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 812
|
|
W v W (13072/2015) [2016] ZAGPPHC 812 (19 August 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
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 13072/2015
Reportable:
No
Of
interest to other judges: No
Revised.
19/8/2016
W, P
D PLAINTIFF
AND
W,
I DEFENDANT
JUDGMENT
THOBANE
AJ,
Introduction
[1]
The parties in this matter were married to each other on 13 March
1993 at Klerksdorp out of community of property. For convenience
the
parties will be referred to as they appear in the main action. They
concluded an antenuptial contract in terms of which the
accrual
system is applicable to their marriage. The marriage still subsists.
According to the pleadings, there are no children
born of the
marriage. It is common cause that their marriage has broken down
irretrievably and that there are no prospects of salvaging
it. The
divorce matter was enrolled to proceed to trial on 15 August 2016.
Background
[2]
On 22 June 2016 the defendant's sister launched an urgent application
for appointment of a
curatrix ad /item
for purposes of
representing the defendant in the divorce action as well as
investigating whether the defendant is capable managing
her own
affairs and further return a report to court whether appointment of
a
curator bonis or curator personam
is advisable. On 28
June 2016 Prinsloo J, granted an order in the following terms;
1. That Advocate Nadine Erasmus, an advocate of the High
Court, be appointed as
curatrix ad /item
to the patient;
2. That the
curatrix ad /item
be awarded the
following powers and duties;
2.1.
To ratify the actions taken by the patient and her attorneys in
respect of all procedures relating to the divorce action;
2.2.
To instruct attorneys and counsel to proceed with the said action and
to prosecute it to finality;
2.3.
To sign all documents necessary for the institution and prosecution
of the action;
2.4.
To settle the action if so advised subject to the approval of a Judge
(in chambers) of the above Honourable Court;
2.5.
To make recommendations on protection of any payments made to the
patient as a result of the marriage between the parties or
the
appointment of a
curator bonis
or trustee to handle the estate
as a whole and/or monies on behalf of the patient; and
2.6.
The right to appoint, at her discretion, an independent psychologist,
and/or any other expert as may be necessary, to evaluate
the patient
in respect of the divorce action;
3. That the
curator ad litem
investigate the
question of whether the patient is capable of managing her own
affairs and to report to the court on this question;
4. That the
curatrix ad /item
is also requested
to investigate the question of whether a curator bonis should be
appointed to the patient;
5. That the
curatrix ad /item
is also requested
to investigate the question of whether a
curator personam
should
be appointed to the patient;
6. That the costs of this application, as between
attorney and client, including the costs of the application for the
appointment
and the fees of the
curatrix ad /item
appointed to
represent the patient, shall be paid out of the patient's estate; and
7. That prayers 6 and 7 are postponed sine die.
[3]
The defendant has brought a substantive application for a
postponement. The application for a postponement is opposed. The
plaintiff for his part, launched a counter application in terms of
which a decree of divorce is sought as well as effecting accrual
in
terms of a draft order that the plaintiff attached to the
application. The plaintiff further sought an order postponing the
defendant's claim for maintenance as well as costs. In essence, the
plaintiff is seeking a separation of issues in terms of Rule
33(4) of
the Uniform Rules of this Court.
APPLICATION
FOR A POSTPONEMENT
[4]
The defendant's legal representative deposed to the affidavit in
support of an application for a postponement. In it is listed
a brief
history of the matter as well as circumstances leading up to the
appointment of the
curatrix ad /item
as well as efforts made,
since the appointment, to consult with the defendant. The defendant's
attorney states that after the
curatrix ad /item
took office
there was a lengthy consultation between her as well as the
defendant. Following this consultation the
curatrix ad /item
advised that an Industrial Psychologist be appointed. Subsequent
to this and in preparation of the trial it became clear to the legal
representatives that the trial would not be able to proceed on 15
August 2016. The plaintiffs legal representatives were advised
of the
difficulties on 25 and 27 July 2016. A pre-trial took place on 5
August 2016 but still the matter could not be settled.
