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
WESTERN CAPE DIVISION, CAPE TOWN
CASE NO: 15788/2024
In the matter between:
B[...] C[...] B[...] APPELLANT
(FORMERLY M[...])
And
L[...] L[...] B[...] FIRST RESPONDENT
JURGENS JOHANNES TUBB SECOND RESPONDENT
RIËTTE SMUTS THIRD RESPONDENT
Hearing date: 25 October 2024
Date of judgment: The judgment was handed down electronically by
circulation to the parties’ representative s by email and
released to SAFLII. The date for hand down is deemed to
be 11 November 2024
JUDGMENT
ORDER GRANTED
[1] The application is dismissed.
[2] The applicant is ordered to pay the costs of the application, including the
costs of counsel on Scale C in terms of Uniform Rule 69A and all costs,
charges and expenses reasonably incurred, including the costs of preparing
the explanatory affidavits of the second and third respondents as per Uniform
Rule 70(3).
A. PARTIES, RELIEF AND DISPUTES
[3] The applicant, Ms B[...] C[...] B[...], was married on 7 October 2023 to the first
respondent, Mr L[...] L[...] B[...]. The second respondent is a practising
attorney and mutual friend of many years of both the applicant and the first
respondent. The enduring and close friendship between the applicant and the
first and second respondents is best illustrated by the fact that the second
respondent acted as the master of ceremonies at the wedding of the applicant
and the first respondent.
[4] The third respo ndent is a practising attorney, conveyancer , and notary who
practises with the second respondent at MHI Attorneys. The third respondent
was responsible for drafting, signing, and registering an antenuptial contract
for the applicant and the first respondent, which was apparently signed on 4
October 2023.
[5] The applicant applies in her Notice of Motion for the following relief:
[5.1] The document annexed to the Notice of Motion marked annexure
“NoM1”, which purport to be a signed executed and registered
antenuptial Contract (“ the ANC”) be set aside as invalid and
unenforceable.
[5.2] The marriage entered into between the applicant and the first
respondent be declared to be one in community of property.
[5.3] Ancillary relief, including costs.
[6] The extensive 399 pages of affidavit and annexures detail a series of claims
and counterclaims, clearly illustrating the profound and deep -seated distrust
and hostility between the applicant and the first respondent.
[7] In essence, the applicant denies ever discussing or reaching an agreement
with the first respondent regarding the marital regime prior to their wedding
and has consented to enter into an antenuptial contract with the first
respondent.
[8] The applicant seeks no relief against the seco nd and third respondents, who
were joined to the application as they have an interest therein. The second
and third respondents did not file answering affidavits, rather, they provided
the Court with detailed explanatory affidavits. The first respondent opposed
the application and sought its dismissal along with a punitive cost order.
B. THE EVENTS OF 3 AND 4 OCTOBER 2023
[9] The first respondent, who is 90 years of age, and the applicant, who is 60,
have known each other since the applicant was a child. The first respondent
was a friend of the applicant’s late father. During or about 2017 , the applicant
and the first respondent became romantically involved in a n intimate
relationship. The applicant asserts that the first respondent expressed his love
for her and desired to marry before reaching his 90th birthday.
[10] It was decided that the couple would marry on 7 October 2023. The applicant
alleges that that throughout the conversation s between the first respondent
and her regarding their planned marriage and the organisation of the wedding
ceremony, they did not address the patrimonial matters concerning their
intended marriage. The applicant intended to be married in community of
property.
[11] The applicant has known the second respondent for approximately 20 years
and has trusted him as her attorney and legal advisor for the past 10 years .
She trusted and relied upon the second respondent and accepted that he
would conduct himself appropriately and professionally, and demonstrate the
necessary skill, integrity, and act in her best interest.
[12] The applicant alleges that on 3 October 2023 , the second respondent
telephoned her and requested that she visit his office briefly on the morning of
4 October 2024 to sign a document that, the applicant alleges, the second
respondent described as “insignificant”, although it was related to the
wedding.
[13] On 4 October 2023, the applicant attended the office of the second
respondent. The applicant and the second respondent were alone in his
office, and the applicant alleges that the second respondent briefly displayed
a document to her , which she managed to catch a mere glimpse of for the
moment. She could not determine what it was and did not see its contents.
The second respondent failed to provide any details about the document or its
contents. The applicant explains that due to her complete trust in the second
respondent, she asked no questions and simply signed the document where
indicated.
