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[2016] ZAKZPHC 59
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T.M v L.M (4022/16) [2016] ZAKZPHC 59 (20 July 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: 4022/16
DATE: 20 JULY
2016
In
the matter between:
T.
M.
....................................................................................................................
Applicant
And
L.
M.
.......................................................................................................
Respondent
Coram: Koen J
Heard: 24 June
2016
Delivered: 20
July 2016
O
R D E R
The
application is dismissed with costs, such costs to include all costs
previously reserved.
J
U D G M E N T
KOEN
J
INTRODUCTION:
[1]
The Applicant applies for an order that:
‘
(1)
The subpoena
ducus
tecum
[1]
issued on behalf of the Respondent and dated 12 April 2016, served on
Investec Private Bank, be and is hereby declared invalid
and set
aside.
(2)
The Respondent is directed to pay the costs of this Application.’
POINT IN LIMINE:
AUTHENTICATION:
[2]
The Respondent raised as a point
in
limine,
and
argued that the Applicant’s founding
affidavit and her replying affidavit are not properly attested and
authenticated as required
by rule 63.
[3]
The founding affidavit was signed at Nambour, Australia on 26 April
2016. The replying affidavit was signed at Buddina, Australia
on 25
May 2016. In each instance the affidavits were attested by a
Commissioner of Oaths:
(a)
who certified that the Applicant signed the affidavits ‘after
the provisions of the regulation contained in Government
Notice No
1258 published in Government Gazette No R3619 dated 21
st
July 1972 had been complied with’; and
(b)
who
ex facie
the
official stamp affixed below the signature of the ‘Commissioner
of Oaths’ held the office of ‘JUSTICE OF THE
PEACE
(QUALIFIED), DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL’.
[4]
In the final paragraph of the founding affidavit the Applicant states
the following:
‘
29.
I
live some distance from the closest South African High Commissioner
and given the time constraints and the fact that Monday 25
April 2016
is a public holiday in Australia, I will not be able to depose to my
affidavit before such High Commissioner. In the
circumstances I will
depose to my affidavit before a person before whom affidavits are
deposed to in Australia and this will be
certified on my affidavit by
such person. I mention that I have been advised by Estelle de Wet
(her attorney in South Africa) that
in the matter involving R. M., it
was specifically agree by her and the Applicant’s attorney that
the affidavits to which
R. M. may have to depose in those proceedings
could be commissioned in this way.’
[5]
The relevant part of rule 63 of the Uniform Rules of Court provides:
‘
(1)
In this rule, unless inconsistent with the context –
‘
document’
means any deed, contract, power of attorney, affidavit or other
writing, but does not include an affidavit or solemn
or attested
declaration purporting to have been made before an officer prescribed
by section
eight
of
the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act
16 of 1963);
‘
authentication’
means, when applied to a document, the verification of any signature
thereon.
(2)
Any document executed in any place outside the Republic shall be
deemed to be sufficiently authenticated for the purpose of
use in the
Republic if it be duly authenticated at such foreign place by the
signature and seal of office-
(a)
of the head of a South African diplomatic or consular mission or a
person in the administrative or professional division of
the public
service serving at a South African diplomatic, consular or trade
office abroad; or
(b)
of a consul-general, consul, vice-consul or consular agent of the
United Kingdom or any other person acting in any of the
aforementioned
capacities or a pro-consul of the United Kingdom;
(c)
of any Government authority of such foreign place charged with the
authentication of documents under the law of that foreign
country; or
(d)
of any person in such foreign place who shall be shown by a
certificate of any person referred to in paragraph (a), (b), or
(c)
or of any diplomatic or consular officer of such foreign country in
the Republic to be duly authorised to authenticate such
document
under the law of that foreign country; or
(e)
of a notary public in the United Kingdom of great Britain and
Northern Ireland or in Zimbabwe, Lesotho, Botswana or Swaziland
or
(f)
of a commissioned officer of the South African Defence Force as
defined in section
one
of the Defence Act, 1957 (Act 44 of
1957), in the case of a document executed by any person on active
service.
