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document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-088051
In the matter between:
In the matter between:
S[…] , J[…] V[…] K[… ] (born A[...) Applicant/Defendant
and
S[…] , W[…]
(I.D. NO: 7[…] ) Respondent/Plaintiff
JUDGMENT
VAN ASWEGEN AJ
INTRODUCTION:
[1] The Applicant’s postponement application in this divorce action in essence
deals with trial readiness.
[2] Trial readiness is vital to promote efficient, economical, and just legal
processes. It helps cases begin promptly, continue without interruptions, and
prevents needless delays or sudden removal from the court schedule. Trial
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _________________________
DATE SIGNATURE
2
readiness enables issues to be narrowed down, evidence to be managed, and
expert witnesses to be secured - factors that greatly enhance the chance of a
positive result and support early settlements.
[3] Some focal elements of trial readiness include:
[3.1] court efficiency - being fully prepared enables the case to start promptly
and proceed smoothly without delays.
[3.2] cost management - careful planning helps avoid costly last -minute efforts
and unnecessary procedural setbacks, leading to lower legal expenses for
everyone involved.
[3.3] case success - comprehensive preparation gives lawyers and advocates the
tools to present evidence clearly, anticipate counterarguments, and
achieve more favourable results.
[3.4] n arrowing of issues - pre-trial meetings are valuable for identifying the
primary issues in dispute , allowing participants to avoid unnecessary
topics and saving time.
[3.5] l ogistical preparedness - ensuring that all critical resource s, like witnesses,
expert testimony, and properly index ed document s, are ready when
needed.
[4] The Consolidated Practice Directive 1/2024 in the Gauteng Division requires
that the following requirements must be met before a matter will be regarded
as ready to be allocated a hearing date on the civil trial:
[4.1] Pleadings must have closed;
[4.2] No amendments to the pleadings may be outstanding or anticipated;
[4.3] No interlocutory applications may be outstanding or anticipated;
[4.4] Discovery must be complete;
3
[4.5] The parties must have considered whether a single expert on a given
aspect is appropriate in the circumstances, and decided to appoint a
single expert, or decided not to appoint a single expert setting out the
reasons for this decision;
[4.6] All experts’ witness reports have been filed;
[4.7] Joint minutes of contending experts have been filed and
[4.8] A minute of a pre-trial conference, signed by all parties, in relation to a
pre-trial meeting which was held not earlier than 90 (ninety) calendar
days before the date the hearing date application is made, has been
uploaded to the court file and is compliant with the provisions of this
directive.
[5] The aforementioned directive emphasises the importance of trial readiness in
promoting efficient and cost -effective litigation in the high court for all parties
involved. It streamlines the efficiency of courts and court time.
[6] In her postponement application, the Applicant/Defendant in the divorce
proceedings details her reasons for considering the matter not ready for trial.
Before addressing the issue of trial readiness, I will first outline the factual
matrix that has led to this action and the relief sought by the parties.
[7] The Applicant and Respondent married in community of property on 27 March
2010 at Elgin. Three children were born from the marriage, who are currently
14, 11, and 9 years old. The parties agree that the marriage has broken down
irretrievably.
[8] The Respondent who instituted divorce proceedings against the Applicant on
8 August 2024, seek s inter alia , a decree of divorce, a division of the joint
estate, relief in relation to the exercise by the parties of their parental
responsibilities and rights in respect of the minor children and costs of suit.
[9] The Applicant opposed the divorce proceedings and submitted her plea and
counterclaim on 22 October 2024. In her counterclaim, she requested, among
counterclaim on 22 October 2024. In her counterclaim, she requested, among
other relief, a decree of divorce; provisions regarding the allocation and
exercise of parental responsibilities and rights concerning the three minor
children; maintenance for the children and herself; division of the joint estate;
4
and costs of suit. The Respondent opposed the relief sought in her
counterclaim.
[10] The fundamental issues in dispute may be summarised as follows:
PARENTAL RESPONSIBILITIES AND RIGHTS
[10.1] The Applicant asserts primary residency, whilst the Respondent is
seeking shared residency. The implementation of these parental
responsibilities and rights is also problematic. (my underlining)
MAINTENANCE
[10.2] The main disagreement between the parties regarding child
maintenance concerns the Applicant's request that the
Respondent pay s for return airfares from South Africa to the
United States for each child twice a year, accommodation costs
during their stay, and to provide each child with an allowance of
R30 000.00.
JOINT ESTATE
[10.3] Assessing the value of disputed joint estate assets and
establishing both the appropriate assets for inclusion and their
respective valuation methodologies;
SPOUSAL MAINTENANCE
[10.4] The Applicant’s right and entitlement to lifelong spousal
maintenance (until my death or
remarriage) and if so, the
quantum thereof;
COSTS
[10.5] Costs of the action and upon
what scale.
[11] To assess trial readiness, this court must have regard to the events preceding
the postponement application.
