About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 25
|
|
O.A.J v K.J (67591/2013) [2016] ZAGPPHC 25 (22 January 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
22/01/16
CASE
NO: 67591/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
O
A
J PLAINTIFF
APPLICANT
IN THE RULE 33(4)
and
K
J DEFENDANT
RESPONDENT
IN THE RULE 33(4)
JUDGMENT
A.M.L.
PHATUDI J
INTRODUCTION
[1]
The plaintiff is the applicant in the application brought in terms of
Rule 33(4) of the Uniform Rules of this Court for separation
of the
granting of a final decree of divorce from the issues pertaining to
the determination of the accrual of the parties' estates
and the
defendant's maintenance claim. The defendant is the respondent and
opposes the application. For ease of reference, I will
refer the
parties as the plaintiff and defendant respectively. This court is
further required to consider the opposed plaintiff's
application for
amendment of the notice of motion. The reserved and wasted costs
occasioned by previous postponements are as well
issues to be dealt
with.
[2]
I digress to mention that at the commencement of the hearing, parties
agreed to argue on all applications before court notwithstanding
the
defendant's
in limine
point raised in respect of the
plaintiff's intended notice of amendment. They both agreed that there
will be no need for determination
of the cut-off date for purposes of
quantifying the accrual in the parties' estates if I find in favour
of the defendant.
BACKGROUND
[3]
The parties married each other out of community of property, subject
to the accrual system regulated in terms of Chapter 1 of
the
Matrimonial Property Act 88 of 1984(MPA). The marriage still
subsists. There are no children born of the marriage. It is alleged
that their marriage reached a state of disintegration with no
reasonable prospects of restoration of a normal marriage
relationship.
The breakdown of the marriage prompted the plaintiff to
cause issue of summons against the defendant. The trial was scheduled
for
28 August 2015.
[4]
On the 14 August 2015, the defendant applied for the postponement of
the trial. The plaintiff opposed the application and countered
with
the applications for separation of issues in terms of Rule 33 (4).
[5]
On the 28 August 2015 the parties appeared before the Deputy Judge
President who ordered:
‘
1.
The matter be and is hereby postponed
sine
die.
2
The costs are reserved
3
Wasted costs of 28 August 2015 and separation application to be,
argued on opposed motion roll
[6]
On the 17 September 2015 the plaintiff caused issue of a notice of
amendment with which he intended to introduce a new prayer
to read:
'That
it be declared that the date for the determination of the accrual in
the parties' estates is the date of
litis contestatio
being 20
May 2014, alternatively that the date for the determination of the
accrual in the parties' estates is on the granting of
a final decree
of divorce' .....(prayer as to costs omitted)
[7]
The Defendant objected to the plaintiff's intent to amend the notice
of motion and applied that same be struck out alternatively
that it
be disregarded.
[8]
Considering how these issues unfolded, it is clear that the issues to
be determined are:
1.
Whether the plaintiff's notice of amendment to the notice of motion
be struck out or not
2.
Whether the granting of a final decree of divorce should be separated
from the determination of the accrual of the parties' estates
and the
defendant's maintenance as envisaged in terms of Rule 33 (4) and
3.
Who should be mulcted with costs of this application including the
reserved and wasted costs occasioned by the postponed of 28
August
2015?
[9]
I find it inevitable to first deal with the defendant's point in
limine;
being to struck-out the plaintiff's notice to amend
his notice of motion.
THE
PLAINTIFF'S AMENDMENT TO THE NOTICE OF MOTION:
[10]
Rule 28 of the Uniform Rules of this Court regulates amendments to
pleadings and documents. The rule stipulates:
'(1)
Any party desiring to amend any pleading or document other than a
sworn statement, filed in connection with any proceedings,
shall
notify all other parties of his intention to amend and shall furnish
particulars of amendment.
(2)
The notice referred to in subrule (1) shall state that unless written
objection to the proposed amendment is delivered within
10 days of
delivery of the notice, the amendment will be effected
(3)
An objection to a proposed amendment shall clearly and concisely
state the grounds upon which the objection is founded.
(4)
If an objection which complies with subrule (3) is delivered within
the period referred to in subrule (2), the party wishing
to amend
may, within 10 days, lodge an application for leave to amend.