(2A)
Notwithstanding anything in this rule contained, any document
authenticated in accordance with the provisions of the Hague
Convention Abolishing the Requirement of Legalisation for Foreign
Public Documents shall be deemed to be sufficiently authenticated
for
the purpose of use in the Republic where such document emanates from
a country that is a party to the Convention.’
[6]
The attestation of both the founding and replying affidavits in their
original form, did not comply with the provisions of rule
63. After
the Respondent raised the lack of proper authentication, the
Applicant on 10 June 2016 filed copies of her ‘authenticated
founding and replying affidavits.’ Both her founding and
replying affidavits now contain a further endorsement in manuscript
at the end thereof in the following terms:
‘
Resworn
by
T.
M.
this
7
th
June
2016.
I
hereby certify that the Deponent had acknowledged that she knows and
understands the contents of this Affidavit which was signed
and sworn
to before me at KAWANA Queensland on this 7
th
day of June 2016’.
The
affidavits and the Applicant’s signatures are then attested to
by one Alan Charles Parry described as a Notary Public
at KAWANA and
his seal as Notary Public is appended. Below that appears an
‘Apostille’ with an official stamp of the
‘DEPT OF
FOREIGN AFFAIRS AND TRADE: BRISBANE’ certifying the
authenticity of Mr Parry’s signature, the capacity
in which he
signed the document and his seal or stamp.
[7]
By the time the application came to be argued before me the only
remaining issue between the parties in respect of the point
in
limine
was
whether Australia was a member to the Hague Convention as
contemplated by rule 63(2A).
[2]
The parties agreed to place further documentation before me in regard
to this issue.
[8]
I was subsequently advised by the Applicant’s attorney, with
reference to the Hague Convention website at
http://www.hcch.net
that Australia is a member to the Convention. This has now been
accepted by the Respondent’s attorney.
Prima
facie
,
and on what has been produced to me, that conclusion appears correct.
[9]
I however in any event also always have a discretion in terms of the
provisions of rule 63(4) to accept the affidavits as sufficiently
authenticated, even if it not in strict compliance with the
provisions of rule 63, if it shown to my satisfaction ‘to have
been actually signed by the person purporting to have signed such
document.’ To the extent that my conclusion in the preceding
paragraph may be incorrect, I am satisfied on what has been placed
before me that the founding and replying affidavits were properly
attested and signed by the Applicant. Insofar as there might also be
any uncertainty whether the Justices of the Peace who originally
attested the affidavits might or might not have been aware of the
contents of the ‘regulation contained in Government Notice
No
1258 published in Government Gazette No R3619 dated 21
st
July 1972’, I am satisfied that at least by
being ‘resworn’ before the Notary Public, the affidavits
were properly
attested. Nothing further needs therefore to be said
regarding the point
in limine.
Any
costs relating thereto, which should be relatively minimal, should
follow the result of the application.
THE
SUBPOENA
:
[10]
The subpoena sought to be set aside by the Applicant is one issued
out of the Office of the Registrar of this Court on 12 April
2016
under Case No. 8938/2012. Case no 8938/2012
[3]
is the divorce action pending between the Respondent and her
husband.
[4]
The subpoena is
directed to the Manager of the Legal Department of Investec Private
Bank and calls for the production of:
‘
(1)
any and all bank statements;
(2)
together with any and all documents, vouchers, invoices, etc.
relating to any and all transactions thereon, from
01 January 2015
to date; in respect of
(3)
any and all current accounts, cheque accounts, savings accounts, home
loans, credit cards, garage cards, business accounts,
shares or
investments, held in the name of, or under the
effective control of T. M., identity No. [7………],
whether held directly or indirectly through another banking
institution’.