5
CHRONOLOGY OF EVENTS AND RELEVANT CORRESPONDENCE:
[12] The Respondent’s attorney applied for a trial date on 16 January 2026.1
[13] The application for a trial date occurred subsequent to an unsuccessful
mediation attempt between the parties during December 2025.
[14] When applying for a trial date, no pre- trial conference had occurred, and both
parties were considering additional and improved discovery as outlined in rule
35(3).
[15] On 6 February 2026, a Notice of Setdown and J118 were delivered to the
Applicant’s attorneys to formally setdown the divorce action.
[16] These documents were forwarded accompanied by an e -mail2 to the
Applicant’s attorney stating that:
[16.1] The Registrar had allocated a trial date of 16 March 2026;
[16.2] a pre-trial should be arranged to deal with limited issues;
[16.3] the Respondent’s attorney was preparing the Respondent’s
supplementary discovery affidavit and would serve same during
the latter part of the following week.
[17] The Applicant’s attorneys on 9 February 2026 in an e- mail indicated that the
matter was not ready for trial on a mere one (1) month’s notice.3 The
reasons proffered were the following:
[17.1] The delivery of the Respondent's Notice in terms of Rule 35(3)
on Friday, 6 February 2026;
[17.2] The anticipated delivery of the Applicant ’s substantive Notice in
terms of Rule 35(3)
during the course of that week;
[17.3] The need for expert evidence and the absence of expert reports;
1 Case Lines 23-2
2 Case Lines 37-39
3 Case Lines 37-42
6
[17.4] The number of issues which remained in dispute in relation to
the contact
and residence arrangements in respect of the
children.
[18] Ms Kahn, the Applicant’s attorney concluded her e-mail by stating:
"In the circumstances, I cannot agree to the frenetic agenda proposed in
your email under reply in an attempt to remedy what cannot be rectified
within this limited period."
[19] On 11 February 2026 Ms Shardlow addressed correspondence headed
"very
urgent" to Ms Kahn indicating that:4
[19.1] a pre-trial conference would need to be called;
[19.2] the preparation of bundles would need to be discussed;
[19.3] Ms Shardlow would begin preparing the Respondent's trial
bundles "post
haste";
[19.4] Ms Shardlow would provide Ms Kahn with indexes;
[19.5] a practice note would need to be prepared;
[19.6] The case will be ready for trial and set to proceed on 16 March
2026, despite the recognition that both parties are required to
produce updated documentation during discovery.
[19.7] The Applicant would be obliged to comply with the Notice in
terms of Rule 35(3) which
had been delivered on 6 February
2026 by no later than 20 February 2026;
[19.8] The Respondent’s updated documentation would be provided in
a supplementary discovery affidavit;
4 Case Lines 37-44
7
[19.9] There was no need for expert witnesses, and the Applicant had
not made mention thereof beforehand;
[19.10] The tendered maintenance amount of R25 000.00 per month per
child accorded with the amount claimed by the Applicant;
[19.11] The only disputed issue was spousal maintenance and that the
Applicant would have more than sufficient time to prepare before
trial.
[19.12] Any postponement of the divorce action would be opposed, and
a punitive cost order would be sought against the Applicant.
[19.13] In divorce actions parties will always provide updated documents
such as bank statements at the 11th hour.
[19.14] expert evidence would not be required in the determination of
the value of the joint estate which could be referred to a receiver
should the parties require assistance.
[19.15] that the applicant had accepted both the forensic appointed
Parenting Coordinator, Ms. Tanya Kriel and the forensic clinic
psychologist’s recommendations.
[20] A pre-trial was held on 17 February 2026 and the Applicant’s attorney raised
concerns about what was termed the “Accenture deal”.
[21] The Respondent delivered a “with prejudice” tender on 18 February 2026.5
[22] On 19 February 2026, Ms. Shardlow, the Respondent’s attorney, emailed
Ms. Kahn, the Applicant’s attorney. She proposed that due to concerns about
the vesting of Accenture sale shares and disagreement over Advocate Subel
SC's opinion, both parties should jointly appoint an expert to resolve this
issue.6
5 Annexure “FA6” Case Lines 37-49
6 Annexure “FA7” Case Lines 37-64
8
[23] In an e- mail dated 20 February 2026, the Applicant’s attorney stated that the
case was not ready for hearing on 16 March 2026 due to specific reasons:7
[23.1] The dispute concerns the allocation of parental responsibilities and
rights between the parties with respect to their three children. The
children continue to experience emotional challenges in relation to
the gradual introduction of overnight contact. Further involvement
of an expert is accordingly necessary.
[23.2] The Applicant felt that she had not received all relevant information
and documents about the sale of the Respondent’s shares in PIP
Holdings and PIP Remco Lime to Accenture, including details
about how the Respondent would be paid or compensated. In
addition, the terms of the Respondent’s compensation for his
continued employment at Accenture were unclear, as was the
structure of bonuses, benefits, performance and leadership
rewards, and RSUs he was entitled to receive.