[14] As will be described hereunder , it is common cause that the third respondent
attended the first respondent’s residence on 4 October 2023, shortly after
noon, where the first respondent and two witnesses signed the ANC and other
documents. It is further common cause that the applicant a t least saw and
spoke with the third respondent at the residence . However, she denies that
she signed any documents in the presence of the first and third
respondents, as well as the two witnesses at the first respondent’s residence .
The third respondent states in her explanatory affidavit that the applicant and
first respondent executed the ANC in duplicate along with additional
documents in the presence of the witnesses.
[15] In early May 2024, the applicant, by chance, overheard a discussion between
two strangers in a coffee shop regarding antenuptial contracts and the
requirements for signing such a contract before the date of the wedding.
According to the applicant , this triggered her suspicion regarding the
document, which she alleges the second respondent prompted her to sign.
[16] Despite the many years of friendship between the applicant and the first and
second respondents, she chose not to confront either of them or inquire about
the questionable document she had signed on 4 October 2023. The applicant
phoned the office of the second respondent and requested a copy of the
document. On 3 May 2024 , she obtained what purported to be a copy of the
document and discovered, to her dismay and surprise, that it was t he ANC, a
copy of which is annexed to the Notice of Motion.
[17] The applicant sought legal advice from her current attorney of record
regarding the matter, who then directed correspondence to the second
respondent, enquiring about the circumstances surroundin g the registration of
the ANC. The applicant's attorney stated the following in their letter dated 9
May 2024:
“It is our instruction that our client has reservations and concerns of what
she signed to when signing the antenuptial contract hereinafter referred
to as the ANC, with yourself on the morning of 4 October 2023 at your
office.”
[18] The third respondent replied to the applicant’s attorney’s request on behalf of
the second respondent on 9 May 2024 per email as follows:
“... Kindly be advised that he (referring to the second respondent),
requested me to reply, as I am the notary responsible for the execution
of the Antenuptial Contract in question.
On 3 October Mr & Mrs B[...] attended our office and Mr Tubb explained
the vari ous matrimonial systems available in South Africa and the
patrimonial consequences of each. As he is not a Notary Public, I again
explained same to them (this is standard practice as I am the Notary
taking the responsibility), and they elected to get marr ied out of
community of property without the accrual system. I drafted the
document and attended to signature the next day.
I assume you received a copy of same from your client. Kindly be
advised that I personally attended to signature of the Antenuptial
Contract at Mr B[...]’s residence in Joostenbergvlakte on 4 October 2023.
Myself, Mr & Mrs B[...], together with the two w itnesses were personally
present during signature. I prefer not to sign Antenuptial Contract under
Power of Attorney as it is important to me that clients understand what
they are signing. Before signature I again recapped that they w ould be
getting marr ied out of community of property without accrual and they
confirmed that they were in agreement.
Do not hesitate to contact me with any further questions herein.”
[19] On 13 May 2024 , the applicant’s attorney directed a further letter to the
second and third respondents enquiring inter alia about the names of the
witnesses who witnessed the parties signing the antenuptial contract and
when they met at the office of the second respondent.
[20] On 14 May 2024 the third respondent again replied to the query by the
applicant’s attorney as follows:
“... Kindly be advised that Mr & Mrs B[...] were at our offices on 3 and 4
October respectively for consultation with Mr Tubb. Mr B[...] on 3
October at 08h30 and Ms B[...] on 4 October at 08h00.
One of the witnesses w as a friend of Ms B[...] who w as at Mr B[...]’s
residence the day of signature. She helped with the wedding and a lady
I assumed worked for either Mr or Mrs B[...], was helping to get the
cutlery ready for the wedding. I do not have their names or contact
information of them, but I am sure Ms B[...] will be able to provide same
as she knew them.”
[21] With this information in hand, the applicant, with the assistance and advise of
her legal representative , launched motion proceedings. The applicant
interprets the third respondent 's written replies as mutually contradictory, and
she contends that she could not foresee any factual dispute regarding the
events that transpired on 3 and 4 October 2023 . However, the applicant’s
version and the third respondent’s account of how the ANC was signed are
diametrically opposed. T he applicant’s founding affidavit makes serious
allegations of fraud, deceit , and unscrupulous conduct by the respondents. I
have difficulty understanding how the applicant and her legal representatives
could have thought these allegations would remain uncontested.
[22] However, the applicant obtained the confirmatory affidavits from the two
witnesses who signed the documents at the firs t respondent’s residence,
allegedly in the presence of only the first and third respondent . According to
the applicant, both witnesses deny that she signed the documents in their
presence. Unfortunately, both witnesses filed only a confirmatory affidavi t,
which contained no substantiated allegations but merely confirmed the
applicant’s version by reference.