[11]
A similar subpoena was issued and served upon Investec Wealth and
Investment Management (Pty) Limited in response to which
that
institution furnished the Respondent’s attorneys with the
records pertaining to the Applicant’s investment Account
No.
[1……..] ‘for the period January 2015 to date’.
These records were annexed to the Respondent’s
answering
affidavit as an annexure. They reveal that the account had an opening
balance of R5 565 107.00 in January 2015
which balance, as
described by the Respondent, by virtue of a variety of large
transactions involving the present Applicant’s
Investec Private
Bank Account, increased during the course of the next fourteen months
to the point when on 1 April 2016, R21 528 087.00
stood to
the Applicant’s credit in that account alone, in other words
the Applicant increased her investment in that account
during the
course of 2015 and the early part of 2016 by approximately
R16 000 000.00.
[12]
The Respondent is highly suspicious that the sudden increase in the
balance on that account may include funds belonging to
her husband,
to which she may have a valid claim and which are sought to be placed
beyond her reach and possibly the jurisdiction
of the court hearing
the divorce action, by being channelled through the Applicant’s
account. In that regard there is also
currently an anti-dissipation
application brought by the Respondent against
inter
alia
the present Applicant and the
Respondent’s husband which remains pending.
THE
APPLICABLE LEGAL PRINCIPLES
:
[13]
Litigants have a very wide right to subpoena witnesses relevant to a
pending action.
Section 35(1)
of the
Superior Courts Act No. 10 of
2013
provides:
‘
A
party to proceedings before any Superior Court in which the
attendance of witnesses or the production of any document or thing
is
required, may procure the attendance of any witness or the production
of any document or thing in the manner provided for in
the rules of
that court’.
[14]
This power is explained further in rule 38(1)(a) of the Uniform Rules
of Court which authorises any party desiring the attendance
of any
person to give evidence at a trial, to ‘... as of right,
without any prior proceeding whatsoever, sue out of the office
of the
registrar one or more subpoenas for that purpose’. The rule
further provides that
‘
If
any witness has in his possession or control any deed, instrument,
writing or thing which the party requiring his attendance
requires to
be produced in evidence, the subpoena may specify the document or
thing and require a person subpoenaed to produce
it to the court at
the trial’.
[15]
In terms of Rule 38(1)(b) the subpoenaed witness may be required to
hand the subpoenaed material over to the registrar as soon
as
possible unless the witness claims it is privileged. Thereafter
the parties may inspect and copy or transcribe the material
in
question.
[16]
The right to issue a subpoena
duces tecum
as of right, is a
very powerful tool in the hands of a litigant in pursuit of the
truth, who wishes to place all relevant facts
and documents relevant
to a
lis
before a trial court. Not surprisingly then, the
grounds for interfering with that right are circumscribed in
restrictive terms.
Section 36(5)
of the
Superior Courts Act 10 of
2013
provides that any judge of the relevant court may set aside a
subpoena if it appears that:
‘
(a)
(the person subpoenaed) is unable to give any evidence or produce any
book, paper or document which would be relevant to any
issue in such
proceedings;
(b)
such book, paper or document could properly be produced by some other
person; or
(c)
to compel the person concerned to attend would be an abuse of the
process of the court’.
[17]
The grounds listed in
section 36(5)
are not exhaustive. It has been
held that at common law a High Court has an inherent power to set
aside a subpoena if it is satisfied
as a matter of certainty that the
subpoena is unsustainable for example that the witness who has been
subpoenaed will be totally
unable to be of any assistance to the
court
[5]
in the determination of
the issues raised at the trial.
[6]
It may also set aside such a subpoena to protect itself and litigants
against an abuse of its process.
[7]
Hence, if the court is satisfied that a subpoena amounts to an abuse
of process, it should set the subpoena aside.