[23.2.1] Ms Kahn, the Applicant’s attorney, stated that the
Respondent supplied minimal documentation during
the without prejudice mediation at the end of 2025,
and these documents were only discovered on 19
February 2026.
[23.2.2] Ms. Kahn, pointed out it was unreasonable and
frankly disingenuous for the Respondent to expect the
Applicant to run a trial having regard to the relevance
of the documentation concerning the Accenture deal.
[23.2.3] The Respondent's need to seek an opinion from a n
expert. This necessity further reinforces the
Applicant’s argument that she is likewise entitled to
engage an expert of her choosing, to conduct a
thorough investigation into which assets appropriately
7 Annexure “FA8” Case Lines 37-66
9
belong in the joint estate and to determine their
accurate valuation.
[23.2.4] The senior counsel's opinion on the Respondent’s
behalf was not submitted with a notice pursuant to
rule 36(9)(a) or (b). It remains unclear how the
Respondent intend ed to present expert evidence
without submitting the requisite expert notices
stipulated by the Uniform Rules of Court.
[24] On 19 February 2026, the Respondent’s attorney suggested appointing a
jointly selected expert to address concerns regarding the Accenture shares,
following the Applicant’s decision not to accept Advocate Subel SC’s opinion
on the vesting of the shares. The Respondent recommended engaging a
senior commercial counsel for this purpose, as he deemed a chartered
accountant unsuitable for appointment as an expert.
[25] The Respondent’s proposal was deemed unsuitable, as the Applicant asserts
that a chartered accountant possesses the relevant expertise required for the
task, rather than legal counsel. Furthermore, the documentation provided by
the Respondent was insufficient to enable any expert to effectively undertake
the responsibilities outlined by the Respondent. Consequently, it was
necessary to postpone the matter, allowing both parties adequate time to
continue their pre-trial preparations and ensuring that the issues in dispute are
thoroughly examined and addressed. The Applicant’s attorney communicated
this response via email to the Respondent’s attorney and advised that, should
the Applicant be compelled to file an application for postponement, punitive
costs would be sought against the Respondent.
8
[26] On 20 February 2026, the Applicant’s attorney asked for a " Payment Out
Statement" that would show the dates when the Respondent is eligible to
receive shares in Accenture. Ms. Kahn requested that this document be
emailed to her promptly.9
8 Annexure “FA18” Case Lines 37-102
9 Annexure “FA9” Case Lines 37-72
10
[27] On the same day, Ms. Shardlow replied to Ms. Kahn, confirming receipt of the
email and stating she would respond after receiving instructions from her
client.10
[28] There had been no response after three weeks.
[29] On 23 February 2026, Ms Shardow emailed Ms Khan, accusing the Applicant
of deliberately prolonging the divorce despite generous maintenance from the
Respondent. She also noted that the Applicant's response to the
Respondent's Rule 35(3) notice was due on 20 February 2026.
[30] In the abovesaid email reference was also made:
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[30.1] that a substantial Rule 35(3) affidavit together with a lever arch file
containing the documents referred to therein had been delivered to
Ms Kahn's offices on Tuesday, 17 February 2026 (comprising on the
Respondent's version some 400 pages);
[30.2] that the Respondent would be amending his pleading to seek the
appointment
of a receiver and liquidator whose costs would be borne
by the joint estate in the sum of
R8 000 000.00 to R14 000 000.00;
[30.3] that the Respondent was of the view that the parties had in fact
reached an agreement regarding the assets and that it was " just the
issue of the Accenture deal' which remained in dispute;
[30.4] that the Respondent would not agree to the appointment of a forensic
psychologist for a further forensic investigation;
[30.5] that any disputes regarding the children should be referred to the
Parenting Coordinator Ms. Kriel;
[30.6] that Ms Kahn's offices had been provided with "every single document
relating to the joint estates" (sic);
10 Annexure “FA10” Case Lines 37-74
11 Annexure “FA11” Case Lines 37-76
11
[30.7] threatening that the Applicant must take whatever course of action
she deemed necessary
and that any postponement application
would be opposed and a punitive costs order, to be deducted from the
Applicant’s portion of the joint estate, would be sought.
[31] On Monday, 23 February 2026, the Respondent launched an application to
compel the Applicant to provide her reply to his Notice in accordance with
Rule 35(3) and (6), which was due on Friday, 20 February 2026.
[32] According to the Respondent’s Notice of Motion, the matter was scheduled for
hearing unilaterally on Tuesday, 3 March 2026, which is six court days from
the date of notice.
[33] On 24 February 2026, the Respondent's attorney, Karabo Hahatse, emailed
the Deputy Judge President with a letter requesting a hearing date for the
interlocutory application on 2 March 2026 so the Respondent could prepare
for the trial set for 16 March 2026 . The Respondent noted that the Registrar
advised contacting the DJP since the court rolls for 2 March 2026 were
already full.