[23] The first respondent refutes the value of the witnesses' confirmatory affidavits,
arguing that both witnesses have a connection to the applicant, one being a
friend and the other an employee.
[24] This, in itself , does not advance the matter but emphasises the undeniable
existence of unresolvable factual disputes on the papers before the Court.
C. THE FIRST RESPONDENT’S VERSION AND EXPLANATION OFFERED BY
THE SECOND AND THIRD RESPONDENTS
[25] It is evident from the papers filed of record that there are numerous and wide -
ranging unresolved disputes of fact between the parties. The disputes relate
to virtually every element and aspect of the cause of action , based on
accusations of fraud and deceitful dealings involving officers of this Court, with
whom the applicant enjoyed a longstanding attorney and client relationship.
[26] The respondents opposed the relief claimed and the applicant’s version on a
conspectus of their evidence on the following basis:
[26.1.] The applicant authored numerous WhatsApp messages and
engaged in discussions prior to the wedding date concerning the
conclusion of an antenuptial contract.
[26.2.] That the applicant clearly indicated that she understood the import of
the conclusion of an ANC while also expressing that she possessed
her own resources and that she did not want the first respondent’s
financial support.
[26.3.] That according to the third respondent , t on 4 October 2023 the
applicant appended her signature on an array of documents which
included amongst others an indemnity form, a consent in terms of
the POPI Act, a personal affidavit , and a duplicate antenuptial
contract.
[26.4.] That the second respondent waived his fees of his attorney’s firm for
drafting the ANC , considering it to be a wedding gift to the cou ple.
On 17 October 2023 , the Applicant personally expressed her
gratitude to the third respondent in an email for the “wedding
present” following receipt of an email from the third respondent that
confirmed the registration of the antenuptial contract and an account
clearly reflecting fees in respect of the drafting and finalisation
thereof.
[26.5.] That the applicant , on 18 October 2023 , in a WhatsApp message
expressed gratitude to the second respondent for the wedding
present (referring to the ANC) and pointed out in Afrikaans
(translated into English ) “the new weddings affairs were rather
different from those of the first one”.
[26.6.] On 17 April 2024 the applicant signed a Will wherein it was clearly
recorded that she was married out of community of property.
D. DISPUTES OF FACT
[27] It is settled that motion proceedings , unless concerned with interim relief,
focus on addressing legal issues based on common cause facts. Affidavits
cannot be used to resolve factual issues unless the circumstances are
exceptional, as they are not intended to ascertain probabilities. It is well
established under the Plascon -Evan Rule that where in motion proceedings
disputes of fact arise on the affidavits, a final order can only be granted if the
facts aver red in the applicant’s affidavits, which have been admitted by the
respondents, together with the facts alleged by the latter, justify such order.1
[28] If the respondent’s version is lacking credibility , uncreditworthy or raises
fictitious disputes of fact, or is palpably implausible, farfetched or so clearly
untenable that the Court is justif ied in rejecting it solely based on the
papers, the situation may be different , entitling the applicant to succe ed.
Whether a factual dispute exists is not a matter of discretion. It is a question
of fact and a jurisdictional pre -requisite for the exercise of the Court’s
discretion. In terms of Rule 6(5)(g) the Court may dismiss the application or
1 Plascon-Evans Paints Limited v Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634
make such an ord er as it deems fit with a view to ensuring a just and
expeditious decision by directing inter alia that oral evidence be heard on
specific issues, or referring the matter to trial with appropriate directions as to
the pleadings or definition of issues.
[29] The Court will dismiss an application if the applicant should have realised in
launching the application that a dispute of fact incapable of resolution on the
papers was bound to develop.
[30] In Gounder v Top Spec Investments (Pty) Ltd 2 the Supreme Court of
Appeal held regarding a dispute between a husband and a wife concerning
the signing of documents as follows:
“[10] Much as it is preferable that claims like the present one should
be instituted by way of an action, a claimant is not barred from instituting
a claim by way of notice of motion. The latter proceeding is pursued at a
claimant’s own peril should a factual dispute arise which turns out to be
incapable of being resolved on the papers; the risk being a dismissal of
the application should the court, in the exercise of its discretion, decide
not to refer the matter for trial, nor direct that oral evidence be placed
before it. In the present matter, however, it seems to me that the only
possible dispute of fact was the question whether or not the appellant
(respondent in the Court a quo) signed the written document and the
Power of Attorney to register a mortgage bond. These being motion
proceedings, it must be accepted that the appellant did not sign the
documents and the matter must be decided on that basis.”
[31] The applicant initially invited me to adopt a robust approach. Given the factual
disputes, the Court could have adopted the same approach as in the Gounder
matter by accepting the first respondent’s version and dismissin g the
application.
