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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2019-86009
Date of hearing: 30 July 2025
Date delivered: 1 September 2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE 1/9/25
SIGNATURE
In the application between:
V[...] M[...] P[...] M[...] Applicant
and
C[...] N[...]-W[...] First Respondent
DIVORCE SETTLEMENT SERVICES Second Respondent
RUDOLF PHILLIPUS JORDAAN N.O. Third Respondent
__________________________________________________________
JUDGMENT
SWANEPOEL J:
Introduction
[1] The applicant seeks an order in terms of s 38 of the Superior
Court Act, 10 of 2013 (“the Act”), that the report of the third respondent (
a liquidator dated 23 August 2021 be adopted.
[2] Section 38 provides for the appointment of a referee to resolve
disputes, and reads as follows:
“(1) In any civil proceedings any court of a provincial or local
division may, with the consent of the parties, refer-
(a) any matter which requires extensive examination of
documents or scientific, technical or local
investigation which in the opinion of the court cannot
be conveniently conducted by it; or
(b) any matter which relates wholly or in part to
accounts; or
(c) any other matter arising in such proceedings,
for enquiry and report to a referee, and the court may
adopt the report of any such referee, either wholly or in
part, and either with or without modifications, or may remit
such report for further enquiry or report or consideration by
such referee, or make such other order in regard to thereto
as may be necessary or desirable.
[2] Any such report or part thereof which is adopted by the
court, whether with or without modifications, shall have
effect as if it were a finding by the court in the civil
proceedings in question.”
[3] The applicant and the first respondent were previously married to
one another in community of property, which marriage was dissolved by
decree of divorce on 29 September 2020. In terms of a settlement
agreement, the parties agreed to the appointment of a liquidator to
determine the amount due to each party. The third respondent, who is
employed by the second respondent, was duly appointed as the
liquidator.
[4] Having consulted with both the applicant and the first respondent
(I refer to the applicant and the respondents as “the parties”
collectively), the liquidator prepared a provisional report. He called for
the parties’ submissions on the report, and having considered the
submissions, the liquidator brought out a final report on 23 August 2021,
which concluded that the first respondent was indebted to the applicant
in the sum of R 2 304 839.15. Although the first respondent
indicated her unhappiness with the report, no review application was
forthcoming.
These proceedings
[5] This matter was set down for hearing on 26 May 2025. On that
date the first respondent’s counsel did not appear, and I gave an order
by default.
[6] On 27 May 2025 the first respondent’s counsel appeared and
submitted that she had been advised that the matter would be heard on
27 May. I consequently recalled my order of the previous day . The first
respondent’s counsel then advised that the first respondent would be
seeking a postponement of the matter in order to file a counter -
application seeking to review the liquidator’s report. I stood the matter
down to 29 May so that the first respondent could file papers in support
of the postponement applica tion. She did so on 28 May 2025. The
postponement application was argued on 29 May, whereafter I
dismissed the application with costs. The first respondent’s counsel
intimated that she was not ready to argue on the merits, and I stood the
matter down further to 30 May in order for counsel to prepare. On 30
May the first respondent’s counsel was indisposed, and, by agreement
of the parties, I ordered that the first respondent could deliver heads of
argument within three weeks if she so wished, that the appli cant could
answer thereto within a week, and that I would decide the matter on the
papers.
The postponement application
[7] The main question that perplexed me was why the first
respondent had not launched an application to review the report in the 3
years and nine months since the report was published. Despite the
voluminous papers delivered in the postponement application, that
question remains unanswered. The timeline of the matter is important:
On 23 August 2021 the report was published. On 10 September 2021
the first respondent wrote to the liquidator saying “My understanding is
that I now have 30 working days commencing from Monday 13 th
September to afford me the time to seek legal counsel to assist me in
preparing the submission of the application for review.” There can be no
doubt whatsoever that the first res pondent knew that there was a time
period within which she was obliged to bring her application.
[8] On 18 October 2021 the liquidator wrote to the parties advising
them that the period allowed for the review application had lapsed, and
that he accepted that the parties agreed with, and had ratified the report.
When the first respondent failed to respond to a pplicant’s demand for
payment, the applicant launched this application on 18 November 2021.
The first respondent delivered a notice to oppose on 30 November
2021. The first respondent’s answering affidavit was due on 21
December 2021 but was only d elivered on 12 April 2022. It was thus
delivered some three months out of time.
[9] Since the application was launched , there have been several
applications brought by the parties. The first application was an ex parte
application brought by the liquidator to freeze certain funds that the first
respondent had paid to her husband’s bank account pursuant to a sale
of an immovable property. The second application, brought by the first
respondent and her husband on 2 December 2021 sought to unfreeze
the bank account. The end result was that the funds required to settle
the first respondent ’s alleged indebtedness to the applicant were
ringfenced.
[10] At the outset the liquidator was not cited in these papers. The first
respondent then pointed out, correctly so, that the liquidator has a direct
legal interest in the matter, and that he should have been cited from the
legal interest in the matter, and that he should have been cited from the
outset. That issue was addressed when the applicant sought to join the
second and third respondents . Even th at application became opposed
by the first respondent, causing a further delay in the matter. The
second and third respondents were eventually joined to the matter by
court order on 11 November 2022.
