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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 7796/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
18 June 2025
In the matter between:
C[…] W[…] B[…] Applicant
(Identity number: 7 […])
and
C[…] E[…] B[…] (BORN V[ …] T[…]) Respondent
(Identity number 8 […])
IN RE:
Case No: 6524/2024
In the matter between:
C[…] E[…] B[…] (BORN V[ …] T[…]) Plaintiff
(Identity number 8 […])
and
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C[…] W[…] B[…] Defendant
(Identity number: 7 […])
JUDGMENT
BARNES A J
Introduction [1] This is an application for consolidation in terms of Rule 11 of the Uniform
Rules of Court in which the Applicant seeks the consolidation of:
a. A divorce action brought by the Respondent (as Plaintiff therein)
against the Applicant (as Defendant therein) under case number 7796/2021; and
b. An action brought by the Respondent (as Plaintiff therein) against the
Applicant (as Defendant therein) , under case number 6524/22024, for the
enforcement of an oral agreement allegedly concluded between the parties in
terms of which the Applicant undertook to give the Respondent half of the proceeds of the sale of the former matrimonial home.
[2] In this judgment I shall, for the sake of convenience, refer to the aforesaid
actions as “the divorce action” and the “oral agreement action” respectively.
[3] In what follows I set out, briefly, the relevant litigation history between the
parties. Thereafter, I shall set out the applicable legal principles and assess, in the
light thereof, whether or not the consolidation application ought to be granted.
The Litigation History
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[4] The litigation history between the parties is a long and convoluted one.1 I shall
summarise only as much of that history as is necessary to determine the
consolidation application before me.
The Divorce Action
[5] On 18 February 2021, the R espondent instituted an action for divorce against
the Applicant under case number 7796/2021. The Applicant defended the action and
filed a plea and counter -claim.
[6] Notably, the parties were married out of community of property, with the
inclusion of the accrual system.
[7] Between 2021 and 2023, the Respondent effected various amendments to
her claim. These amendments included a further separate claim for the enforcement
of an oral agreement allegedly concluded between the parties. In this regard, the Respondent claimed payment of R1 850 000.00 from the Applicant, being half of the
proceeds of the sale of the former matrimonial home.
[8] By November 2023 most of the issues in the divorce had fallen away and the
only outstanding issue was the determination of the parties’ respective accrual. In particular, arrangements regarding the care and custody of the parties’ minor child,
who is presently 17 years of old, were no longer a contested issue. The maintenance
payable in respect of the minor child was also no longer contested.
[9] As far as the calculation of the parties’ respective accrual was concerned, the
Applicant, in his counter -claim requested that the C ourt order that a receiver and
liquidator be appointed to calculate this . The Respondent agreed.
[10] The Respondent explains that, since, as at November 2023, there was no
longer any tri able lis in the divorce action, she elected to withdraw her claims . She
did so on 2 November 2023 by filing a notice of withdrawal and a consent to the
1 The litigation history includes a number of interlocutory applications and a Rule 43 application which
are not directly relevant for present purposes.
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relief sought by the Applicant .
[11] As matters currently stand, therefore, the divorce action is undefended.
The Oral Agreement Action
[12] On 24 January 2024, the Respondent instituted action against the Applicant
for the enforcement of an oral agreement she contended had been concluded between the parties during the marriage. The Respondent pleaded that the terms of
the oral agreement were the following:
a. The Res pondent would vacate the matrimonial home;
b. The Applicant would market and sell the matrimonial home;
c. Upon the sale of the matrimonial home, the Applicant would pay the
Respondent 50% of the nett proceeds of the sale, alternatively 50% of the municipal value of the property, whichever was the lesser amount.
[13] The Respondent pleaded further that:
a. She vacated the matrimonial home on 1 January 2021 ; and
b. On or about 18 April 2023, the Applicant sold the matrimonial home for
R3 700 000.00, which was less than the municipal value of the property.
[14] The Respondent accordingly claimed the amount of R1 850 000.00 from the
Applicant pursuant the oral agreement.
[15] The Applicant defended the oral agreement action and filed a plea and
conditional counter -claim. The Applicant denied the existence of the oral agreement,
but claimed, in the alternative, i f the court found that the agreement had been
concluded, that the Respondent was liable to pay him 50% of the nett proceeds from
the sale of a second immovable property registered in the Respondent’s name.
The Parties’ contentions in this Application
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[16] The Applicant seeks the consolidation of the actions on the grounds that they
overlap. This is so, says the Applicant, because “ the factual finding [pertaining to
whether or not the alleged oral agreement was concluded] will be crucial to the
calculation of the accrual and whether these monies are to be disregarded or not.”
[17] The Applicant contends that it is therefore convenient to consolidate the
actions. On the question of prejudice, the Applicant contends as follows:
“The divorce court will be unable to determine this dispute in the absence of a finding in the [ oral agreement action]. The divorce action will therefore be
delayed until the [ oral agreement action] is finalised and the Applicant will
have to continue paying interim maintenance for the full period in circumstances in which no such obligation further exists.”
[18] The Respondent opposes the consolidation application on two key grounds:
a. First, the Respondent point s out that the divorce action is undefended
and that there is therefore no “lis”, “dispute” or “quarrel” before the Court , with
which the oral agreement action can be consolidated. b. Second, the Respondent argues that since the Applicant ’s claim
against the Respondent has not been proven, it does not constitute a liability
in his estate and therefore does not impact on the calculation of the parties’
accrual .
[19] There is merit in the Respondent’s arguments as will become evident below.