2 2008 (5) SA 151 (SCA) at 153H to 154D
[32] The present matter is distinguished from instances where relief is usually
sought by motion , such as review applications , in terms of Rule 53. 3 To the
contrary, relief of this nature based upon allegations of misrepresentation or
fraud is usually sought by way of action proceedings and trial.
[33] The applicant is dominus litis and should decide whether she wishes the
Court to exercise its discretion by referring the matter for testimony or trial. It
does not suff ice to leave the decision in the hands of the Court to refer the
matter for hearing of evidence should it be deemed necessary or as submitted
in the applicant’s heads of argument “... should it find that the matter cannot
be resolved on papers as they stan d, that it be referred to oral evidence as
per the order in Metallurgical and Commercial Consultants Co (Pty) Ltd v
Metal Sales Co (Pty) Ltd.”4
[34] The judgment in the Metallurgical and Commercial Consultants matter is
distinguishable from the facts before me. In that matter the Court held that
the probabilities are against the respondent on the issue and accordingly held
that it would not be just to deny the respondent the benefit of an oral hearing
which the respondent sought.
[35] The Supreme Court of Appeal in Pahad Shipping CC v Commissioner for the
South African Revenue services5 at para [20] as follows:
“However, it has been held in a number of cases that an application to
refer a matter to evidence should be made at the outset and not after
argument on the merits (See Kalil v Decotex (Pty) Ltd and another
1988 (1) SA 943 (A) at 981D to F). As was stated by Corbett JA in Kalil
at 981E to F the rule is a salutary general rule. Unnecessary costs and
delay can be avoided by following the general rule. But Corbett JA also
stated that the rule is not inflexible. In Du Plessis and another NNO v
Rolfes Limited 1997 ( 2) SA 354 (A) at 366G to 367A the Court dealt
3 Mamadi v Premier, Limpopo and others 2024 (1) SA 1 (CC)
4 South African Veterinary Council and another v Szymanski 2003 (4) SA 42 (SCA) at para 31
5 [2020] 2 ALL SA 246 (SCA) also reported at 2009 JDR 1322 (SCA)
with an application which was made for the first time during argument
in this Court. The application was dismissed but it is implicit in the
judgment that, in appropriate circumstances, the Court may decide th at
a matter should be referred to evidence even where no application for
such referral had been made in the Court below. It would naturally be
in exceptional cases only that a Court will depart from the general rule.”
[36] The learned authors of the standard work Erasmus: Superior Court Practice
state in their commentary to Rule 6(5)(g) as follows:
“In exercising its discretion under the subrule, the Court will to a large
extent be guided by the prospects of viva voce evidence tipping the
balance in favour of the applicant. If on the affidavits the probabilities
are evenly balanced, the Court would be more inclined to allow the
hearing of oral evidence than if the balance were against the applicant.
The more the scales are depressed against the applicant, the less likely
the Court will be to exercise its discretion in favour of the applicant.
Only in rare cases will the Court order the hearing of oral evidence
where the preponderance of probability on the affidavits favour the
respondent.”6
[37] I invited Mr M ooij, who appeared on behalf of the applicant , to indicate if the
applicant applies for the referral of the matter to trial or oral evidence. This
enquiry by the Court was after Mr M ooij argued in earnest the merits of the
matter despite the clear existence of the factual disputes described aforesaid.
Mr Mooij was further invited to provide the Court with a draft Court order. The
order provided by the applicant’s Counsel was in line with the order granted in
the Metallurgic and Commercial Consultants matter. However, when an order
is granted in terms of Rule 6(5)(g) of the Uniform Rules of Court referring the
matter for the hearing of oral evidence, the order should not be formulated in
such a manner as if it were on trial. It is more desirable and in the interest of
certainty and justice that the order specifies which issues will be determ ined
6 Hansa Silver (Pty) Ltd v Obifon (Pty) Ltd t/a The High Street Auction Co 2015 (4) SA 17
(SCA) at 26D to F
by the hearing of oral evidence and define who may or must be called as
witnesses.7
[38] In argument on behalf of the first respondent Mr La Grange SC relied upon
the judgment by Willis JA (as he was then) in Langeveld v Union Finance
Holdings (Pty) Ltd 8 where the Court held regarding the disputed conclusion
of a suretyship as follows:
“The appellant is no “babe -in-the-woods”, never mind an illiterate. She is
an accomplished businesswoman of many years’ standing. There is a
strong praesumptio hominis (popular presumption or presumption
common among persons) that anyone who has signed a docu ment, had
the animus (intention) to enter into the transaction contained in it and
she is burdened with the onus of convincing the Court that she in fact
had not entered into the transaction by virtue of the maxim caveat
subscriptor (a person who signs must be careful). As A.J. Kerr says: “It is
a sound principle of law that a man, when he signs a contract, is taken to
be bound by the ordinary meaning and effect of the words which appear
over his signature.”
