SAFLII Note: Certain personal/privat e 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
(EASTERN CIRCUIT LOCAL DIVISION, THEMBALETHU)
Case No: 69/25
In the matter between
J[...] C[...] A[...] K[...] APPLICANT
AND
H[...] M[...] K[...] RESPONDENT
Heard on: 05 MARCH 2026
Delivered on: 19 MAY 2026
JUDGMENT
___________________________________________________________________
THULARE J
ORDER
(a) The application to strike out passages in the founding and replying
affidavits is granted with costs, including costs of counsel on scale C.
(b) The application is dismissed with costs, including costs of counsel on
scale C.
[1] Growing intolerable incompatibility and death are causing the dissolution of
nucleus families and the creation of blended families. This matter arises out of
the politics of a blended family after the death of one of the spouses . At the
heart of these politics is greed, abusive behaviour, obsession with control and a
lack of empathy for others. The respondent, HM, was married to JCs father, JM.
JC is the applicant. JM passed away on 31 March 2024. JC had a sibling, J[...].
HM had a daughter, T[...]. For purposes of this judgment, I will only refer to
those members of the blended family relevant for purposes of t his judgment.
Wilma, T[...]’s mother-in-law, was a broker who advised and handled HMs life
insurance policies . JC applied for an order to direct HM to pay an amount of
R251 600-00 plus interest and costs . JC alleges it was a loan . HM opposed the
application, disputing that it was a loan. HMs case is that there are major
disputes of facts and that on that ground alone the application should be
dismissed. There are also two interlocutory applications . The first is unopposed
and from JC for condonation for the late delivery of the replying affidavit . The
second is opposed and from HM for the striking out of certain portions of the
founding and replying affidavits.
[2] The condonation was granted. The papers demonstrate that HM and JC
rarely spoke, and after the death of JM, were not on speaking terms. JM lived
with HM at HMs property throughout their marriage until his death. W hen JMs
health deteriorated, JC approached J[...] and requested hi m to facilitate a
discussion around JMs care. At the time, HM ran a business which required her
leave home early and return late. Petrus, an employee, attended to JM. The
dispute is about the full terms of what was agreed at that meeting of 28 March
2022, which was attended by HM, T[...], JC and J[...], amongst others. As a
result of the discussions at the meeting , three things happened. The first, HM
ceased to work full time and cared for JM. Second, JC paid the outstanding
amount then owing on HMs mortgage bonds, which was R251 600-00. Thirdly,
JC would be the beneficiary of a life insurance policy , whose premi ums HM
would continue to pay. The issue is whether that was a loan and if so, its terms
and conditions , including any terms and conditions to the payment of the
premiums.
Application to strike out passages in the founding and replying affidavits.
[3] As an annexure to the founding affidavit, JC attached a settlement proposal
which HM had written to him. In that attachment HM confirmed that JC paid
the amount to have the bonds cancelled over the property; that she refuses to
pay the increased amount of the policy and proposed to pay a portion of the
instalments that she had been paying in respect of the policy. JC did not accept
the settlement proposal. Furthermore, JC attached communication between J[...]
and HM and presented it as communication between JC and J[...]. In respect of
the settlement proposal, JCs answer was that HM did not raise this in her
answering affidavit and did not reserve her right to do so, as such she had
waived her right to object, and in respect of the J[...] communication, his answer
was that HM was aware that he was the one communicating with her through
J[...]s device as he had blocked her from his own device.
[4] In respect of the replying affidavits , HM objected to the paragraphs
containing arguments, new matters and inadmissible evidence. JC denied their
characterisation by HM and argued that they constituted a response to the
allegations advanced by HM in the answering affidavit . JC also argued that HM
did not disclose what or how prejudice was purportedly occasioned by what was
contained in the paragraphs that HM complained of.
[5] JC attempted to use HM proposals as evidence of an admission of liability
after the negotiations failed. It is precisely the mischief that privilege obtains on
negotiations and settlement proposals. In KLD Residential CC v Empire Earth
Investments 17 (Pty) Ltd (1135/2016) [2017] ZASCA 98; [2017] 3 All SA 739
(SCA); 2017 (6) SA 55 (SCA) (6 July 2017) at para 19 and 20 it was said that:
[19] The policy, as I indicated earlier, is to promote the settlement of disputes without resort
to litigation, and was discussed at length by Trollip JA in Naidoo v Marine & Trade
Insurance Co Ltd 1978 (3) SA 666 (A). Referring (at 674A -B) to a statement made by Lord
Mansfield in the 19 th century that ‘it must be permitted to men to “buy their peace” without
prejudice to them, if the offer did not succeed; and such offers are made to stop litigation
without regard to the question whether any thing or what is due’, Trollip JA said that the
origin and the rationale for the without prejudice rule was public policy.
[20] …Trollip JA, finding that the letters had been written without prejudice, said (at 677B -
D):
‘[S]uch correspondence, once respondent objected to its being adduced in evidence, was
wholly inadmissible. The rationale of the rule is public policy: parties to disputes are to be
encouraged to avoid litigation and all the expenses (nowadays, very high), delays, hostility,
and inconvenience it usually entails, by resolving their differences amicably in full and frank
discussions without the fear that, if the negotiations fail, any admissions made by them during
such discussions will be used against them in the ensuing litigation.’