The pre-trial
minute reflect the fact that it was conveyed to the plaintiffs legal
representatives that they were unable to obtain
instructions from the
defendant and that as a consequence they were not ready to proceed
with the trial.
[5] The
basis for seeking to have the matter postponed is the following;
5.1. the
curatrix ad /item
has been in office for
a period of 6 weeks therefore there has not been sufficient time to
finalize her investigation and prepare
a report;
5.2. the
curatrix ad !item
has not been able to
appoint an Industrial Psychologist, owing to her recent appointment,
who would be available to testify at the
trial of the matter, which
was imminent;
5.3. the
curatrix ad /item
has a concern about
the functionality of the defendant, specifically whether she would be
able to manage her own affairs.
5.4. that there is a dispute with regard to the
valuation of assets in the estate and the
curatrix ad item
has
not had insight into discovered documents to consider settlement
proposals as well as the calculation of accrual.
5.5. that although experts advise that speedy
finalization of the divorce will benefit the defendant's emotional
wellbeing, doing
so in circumstances where there is no proper
consultation will prejudice the defendant.
[6] The
plaintiff opposes the application on the basis that it is ill
conceived and ill advised for the following reasons;
6.1. that the experts who treat the defendant are of the
opinion that the divorce should be finalized as soon as possible, in
that
a delay would be prejudicial to her. It is therefore argued that
the request for a postponement is in conflict with the
defendant's
own expert advice, which fact is also confirmed by the
defendant's legal representative in a letter dated 1 June 2016;
6.2. that an Industrial Psychologist has already
pronounced that the living conditions of the defendant were
detrimental to
her health. The conditions related to the fact
that she was using alcohol while taking strong anti depressant
medication, staying
on her own and her inability to drive.
6.3. that there was a tender in terms of which the
interests of the defendant in so far as the accrual is concerned,
were catered
for.
6.4. lastly, it was argued that the correct basis for
calculating accrual was as per the methodology of the plaintiff. In
the end
it was disputed that accrual as calculated by the plaintiff's
legal representative, was incorrect.
[7]
In
Myburgh Transport v Botha tla SA Truck Bodies 1991(3) SA 310
(NmSC) at page 314F-315J
is set out the relevant legal
principles applicable in considering an application for a
postponement of a trial. Mohamed AJA (as
he then was), stated it
succinctly as follows:-
"1. The trial Judge has
a
discretion as
to whether an application for
a
postponement should be granted
or refused
(R v Zackey
1945 AD 505).
2. That discretion must be exercised judicially. It
should not be exercised capriciously or upon any wrong principle,
but for substantial reasons.
(R v Zackey
(supra);
Madnitsky v Rosenberg
1949 (2) SA 392
(A) at 398
-
9;
Joshua v Joshua
1961 (1) SA 455
(GW) at 457D.) H
3.
...
4.
...
5.
A Court should be slow to refuse
a
postponement where the true reason for
a
party's
non-preparedness has been fully explained, where his unreadiness to
proceed is not due to delaying tactics and where justice
demands
that
he should have further time for the purpose of
presenting his case.
Madnitsky v Rosenberg
(supra
at 398
-
9).
6. An application for
a
postponement must be
made timeously, as soon as the circumstances which might justify such
an application become known to the applicant.
Greyvenstein
v Neethling
1952 (1) SA 463
(C).
Where, however,
fundamental fairness and justice justifies
a
postponement, the Court may in an
appropriate case allow
such an application for postponement, even if the application was not
so timeously made.
Greyvenstein v Neethling
(supra
at 467F).
7.
An application for postponement must always be
bona
fide and not used simply as
a
tactical manoeuver
for the purposes of obtaining an advantage to which the applicant is
not legitimately entitled.
8.
Considerations of prejudice will
ordinarily constitute the dominant component of the total
structure in
terms of which the discretion of
a
Court will be
exercised. What the Court has primarily to consider is whether any
prejudice caused by
a
postponement to the adversary
of the applicant for
a
postponement can fairly be compensated
by an appropriate order of costs or any
other ancillary
mechanisms.