(5)
If no objection is delivered as contemplated in subrule (4), every
party who received notice of the proposed amendment shall
be deemed
to have consented to the amendment and the party who gave notice of
the proposed amendment may, within 10 days of the
expiration of the
period mentioned in subrule (2), effect the amendment as contemplated
in subrule (7)...
[11]
I already have indicated that on 17 September 2015, the plaintiff
caused issue of what he termed "Notice of amendment".
The
notice stated that the "plaintiff ... intends, at the hearing of
his counter application, to apply for an amendment thereto
. . . by
the introduction of a new prayer 3 . . . "
[12]
On the 30 September 2015 the defendant objected to the proposed
amendment. The defendant stated among others that the 'proposed
amendment does not accord with the rules of court. ' The defendant
objected to the amendment within specified period prescribed
in terms
of rule 28 (2). The plaintiff was expected to lodge an application
for leave to amend. The application for leave to amend
ought to have
complied with the provisions of rules 6(1)
[1]
and subrule (5) (a)
[2]
and
to follow the procedure prescribe in terms of the rules.
[13]
The plaintiff's application for amendment is neither an application
for leave to amend as envisaged in terms of rule 28(4)
nor rule
28(10).
[3]
The application is
further non-compliant with the provisions of both rules 6(1) and rule
6(5) (a) in that the notice is neither
supported by an affidavit nor
is as near as it may be in accordance with Form
2(a)
of the
First Schedule.
[14]
Considering the plaintiff's non-compliant with the Uniform Rules of
this Court, I am of the view that the intended amendment
stands to be
struck out. The issue sought to be introduced by the intended
amendment will thus not be dealt with. This brings me
to the second
issue to be determined.
WHETHER
THE GRANTING OR NOT OF A FINAL DECREE OF DIVORCE SHOULD BE
SEPARATED FROM THE DETERMINATION OF THE ACCRUAL OF
THE PARTIES'
ESTATES AND THE DEFENDANT'S MAINTENANCE AS ENVISAGED IN TERMS OF RULE
33 (4)
[15]
The relief sought in the plaintiff's notice of motion in its
unamended form is formulated as follows:
'1.
That the issues pertaining to the granting of a final decree of
divorce be separated from the issues pertaining to the determination
of the accrual and the defendant's maintenance claim and these issues
be adjudicated upon separately
2.
The above Honourable Court to hear evidence pertaining to the
granting of a final decree of divorce, grant a final decree of
divorce and that the remaining issues be postponed sine die.
3.
The defendant to pay the costs of the application for postponement
and the application for separation of issues and these costs
to be
deducted from the amount owed to the defendant by plaintiff when the
accrual has been determined.
4
. . . .
[16]
Rule 33 (4) provides that
'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 in such 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.
[17]
The court has, in terms of the Rule and the practice manual of this
division,
[4]
has the discretion
to direct the disposal of any question of either of law or fact in
such manners as it may deem fit
unless
it appears that the
question cannot
conveniently
be decided separately.
[18]
The plaintiff contends that the granting of a decree of divorce
separately from quantification of the defendant's maintenance
and the
accrual of the parties' estates will be convenient to both the court
and the parties. The plaintiff refers to CC
v CM 2014(2) SA 430
(GJ)
where the court held that:
'[39]
The irretrievable breakdown of a marriage is a question of law or
fact which may conveniently be decided separately from any
other
question because a court may order that all further proceedings be
stayed until such question has been disposed of'
[19]
It is common cause from the reading of the plaintiff's particulars of
claim
[5]
and the defendant's
plea
[6]
that the marriage
between parties has broken down irretrievably with no reasonable
prospects of restoration of a normal marriage
relationship between
them. The only issue contested is the reason(s) that caused the
breakdown of the marriage. The reason(s) that
cause the breakdown of
the marriage is (are), in my view,
facta
probantia
[7]
to irretrievability
of the marriage.
[8]
When a
litigating party proves that a fact in issue has been proven on a
balance of probabilities, then such a party may be granted
what
he/she prays for. Facts relevant to the facts in issue are only
relevant to substantiate the facts in issue. I cannot
agree
more with the plaintiff's contention in reliance with the findings in
CC v CM
[9]
that a court does not
have discretion as to whether a decree of divorce should be granted
or not, it has to grant same.
[10]
The provisions of
section 4
of the
Divorce Act 70 of 1979
[11]
have been complied with.