[6] In Competition Commission of South Africa v Arcerlormittal South Africa
[6] In Competition Commission of South Africa v Arcerlormittal South Africa
Ltd and Others (680/12) [2013] ZASCA 84; [2013] 3 All SA 234 (SCA); 2013
(5) SA 538 (SCA); [2013] 1 CPLR 1 (SCA) (31 May 2013) at para 33 and 34 it
was said that:
[33] Waiver may be express, implied or imputed. It is implied if the person who claims the
privilege discloses the contents of a document, or relies upon it in its pleadings or during
court proceedings. It would be implied too if only part of the document is disclosed or relied
upon. For a waiver to be implied the test is objective, meaning that it must be judged by its
outward manifestations; in other words from the perspective of how a reasonable person
would view it.25 It follows that privilege may be lost, as the English courts have held, even if
the disclosure was inadvertent or made in error. Imputed waiver occurs when fairness
requires the court to conclude that privilege was abandoned. The respondents contend that in
this case the loss of privilege is implied or to be imputed to the Commission. The
Commission submits that the bare references to the leniency application in the referral
affidavit did not amount to a waiver of privilege.
[34] I appreciate that a bare reference to a document in a pleading, without more, may be
insufficient to constitute a waiver, whereas the disclosure of its full contents may constitute a
waiver. Where the line is drawn between these extremes is a question of degree, which calls
for a value judgment by the court. When that line is crossed the privilege attached to the
whole document, and not just the part of the document that was referred to, is waived. The
reason is that courts are loath to order disclosure of only part of a document because its
meaning may be distorted. But it must also be so that it does not inevitably follow that
because part of document is disclosed, privilege is lost in respect of the whole document.
This would be so where a document consists of severable parts and is capable of severance.
[7] JC does not allege that HM also relied on a full recital of the contents of the
[7] JC does not allege that HM also relied on a full recital of the contents of the
privileged communication or that she used the facts therein to support her
defence or in any way acted in a manner inconsistent with maintaining
confidentiality of the communication. I am persuaded that the communication
engaged for purposes of settlement should be struck out. The arguments, new
matters and inadmissible evidence also are struck out. Just as an example , JC
cannot plead direct communication with HM in his founding affidavit, and only
-
when HM said but it was J[...] that I was speaking to, for JC to only then say I
was speaking through J[...], which he did not disclose in his founding affidavit
and moreover, where J[...] did not file a statement to conform such agency in the
founding affidavit. JC kept the context of a referenced document and its
circumstances secret. This would fetter HMs ability to respond, and JC cannot
be heard to say, when the context is disclosed, I have to respond thereto, by
introducing new evidence. I am also not persuaded that there was a waiver of
the privilege as alleged by JC.
[8] The terms of the oral agreement alleged by JC are in dispute. This JC knew,
when he decide d to approach the court on motion . JC should have reasonably
foreseen that a serious, unresolvable dispute of fact would develop before
initiating the motion proceedings. JC knew that he disputed that HM not
continuing to work after the meeting where the disputed agreement was struck,
was related to his settlement of HMs mortgage bonds underpinned by the daily
full care for his father by HM. HM was not happy with the increase paid on the
policy premium applicable to their agreement and held the view that it was not
in terms of their agreement. This JC knew. JC also knew that the question as to
when the loan was to be repaid according to him, was in dispute. HM said the
policy was ceded and JC made beneficiary as the intention was that only at her
death, and not earlier, would JC only get R251 600-00 without any interest. On
the papers, these disputes cannot be resolved.
[9] In Dipela v Fischer and Another [2023] ZAGPPHC 768; 20360/21 (6
February 2023) at para 24 and 25 it was said that:
[24] ln dealing with disputes of fact in motion proceedings, Conradie J in Cullen v
Haupt said:
"I have consulted some of the better known decisions concerning the referral of applications
to evidence or to trial. The leading decision in this regard, of course, Room Hire Co (Pty) Ltd
v Jeppe Street Mansions (Pty) Ltd 1949 (3)SA I 155([) at 1162, where Murray A.JP said that
if a dispute cannot properly be determined it may either be referred to evidence or to trial, or
ii may be dismissed with costs, "particularly when the applicant should have realised when
launching his application a serious dispute of fact was bound to develop" .
The next of better known cases on this topic is that of Conradie v Kleingeld 1950 (2) SA
594 (0) at 597, where Howirtz J said that a petition may be refused where the applicant at the
commencement of the application should have realised that a serious dispute of.fact would
develop".
[25] In National Director of Public Prosecutions v Zuma [2009] ZASCA 1 ; 2009 (2) SA
277 (SCA) para 26,
the test laid down in Plascon Evans was restated, Harm DP observed that motion proceedings
were really designed for the resolution of legal disputes based on common cause facts . In
most applications, however, disputes of facts, whether minor or more substantial, arise. As a
result, rules have been developed to determine the facts upon which matters must be decided
where disputes of fact have arisen and the parties do not want a referral to oral evidence or
trial. The Supreme of Court of Appeal also emphasised that motion proceedings cannot be
used to resolve factual issues because they are not designed to determine the probabilities,
unless the circumstances are special.
[10] There are no special circumstances in this matter. A court may dismiss an
application where material dispute of facts were known to the applicant, and the
applicant nevertheless approached the court on motion proceedings , well aware
that motion proceedings are not designed to determine factual disputes
[Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
[Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155 (T) at 1162; CULLEN v HAUPT 1988 (4) SA 39 (C) at p 40F-
H] For these reasons I make the order.
_____________________________
DM THULARE
JUDGE OF THE HIGH COURT