[8]
An abuse of process occurs ‘where the procedure permitted by
the rules of Court to facilitate the pursuit of the truth are
used
for a purpose extraneous to that object’,
[9]
or where ‘an attempt (is) made to use for ulterior purposes
machinery designed for the better administration of justice.
[10]
[18]
The onus of proof in an application to set aside a subpoena is on the
party alleging such an abuse or any other ground. It
is not an onus
which will lightly be found to have been discharged.
[11]
THE
APPLICANT’S ATTACK ON THE VALIDITY OF THE SUBPOENA
[19]
The Applicant’s attack on the subpoena is on the basis that:
(a)
it seeks to procure evidence which is irrelevant to any issue in the
divorce proceedings; and that
(b)
it constitutes an abuse of the process of the Court.
Her
contentions are summarised in
inter alia
the following
allegations:
‘…
I
am not a party to the litigation and I submit that the documents
which are requested are entirely irrelevant to the dispute as
it
appears from the pleadings, between the Respondent and R. M.. The
information as to my finances is personal and confidential.’
And:
‘
It
is clear to me that the Respondent is on a fishing expedition, and
has no reason to believe that any of the documents subpoenaed
have
any relevance to the case against R. M.;
And:
‘
I
submit that it is clear that what the Respondent is trying to do is
to put undue personal pressure on me and on R. M., and thereby
secure
an advantageous settlement’.
And
lastly:
‘
I
submit that the issuing of the subpoena is an abuse of the process’.
These
grounds shall be considered
seriatim
below.
RELEVANCE
:
[20]
Relevance must be determined with reference to the pleadings and not
extraneously therefrom.
[12]
[21]
Ex facie
the Respondents amended the Particulars of Claim in
the divorce action against her husband, a retired cardiologist, she
inter alia:
(a)
claims maintenance in respect of herself in the sum of R30 000.00
per month together with all medical, dental and allied
expenses,
including but not limited to all costs of hospitalisation, surgical
treatment and prescribed medication; and
(b)
pursues a claim for a redistribution order in terms of
s 7(3)
, read
with
s 7(4)
and
7
(5) of the
Divorce Act No. 70 of 1979
as amended,
that her husband ‘makes payment to her or makes over to her
assets to the value of R10 988 069.50 alternatively
R13 267 164.50 alternatively R8 404 946.00,
alternatively R9 058 990.00 alternatively such amount
or
such portion of the assets of the Defendant as this Honourable Court
may deem just and equitable’.
The
Respondent and her husband were married to each other out of
community of property at Cape Town on 22 December 1968. Their
marriage is therefore one of some 48 years standing and
prima
facie
she should have
prima
facie
prospects of success in a claim
for a redistribution order and possibly maintenance. The Applicant
rightly did not contend to the
contrary.
[22]
The quantum of the redistribution order claimed is, I was advised,
based on a schedule of his assets which Dr M. has made available
to
the Respondent. The completeness and correctness of that schedule
however is in dispute, as is the amount of any redistribution
order.
[22]
In those circumstances the precise value, composition and extent and
whereabouts of the Respondent’s husband’s
estate are all
relevant issues on the pleadings in the divorce action.
[23]
Although the Respondent has called for discovery of all relevant
documents from her husband, which discovery has been followed
up by a
request for further and better discovery in terms of
Rule 35(3)
, her
husband has ‘claimed not to have many of his records within his
possession or under his control.’ Accordingly,
she previously
issued a subpoena
duces tecum
to Investec Private Bank in respect of his records
for the period from July 2015 to the date of the subpoena. She
explains that
she only requested the documents from July 2015 as she
at the stage of issuing the subpoena had not considered and had no
grounds
to suspect that there may be funds removed or hidden by her
husband prior to July 2015. Her attorneys are in the process of
issuing subpoenas to procure her husband’s bank records for the
period also between the date of his original discovery on
16 October
2013 and the end of June 2015.
[24]
I did not understand Mr Stokes SC, on behalf of the Applicant, to
dispute that the extent and whereabouts of the Respondents
husband’s
estate are highly relevant in the divorce action.
