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
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2022-4392
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 05/10/2025
SIGNATURE
In the matter between:-
O[...], C[...] T[...] Applicant
and
O[...], M[...] C[...] (Born B[...]) Respondent
JUDGMENT
Mfenyana J
[1] This is an opposed application in terms of which the applicant seeks a
separation of issues in terms of Rule 33(4) of the Uniform Rules of Court. In the
notice of motion, the applicant further seeks an order declaring that the G[...] shares
and all proceeds emanating therefrom are excluded from the accrual calculation by
virtue of clause 6.1 of the ANC. The applicant further seeks an order directing that
the balance of the disputes would be determined in the divorce trial. Costs are
sought only in the event of opposition.
[2] The background to the application is that the parties, who are married to each
other, are embroiled in divorce proceedings, which are still pending before this
court. The parties concluded their marriage on 25 November 2006 out of
community of property, with the inclusion of the accrual system. No children were
born of the marriage between the parties. On 9 November 2006, prior to the
marriage, the parties had concluded an antenuptial contract. On 4 February 2022,
the respondent instituted divorce proceedings. I n December 2022, the applicant
vacated the marital home, which is jointly owned by both parties, leaving the
respondent to reside there alone. The respondent continues to live in the property.
[3] In respect of the separation, the applicant avers that it would be in the best
interests of both parties and the convenience of the court to have the interpretation
of the antenuptial contract (ANC) separated from the remainder of the disputes in
the divorce action. He avers that in recent times he became aware that the
respondent believes that no assets are to be excluded in terms of the ANC. He
states that according to him, the interpretation of the ANC is that, according to
clauses 5 and 6, certain assets from his estate should be excluded when calculating
the accrual. He maintains that these assets include his shares in G[...] T[...]
Holdings Limited, which he claims to have acquired before his marriage to the
respondent. He further argues that any assets acquired from the proceeds of selling
those shares or deriving from ownership of the shares, specifically the Investec
Money Fund account, the Ninety -One Equity Fund, the Investec UK Savings
account, the Discovery Global Endowment, the Converso International Retirement
Plan, and the Nedbank 32 -day Notice account , should also be excluded from the
accrual calculation. The declaratory re lief sought by the applicant pertains to these
assets. The respondent disputes the inclusion of these assets in the accrual.
[4] In opposing the application, the respondent disputes the applicant’s
interpretation of the ANC. She contends that in bringing this application, the
interpretation of the ANC. She contends that in bringing this application, the
applicant is dishonestly attempting to prevent her from investigating his complicated
and substantial financial affairs and from seeking the correct amount of accrual,
which she is entitled to. She further asserts that the applicant is trying to avoid
addressing the fact that he has transferred most of his assets out of the country,
which requires the respondent to engage a forensic investigator . The respondent
relies on the provisions of clause 5 of the ANC, which states that the net value of
both parties’ respective estates at the commencement of their marriage is zero. She
avers that the accrual calculation should be performed using a commencement
value of zero for both herself and the applicant. The respondent further states that,
as there are no assets listed in the exclusion clause, no assets should be excluded
from the calculation.
[5] In reply, the applicant denies that he instituted this application in order to hide
assets and states that he would still be required to prove that the G[...] shares and
assets were acquired prior to the commencement of the marriage, even if this
application is granted. Thus, the financial investigation would still need to take place,
he adds. However, this would be done with certainty as to which assets are to be
included or excluded from the accrual calculation.
[6] Clauses 5 and 6 of the antenuptial contract state:
“5. For the purpose of proof of the net value of their respective
estates at the commencement of their intended marriage the
intended spouses declared the net value of their respective
estates to be as follows:
5.1 that of C[...] T[...] O[...] to be R0.00.
5.2 that of M[...]-C[...] B[...] to be R0.00.
6. The assets of the parties or either of them, which are listed
hereunder, and all liabilities presently associated therewith, or
any other assets acquired by such party by virtue of his or her
possession or former possession of such assets, shall not be
taken into account as part of such party’s (state) at either the
commencement or the dissolution of the marriage.