(Herbstein and Van Winsen The Civil Practice of
the Superior Courts in South Africa 3rd ed at 453.)
9. The Court should weigh the prejudice which will be
caused to the respondent in such an application if the postponement
is granted
against the prejudice which will be caused to the
applicant if it is not.
10. Where the applicant for
a
postponement
has not made his application timeously, or is otherwise to
blame with respect to the procedure which he has followed,
but
justice nevertheless justifies
a
postponement in the
particular circumstances of
a
case, the Court in its
discretion might allow the postponement but direct the applicant
in
a
suitable case to pay the wasted costs of
the
respondent occasioned to such
a
respondent on the
scale
of attorney and client. Such an applicant might
even be
directed to pay the costs of his adversary before he is allowed to
proceed with his action or defence in the action, as
the case may be.
Van Dyk v Conradie and Another
1963 (2) SA 413
(CJ
at 418; Tarry
& Co
Ltd v
Matatiele Municipality
1965
(3)
SA 131
(E)
at 137.
"
[8]
I am of the view that good cause has been shown for the interference
with the plaintiffs procedural right to proceed with the
matter when
weighed against the general interest of justice, for the following
reasons;
8.1. there is no history of undue delay in the matter
giving rise to prejudice as this is the first application for a
postponement.
I pause to indicate that Iwas addressed by both sides
about prejudice. It was argued that the defendant seeks to gain an
advantage
in circumstances where the marriage between the parties was
dead. I will deal with prejudice when considering the application for
a separation.
8.2. at the pre-trial of 5 August 2016, the defendant
stated that trial preparation was hampered by the fact that the
process of
establishing capabilities of the defendant were still
underway and that as a result they were not ready to proceed with the
trial.
8.3. lastly and most importantly, the
curatrix
is
clearly in no position to perform her functions owing to the
condition of the defendant who is unable to give instructions. It
is
my view that the defendant has fully disclosed reasons for not being
ready to proceed with the trial. I do not believe that
the
application for a postponement is a ploy to delay finalization of the
divorce.
APPLICATION
FOR SEPARATION
The
plaintiff's submissions
[8]
Counsel for the plaintiff asked this court to separate issues. The
relevant parts of the draft order the plaintiff seeks are
couched as
follows:-
"1………………
2. A decree of divorce is granted;
3. An order is granted that an amount equal to half the
difference of the accrual in the respective estates of the plaintiff
and
defendant, be paid to the defendant's, in accordance with the
provisions of Chapter 1 of the
Matrimonial Property Act 88 of 1984
;
4. The following disputes are postponed sine die;
4.1. the defendant's claim for maintenance with
reference to prayers 5 and 6 of the counterclaim;
2.2. Costs with reference to prayers 5 of the
particulars of claim and 7 of the counterclaim.
5. ……………………………..
I
refrain from repeating paragraphs 5 through to paragraph 12 of the
draft order save for stating that it deals with; calculation
of
accrual from the plaintiffs point of view, the appointment of a
referee in the event the parties can not agree on the accrual
as well
as the terms of reference of the referee, termination of joint
ownership of immovable properties as well as how the proceeds
from
the disposal are to be dealt with, reservation of rights with regards
to the amendment of pleadings and lastly that the defendant
be liable
for payment of costs of the separation.
[9]
The court was referred to various decisions in support of the
contention that a separation was not only competent but that it
should be granted. The plaintiff contends that the court is obliged
to grant a separation unless it is found that the issues cannot
be
conveniently separated. It is apposite to state what Rule 33(4) of
the Uniform Rules of Court provides;
"(4) If, in any pending action, it appears to
the court mero motu
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."
[10]
The plaintiff is of the view that the court should follow
CC v
CM 2014(2) SA 430 (GJ)
which was also cited with approval in
Joubert v Joubert (6759112013) [2016] ZAGPPHC
25
(22 January 2016).
It is not in dispute
that the marriage between the parties has broken down irretrievably
and is without prospects of restoration.
Plaintiff submits that the
court in the circumstances has no discretion but to grant the decree.
