G v De Vries NO and another (19549/05) [2009] ZAGPJHC 56 (14 October 2009)

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[2009] ZAGPJHC 56
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G v De Vries NO and another (19549/05) [2009] ZAGPJHC 56 (14 October 2009)

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IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
:
19549/05
DATE
:
15/09/2009
In the matter
between
A.M.G. APPLICANT
and
LOUIS EDWARD DEFRIES NO 1
ST
RESPONDENT
M.G. 2
ND
RESPONDENT
_________________________________________________________
J U D G M E N T
_________________________________________________________
VAN OOSTEN J
:
The litigation between the parties stems from a divorce action
between the applicant (Dr. G.) and his erstwhile spouse, Mr. G.,
who
is the second respondent in this application. Their marriage was
dissolved on 14 March 2003 by an order of this Court (the
2003 court
order). The 2003 court order incorporated a settlement agreement that
had been entered into between the G.’s. The settlement
agreement
provides for the equal division of the assets in the joint estate
between the G.’s and for the appointment of a liquidator
to realise
the assets of the joint estate for the equal distribution thereof
between the G.’s.
On 2 July 2003 the first respondent
was appointed the liquidator of the joint estate who derived his
powers and functions from
the provisions of the settlement agreement
and therefore the 2003 court order. Extensive litigation between the
parties ensued.
For present purposes it is only necessary to refer to
the application which is relevant to the matter now before me.
On 30 August 2005 Dr. G. launched an
application against the liquidator, Mr. G. and the liquidator in
which he sought certain declarators
in regard to an immovable
property which formed part of the joint estate. The liquidator in
turn, in a counter application
inter alia
sought a declarator
in relation to the shareholding and members’ interests in certain
companies and close corporations and further
that Dr. G. had been in
contempt of the 2003 court order. The relief claimed by the
liquidator in the counter application by consent
between the parties
was referred to trial by Nichols AJ. Pleadings were subsequently
exchanged and that matter has now been enrolled
for hearing on 7
October 2009 (the action). On 2 September 2009 the liquidator
launched the present application under the heading
Notice of Motion,
in which notice is given that application will be made on 15
September 2009 for an order in the following terms:
Ordering the applicant
to make available for the inspection of the first respondent in
terms of Rule 35(6) within two days of
the date of this order the
documents requested in the first respondents notice, served on the
applicant’s attorneys on 12 August
2009 and filed on 13 August
2009.
Ordering the applicant
to deliver within five days of the date of this order, a reply to
the first respondent’s request for
particulars for trial,
delivered and on and dated 4 August 2009.
Declaring that.
As between the
applicant and the second respondent and for the purposes of the
agreement of settlement and on a proper construction
thereof, the
various shares and members interests referred to in clause 4 of
the agreement are under the first respondent’s
control.
Irrespective of the
provisions of the agreement of settlement and from an objective
point of view the various shares and members
interests referred to
in clause 4 of the agreement are under the first respondent’s
control.
Ordering.
In the event of the
second respondent not opposing this application the applicant to
pay the costs of this application.
In the event of the second
respondent opposing this application the applicant and the second
respondent to pay the costs of
this application jointly and
severally, such costs to include the costs occasioned by the
employment of two counsel.
Granting
further and/or alternative relief.
Notice
is further given to Dr. G. or
Mr. G., should they wish to oppose
the application, firstly, to deliver notice to oppose by 12h00 on 4
September 2009 and, secondly,
to deliver answering affidavits by
12h00 on 7 September 2009. No opposing affidavit by and or on behalf
of Dr. G. was filed. On
Friday 11 September 2009 late in the
afternoon an envelope containing photostat copies of 60 of the 68
documents referred to in
prayer 1.1 of the notice of motion, as well
as a document under the heading Applicant’s Reply to the First
Respondent’s Request
for Further Particulars for Trial, dated 4
August 2009, was served on the liquidator’s attorneys. I will
revert to these documents
later in the judgment.