[13]
DOES
THE SUBPOENA AMOUNT TO AN ABUSE OF PROCESS?
:
[25]
Mr Stokes, in seeking to discharge the onus upon the Applicant, was
critical of the issue of the subpoena at the following
level:
(a)
He argued that nowhere was there a suggestion that the
funds
resulting in the increase of the Applicant’s Investec
Wealth and Investec account balance could have emanated from the
Respondent’s
husband, put differently, there was no basis to
find that what is in the Applicant’s account is relevant to the
divorce;
(b)
He questioned why there should be a need to subpoena the Applicant’s
records when the Respondent could subpoena her husband’s
bank
records, but had sought to do so only from the period July 2015.
[26]
One must remain mindful that the Respondent bears no onus. The
Respondent however points to the following factors as relevant
considerations to counter the case advanced by the Applicant:
(a)
Until a formal admission was made in the Applicant’s founding
affidavit that she is in a relationship with the Respondent’s
husband, no formal admission of any romantic liaison between them had
previously been made;
(b)
Although the Applicant contends that the relationship between her and
the Respondent’s husband commenced only after the
breakdown of
the marriage between him and the Respondent and did not contribute to
the breakdown, it is clear from email communications,
which are
attached as annexures to the Respondent’s answering affidavit,
that there was an ongoing
romantic relationship between the
Respondent’s husband and the Applicant going back to at least
August 2007;
(c)
The discovery of relevant documents by her husband has been deficient
and his attitude towards producing relevant documents
under his
control has been ‘cagey’ suggesting reluctance to make a
full disclosure on his part;
(d)
Even obtaining access to his bank records remains unhelpful as
‘annotations of transfers out of the account often do not
reveal their destination’ and that ‘the annotations of
the origin of the funds coming into an account are generally
more
detailed and useful in this regard’;
(e)
At the time the application was launched, the Applicant was
pregnant
with a child generally believed, but not yet formally
admitted by
the Applicant, to be that of the Respondent’s
husband. What
had come to light however was that the
Respondent’s husband
had paid money to the Umhlanga Fertility Clinic at a time consistent
with the Applicant’s state
of pregnancy. On a previous occasion
the application was postponed to allow the Applicant more time to
obtain duly authenticated
affidavits, which she was unable to do at
that time apparently because she was then in the final stages of her
pregnancy or had
just given birth to her child. There are also
suggestions
[14]
of the
Respondent’s husband having fathered an older boy with the
Applicant.
(f)
Notwithstanding the above, the Applicant states that she has never
received any funds from the Respondent’s husband into
any of
her bank accounts. In the light of the suspicions harboured, the
objective evidence of payment to the Umhlanga Fertility
Clinic and a
payment made by the Respondent’s husband in the sum of
R176 000.00 for the removal of the Applicant’s
household
goods to Queensland, Australia by Magna Thompson Movers, a total
abdication of paternal responsibility on the part of
the Respondent’s
husband would appear improbable and he could reasonably be expected
to have made payments or contributions
to her;
(g)
The Applicant has simply not explained the sources of all the funds
making up the R21 000 000.00 investments held
in the
Investec Wealth and Investment account.
[27]
The last submission in the preceding paragraph arose from a challenge
issued by the Respondent in the answering affidavit that:
‘
The
simplest way for the Applicant to demonstrate the claimed irrelevance
of the subpoenaed bank records would be to explain the
origin of the
R21 000 00.00 – odd which she had managed to accumulate
(R16 000 000.00 of which she accumulated
in the last year)
in her Investec Wealth Account. This is purely within her
knowledge and entirely within her power to disclose.
Neither in
her attorney’s correspondence, nor in this affidavit to court,
does she make any attempt to do so. I submit that
this suggests an
adverse inference.”