This is so, it was submitted,
because the only contentious issue is
spousal maintenance and costs.
[11]
It was further submitted that prejudice is manifest in the fact that
the plaintiff should not be made to remain a party to
a dead
marriage. He has found new love and would like a clean break from his
relationship with the defendant so as to move on and
have new
beginnings. In making the submission plaintiff relied heavily on what
was said by Mokgoatlheng J,
inter alia
in
CC v MM
(supra),
namely;
"[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. Where it has been
shown that
a
marriage
has
irretrievably broken down without prospects of
a
reconciliation,
a
court does not have
a
discretion
as
to whether
a
decree of divorce
should be granted or not, it
has
to grant
same.
By
extension of logic and parity of reasoning
a
separation order
should be granted where
a
marriage in fact, substance and law
appears to have irretrievably broken down. See
Levy v Levy
1991 (3)
SA 604
(A) at 621D – E
and 625E - F; Schwarz v Schwartz
[1984] ZASCA 79
;
1984 (4) SA 467
(A).
.......................................
[41] It is inappropriate for
a
party to an
apparently broken down marriage to oppose the separation of issues in
a
divorce action for the sole purpose of gaining
a
tactical advantage in order to secure
a
more favorable s
7(3)
patrimony all redistribution award, or to use the
perpetuation of what seemingly appears to be an irretrievably broken
down marriage
as
a
leverage for tactical reasons to pre-empt
the dissolution of such marriage for ulterior motives."
[12]
It was pointed out that the defendant has failed to bring expert
evidence about the impact of the pending divorce on her. It
was
further pointed out that despite being appointed on 28 June 2016, six
weeks, the curatrix has failed to make any progress while
the
plaintiff's life has stagnated.
[13]
The plaintiff further made extensive submissions based on rule 34
tender made to the defendant. Further reference was made
to an offer
made "with prejudice". In relation to the disclosure of the
tender, I will not take it further than stating
that litigating in
this manner is not helpful.
Defendant's
submissions
[14]
The defendant submitted that on a proper interpretation of
section 7
(2) and
7
(3) of the
Divorce Act 70 of 1979
, a separation is not
competent in law. The section reads as follows:-
"7. Division of assets
and
maintenance of parties
(1)
A court granting
a
decree
of divorce may in accordance with
a
written agreement between
the parties make an order with regard to the division of the assets
of the
parties or the payment of maintenance by the one party
to the other.
(2)
In the absence of an order
made in terms of subsection
with regard to the payment of
maintenance by the one party to the other, the court
may,
having
regard to
the existing or prospective means of each of the
parties, their respective earning capacities, financial needs and
obligations,
the age of each of the parties, the duration of the
marriage, the standard of living of the parties prior to the divorce,
their
conduct in so far as it may be relevant to the break-down of
the marriage, an order in terms of subsection (3) and any other
factor
which in the opinion of the court should be taken into
account, make an order which the court finds just in respect of the
payment
of maintenance by the one party to the other for any period
until the death or remarriage of the party in whose favour the order
is given, whichever event may first occur.
(3)
A court granting
a
decree
of divorce in respect of a marriage out of community of property-
(a)
entered into before the commencement of the
Matrimonial Property Act, 1984
, in terms of an antenuptial contract
by which community of property, community of profit and loss and
accrual sharing in any form
are excluded; or
(b)
entered into before the commencement of the
Marriage and Matrimonial Property Law Amendment Act, 1988, in terms
of section 22 (6)
of the Black Administration Act, 1927 ( Act 38 of
1927 ), as it existed immediately prior to its repeal by the said
Marriage and
Matrimonial Property
Law Amendment Act, 1988,
may
,
subject to the provisions of subsections
(4), (5) and (6), on application by one of the parties to that
marriage, in the absence
of any agreement between them
regarding
the division of their assets, order that such assets, or such part of
the assets, of the other party as the court may
deem just be
transferred to the first mentioned party.