6.1 the assets of C[...] T[...] O[...] so to be excluded are any
and all assets acquired prior to the intended marriage and the
proceeds thereof and
6.2 the assets of M[...]-C[...] B[...] so to be excluded are any
and all assets acquired prior to the intended marriage and
the proceeds thereof.”
[7] The applicant asserts that the respondent is entitled to half of the difference
between the accruals of their respective estates, excluding the assets previously
specified that were acquired before his marriage to the respondent. He
acknowledges that not all the shares were acquired prior to the marriage. He further
contends that the matters involved in the divorce are uncomplicated and should be
quickly resolved, either by settlement or through the appointment of a receiver to
determine the accrual.
[8] On the other hand, the respondent argues that there is no benefit or
convenience to the court in granting the application, as all issues in dispute are
inextricably linked and should be dealt with simultaneously. The respondent
contends that the application is mala fide and is only brought for the benefit of the
applicant. Notably, the respondent avers that the applicant bypasses the provisions
of clause 4 of the ANC, which deal with the net value of each party’s estate at the
commencement and dissolution of the marriage.
[9] The respondent further argues that the application is not the normal standard
separation application, which seeks a separation of the divorce order from the
proprietary aspects of the divorce proceedings. The respondent decries the fact that
the applicant did not seek a divorce order. As such, there would be no material
convenience in separating issues as suggested by the applicant, she further avers.
[10] Importantly, the respondent contends that the identification and valuation of
assets requires expert evidence, which she contends is not a lengthy or onerous
process. She states that the court would need to consider all of the assets in order
to determine whether subsequent assets acquired are to be excluded and on what
basis. As such, this would not cause any material delay, she contends. She avers
basis. As such, this would not cause any material delay, she contends. She avers
that the applicant does not identify which assets he allegedly purchased as a result
of the shares held by hi m in G[...] T[...] (Pty) Ltd. As such, the trial court will have to
make that determination, the basis for their exclusion and whether those assets
were acquired by virtue of the applicant’s possession of the excluded assets.
[11] The respondent relies on the decision in Internatio (Pty) Ltd v Lovemore
Brothers Transport CC 2000 (2) SA 408 to support her averment that the applicant
has not provided sufficient particulars to enable the court to reach an informed
opinion on convenience and that it is not for the court to search for the relevant
allegations.
[12] It is trite that the purpose of a separation in terms of rule 33(4) is inter alia so
that a question of law or a factual issue, which can give direction to the rest of the
case, can be determined separately from other issues , unless it appears that the
question cannot be conveniently decided separately. It is designed to facilitate
convenient and expeditious resolution of litigation1.
[13] Bearing in mind that convenience is a crucial element of rule 33(4), the
question is whether it would be convenient to separate the interpretation of the ANC
from the remainder of the issues in the divorce action. The respondent argues that
all the issues are inextricably intertwined, while the applicant submits, with reliance
on Ruaff2, that the determination of the correct interpretation of the exclusion clause
would ‘give direction to the rest of the case’ and do away with a parcel of evidence’.
“The purpose is to determine the fate of (a party’s) claim without the costs and
delays of a full trial.”3
[14] Considering the reference to the specific extract in Hollard, it is clear that the
applicant is well aware that a rule 33(4) separation is not a foregone conclusion, and
the possibility of inconvenience and prejudice to a party should be considered. In
this regard, the applicant submits that the separation and declaratory relief sought
are not only convenient but an absolute necessity in the absence of which the court
are not only convenient but an absolute necessity in the absence of which the court
would have to hear evidence on a myriad of issues, some of which would require
expert evidence and result in a protracted trial. This is not correct. There does not
1 Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA).
2 Ruaff v Standard Bank Properties 2002 (6) SA 693 (W).
3 Ibid at 703.
seem to be much to be gained by any of the parties if the separation is granted. This
is even more the case given the applicant’s admission that the determination of
which assets were acquired before the parties’ marriage w ould still require
determination by the trial court. At that stage, the applicant would be required to
provide proof of his acquisitions and the timing thereof. Apart from arguing that this
will give direction to the rest of the issues, there seems to be no other reason why
this question should be determined separately from the other issues.