12
[34] On 26 February 2026, Ms. Kahn submitted a letter to the DJP referencing the
letter by the Respondent’s attorney mentioned before. In her correspondence,
Ms. Kahn indicated that the Respondent initiated the application to compel on
the day following the expiration of the period granted for my response to Rule
35(3). However, she noted that the Applicant had already complied with the
Notice pursuant to Rule 35(3), rendering the scheduling of a hearing to
compel unnecessary.
13
[35] On 27 February 2026, a letter was received from the office of the DJP
addressed to the respective attorneys. In such letter, the A DJP acknowledged
the correspondence remitted by the attorneys to him (" FA12" and " FA13") in
which the respective attorneys were unequivocally instructed that they " are to
remove the matter from the trial roll of 16 March 2026 ... Once the trial is
ready, the parties may approach the Civil Trial Registrar for a new hearing
ready, the parties may approach the Civil Trial Registrar for a new hearing
12 Annexure “FA12” Case Lines 37-85
13 Annexure “FA13” Case Lines 37-89
12
date. The congested rolls do not permit an enrolment of an application before
the trial date."14
[36] On the same day Ms Shardlow remitted:
[36.1] a covering letter to Ms Kahn enclosing a Notice of Withdrawal of the
interlocutory application. In such letter, the Respondent indicated
that he would not be removing the matter from the trial roll;15
[36.2] a letter to the ADJP attaching the Respondent's withdrawal of the
interlocutory application;16
[36.3] a further letter to the A DJP suggesting that no date for the
interlocutory was required as the Applicant had complied with the
Respondent's Rule 35(3) Notice.17
FIRST AMENDMENT IN TERMS OF RULE 28
[37] On 27 February 2026, Ms Shardlow delivered a Notice to Amend in terms at
Rule 28 in terms of which the Respondent sought to:18
[37.1] correct the Applicant’s name and
[37.2] to insert two new prayers:
[37.2.1] for the appointment of Mr. Charles Stride CA (SA)
as a
Receiver and Liquidator with a list of powers and duties and
[37.2.2] to
replace the existing costs order with a costs order
against me on an attorney
client scale in accordance with
Scale C.
14 Annexure “FA14” Case Lines 37-91
15 Annexure “FA15” Case Lines 37-93
16 Annexure “FA16” Case Lines 37-96
17 Annexure “FA17” Case Lines 37-99
18 Annexure “FA19” Case Lines 37-106
13
[38] The Applicant had no difficulty with the amendment referenced in [37 .1] and
[37.2.2] above,
however, the amendment sought in relation to the receiver
and liquidator was fundamentally problematic.
[39] The Applicant contends that f or the receiver to value the assets and liabilities
of the parties’ joint estate there must be a determination of the identity of the
assets which comprise the estate . The valuation of the benefits which the
Respondent has derived and or to which he will become entitled because of
the Accenture deal cannot be undertaken by the receiver in circumstances
where there is l ive dispute on this issue and only a court can make such
determination. The Applicant had indicated her wish to obtain an expert
opinion and to lead expert evidence for the court to make a finding. Only once
this has been done, will a receiver be able to proceed with his/her duties.
[40] The dies for the Applicant’s objection to the proposed amendment expired on
Friday 13 March 2026 , the court day prior to the commencement of the trial
action. On Saturday,14 March 2026, the Respondent delivered his amended
pages which amendment was effected on Monday, 16 March 2026 in terms of
rule 28(7). The amendment was duly effec ted, granting the Applicant the right
to make any consequential adjustments to her pleadings that result from the
amendment. The dies for her consequential plea (15 days) only elapse on
Monday 6 April 2026 (more than 2 weeks after the allocated hearing date)
[41] On 10 March 2026, the Respondent made another “ with prejudice ” tender.
This offer was not acceptable. The Applicant perceived this offer as a last -
attempt effort to secure a divorce, while being unwilling to fully disclose all
relevant information and documentation related to the Accenture deal. This
led to concerns that assets might be excluded from the joint estate for the
Respondent’s benefit and to the detriment of the Applicant.
Respondent’s benefit and to the detriment of the Applicant.
[42] The Applicant’s postponement application was served on the R espondent’s
attorneys on 11 March 2026.
19
19 Case Lines 37-112
14
[43] The Respondent replied to the said application and served his answering
affidavit and a counter application in terms of rule 33(4) on Friday 13 March
2026.20
[44] The Applicant served a replying affidavit on Monday 16 March 2026 at 09:31
as well as a Rule 30 notice.21
EVENTS PRIOR TO THE HEARING OF POSTPONEMENT APPLICATION:
[45] Before the hearing, outside the courtroom, I had informed both counsel that,
due to the rule 28 amendment and the delivery of the amended pages , which
effected the amendment on 16 March 2026, the Applicant was entitled to
make any consequential changes to her pleadings within 15 days as
stipulated by rule 28(8). The amend ment had reopened the pleadings. My
prima facie view was that th e 15-day period would only expire after the
hearing date of 16 March 2026 , making the case not trial ready . In support, I
referred them to Wendy Mechanik Property Holdings CC v Guiltwood
Properties CC .
22 I had invited counsel to a ddress me on this aspect at the
commencement of the hearing of the postponement application.