[28]
The Applicant sought to address this challenge in reply. She even
went as far as to annex, as an annexure, a document from
Investec in
respect of her personal account reflecting credits (but not debits)
made to that account from 20 December 2014 to 10
January 2016. There
are however still documents lacking which make it impossible to
perform an audit trail of all funds that went
to the credit of the
Investec Wealth account. On what she has disclosed it would seem that
she had sources of income, such as an
inheritance from her father’s
estate, income from her professional practice as a physiotherapist,
proceeds from the sale
of her practices, and an amount allegedly
received in respect of the sale of a car (to mention a few) which
could have funded the
investments in the Wealth and Investment
account. The origin of funds into the Wealth and Investment
account however appear
in very terse terms with occasional reference
to ‘CR EX PVT BANK’. These would suggest credits
from her private
bank account. However allowing also for a
withdrawal from that account, a balance of some R6 000 000.00
odd still
appears to be unaccounted. Various other alleged
documentary ‘proof of payments’ such as annexures G and H
to
the replying affidavit are undated, generically addressed to ‘To
whom it may concern’ by Investec and only identify
the dates
and the amounts when credits were made to the Wealth and Investment
account No. 1639269 from the Applicant, but without
identifying the
source of those funds. It is surprising, where the Applicant
was prepared to provide a full list of the credits
to her private
account showing that substantial amounts were received which might
have funded the credits to the Wealth and Investment
account, that a
list for the same period of the payments from her private account
showing an accounting for a full balance of R21 000 000.00
odd into the Wealth and Investment Account was not also provided.
[29]
Given that background and the possibility that an investigation of
her private banking records may reveal financial dealings
between
herself and the Respondent’s husband based on their long
standing romantic relationship and him
inter
alia
paying for her goods to be sent
overseas, it is not beyond the bounds of reasonable possibility that
her bank records would be relevant
and could assist in uncovering the
truth in the divorce action.
[30]
The Applicant has not disclosed how much other money she had taken
with her from her personal funds to Australia. Clearly
not all
her funds could have been channelled to and remain invested in South
Africa in the Investec Wealth and Investment account.
She has
apparently bought a house where she is living in Australia, which
presumably would require bond financing. Entry
into Australia
for residence purposes would, at the level of probability, also
require her to have certain funds available. She
has not taken this
court into her confidence in that regard.
[31]
Subpoenaing the Respondents husband’s bank accounts as a way to
determine whether any part of his estate has maybe found
its way into
the Wealth and Investment Account of the Applicant presupposes that
the sums came from his Investec Private account,
or any other account
of the Respondent’s husband known to the Respondent. The
Respondent is specific that she does not know
where all his accounts
are kept. Whether any of his funds from accounts possibly
unknown to the Respondent were transferred
into an account or
accounts of the Applicant is something which the Respondent is
entitled to investigate.
[32]
Under the circumstances I am not persuaded that the basis upon which
the subpoena has been pursued is ‘obviously unsustainable’
[15]
or constitutes an abuse of the process of court. Experience teaches
that it is not uncommon that funds are sometimes hidden in
accounts
of romantic partners of litigants to a divorce action. That might not
have happened in this matter, but it is something
which the
Respondent is entitled to investigate. The Applicant has not
discharged the onus of proof to achieve success in this
application.
THE
RULE 35(12)
NOTICE:
[33]
Mr Hunt SC, on behalf of the Respondent, referred me to a
rule 35(12)
notice calling for the production of various documents referred to in
the Applicant’s affidavits. He submitted that the Applicant’s
response thereto had been inadequate and accordingly, that the
Applicant may not rely on those documents in this application.
[34]
I have a difficulty with the argument that all these documents
requested in the
rule 35(12)
notice were in fact referred to directly
in the affidavits and hence whether any restriction on their use
would apply. In view
of the conclusion which I have reached, I do not
intend considering that aspect any further.