At the hearing before me Dr. G. was
represented by senior counsel, Mr
Burman
. Mr
Burman
for
the reasons I will presently deal with
in limine
sought an
order striking the matter from the court roll, alternatively
postponing the application with an appropriate order as
to the
payment of costs. The application was opposed by Mr
Subel
who
with Mr
Dison
, appeared on behalf of the liquidator.
I turn now to the grounds advanced by
Mr
Berman
in support of the application for striking the
matter from the roll. Firstly, and importantly I was informed by Mr
Burman
that the G.’s have in the meanwhile settled all
aspects concerning the division of the joint estate in terms of a
written agreement
of settlement. This in fact is the settlement
agreement referred to in prayer 1.3 of the present application, a
copy of which forms
part of the papers before me. It is common cause
that the liquidator was not a party to the settlement. His attitude I
am informed
is that whatever settlement may have been concluded
between the G.’s does not affect him in the exercise of his duties
pursuant
to powers granted to him in terms of the 2003 court order.
It is for this reason that the liquidator persists in the
continuation
of the trial of the action to which the relief sought in
prayers 1.1 and 1.2 relates. Dr. G. on the other hand is of the view
that the issues to which the action pertains have now become settled
and that they accordingly are no longer alive.
This brings me to the contentions
raised by
Mr
Burman
concerning the procedure followed by
the liquidator in launching the present application. Firstly, he
submitted that the application
was not brought as a purely
interlocutory application. The relief sought in prayer 3 concerns a
material substantial issue and
therefore he submitted is anything but
interlocutory. The liquidator having chosen to launch the application
should therefore have
utilised the long form of Notice of Motion
which would have afforded
the applicant the opportunity to oppose
the application and to seek certain relief by way of a counter
application. The liquidator
he finally submitted was not entitled to
do so in the absence of a prayer seeking the court’s indulgence to
abridge the time periods
provided for in the Rules. Had the applicant
been afforded such an opportunity he would have availed himself of
the right to file
an answering affidavit and to institute a counter
application based on the recent settlement I have already alluded to.
That being
so counsel concluded the matter was improperly brought and
should therefore be struck off the roll with an order aimed at
holding
the liquidator personally liable for payment of costs.
Mr
Subel
submitted that the application is an
interlocutory application as far as the relief sought in prayers 1.1
and 1.2 is concerned.
The relief sought in prayer 1.3 he further
submitted is incidental to the issues in the main action which the
liquidator accordingly
was entitled to seek by way of an
interlocutory application. The liquidator merely by way of courtesy
made provision for the filing
of an answering affidavit within an
abridged time frame but that counsel submitted, could not and did not
detract from the true
nature of the application which is and remains
an interlocutory application.
The starting point in my view is to
consider the nature of the disputes in the main action, as they
presently stand on the pleadings.
The liquidator was clearly entitled
to seek the relief sought in prayers 1.1 and 1.2 by way of an
interlocutory application. Mr
Burman
did not take issue with
this aspect. The difficulty arising however concerns prayer 1.3 of
the application. It seeks a declarator
in respect of the settlement
agreement that has recently been entered into. This quite obviously
is not the way to introduce the
settlement and its proper
interpretation into the action. The settlement is not dealt with in
the pleadings at all. Prayer 1.3
therefore introduces a completely
separate issue which does not arise from the pleadings. The proper
way of introducing a settlement
is for the party relying on it to
amend the pleadings accordingly. This as I have alluded to was not
done by either party. The
recent settlement is neither “subordinate”
nor “accessory” to the issues in the action within the meaning of
Rule 6(11) (see
Massey Ferguson SA Limited
v Ermelo Motors
Pty Ltd
1973 (4) SA 206
(T) 214G).
I am
accordingly unable to find that the relief sought in prayer 1.3 is
“incidental” to the relief sought in the action, but even

assuming it to be incidental thereto the liquidator has elected to
launch this application by way of motion proceedings and not
only
that, he has without seeking the authority of this court to do so,
unilaterally imposed abridged time limits within which
further
procedural steps are to be taken. No urgency is alleged nor has a
case for urgency been made out. A party cannot without
more ado adapt
the Rules of court to his or her own advantage without making out a
case in support thereof.