[20]
Seeing that the parties' marriage was subjected to accrual system
regulated in terms of Matrimonial Properties Act 88 of 1984,
the
spouse whose estate shows no accrual or a smaller accrual has a claim
against the other spouse' s estate at the dissolution
of a
marriage.
[12]
1t is trite law
that a marriage may [only] be dissolved by a court by decree of
divorce if not by death.
[21]
It is worth mentioning that the plaintiff further submits that the
separation of issues will give direction to determination
of the
"cut-off' date for purposes of quantifying the parties' estates
and the defendant's maintenance. The defendant denies
that separation
will be convenient both to the court and the parties on the basis
that the defendant will be prejudiced by duplication
of evidence
especially when determining the amount payable to the defendant's
maintenance. Emphasis is put on the reasons alleged
in the defendant'
s plea as being the one that contributed to the breakdown of the
marriage.
[22]
It is clear from the readings of the provisions of Rule 33 (4) that
separations of a question of either law or fact may be
decided
conveniently either before any evidence is led or separately from any
question that may have been raised by the court or
on the application
by any party. The question to be answered is whether the issues
raised by the plaintiff will conveniently be
decided separately. Put
differently, can the granting of a decree of divorce be conveniently
decided separate from the determination
of accrual of the parties'
estates?
[23]
The plaintiff is an attorney at law, and practicing as such for his
own account. The defendant avers that the plaintiff's practice
is an
extremely lucrative one due to its specialty in medical negligence.
The defendant further states that '[she has] personal
knowledge of
the extent of his practice as my brother, mother and I were involved
in the practice until he terminated our services...'The
defendant had
already requested through her attorneys, financial records informing
of his practice because she regarded such information
essential for
the purposes of determining as to whether the plaintiff estate would
show no or smaller accrual than hers. It must
be borne in mind that
the plaintiff alleged in his particulars of claim that his estate
will show a lesser accrual than the estate
of the defendant upon date
of dissolution of the marriage... alternatively the
estate
of the plaintiff has shown no accrual.
[13]
[24]
What is required to be determined is whether the granting of a decree
of divorce "may conveniently be decided separately"
from
the determination of the parties' estates with a view to quantify as
to which of the parties' estates has shown no or smaller
accrual than
the other. The court is thus obliged to order separation of issues
unless it appears that the issues cannot conveniently
be decided
separately. In considering the question of convenience, a court must
have regard to (i) its convenience; (ii) the convenience
of the
parties and (iii) the possible prejudice either party may suffer if
separation is granted. The word "convenient"
as used in
this context, denote appropriateness considering all advantages and
disadvantages that may prejudice any of the parties.
The onus is
however on the defendant to satisfy the court that the separation
should not be granted.
[25]
It is common cause if not seriously disputed that the parties'
marriage is irretrievably broken down with no prospects of
restoration of a normal marriage relationship. It appears that
prolonging the parties' litigation or keeping them married to each
other where there is no marriage is tantamount to keeping parties
shackled to a dead marriage. Their marital road has reached a
dead
end. Parties' lives must continue. Mokgoatlheng J penned in CC v CM
that '[i]t is inappropriate for a party to an apparently
irretrievably broken down marriage to oppose the separation of issues
in a divorce action for the sole purpose of gaining a tactical
advantage...'I am of the view that separation will be in the
advantage of both parties.
[26]
The defendant submits that the plaintiff failed to disclose the net
value of his estate notwithstanding an umpteenth correspondence
and
notices with which he was requested to do. The defendant further
submits that separation will prejudice her in that she will
have to
lead evidence twice. I do not agree. I further do not agree that the
plaintiff's non-corporative behavior of not disclosing
his financials
will prejudice the defendant. I however agree with the defendant that
the determination of spousal maintenance depends
on among others, the
parties' prospective means. The parties' prospective means has not
been determined. They are however, determinable.
Submissions have
been made in the Rule 43 application of which judgment was still
outstanding as at the hearing of this application.