COSTS;
[35]
As regards costs, Mr Stokes argued that if the application was
dismissed the costs should be reserved for determination in
the
divorce action, on the basis that it might emerge at the divorce
trial that the subpoena was unjustified. The Applicant is
however not
a party to the divorce action. Mr Hunt in any event further
argued that the issue before me is one whether the
Respondent was
entitled to use the subpoena
duces tecum
procedure available to her,
irrespective of the success or otherwise that might flow from having
such documents produced.
I agree with the submission by Mr
Hunt. I am not inclined to reserve the costs for the divorce action.
[36]
The matter was adjourned on the 4
th
May 2016 when it was first came before this court
and was opposed, to the opposed roll on 3 June 2016. The issue of a
lack of proper
authentication of the founding affidavit was raised
right at the outset. The replying affidavit was signed on the 25 May
2016.
The matter adjourned by consent on the 3
rd
of June 2016 as the Applicant was still attending
to the authentication process which she could not complete apparently
due to her
being in the final stages of her pregnancy or having just
given birth. As much as one has empathy for the Applicant being
then in the last stage of her pregnancy or possibly just having given
birth, there seems to be no reason why the proper authentication
of
the founding affidavit could have been attended to during the
intervening period before her confinement. Certainly none has
been
suggested. It seems to me therefore that the costs of the adjournment
on the 3 June 2016 should follow the result, indeed
that all costs
previously reserved should follow the result. The Respondent has been
successful. The Applicant should therefore
pay her costs.
[37]
The application is accordingly dismissed with costs, such costs to
include all costs previously reserved.
KOEN
J
Appearances
COUNCIL
FOR APPLICANT: A STOKES SC
INSTRUCTED
BY: SHEPSTONE AND WYLIE
REF.:
EDW/sg/MAT125083.1
Tel.:
031 575 7000
COUNCIL
FOR RESPONDENT: C P HUNT SC
INSTRUCTED
BY: BENITA ARDENBAUM ATTORNEYS
REF.:
B.Ardenbaum
Tel.:
031 202 2490
[1]
It should read
‘
duces
tecum’
.
[2]
It seems that it
might not have been one of the original signatories thereto.
[3]
Hereinafter simply
referred to as the ‘divorce action’ or ‘the
divorce’.
[4]
Hereinafter
referred to as ‘the Respondent’s husband’, or Dr
M.’.
[5]
That however
largely corresponds to
section 36(5)(a)
of the Superior Court’s
Act 10 of 2013.
[6]
Sher
v Sadowitz
1970
(1) SA 193
(C) at 195E-F.
[7]
That corresponds to
section 36(5)(c)
of the Superior Court’s Act.
[8]
Beinash
v Wixley
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA) at 734J – 735A and 743D and
South
African Coaters (Pty) Limited v St. Paul Insurance Co
(SA)
Ltd
2007 (6) SA 628
(D) paras 18 – 20.
[9]
Beinash
(supra)
at
734 F-G.
[10]
Hudson
v Hudson
1927
AD 259
at 268 and
South
African Coaters (supra)
para
19.
[11]
South
African Coaters (supra)
para
20.
[12]
Swissborough
Diamond Mines (Pty) Limited v Government of the Republic of South
Africa
1999
(2) SA 279
(T) at 310G to 311A. That case however dealt with
discovery in terms of
Rule 35(3)
and the complaint was founded to be
‘that what the Plaintiff have endeavoured to achieve …
is to foist upon the
First Defendant and this Court their definition
of “relevant issues”’. See also
Scott
v Scott
[2006]
JOL 17813
(C) at page 10.
[13]
There
was initially a suggestion by the Applicant that in the absence of a
claim in the divorce action against her claiming a
dissipation and a
repayment from her, for instance under the
actio
Pauliana,
that
the Applicant’s bank records could not be relevant. That
contention was rightly in my view not persisted with.
[14]
These
however remain suspicions.
[15]
Sher’s
case
supra page 196H and page 197A.