[15] In Molotlegi v Mokwalase4 the court noted that :
“ A court hearing an application for separation of issues in terms of rule
33(4) has a duty to satisfy itself that the issues to be tried are clearly
circumscribed to avoid any confusion. It follows that a court seized with
such an application has a duty to carefully consider the application to
determine whether it will facilitate the proper, convenient and
expeditious disposal of litigation. The notion of convenience is much
broader than mere facility or ease or expedience. Suc h a court should
also take due cognisance of whether separation is appropriate and fair
to all the parties. In addition, the court considering an application for
separation is also obliged, in the interests of fairness, to consider the
advantages and disadvantages which might flow from such
separation. Where there is a likelihood that such separation might
cause the other party some prejudice, the court may, in the exercise of
its discretion, refuse to order separation.”
[16] In my view, the determination of whether any assets are excluded from the
accrual calculation cannot be detached from the determination of what those assets
are. To separate a tiny part of the enquiry cannot result in any convenience to the
parties or the court. It is not desirable to deal with the issues in the divorce action
piecemeal, moreso that there appears to be a discrepancy between clauses 5, 6,
piecemeal, moreso that there appears to be a discrepancy between clauses 5, 6,
6.1 and 6.2. In my view, this is a factual issue to be determined by the trial court.
4(222/09) [2010] ZASCA 59; [2010] 4 All SA 258 (SCA) (1 April 2010), para 20.
Moreover, it would not serve the purpose contemplated in Rule 33(4) , which is to
streamline litigation.
[17] I cannot see how the separation sought by the applicant would curtail issues
to be determined by the trial court in any significant way. There are issues relating to
the ANC which require the attention of the trial court. This is because the ANC, in
broad terms, identifies assets which should be excluded both at the commencement
and dissolution of the marriage . The question is whether there is synergy between
clauses 5 and 6, in sofar as they declare the commencement value s of the parties’
estates to be zero , on the one hand, and, on the other , exclude certain assets at
either the commencement or dissolution of the marriage. Beyond that, the issue of
whether a particular asset is included or excluded from the accrual is a matter for
evidence, to be determined by the trial court.
[18] What the applicant is inviting this court to do is to venture into an exercise of
predetermining issues meant for the trial court. In essence, the applicant seeks to
furtively strip the trial court of its power to analyse evidence and determine issues
which should be conveniently determined by it . In the same vein, th e net effect is
that this court is overburdened with issues which by law fall within the province of
the trial court.
[19] The applicant seems to accept that it is required of him to prove that the
assets he considers to be excluded from the accrual were acquired before the
conclusion of the marriage. What he does not accept is that the trial court is well-
positioned to deal with the interpretation of the ANC.
[20] I am also not certain whether or not the applicant suggests that th e assets for
which he seeks a declarator are all the assets he acquired before the marriage. This
would require evidence to be led by the parties. The relevance of this is that there
can be no convenience to the parties for this court to decide on the G[...] shares and
can be no convenience to the parties for this court to decide on the G[...] shares and
whatever other assets accrued as a result of their possession, if there are other
assets that need to be determined by the trial court.
[21] Far from providing proof of ownership and that the G[...] shares were
acquired by the applicant prior to the marriage, the certificate of incorporation
submitted by the applicant seems to have opened a can of worms . The respondent
avers that the certificate of incorporation pertains to an entity different from the one
in which the applicant is a shareholder. Once again, th is issue requires oral
evidence and the trial court is best positioned to hear, analyse and decide on expert
testimony and any oral evidence for that matter.
[22] Even if I am wrong in refusing separation of issues, it is clear in the
circumstances that the declaratory order sought by the applicant cannot be granted
in the face of the disputes, the veracity of the certificate, the entity it pertains to, and
the assets involved being the subject of a fervent dispute between the parties. That
being the case, the application falls to be dismissed.
Order
[23] In the result, I make the following order:
a. The application is dismissed with costs.
S Mfenyana
Judge of the High Court
Johannesburg
APPEARANCES
For the applicant Adv F Botes SC with