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[2016] ZAFSHC 77
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S v S (347/2015) [2016] ZAFSHC 77 (19 May 2016)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 347/2015
In
the matter between:-
D.
J.
S.
PLAINTIFF
and
A.
E.
S.
DEFENDANT
CORAM:
MOLOI, ADJP
HEARD
ON:
22 APRIL 2016
DELIVERED
ON:
19
MAY 2016
MOLOI,
ADJP
[1]
In this matter the plaintiff and the first defendant are married to
each other out of community of property with the exclusion
of
accrual. The plaintiff instituted divorce proceedings in this court.
The action is defended by the first defendant. After pleading
to the
Summons the first defendant applied to this court to join the second
defendant to the action. The second defendant is a
company of which
the plaintiff is the sole director. The application for joinder was
granted.
[2]
The first defendant filed an amended counterclaim wherein she seeks a
declarator of universal partnership between herself and
the plaintiff
in so far as the assets belonging to the company, the second
defendant, wherein she claims equal share. The first
defendant claims
in her counterclaim that a further company called Orambamba 47 (Edms)
Bpk was registered and was made up of certain
trusts named EDS Trust
and Enslin S. Trust in which she and the plaintiff were equal
shareholders. The latter company also acquired
fixed property.
[3]
The plaintiff took an exception to the certain portions of the
amended counterclaim more specifically to where the first defendant
claims the existence of a
quasi
partnership with
reference to Orambamba 47 (Edms) Bpk on the ground that in law the
concept of a
quasi
partnership is foreign and unknown
and that the parties' trusts in a company offends the provisions of
section 12 of the Trust Property
Control Act No 57 of 1988; that the
plaintiff bought a farm Gottenburg in the name of the second
defendant and that the farm thus
belongs to the Gottenburg
partnership and that a claim relating to the alleged Implement
Partnerships is, in fact, disclosing or
referring to a
stipulatio
alteri
and, if that was the case, the motive could not have been
profit-making for which a partnership can be established, but is
clearly
meant to be for the benefit of third parties, namely the sons
born out of the previous marriages of the parties.
[4]
Upon proper reading of the exceptions it appears that they are based
on legal technicalities than the essence of the first defendant's
claim, viz universal partnership. The concept of universal
partnership is a vexed one and often can properly be resolved by
resorting
to evidence. The exceptions, if properly understood, do not
therefore go to the heart of the first defendant's counterclaim but
for how it is phrased.
[5]
The purpose or object of a pleading is to best inform the opponent
what case to meet with sufficient detail. If the claim is
identifiable and legally recognisable, it is triable and evidence can
fill in the gaps and consequently the cause of action is
disclosed.
An exception on the grounds of not disclosing a cause of action
applies to a situation where, for instance, a claim
is bad in law and
cannot be identified. The purpose of an exception to such a claim is
therefore to dispose of a claim or a portion
thereof expeditiously
without leading unnecessary evidence: Erasmus,
Superior
Court
Practice,
B-152; Miller v Miller
1965
(4) SA 458
(c) at 468;
Barclays Bank
International
Ltd
v
African
Diamond
Exporters
(Pty) Ltd
1976 (1) SA 100
(W) at 1070.
[6]
On reading the counterclaim one can identify the first defendant's
claim based on universal partnership. How that was phrased
and the
diction used may be vague and might embarrass the opponent. To my
mind the best course to take would have been to require
the removal
of the complaint on notice as envisaged in Rule 23 (1). This has,
however, not been done. In the interest of justice
and in fairness to
all the parties, I am of the view that the first defendant be given
an opportunity to remove the cause of the
complaint.
[7]
Consequently the following orders are made:
(a)
The exception is dismissed.
(b)
The first defendant is given twenty (20) days to remove the cause of
the complaint raised against the
relevant paragraphs of her Amended
Counterclaim dated 21 January 2016.
(c)
The costs of the exception shall be
_______________
MOLOI,
ADJP
On
behalf of the plaintiff:
Adv P.A. Van Niekerk S.C
Instructed by
HONEY ATTORNEYS
BLOEMFONTEIN
On
behalf of the defendant:
Adv Zietsman
Instructed by
KRAMER WEIHMANN
& JOUBERT
BLOEMFONTEIN