis that the agreement of the 11
th
December 2007
compromised any claim which the Plaintiff may have against the
Defendant from whatever cause arising. Once
again the Plaintiff
has not contested these averments and once again Counsel has not
addressed this issue in her heads of argument
nor have any
submissions been made on the Plaintiff’s behalf.
[39]
In concluding the agreement of the 11
th
December 2007, the
Plaintiff was independently represented and there cannot, in my view,
be any dispute in respect of the conclusion
of the agreement nor of
its terms and conditions. I agree with the submission by Mr
Subel SC, on behalf of the Defendant,
that the proposed alternative
causes of actions are precluded by virtue of the agreement of the
11
th
December 2007. See
Road Accident Fund v
Ngubane
2008(1) SA 432 (SCA)
and the authorities cited
therein.
[40]
In the result, the application for leave to amend must be refused.
SEPARATION
OF ISSUES :
RULE 33(4)
[41]
Rule 33(4)
provides as follows:
“
If,
in any pending action, it appears to the Court
mero
muto
that there is a question of law or
fact which may conveniently be decided either before any evidence is
led or separately from
any other question, the Court may make an
order directing the disposal of such question in such manner as it
may deem fit and may
order that all further proceedings be stayed
until such question has been disposed of, and the Court shall
on the application
of any party make such order unless it appears
that the questions cannot conveniently be decided separately.”
[42]
Flemming DJP described the rationale underlying
Rule 33(4)
as
follows:
“
The
entitlement to seek the separation of issues was created in the Court
rules so that an alleged lacuna in the Plaintiff’s
case or an
answer to the case can be tested; or simply so that a factual issue
can be determined which can give direction to the
rest of the case
and in particular to obviate a parcel of evidence. The purpose
is to determine the fate of the Plaintiff’s
claim (or one of
the claims) without the cost and delays of a full trial. Proper
handling of litigation – and accordingly
professional handling
of a case – requires that this avenue be explored to the
advantage of the own client, the flow of court
hearings and even of
the other client.”
–
Rauff
v Standard Bank Properties
(a division of
Standard Bank of South Africa Ltd) and another
2002(6) SA 693 (WLD)
at paragraph 22.1
.
[43]
In
Denel (Edms) Bpk v Vorster
2004(4) SA481 (SCA) at
paragraph 3
Nugent JA remarked:
“
Rule
33(4) of the Uniform Rules – which entitles a court to try
issues separately in appropriate circumstances – is
aimed at
facilitating the convenient and expeditious disposal of litigation
….. it is only after careful thought has been
given to the
anticipated course of the litigation as a whole that it will be
possible properly to determine whether it is convenient
to try and an
issue separately. But, where the trial Court is satisfied that
it is proper to make such an order ….
it is the duty of that
Court to ensure that the issues to be tried are clearly circumscribed
in its order so as to avoid confusion.”
[44]
Miller J, in
Minister of Agriculture v Tongaat Group Ltd
1976(2) SA 357 (D) at 362
H, remarked:
“
Rule
33(4) was no doubt conceived in the realisation that in some
instances the interests of the parties and the ends of justice
would
be better served by disposing of a particular issue (or issues)
before considering other issues which, depending on the result
of the
issues singled out, might fall away or become confined to
substantially narrower limits.”
At
363 (D)
he held:
“
The
word “convenient” in the context of Rule 33(4) is not
used, I think, in the narrow sense in which it is sometimes
used to
convey the notion of facility or ease or experience. It appears
to be used to convey also the notion of appropriateness;
the
procedure would be convenient if, in all the circumstances, it
appeared to be fitting, and fair to the parties concerned.”
[45]
A perusal of the case law reveals that the Courts were inclined to
grant the order, in terms of Rule 33(4) if it appears that
the
advantages outweigh the disadvantages –
State v Malinde
1990(1) SA 57 (AD) at 68 C-E
– or where the Plaintiff’s
case does not appear to be strong and the Defendant’s prospects
of recovering costs,
poor –
Sharp v Victoria West
Municipality
1979(3) SA 510 (NC) at 512
B.
[46]
Against this backdrop, I turn to consider the submissions of the
parties. The Defendant, as Applicant in the Rule 33(4)
application, has submitted that it would be convenient for the Court
to decide the issue raised in paragraph 4 of the Plaintiff’s
particulars of claim read with the Defendant’s special plea.