[46] The Respondent’s counsel had sought an opportunity to peruse the
Applicant’s replying affidavit served just prior to the hearing of the matter on
16 March 2026 which was allowed.
HEARING OF POSTPONEMENT APPLICATION:
[47] At the start of the proceedings, the Applicant’s counsel informed the court that
moments earlier she had received a Notice of Withdrawal of the Notice of
Amendment and the amended pages from the Respondent’s counsel.
20 Case Lines 37-223
21 Case Lines 37-276
22 2007(5) SA 90 (W)
15
[48] I questioned Respondent’s counsel on whether a litigant is allowed to
withdraw both the Notice of Amendment and the amended pages, and if rule
28 should not instead be used.
[49] The postponement application was argued and the court then asked both
counsel to submit heads of argument on this aspect.
[50] In her heads of argument the Respondent’s counsel has, rightly so, conceded
that a litigant must utilize rule 28 and that the withdrawal was not competent.
[51] By effecting the amended pages the Particulars of Claim had been revised
and the amended pages operated as the new pleaded version.
[52] In Cordier v Cordier
23 the Court held:
'It is a general rule that a pleading into which words have been incorporated
by amendment must be read as if the incorporated words had been there in
the first place, ie when the pleading was filed in the first instance (Dinath v
Breedt 1966 (3) SA 712 (T) at 717).”
[53] The original Particulars of Claim are therefore superseded by the amended
version, in accordance with the terms of the revision.
[54] Once the amendment had been implemented, the notice that was issued prior
to the delivery of the amended pages is, for all practical purposes,
extinguished. This principle was affirmed in Sasol South Africa Ltd t/a Sasol
Chemicals v Penkin 2024 (1) SA 272 (GJ):
“45. On this basis, and on 23 November 2021 when the applicant delivered a
notice in terms of rule 30(1), there was no extant ‘notice of intention to
amend’ as contemplated in rule 28(1), it having lapsed for want of either
23 1984 (4) SA 524 (C) at 533B as quoted in Barrie Marais & Seuns v Eli Lilly (SA) (Pty) Ltd
1995 (1) SA 469 (WLD) at p.472G-H
16
the delivery of amended pages, or for want of an application for leave to
amend, assuming the rule 30(2)(b) notice had the same effect as a rule
28(2) notice.”
[55] In these circumstances, the notice of intention to amend ceased to exist once
the amendment was affected. Therefore, it is both factually impossible and
legally inadmissible for the Plaintiff to attempt to withdraw something that no
longer exists.
[56] The amended pages accordingly form part of the pleadings. Any party
desiring to amend a pleading shall notify all other parties of his intention to
amend and shall furnish particulars of the amendment in terms of rule 28(1).
[57] A pleading may not be amended without due process. All modifications to
pleadings must comply with the requirements set forth in rule 28. Should the
Respondent wish to rely on Particulars other than those contained in the
revised Particulars of Claim, he is required to request an amendment and
adhere to the procedural steps outlined in rule 28.
[58] The aforesaid is conceded by counsel for both sides.
SECOND AMENDMENT DATED 17 MARCH 2026:
[59] In her written submissions, Respondent’s counsel informed the court that a
Notice of Intention to Amend, dated 17 March 2026, will be served on the
Applicant’s attorneys. The purpose of this amendment is to restore both
parties to their positions before the changes were made to the pleading . The
Respondent intends to remove the amendments made to his prayers.
According to the Respondent’s counsel, this action would not cause any
prejudice to the Applicant.
[60] The Respondent accordingly elected to make use of the machinery of rule 28
to amend the pleadings.
17
[61] The Notice of Amendment dated 17 March 2026 24 reads as follows:
“ BE PLEASED TO TAKE NOTICE THAT the Plaintiff herein hereby intends
amending his Amended Particulars of Claim dated 13 March 2026 and
served on 14 March 2026 in the following manner:
1. By the deletion of Prayers 3 to 3.8 and 4 thereof in toto.
2. By the renumbering of Prayers 5 to 12.8 accordingly.
3. By the deletion of the current Prayers 12.1 to 12.4 in their entirety to
be replaced
with the following new Prayers:
"9.1.
Payment to the defendant of the sum of R25 000.00
(twenty-five
thousand rand) per child per month in respect
of their reasonable daily living expenses when they are in
the defendant's care payable until the children may
reasonably be expected to be self-supporting;
9.2 The maintenance referred to in paragraph 12.1 above shall
increase commensurate with the Consumer Price Index
(urban areas as published by the Department of Statistics
on the first anniversary of the granting of the decree of
divorce and annually thereafter;
9.3 Payment of all reasonable educational expenses including
but not limited to private school fees, levies, extra tuition
fees direct to the service providers, school uniforms,
schoolbooks and stationery, extramural activities, attire and
equipment required for such activities, agreed school tours
and exchange programs (locally and abroad);
24 Case Lines 38-18
18
9.4 Payment of the monthly premiums to retain each of the
children on a comprehensive medical aid scheme and all
escalations to the monthly premiums and payment of all
reasonable excess medical and dental costs, including
orthodontic expenses and the cost of spectacles or contact
lenses, not covered by the benefits of such scheme within
7 (seven) calendar days of presentation of an invoice, as
required;
9.5 Payment of each of the children's reasonable tertiary
education, including university and residence fees and/or
fees due to an institution of higher learning attended by
him/her, including the cost of books, stationery and
equipment, computers, and their reasonable and agreed
upon transport and travelling costs."