[27]
I cannot agree more with the defendant' s counsel submission that the
appointment of an expert in order to evaluate the parties'
estates
can only take place once a decree of divorce is granted. Expects to
be appointed will have a "cut-off" date in
evaluating the
parties' estates. In fact the defendant will have a vested right
which is said to accrue and acquired upon dissolution
of the
marriage. A marriage is dissolved when a decree of divorce is
granted. The accrual is determined by the amount which an
estate
exceeds its commencement value on dissolution of the marriage. It
will in my view, be convenient to order separation of
the granting of
a decree of divorce from the determination of accrual and the spousal
maintenance.
COSTS
[28]
It is trite law that costs follow the event. The defendant succeeds
with her opposition to the amendment of the plaintiff's
notice of
motion and entitled to costs occasioned thereby.
[29]
On 28 August 2015, the Deputy Judge President granted postponement of
the trial at the instance and application by the defendant.
The
general rule is that he who seeks indulgence must pay the costs. The
defendant sought indulgence and must pay the costs occasioned
by
postponement
[30]
With regard to the costs of this application, the plaintiff succeeds
and is thus entitled to costs.
[31]
I, in the result, make the following order
1. It is ordered that the
granting of a final decree of divorce is hereby separated in terms of
Rule 33(4) from the issues pertaining
to the determination of the
accrual and the defendant's maintenance.
2. The determination of
the accrual and the defendant's maintenance are postponed sine die
3. The plaintiff is
ordered to pay the defendant costs occasioned by the amendment of
notice of motion application.
4. The defendant is
ordered to pay the costs of the application for postponement reserved
on the 28 August 2015 and the costs of
the application for separation
of issues. These costs are to be deducted from the amount owed to the
defendant by the plaintiff
when the accrual has been determined.
_________________________
AML
PHATUDI
JUDGE
OF THE HIGH COURT
Heard
on
: 05 November 2015
For
the Plaintiff
: Adv. DA Smith SC
Instructed
by
: Schoemans Attorneys
For
the Defendant
: Adv. LC Haupt
Instructed
by
: Adams & Adams
Date
of Judgment
15 December 2015
[1]
Rule 6 (1) Save where proceedings by way of petition are prescribed
by law, every application shall be brought on notice of motion
supported by an affidavit as to the facts upon which the applicant
relies for relief.
[2]
Rule 6 (5) (a) Every application other than one brought ex parte
shall be brought on notice of motion as near as may be in accordance
with Form 2(a) of the First Schedule and true copies of the notice
and all annexures thereto, shall be served upon every party
to whom
notice thereof is to be given ...
[3]
Rule 28(10) The Court may, notwithstanding anything to the contrary
in this rule, at any stage before judgment grant leave to
amend any
pleading or document on such other terms as to costs or other
matters as it deems fit.
[4]
Erasmus: Superior Court Practice: Gauteng Division of the High
Court, Pretoria: Practice Manual- Clause 3.5.4: Page H2-22: The
court may authorise separation of merits and quantum in accordance
with rule 33(4) if it is convenient and the quantum is not
ready to
be dealt with.
[5]
Page 4:Pleadings Bundle: Plaintiff's particulars of claim: Paragraph
6:
[6]
Page 16: Pleadings Bundle: Defendant's Plea: Paragraph 6.
[7]
Fact(s) relevant to the fact in issue
[8]
Facta Probanda: Fact(s} in issue
[9]
Op Cit
[10]
See: Levy v Levy 1991(3}SA614(A)
[11]
Section 4(1) provides: A court may grant a decree of divorce on the
ground of the irretrievable break-down of a marriage if it
is
satisfied that the marriage relationship between the parties to the
marriage has reached such a state of disintegration that
there is no
reasonable prospect of the restoration of a normal marriage
relationship between them.
[12]
Section 3 provides:
(1)
At the dissolution of a marriage subject to the accrual system, by
divorce or by the death of one or both of the spouses,
the spouse
whose estate shows no accrual or a smaller accrual than the estate
of the other spouse, or his [her] estate if he[she]
is deceased,
acquires a claim against the other spouse or his[her] estate for an
amount equal to half of the difference between
the accrual of the
respective estates of the spouses.
(2)
Subject to the provisions of section 8(1), a claim in terms of
subsection(l) arises at the dissolution of the marriage and
the
right of a spouse to share in terms of this Act in the accrual of
the estate of the other spouse is during the subsistence
of the
marriage not transferable or liable to attachment, and does not form
part of the insolvent estate of a spouse
[13]
Pleadings Bundle: Particulars of claim: Paragraph 7.4