Before evaluating the parties’ arguments , however , it is instructive to set out the
applicable legal principles. The Applicable Legal Principles
[20] Uniform Rule of Court 11 allows a court to consolidate separate cases “where
separate actions have been instituted and it appears to the court convenient to do so”. The purpose of consolidation is to avoid a multiplicity of proceedings, based on
the same or substantially similar facts or issues. By having one trial for related
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matters, courts aim to save time and costs and prevent different courts from reaching
inconsistent decisions on the same questions.2
[21] In the exercise of its discretion whether or not to grant consolidation, a court
must weigh two primary considerations, namely: convenience and the absence of
substantial prejudice.
Convenience
[22] The applicant in a consolidation application bears an onus to show that a
single combined hearing will be more convenient in a broad sense. Convenience in this broad sense connotes not only expedience or ease, but appropriateness in the
sense that the procedure would be convenient, if in all the circumstances of the case, it would be fitting and fair to the parties concerned.
3 This typically requires a
substantial overlap in the factual and legal issues concerned such that much of the same evidence would be relevant in both cases .
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Absence of Substantial Prejudice
[23] Even if some convenience is shown, a court must be satisfied that
consolidation would not unduly prejudice the other party. The a pplicant in a
consolidation application bears the onus to prove that the other side will not suffer
significant harm or disadvantage as a consequence of having the cases combined. If
consolidation would cause substantial prejudice to a party a court may refuse it even if there would otherwise be a balance of convenience in favour of consolidation.
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[24] Importantly, one recognised form of prejudice is delay. The courts have held
that consolidation should be refused if it would involve considerable delay in the resolution of one of the matters.
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2 C v R [2022] ZAGPJHC 1015 (15 December 2022) at para 38.
3 Mpotsha v Road Accident Fund 2000 (4) SA 696 (C) at 699.
4 See C v R generally.
5 C v R at para 32.
6 C v R at para 55.
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Evaluation
[25] This is a case in which there is insufficient overlap between the two actions to
justify consolidation. While both actions involve the same parties and relate broadly to the financial consequences of their divorce, the legal and factual issues involved
in both cases are quite different. Not only are the issues different, but crucially, as
the Respondent correctly points out , the divorce action is undefended. Both parties
are desirous of obtaining a decree of divorce and are not in dispute regarding the arrangements pertaining to the care and custody of the minor child or the maintenance payable in respect of the minor child. The parties are further in
agreement that the court should order the appointment of a liquidator in order to calculate their respective accrual. There is simply no dispute between the parties in
the di vorce action with which the oral agreement action could be consolidated.
[26] It is not correct, as the Applicant contends, that “the divorce court will be
unable to determine this dispute in the absence of a finding on the oral agreement
action” . Firstly , there is no longer any dispute for the divorce court to determine, and
secondly granting of a decree of divorce in this case is not dependent on the
resolution or outcome of the oral agreement action. [27] The Applicant is correct when he states that “the divorce action will be
delayed until the finalisation of the oral agreement action” . However far from this
being a reason to grant consolidation, it is a reason, and a compelling one at that, to
refuse it.
[28] The divorce action is undefended and a decree is , presently, ripe for the
taking. Consolidating the actions at this stage would effectively put the divorce action
on ice and shackle it, interminably , to the opposed oral agreement action as it wends
its way th rough the court process. An uncontested divorce would be held hostage by
a separate financial dispute between the parties. During that time the parties would
remain in limbo, still married and unable to move on with their lives. The prejudice to the parties , to their 17-year-old son and to the administration of justice is evident .
[29] The courts have explicitly found such delay s to be unacceptable. In C v R a
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full bench of this Court overturned a consolidation application for precisely this
reason. There the divorce action (which was defended) had been trial ready and
consolidation served to put it on hold indefinitely. The Court ruled this to be
prejudicial, holding that there are strong public policy reasons to finalise divorce
matters promptly and that unnecessary postponement s of divorce matters can be
contrary not only to the interests of the parties but also to the interests of justice.7
[30] In this case then, neither the requirement of convenience nor that of the
absence of substantial prejudice have been met and consolidation must therefore be
refused.
[31] It should be emphasised that the refusal of consolidation will not prejudice the
Applicant’s legal rights in this case. The Applicant’s main argument for consol idation
is that the accrual calculation might be wrong or require revision depending on the outcome of the o ral agreement action. But th is argument is misconceived.
[32] Accrual is determined at the moment that the marriage is dissolved (here on
divorce). At that point the proceeds from the sale of the matrimonial home are still
fully in the Applicant’s estate (since the oral agreement action has not yet been
adjudicated) and must therefore be included in the Applicant’s assets for purposes of
the accrual calculation.
[33] If after the divorce, the Respondent succeeds in her separate claim to half the
value of the former matrimonial home, then the Applicant will be required to pay that
amount to the Respondent pursuant to the judgment. While this might enrich the
Respondent beyond the initial accrual amount, this is a consequence not of the
accrual system but of the Applicant’s separate contractual undertaking (if proven) .
Legally the Applicant cannot use the pending contract dispute to stall the divorce action. He does however retain the ability to contest that claim in a separate action,
and if he wins then no additional payment will be due beyond the accrual. If he loses
and must give up half the value of the matrimonial home, then that stems from a
valid independent agreement.
7 C v R at para 56.
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Conclusion [34] For all these reasons, the consolidation application stands to be dismissed.
Counsel for both parties agreed that Scale C would be the appropriate scale for an award of costs.
[35] I accordingly make the following order:
Order
1. The application is dismissed with costs on Scale C.
BARNES, AJ
ACTING JUDGE OF THE HIGH COURT ,
JOHANNESBURG
Heard: 13 February 2025
Judgment : 18 June 2025
Appearances:
Applicant :
Adv P J Greyling, instructed by William Tintinger Attorneys .
Respondent:
Adv N Strathern instructed by Ulrich Roux and Associates .