4. By the deletion of the current prayer 13 to be replaced with the
following:
"10. Costs of suit."
BE PLEASED TO TAKE NOTICE FURTHER THAT the Plaintiff tenders the
wasted costs occasioned by the amendment.
BE PLEASED TO TAKE NOTICE FURTHER THAT unless written objection to
the proposed amendment is received within 10 (TEN) days from date hereof, the
amendment will be deemed to have been effected and the Plaintiff shall be
entitled to deliver his amended pages.”
[62] It is evident from the Notice of Amendment that in terms of Rule 28(2) a period of
ten (10) days from delivery of the Notice will be allowed for any objection. Only
thereafter will the amendment be effected by delivery of the relevant pages in
their amended form in terms of Rule 28(7). Until such time the Particulars of
19
Claim stands as effect ed on 16 March 2026 . It is important to note that t he
pleadings are open.
[63] The effect of this new amendment is that, once the amended pages are
delivered, the Particulars of Claim will resemble the pleadings as they were at
the close of pleadings. However, the court currently has before it the revised
Particulars of Claim of 16 March 2026, which remain valid until ten (10) days
lapse and the amended pages have been delivered to implement the
amendment.
[64] The Respondent elected not to proceed with the revised Particulars of Claim of
16 March 2026 by filing a new amendment dated 17 March 2026. The machinery
of rule 28 has become operative and the litigants have to comply with the time
periods allowed.
[65] The pleadings are open and based on the Respondent’s Notice of Amendment
the Applicant has ten ( 10) days to object. Although it may be argued that the
Applicant will not object, as the amendment resembles the initial Particulars of
Claim, the court can simply not work on assumptions and time periods have to
be adhered to.
[66] The Respondent, as Plaintiff in the divorce case, is dominis litis and decides how
to present his case to court.
[67] The revised Particulars of Claim effected on 16 March 2026 has not been
pleaded to and is now in the process of being amended.
[68] It is abundantly clear that the current revised Particulars of Claim effected on
16 March 2026 before court , is not the Particulars on which the Respondent
elects to proceed. The amendment of 17 March 2026 will only be effected after a
lapse of ten (10) days.
[69] This divorce action is without any doubt not trial ready. At trial stage, pleadings
move beyond being simple procedural filings that start a lawsuit; they serve as
the essential, definitive record establishing the legal and factual limits of the
20
case, thereby restricting what evidence and issues may be considered. In th is
case, the pleadings remain open, undefined, and are not fixed in their final form.
RESPONDENT’S COUNTERCLAIM:
[70] In response to the Applicant’s postponement application, the Respondent filed a
counter application.
[70.1] Uniform Rule 6(7), which deals with counter -applications, reads as
follows:
(a) Any party to any application proceedings may bring a counter -
application or may join any party to the same extent as would be
competent if the party wishing to bring such counter - application
or join such party were a defendant in an action and the other
parties to the application were parties to such action. In the latter
event the provisions of rule 10 will apply.
(b) The periods prescribed with regard to applications apply to
counter-applications: Provided that the court may on good cause
shown postpone the hearing of the application. (my underlining
added)
[71] The Respondent’s counterclaim to the postponement application seeks a decree
of divorce, division of the joint estate by way of the appointment of Mr. Charles
Stride, CA (SA) to facilitate the division of the estate, that the parties remain co-
holders of parental responsibilities and rights in respect of their children, that the
court order of 11 August 2025 remain in place, maintenance in respect of the
minors and a separation of issues in terms of rule 33(4). The issues to be
separated are costs of return tickets from RSA to the United States of America
twice annually for the children together with accommodation costs and an
allowance of R30 000.00 per child, spousal maintenance, the applicant's claim
that the Respondent’s PER Transaction Bonuses, Retention Bonuses and New
21
Hire Equity Grants which have yet to vest, are to be included in the division of
the joint estate and the applicant's claim for costs.25
[72] The Applicant delivered her replying affidavit together with a Notice in terms of
rule 30(2)(b) to remove a cause of complaint.26 She assert that the Respondent’s
Notice of Motion, in respect of his counter application, does not comply with the
requirements of rule 6 in that:
[72.1] It fails to indicate that the Applicant is entitled to oppose the counter
application;
[72.2] It fails to stipulate the day, time and manner in which the notice of
intention to oppose is to be delivered;
[72.3] It fails to indicate the date upon which the matter will be enrolled for
hearing;
[72.4] It fails to indicate the court roll upon which the application will be
enrolled.