It has also been submitted that should the Court so order,
there
would be no prejudice to the Plaintiff.
[47]
It is the Defendant’s contention, as I understand the
submission, that it is only in the event that a valid marriage
is
proven, that a decree of divorce and ancillary relief, sought by the
Plaintiff in the divorce proceedings, be competent or sustainable
in
law. In the event that the Plaintiff fails to prove the alleged
marriage, then this Court would lack jurisdiction in this
action and
no further relief may be ordered.
[48]
The Plaintiff however opposes the application on the basis that the
evidence surrounding the circumstances of the marriage
and the
evidence required to determine whether it is valid or not, will be
the same evidence as that required to establish and
prove the
proposed additional claims – viz a putative marriage.
[49]
This submission is however based on (what now appears) the
misconception that the application to amend will succeed.
As
stated earlier in this judgment the application to amend is seriously
flawed and cannot succeed.
[50]
In the result, all that is left before the Court is the original
particulars of claim wherein the Plaintiff seeks a decree
of divorce
and ancillary relief.
[51]
I agree with the Defendant’s contention that the determination
of whether there was a valid marriage or not will not
only shorten
the proceedings, but will be convenient to all parties and the
Court. The reason is clear – absent a marriage,
there can
be no divorce, no claim for spousal maintenance and no claim for a
redistribution or share of the assets of any party.
[52]
On the papers before me it is my view that the Plaintiff’s
prospects of establishing and proving a valid marriage are
weak.
Accordingly, a separation of the issues would also be beneficial to
the Plaintiff as she would not have to endure the
costs of a lengthy
trial which would involve costly pre-trial preparation especially in
the form of discovery. A separation
in terms of Rule 33(4)
would result in only the documentation relating or pertaining to the
question of whether or not there is
a valid marriage would need to be
discovered. I agree that should a separation not be ordered, it
would result in the unnecessary
preparation and conduct of a trial on
the remaining issues which would be prejudicial to both parties.
[53]
The Defendant’s application, in terms of Rule 33(4) must
therefore succeed.
CONFLICT
OF INTEREST
[54]
In seeking an order that:
(a)
Sharon Wapnick and
Tugendhaft Wapnick Banchetti and Partners be declared to have a
conflict of interest and
(b)
That they be directed
to withdraw as attorneys for the Defendant.
The
Plaintiff essentially relied on averments contained in paragraphs 6
and 7 of her affidavit. The essential averments are
the
following:
“
6.2 Ms Wapnick represented me in criminal
charges instituted against me, as a result of an incident at the
Saxon Hotel, …..
As my attorney I communicated information to
her, much of it may be relevant to the present matter.
………
6.4 At the criminal trial, which was funded by Mr S, I was
represented by Advocate Barry Roux SC (Roux), who was instructed by
Sharon Wapnick.
……
6.6 At the criminal trial Roux SC advised the prosecutor, Adele
Barnard, and Magistrate Reiner Boshoff that Mr S and I had married.
As I recall, Ms Wapnick was present in the criminal court at the
time.
6.7 In fact one of the reasons for our marriage at that time was that
Mr S wanted to ensure that he did not have to give evidence
against
me, which he could not be obliged to do if he were married to me.
6.8 Ms Wapnick was a party to this advice.
……
6.10 Furthermore, Ms Wapnick will be a material witness at the trial,
as she;
6.10.1 Drafted the antenuptial contract concluded between myself and
Mr S;
6.10.2
Drafted subsequent agreements.
……
7.1 Ms Wapnick has been requested to withdraw, and the conflict of
interest has been brought to her attention.
……
7.9 Ms Wapnick replied by way of letter dated 8 April 2016, annexed
as “DB12”.
7.10 I have instructed my attorney to simply
reserve my rights to respond to that letter at the appropriate time,
in the appropriate
forum.”
[55]
As is evident from the passages quoted above the only instance when
it is alleged that the attorney Sharon Wapnick or the firm
Tugendhaft
Wapnick Benchetti and Partners represented the Plaintiff, is during
her criminal trial. This has been denied by
the attorneys
concerned who have furnished the Court with a transcript of the said
criminal proceedings, which transcript totally
contradicts the
version of the Plaintiff. It is noteworthy that the Plaintiff
has not filed a reply in answer to the allegations.