[39] I can therefore not accept the submission on beh alf of the applicant that the
onus rests upon the first respondent to prove the conclusion and validity of the
ANC and that this could justify the institution of these proceedings by way of
motion.
[40] The court has the discretion to dismiss the application or make such an order
that it considers appropriate to ensure a fair and timely decision in the event
that there are unresolvable factual disputes on the papers.
[41] I enquired with Counsel whether the applicant and first respondent intended to
continue their marriage, given the first respondent's advanced age, the acute
nature of the allegations, and the apparent impact on their relationship. I was
7 Standard Bank of SA Limited v Neugarten and others 1987 (3) SA 695 (BLBR) 699A to I
8 2007 (4) SA 572 (WLD) at para 12
informed from the Bar that the first respondent had, in the week preceding the
argument, instituted divorce proceedings against the applicant. However, Mr
Mooij indicated that the applicant does not believe that the marriage has
broken down irretrievably despite the seriousness of what she alleges to have
occurred. The parties will inevitably need to resolve their disputes at trial.
[42] The scope of the disagreements is extensive, and it would not be in the
interest of justice or practical to hear evidence on only the principle disputed .
Therefore, the disputes regarding the validity of the ANC can be best
articulated and ventilated after the exchange of pleadings , discovery and at a
trial.
[43] Without making any finding regarding the merits or correctness of any of the
applicants or the respondent s’ allegations and counter -allegations, in
exercising my discretion, I am, however, of the view that the scales regarding
probability are skewed in favour of the respondents. The application would be
dismissed on the merits should the applicant not have applied at the eleventh
hour for the referral to oral testimony. This important aspect fortifies my finding
that I should not exercise my discretion in favour of the applicant to refer the
matter for evidence or trial.
[44] I am not inclined to accept the invitation by Mr Mooij on behalf of the applicant
to refer the matter to oral evidence a nd for me to hear such evidence. There
are no clearly defined disputes, and I accept that evidence would need to be
presented not only on one single aspect but on the main issues and
surrounding circumstances that gave rise to this registration of the ANC. Both
the applicant and the first respondent have vested financial interest , and any
decision regarding their matrimonial regime will have far-reaching
implications.
[45] Given the materiality of the factual disputes which are incapable of being
resolved on the papers and the fact that the disputed facts were forceable
considering the serious allegations levied against the second and third
respondents, as well as the correspondence exchanged between the parties’
legal representatives prior to the launching of the application, I am satisfied
that the only appropriate order is to dismiss the application. I make no finding
regarding the merits of any of the parties’ contentions and the applicant is free
to take whatever action she may be advised to adopt.
[46] Considering the aforesaid I am satisfied that a cost order in respect of
Counsel's fees on Scale C in terms of Rule 69A is justified. However, I do not
believe the applicant should be milked with a punitive cost order, especially in
light of the pending divorce proceedings . This does not mean that the first
respondent should be out of pocket , and I will rule that the applicant should
pay in terms of Uniform Rule 70(3) all cos ts, charges and expenses
reasonably incurred, including the costs of the explanatory affidavits of the
second and third respondents. Both the applicant and first respondent
referred to the explanatory affidavits of the second and third respondents, and
it formed an integral part of the proceedings. Although the second and third
respondents filed a notice to abide, the allegations of professional misconduct
against the second and third respondents could not be left unanswered. They
had no choice but to file the explanatory affidavits. The applicant joined the
second and third respondents as parties to the application , and it was
reasonably foreseeable that all the respondents would incur costs.
[47] In the result, I grant the following order:
[1] The application is dismissed.
[2] The applicant is ordered to pay the costs of the application , including
the costs of counsel on Scale C in terms of Uniform Rule 69A and all
costs, charges and expenses reasonably incurred, including the costs
of the expla natory affidavits of the second and third respondents and
the preparations of the heads of argument as per Uniform Rule 70(3).
_________________
VAN DEN BERG AJ
FOR THE APPLICANT ADV A MOOIJ
MIKE STRYDOM ATTORNEYS
REF RM/SJ/RL210-6
FOR THE FIRST RESPONDENT A DE V LA GRANGE SC
DE KLERK AND VAN GEND ATTORNEYS
REF RV/os/MAT11057