[73] The aforesaid defects therefore, according to the Applicant , render the notice
non-compliant with Rule 6 and procedurally defective.
[74] It is accepted that a counter application need not be brought on notice of motion.
[74.1] “It is trite that counter-applications are subject to the general principles
applicable to applications, although a counter -
application does not
have to be served in accordance with the provisions of rule 4. The
notice of counter -application does not have to be in the form of a
notice of motion, but the respondent must set out the relief claimed in
the counter -application. Usually, the evidence pleaded in the
answering affidavit also serves to support the relief claimed in the
counterapplication.” 27
25 Case Lines 37-113
26 Case Lines 37-277
27 Smith NO v Malan NO 2024 (4) SA 624 (FB) at paragraph 26
22
[75] It follows that if this court is not in a position to grant a decree of divorce and
ancillary relief due to open pleadings that the separation of issues can similarly
also not be granted.
[76] The pleadings are open which effects both the action and the
counterapplication. The parties have not joined issues, the time allowed for
filing further pleadings ( amended particulars and amended plea) has not
elapsed, and no written agreement on closure exists.
[77] This court cannot grant a decree of divorce due to a pending amendment.
[78] This court was referred to case- law
28 which allows for an order separating the
issue of divorce from all other issues between the parties in a divorce action.
However, these matters are distinguishable in that the pleadings were not open
as is the matter before court.
[79] Separation cannot be considered if pleadings are not clearly defined with
precision.
[80] In Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) para 3, the Court said
in respect of rule 33(4):
“Before turning to the substance of the appeal it is appropriate to make a few
remarks about separating issues. Rule 33(4) of the Uniform Rules – which
entitles a court to try issues separately in appropriate circumstances – is aimed
at facilitating the convenient and expeditious disposal of litigation. It should not
be assumed that that result is always achieved by separating the issues. In
many cases, once properly considered, the issues will be found to be
inextricably linked even though at first sight they might appear to be discrete.
28 TD v LD and Others (32195/2017) [2024] ZAGPJHC 751 (12 August 2024); AMG and Another
v TSG (2025/057077) [2026] ZAWCHC 6 (19 January 2026)
23
And even where the issues are discrete the expeditious disposal of the
litigation is often best served by ventilating all the issues at one hearing,
particularly where there is more than one issue that might be readily dispositive
of the matter. It is only after careful thought has been given to the anticipated
course of the litigation as a whole that it will be possible properly to determine
whether it is convenient to try an issue separately. But where the trial court is
satisfied that it is proper to make such an order – and in all cases it must be so
satisfied before it does so – it is the duty of that court to ensure that the issues
to be tried are clearly circumscribed in its order so as to avoid confusion. The
ambit of terms like the ‘merits’ and the ‘quantum’ is often thought by all the
parties to be self-evident at the outset of a trial but in my experience it is only in
the simplest of cases that the initial consensus survives. Both when making
rulings in terms of Rule 33(4) and when issuing its orders a trial court should
ensure that the issues are circumscribed with clarity and precision. It is a
matter to which I shall return later in this judgment.” (my underlining)
[81] The Appellate division held that piecemeal litigation which defeats the object of
rule 33(4) is to be eschewed. In Molotlegi v Mokwalase (222/09) [2010] ZASCA
59 (1 April 2010), the Court said:
“A court hearing an application for a 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. Such a
court should also take due cognisance of whether separation is appropriate and
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. Crucially in deciding whether to grant the order or not the court has
a discretion which must be exercised judiciously. The court cannot simply grant
24
such an application because it is unopposed. I regret to say that the court below
failed in this respect. See Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA)
para 3.” (my underlining)
.
CONCLUSION:
[82] This matter is a classic example of one which is not trial ready. Evidence of this
was apparent as early as January 2026. After an unsuccessful mediation in
December 2025, the matter was enrolled on 16 January 2026 without
compliance with Consolidated Practice Manual 1/2024. Discovery had not been
completed, as can be seen from subsequent rule 35(3) applications, and a pre-
trial meeting was not held 90 calendar days before applying for the court date.
[83] The correspondence exchanged between the parties’ attorneys since January
2026 reflects an expedited effort to comply with procedural requirements and
court rules, with the aim of efficiently preparing the divorce action for trial within
a short timeframe ( 6 February 2026 to 16 March 2026). This divorce action
should have been trail ready at the stage of application for a trial date on
16 January 2026.
[84] An expert opinion was furthermore provided by Adv Subel SC however, it is
evident that there was a lack of adherence with Rule 36(9)(a) and 36(9)(b). The
parties were cognizant of the ongoing dispute regarding the Accenture Deal , its
impact on the joint estate and its subsequent division. Expert evidence in this
matter constituted a credible and substantive possibility that could not be
disregarded. This is corroborated by the Respondent’s agreement to appoint a
joint expert.