What is of
importance is that the Plaintiff and her attorneys were made aware of
the denial of the conflict allegations and were
fully appraised of
the situation long before the Plaintiff launched her
counter-application. The behaviour of the Plaintiff
in this
regard is certainly questionable.
[56]
In the heads of argument, counsel has sought to rely upon Ms
Wapnick’s admission that her firm represented the Plaintiff,
for a brief period, in preparing a plea (when the Plaintiff was under
bar) in a civil action in 2006. This had nothing to
do with the
current action or the relationship between the parties. In any
event it was not a ground relied upon by the Plaintiff
in seeking the
relief that she does and which is set out supra.
[57]
I am accordingly of the view that the Plaintiff’s application
in this regard is ill-founded and
prima facie
male fides.
The application is therefore to be dismissed.
COSTS
[58]
Counsel for the Plaintiff has submitted that the costs of the
application and counter-application be reserved for determination
at
the trial. I disagree. The Plaintiff’s
bona
fides
in opposing the main application and in launching the
counter-application is questionable.
[59]
The Plaintiff refused to consent to a separattion of the issues in
terms of Rule 33(4). At the time that the Defendant’s
attorneys requested the Plaintiff’s consent, the pleadings as
they then stood, clearly called for a separation and adjudication
of
the special plea read with paragraph 4 of the particulars of claim.
Instead, the Plaintiff caused the Defendant to launch
the application
and then delayed same by serving two notices of amendment in terms of
Rule 28. As stated earlier in this
judgment, the Plaintiff and
her legal representatives were fully aware of the nature of the
Defendant’s objections to the
proposed amendment. Instead
of re-drafting the notice to amend to cure the defects to which they
were alerted, the Plaintiff
elected to serve a second notice to amend
in exactly the same format as the previous notice. The
situation is further aggravated
by the fact that the Plaintiff then
launched a counter-application to,
inter
alia, amend her
particulars of claim and then elected not to challenge the
Defendant’s answers in a replying affidavit.
[60]
The Plaintiff, in her counter-application, also sought an order
declaring that Sharon Wapnick and her firm Tugendhaft Wapnick
Banchetti and Partners are conflicted and are to withdraw as the
Defendant’s attorneys. As stated earlier in this
judgment, there is absolutely no basis for seeking this relief.
In her founding affidavit the Plaintiff, notwithstanding her
personal
first hand knowledge, deliberately made false accusations against the
said attorney and her firm. Once again, the
Plaintiff and her
attorneys were fully aware of Ms Wapnick’s version, relating to
the alleged conflict, long before they
launched the
counter-application. Despite Ms Wapnick placing her version
before the Plaintiff again, this time on oath, the
Plaintiff has not
seen fit to withdraw or retract the dishonest allegations, nor has
she seen fit to tender an apology to the Court
for attempting to
mislead it. Instead the Plaintiff elected to persist with the
counter-application.
[61]
I am of the view that the behaviour of the Plaintiff in opposing the
application and in launching the counter-application constitutes
an
abuse of the Court process and is deserving of this Court’s
censure.
ORDER
[62]
I accordingly grant the following orders:
A.
APPLICATION IN TERMS OF RULE 33(4).
1.
The questions of
law/and or fact contained in paragraph 4 of the Plaintiff’s
particulars of claim (read with paragraph 4 of
the Defendant’s
plea) and paragraphs 1 and 2 of the Defendant’s special plea
under Case No. 13336/2014 are to be determined
separately by the
trial court in terms of Rule 33(4) and prior to any other questions
of law and/fact.
2.
The remaining issues
arising in the action are to be determined, if necessary, after the
final determination of the issues referred
to in 1 above.
B.
COUNTER APPLICATION
1.
The Plaintiff’s
counter-application is dismissed.
C.
COSTS
1.
The Plaintiff, D B is
directed to pay the Defendant’s costs of the Rule 33(4)
application as well as the counter-application.
Such costs are:
(a) to be paid on the scale as between attorney and
client.
(b) to include the costs of two counsel where the
services of two counsel have been engaged.
______________________
KRUGER
J
DATE
OF HEARING: 8 May 2017
DATE
OF JUDGMENT: 15 May 2017
FOR
THE APPLICANT: A Subel SC
N
Becket-Jones
Instructed
by Tugendhaft Wapnick
Banchetti
& Partners
FOR
THE
RESPONDENT: J Julyan SC
P
Jorgensen
Instructed
by Susan Abro