[11] Finally, on 6 March 2024 the first respondent was ordered to
deliver heads of argument within 10 days, which she failed to do.
Consequently, the applicant brought a Rule 30 A application for the
striking of the first respondent’s defence. That application was never set
down, as the applicant elected to pursue the main application instead.
[12] It is within this context that one should consider the first
respondent’s explanation for the inordinate delay in bringing the
counter-application. She says that on 28 April 2022 the parties held a
roundtable meeting at which the matter could not be resolved. On 24
August 2022, almost four months later, the first respondent consulted
with her counsel regarding the matter. Still, no review application was
forthcoming.
[13] The first respondent says that she consulted with her legal team
‘several times’ during 2023. She does not say when these consultations
occurred and what the outcome was. The fact is though, that despite
these ‘several’ consultations, nothing was done in 2023 to advance the
review application. By March 2024 the first respondent had not delivered
her heads of argument, and it was necessary for her to be compelled to
do so.
[14] On 16 April 2024 , twenty months after the initial consultation, the
first respondent’s counsel forwarded a memorandum in which she
expressed an opinion regarding the calculation of the sum due to the
applicant. The applicant refused to accept the calculation,
notwithstanding which the first respondent did nothing to advance the
review. The only steps taken by the first respondent in furtherance of the
litigation was to deliver an answering affidavit to the Rule 30A
application to compel her to deliver heads of argument , instead, as one
would expect, of delivering the counter-application.
[15] The notice of set down for 26 May 2025 was served on the first
respondent’s attorney on 5 May 2025. The first respondent professes
that her attorney did not realize, until 21 May 2025, that this application
had been enrolled, when he received a proposed practice note from the
applicant. By then the first respondent must have realized that the
applicant was intent on continuing with this application, but still no
review application was forthcoming.
[16] The first respondent took the view, erroneously so, that the
application was premature and that the rule 30A application should be
heard first, and her attorney refused to sign the joint practice note. I say
that this view is erroneous as the applicant was entitled to forego the
rule 30A application, and to elect to argue the matter on the current
papers.
[17] It is my firm view that the only reason for the delay in launching
the review application is that the first respondent never truly intended on
doing so. Instead of focusing on the review, the first applicant has, over
a period of almost four years, resorted to delaying tactics. In my view
the latest attempt at a postponement is simply a continuation of the first
respondent’s attempt at delay . My view is fortified by the events that
occurred subsequent to the hearing of the matter.
[18] It is trite that a party seek ing an indulgence must fully explain the
delay. The entire period of the delay must be dealt with.1
[19] Conspicuously absent from the papers is any explanation for the
delay in bringing the counter -application. The first respondent’s
submission that her attorney was busy with the other interlocutory
applications, and that he could not attend to this application for some
years, is rejected. The argument that the first respondent was looking
for documents to prove her case, is similarly rejected. If the first
respondent has been unable to find documents relating to her own
financial affairs for almost four years, then it is safe to say that those
documents do not exist.
[20] In considering the application for a postponement, I also take into
consideration the merit, or rather, lack thereof in the first respondent’s
case.
Subsequent proceedings
[21] When the first respondent’s counsel became ill -disposed on 30
May 2025, I adjourned the matter down so that the first respondent
could file heads of argument, and so that the applicant could reply.
However, on 24 June 2025 the first respondent sought leave to file a
supplementary affidavit. I agreed to hear further oral argument on the
matter, which I did on 30 July 2025.
[22] The first respondent’s explanation for the late filing of the
supplementary affidavit was the following:
“The delay in bringing this application was not as a result of any
mala fides. Information came to light post the filing of the
answering affidavit and some information was disclosed very
recently. I am advised that my counsel also, having considered
the matter again on Sunday 22 June 2025 whilst drafting my
heads of argument, saw that a supplementary affidavit would be
the best way to address relevant issues and put the necessary
information before the Honourable Court.”
[23] The affidavit is silent on what information came to light, when it
came to light, what information was disclosed, by whom and when. The
first respondent has been represented by an attorney and junior
counsel, and has consulted with senior counsel. It would be very
surprising if they left any stone unturned to uncover relevant evidence
and to present it to Court timeously. The explanation did not truly
explain the delay.
[24] Furthermore, the applicant is entitled to have the case heard
expeditiously, and without the undue and inordinate delays as have
been caused by the first respondent. Litigation is not a game, and
parties should not flout the rules as they wish. Only when a delay is truly
explained, and it is in the interests of justice to allow a deviation from the
rules, is it appropriate to do so. That was not the case in this matter, in
my view, which is why I refused the application to supplement the first
respondent’s papers. As an aside, I point out that I also did not read the
applicant’s supplementary affidavit, as there had not been an application
to supplement, and the applicant could not, as of right, rely on a
supplementary affidavit.