Mr
Subel
disavowed any further
reliance on the relief sought in prayer 1.3 but the change of stance
at this belated stage does not avail
the liquidator. The applicant
was brought to court on the Notice of Motion as it stands which at
least as far as the relief sought
in prayer 1.3 is concerned, was
irregular. It follows that the relief sought in prayer 1.3 need not
be considered any further by
this court.
Mr
Burman
submitted that a
finding in the nature of the one I have just made must put an end to
the application as a whole. In support hereof
counsel relied on the
principle that piecemeal determination of issues usually will be
dissallowed. In my view the principle does
not find application on
the facts of the present matter. The liquidator was clearly entitled
to seek the relief sought in prayers
1.1 and 1.2 by way of a simple
interlocutory application. As much was readily conceded by the
applicant who, as I have alluded
to, as late as Friday afternoon,
purported to comply with the request.
Considerations of fairness and
justice require that prayers 1.1 and 1.2 be considered separately
from prayer 1.3. I cannot see
that this will prejudice the applicant
in any way nor has any possible prejudice been alleged. This brings
me to Dr. G.’s purported
compliance. Firstly, it is common cause
that the way in which copies of the documents referred to in prayer
1.1 was furnished,
technically speaking, did not constitute proper
compliance with the provisions of
Rule 35 (6) which requires a
response by way of a Form 14 notice.
In my
view there has been substantial compliance with the Rule albeit in a
different form. Copies of eight of the 68 documents were
not provided
but I accept Mr
Burman’s
assurance that this merely resulted
from an oversight which of course can easily be rectified. On the
other hand the copies of
the documents were delivered out of time and
it follows that the liquidator was entitled to launch the application
to compel. It
only remains to deal with the costs concerning prayer
1.1 to which I will revert later in the judgment.
Next, I turn to the further
particulars for trial to which prayer 1.2 relates. Mr
Burman
submitted that a reply was filed and that if still not satisfied with
thee reply, the liquidator was enjoined by the Rules to take
the next
procedural step which was to seek an order for further and better
particulars. I am unable to agree. It is merely necessary
to refer to
the reply to the particulars sought in paragraphs 1 to 18 of the
request for further particulars for trial. It reads
as follows:
Ad paragraphs 1 to 18
of the request.
It
is not necessary to reply to these requests since the requests
relate to issues which have now become settled and are no
longer
applicable.
The
reply quite clearly is not a reply at all – the reason advanced for
the refusal to furnish the requested particulars flows from
the
alleged recent settlement which as I have dealt with, has not been
introduced into the pleadings. In the absence thereof the
applicant
is not entitled to refuse to reply to those requests. The liquidator
accordingly is entitled to an order to compel the
furnishing of the
particulars sought in prayer 1.2 relating to paragraphs 1 to 18 of
the first respondent’s request for further
particulars for trial.
Finally,
as to the costs of this application, a number of considerations
arise. The liquidator irregularly launched the application
for the
relief sought in prayer 1.3 by way of an interlocutory application.
Dr. G.’s opposition to the relief sought in prayer
1.3 was fully
justified and moreover reasonable. Dr. G. has substantially complied
with the relief sought in prayer 1.1, albeit
only after the
application was launched. The liquidator is successful in obtaining
the relief sought in prayer 1.2. That however
in my view, in the
circumstances of this case, cannot be considered as constituting
substantial success. On the whole the considerations
for and against
the respective parties in my view, are very evenly balanced. Much
will eventually depend on the effect of the recent
settlement on the
continuation of the trial of the action. I am obviously in the
absence of further information, not in a position
to express any
views in this regard. In view hereof I have given serious
consideration to reserving the costs for determination
by the trial
court. In view of the other considerations I have mentioned I have
come to the conclusion that it would not be proper
for me to saddle
another court with the issue of costs. In the exercise of my
discretion I have decided that it would be fair and
just if each
party be liable for payment of his or her own costs.
In the
result I make the following order:
The applicant [A.M.G.] is ordered to
deliver within five days of the date of this order a reply to
paragraphs 1 to 18 of the first
respondent’s request for
particulars for trial delivered on and dated 4 August 2009.
Each party is to pay his/her own
costs.
------------------------------