"
[15]
In making the aforesaid submission the defendant relied, inter alia
on
Schutte v Schutte 1986 (1) 872 (A)
and referred the
court to the following dicta by Van Heerden JA;
"Dit volg dus dat 'n onderhound bevel nie
ingevolge art 7 van die 1979 Wet na ontbinding van 'n huwelik verleen
kan word nie.
"
[16]
The court was also referred to
Ndaba v Ndaba (3935612013)
[2015] ZAGPPHC (1110212015)
where Kgomo J said in paragraph
15;
"Section 7(1) and (2) deal with division of
general assets and issues relating to spousal maintenance. If spousal
maintenance
is not claimed and dealt with and granted by the court
granting the decree of divorce, it can not be claimed later."
It was
submitted that in Ndaba v Ndaba the principle of
Schutte v
Schutte,
which is an SCA judgment, was confirmed.
[17]
The defendant submitted that there was no prejudice to the plaintiff
and that in view of the status of the defendant, convenience,
which
was the guiding factor, dictated that a separation not be ordered.
Discussion
[18] In
African Bank v Soodhoo
2008 (6) SA 46
(DJ at 518-D
the
Court said the following;
"The general principle in law would appear to be
that notwithstanding the wide powers conferred on
a
court
under rule 33(4) of the Uniform Rules of Court it is ordinarily
desirable, in the interests of expedition and finality of
litigation,
to have one hearing only at which all issues are canvassed so that
the court, at the conclusion of the case, may dispose
of the entire
matter.
Minister of Agriculture v Tongaat Group Ltd
1976
(2) SA 357
(DJ at 362G
-
H, and Dene/ (Edms) Bpk
v Vorster
2004 (4) SA 481
(SCA) ((2004) 25 ILJ 659) at 4858
-
C
have reference. In some
instances,
however, the interests of the parties and the ends of justice
are better served by disposing of
a
particular issue or issues
before considering other issues which, depending on the result of the
issue singled out, may fall away.
(Minister of Agriculture
(supra) at 362H.)"
[19]
Whenever the court is called upon to adjudicate an application for
separation in terms of Rule 33(4) such as the present, the
court's
duty was in my view succinctly stated in Minister of
Agriculture
v Tongaat Group Ltd
1976 (2) SA 357
(DJ at 364D-E
as follows;
"...the function of the Court in an application
of this nature is to gauge to the best of its ability the nature and
extent
of the advantages which would flow from the grant of the order
sought
and of the disadvantages. If, overall, and with due
regard to the
divergent interests and considerations of
convenience (in the wide sense I have indicated) affecting the
parties, it appears that
such advantages would outweigh the
disadvantages, it would normally grant the application."
[20] It
is clear from the aforementioned cases that a court has a discretion
to grant or refuse an application in terms of Rule
33(4). The
overriding consideration in such applications is convenience, in a
wide sense, that is to say, the separation must not
only be
convenient to the person applying for such separation, but must also
be convenient to all the parties in the matter, which
includes,
naturally, the court. The court is called upon, in making such
a determination, to make a value judgment in weighing
up the
advantages and the disadvantages in granting such separation. If the
advantages outweigh the disadvantages, invariably,
the court should
grant the application for separation. The notion of appropriateness
and fairness to the parties also comes into
the reckoning.
See
De
Wet v Breda (4415312009) [2011] ZAGPJHC 29
April 2011.
[21]
From two of the judgments the plaintiff relied upon, namely,
CC
v CB
and
Joubert v Joubert,
it is clear that a
separation can be ordered, as was done in the two decisions. Where
Idiffer with Mokgoatlheng J and Phathudi J,
is where they find that
the court does not have a discretion as to whether a decree of
divorce should be granted or not and that
the court has to grant
same. I am of the view that convenience is the overriding factor. In
Levy v Levy
[1991] ZASCA 81
;
1991
(3)
SA 614
(A),
Kumleben
JA discusses the question whether the court has discretion to not
grant a decree of divorce in circumstances where it is
contended that
the marriage has not broken down irretrievably. The question is
therefore where a party is adamant that they can
still reconcile, can
a court withhold a decree of divorce to afford the parties that
opportunity. The same question can be posed
where the court wishes to
satisfy itself about issues or requirements of dependents. In
casu,
that the marriage relationship had broken down is not in dispute.