[85] An application was filed against the Applicant to enforce compliance with rule
35(3), and the Deputy Judge President’s office was consulted to secure an
earlier hearing date, as the trial had been scheduled for 16 March 2026. On 24
February 2026, the Respondent's attorney, Karabo Hahatse, emailed the
Acting Deputy Judge President with a letter requesting a hearing date for the
Acting Deputy Judge President with a letter requesting a hearing date for the
interlocutory application on 2 March 2026 so the Respondent could prepare for
the trial set for 16 March 2026.
25
[86] Although ADJP Mudau on 27 February 2026 requested that the matter be
removed from the trial roll of 16 March 2026 until it was ready for trial, there
was insistence on retaining it on the trial roll.
[87] The amendment, effected on 16 March 2026, to assist in the hearing of the
divorce action on 16 March 2026, reopened the pleadings and granted the
Applicant t he right to make further amendments to her pleadings until 6 April
2026. The latter date falls after the scheduled trial date.
[88] Subsequently, an additional amendment dated 17 March 2026 was delivered,
which permits a period of ten ( 10) days for objections and allow s the Applicant
to make further consequential adjustments. An additional approximately 25
days (comprising 10 days to object and 15 days for the adjustment of
pleadings) must be calculated commencing from 17 March 2026.
[89] The pleadings are accordingly not closed, and the matter is not trial ready. The
Respondent asserts that there can be no prejudice because the pleadings will
reflect the initial Particulars of Claim. However, as at this point in time the
effected pleading of 16 March 2026 is before court. This is a pleading not
answered to and which the Respondent elected not to proceed with. The new
amendment dated 17 March 2026 allows for (ten) 10 days of objection which
lapses in the future. Uncertainty arises from the back -and-forth nature of
litigation, which fosters prejudice.
[90] The application for postponement is justified. Although the Respondent’s
counsel contended that the application was submitted late and lacked sufficient
grounds. The introduction of an amendment opening the pleadings and
effected on 16 March 2026 along with discovery under rule 35(3) and
the presentation of substantial documentation (400 pages) clearly suggests the
appropriateness of a postponement.
[91] It is abundantly clear that:
[91.1] The matter is not trial ready and has not been since application
for a trial date;
26
[91.2] The pleadings are open;
[91.3] Upon writing this judgment a new amendment had been delivered
allowing for ten ( 10) days to object, the delivery of the amended
pages and consequential adjustment to the pleadings within 15
days;
[92] The Applicant’s attorney notified the Respondent’s attorney in e-mails dated
19 and 20 February 2026 that the trial was not ready to proceed and that it
would not be possible to complete preparations for trial within a one-month
period. Nevertheless, the Respondent’s attorney insisted that the matter should
be heard as scheduled.
[93] The matter was simply not even ready for trial when a trial date was requested
on 16 January 2026, as there was non- compliance with Practice Directive
1/2024.
[94] Trial readiness marks a formal point in legal proceedings when all pre- trial
obligations have been fulfilled, and the case is completely prepared for trial.
This stage serves as a final verification that evidence has been shared,
witnesses are ready, and key issues have been clarified - helping to avoid
delays or unexpected developments during the trial.
[95] The principal objective of trial readiness is to reduce congested trial rolls by
ensuring that cases utilize court time only when they are fully prepared to
proceed.
[96] All evidentiary and procedural hurdles need to be cleared before a matter can
proceed to trial. If not, a fair trial is not guaranteed.
[97] Cost orders if a matter is not trial -ready are designed to compensate the
innocent party for wasted time and expenses, and to punish the party
responsible for the delay.
27
[98] The matter before court is one where the Respondent and his legal team
persisted to flog a dead horse. There was, as stated previously, no n-
compliance with the court’s practice directive and a late amendment effected on
16 March 2026 which led to the re-opening of the case. An amendment was
also subsequently delivered on 17 March 2026 after arguing the postponement
application. It allows for a ten ( 10) day objection period and disallows the
hearing of the divorce action.
[99] The court finds it necessary to express its dissatisfaction with the Respondent’s
insistence that the divorce proceed, despite glaring red indicators depicting and
suggesting otherwise. The Respondent’s amendments allow for time periods in
terms of rule 28 to lapse. The pleadings are accordingly not defined and
certain until the close of pleadings. A punitive costs order is accordingly
warranted.
Order
[100] I accordingly make the following order:
[100.1] The divorce action is postponed sine die;
[100.2] The counter application is dismissed;
[100.3] The Respondent is to pay the costs of both the postponement
application and the counterclaim on an attorney and client scale
from his half portion of the joint estate.
___________________________
28
S VAN ASWEGEN
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Heard: 16 March 2026
Judgment delivered: 19 March 2026
For the Applicant: Adv L Segal SC
082 452 7431
segal@maisels.co.za
instructed by Ms. D Kahn
Deanne Kahn Attorneys
011 783 6761
Bronwynn@adidem.co.za
For the Respondent: Adv M Abro
073 171 3258
advmelf@gmail.com
instructed by Ms. A Shardlow
Shardlow Attorneys
011 218 8110 / 082 485 6468
Alexandra@shardlowlaw.co.za
29
]
30