Merits
[25] The answering affidavit was delivered some 6 months after the
application was launched, and nine months after the report was
published. One would have expected the first respondent to have been
able to put up a detailed case for her alleged objection to the report.
Instead, one finds generalized statements only; for instance that the first
respondent wishes to raise ‘important considerations’ , and that she
‘disagreed’ with the report . What those ‘considerations’ or
disagreements might be is not clarified. The first respondent simply says
that:
“It is however denied that the calculation of my allocation account
was effected correctly, more specifically as, amongst other
things, certain amounts and items which were expressly to be
excluded from the calculation as per the settlement agreement
that was made an order of court when the applicant divorced….
Were included, without justification and/or sufficient justification
therefor in light of the terms of the settlement agreement and the
prevailing circumstances.”
[26] The only objection with some form of substance is the first
respondent’s averment that the liquidator took into account policies and
investments in his calculation which were specifically to be excluded,
and the assets were to be retained by the party in whose name the
investment, policy or share was held . This contention arises from two
clauses in the settlement agreement.
[27] Clause 31 provides that each party shall retain their own
annuities, pension fund benefits, shares, life policies and investments in
their own name. Clause 34 provides that only the assets therein named,
namely the equity value of the immovable properties, a R 400 000 loan
on a Meyerspark property, the defendant’s severance package, a s well
as any assets of which the other party w as not aware might be taken
into account in the division of the estate.
[28] The first respondent says that the liquidator took into account
investments in her name of which the applicant had been aware, and
which should, consequently, not have been taken into account.
[29] Having perused all of the correspondence provided to him, t he
liquidator dealt with these assets in the report as follows:
“Both parties have submitted that the other party had not
disclosed their investments, policies and shares, and both parties
have submitted that they have disclosed their investments
policies and shares. It is not clear and as I cannot with surety
state, on the documentation at hand, and to my knowledge, that
both parties were fully aware of the other parties’ investments,
policies and shares held, and the values thereof, and can I not
exclude/include one parties’ investments, policies and shares but
not the other. I will include the stated assets for purposes of this
report.”(sic)
[30] In an email to the liquidator dated 25 May 2022 the first
respondent contended that she had advised the applicant of her
investments in an email dated 20 November 2018. She said that the
alleged email was attached to the 25 May email, but that is not evident
from these papers. In any event, the 25 May email was sent many
months after the report had been published. It does not prove that the
applicant was aware of the first respondent’s investments, nor that the
first respondent had so informed the liquidator. In these papers the first
respondent also did not provide any evidence to substantiate her
contention that the applicant had been aware of these particular assets.
[31] In Wright v Wright 2 the Supreme Court of Appeal considered the
functions of a referee under section 38 of the Act , and the status of the
report. It said:
“I agree with the learned judge’s finding that Estate Young is
authority for the proposition that ‘a court is bound by the findings
of a referee contemplated in s 19 bis, unless it can be found that
the conclusions arrived at by the referee were unreasonable,
irregular or wrong.” (my emphasis)
[32] With regard to Perdikis v Jamieson3 the Court held that:
“In this regard, the dictum of Boruchowitz J in Perdikis v
Jamieson is apposite:
‘It was held in Bekker v RSA Factors 1983 (4) SA 568 (T) that a
valuation can be rectified on equitable grounds where the valuer
does not exercise the judgment of a reasonable man, that is, his
judgment is exercised unreasonably, irregularly or wrongly so as
to lead to a patently inequitable result.’
This is also the position in respect of the referee’s report – it can
only be impugned on these narrow grounds.”
[33] The onus to show that the report should not be adopted is upon
the first respondent. She has not disclosed any reason whatsoever to
impugn the factual findings in the repor t. There is no evidence that the
liquidator’s findings regarding the inclusion of the investments, policies
and shares in the calculation of the amounts due were wrong, irregular
or unreasonable. I find, therefore, that the report should be adopted.
[34] I make the following order:
[34.1] The final report by the third respondent dated 23
August 2021 is adopted in terms of section 38 of the
Superior Courts Act, 2013.
[34.2] The first respondent shall pay the applicant the sum
of R 2 304 439.15 within seven days of this order.
[34.3] The applicant and the first respondent shall each
pay 50% of the cost of the second and third respondents
associated with their mandate arising from the order of court
dated 29 September 2020, within 7 days of this order.
[34.4] The applicant shall pay the second and third
respondent’s costs in respect of the application for leave to
intervene.
[34.5] Save as above, the first respondent shall pay the
costs of the application on Scale C.
SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
Counsel for the applicant: Adv. F Kriel
Instructed by: Du Toit’s Attorneys
Counsel for the respondent: Adv. B Bhabha
Instructed by: Ningiza Horner Inc
Heard on: 30 May 2025
Judgment on: 1 September 2025
1 Van Wyk v Unitas Hospital and Another(Open Democratic Advice Centre as Amicus
Curiae) 2008 (2) SA 472 (CC)
2 2015 (1) SA 262 (SCA) at para 8
3 Perdikis v Jamieson 2002 (6) SA 356 (W)