The court is called upon to consider a separation on the basis
that
the irretrievable breakdown of the marriage is uncontested. The court
is further called upon to postpone the contested part
being spousal
maintenance and costs. In my view, regard being had to convenience
and the interest of justice, not withstanding
the fact that it is not
disputed that the marriage has broken down irretrievably, a case has
not been made for a separation. I
advance the following reasons;
21.1.
The
curatrix ad /item
has only been in office for a period of
six weeks . Despite her best endeavors she has not been able to
obtain instructions
from the defendant. The primary duty of a curator
ad litem is to manage the interests of the patient in relation to
court proceedings
on behalf of the patient who has been
incapacitated. The barrier that exists between the curatrix and the
defendant makes it difficult
for the curatrix to carry out her
primary functions. The state of affairs however should not be allowed
to persist in perpetuity.
For that reason there has to be time lines
in terms of which the curator is expected report to court on the
suitability of appointing
a curator bonis and/or a curator ad
personam to the defendant.
21.2.
What weighed heavily in the courts mind in CC v CM was the fact that
there was a pending seriously contested dispute in commercial
and
revocation proceedings which would take many years to finalize. In
casu
the dispute that exists can be easily and speedily
resolved, thus tampering prejudice.
21.3.
The plaintiff has made a compelling case about the prejudice he
stands to suffer. Personally he wants to move on with his
life and
financially there are cost implications if the decree portion is not
finalized. Such prejudice in my view should recede
so as to afford
the curatrix an opportunity fulfill her functions and eventually
report to court.
21.4.
Courts generally do not favor litigation in piecemeal fashion. In
Dene/ (Edms) Bpk v Vorster
2004 (4) SA 481
(SCA) ((2004) 25 /LJ
659)
the Court said the following;
"....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 should not be assumed that
that result is always
achieved by separating the issues. In many
cases,
once properly considered, the issues will be found to
be inextricably linked, even though, at first sight, they might
appear to
be discrete. And even where the issues are discrete, the
expeditious disposal of the litigation is often best served by
ventilating
all the issues at one hearing, particularly where there
is more than one issue that might be readily dispositive of the
matter.
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 an
issue separately. "
While
ordering a separation will be convenient to the plaintiff, it will
not be convenient to both the defendant, the executrix
and the court.
21.5.
In opposing the application for a separation I do not believe that
the defendant is acting mala
fide
that is, she is opposing the
separation of issues for the sole purpose of gaining a tactical
advantage in order to secure a favorable
patrimonial distribution or
is using the perpetuation of an irretrievably broken down marriage as
a leverage for tactical reasons
to pre-empt the dissolution of the
marriage for ulterior motives. I have paraphrased what Mokgoatlheng J
said in
CC v CM.
[22] In
the circumstances the application for separation must fail.
COSTS
[23] A
party that comes to court with an application for a postponement
seeks the court's indulgence. The defendant has asked that
the costs
be reserved while the plaintiff is of the view that the defendant be
ordered to pay the costs. I do not see any reason
why the defendant
shouldn't be burdened with costs occasioned by the postponement.
[24] I
therefore make the following order;
1. The application for separation of issues in terms of
Rule 33(4) is refused;
2. There is no order as to costs;
3. The trial is postponed sine die;
4. The defendant is ordered to pay the costs occasioned
by the postponement;
5. The
curatrix ad /item
is directed to file her
report to court within 120 days hereof;
6. The parties are granted leave to approach the office
of the Deputy Judge President for a preferential trial date after the
filing
of the report in 5 above.
___________________________
SA
THOBANE
ACTING
JUDGE OF THE HIGH COURT
HEARD
:
15/08/2016
JUDGMENT
:
19/08/2016
ON
BEHALF OF THE PLAINTIFF
:
ADV. L. HAUPT
ON
BEHALF OF THE DEFENDANT
:
ADV. S. WAGENER, SC