DB v DS

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Hadebe J
• Judgment Date: 02 August 2021
• Court: KwaZulu-Natal Division, Durban
• Hearing Date: 04 November 2020
• Docket Number: 13326/2014

Hadebe J:

[1]

In this judgment, the parties will be referred to as cited in the pleadings. In her particulars of claim, the plaintiff sought the following orders.

1.1

a Decree of Divorce;

1.2

an order directing the defendant to pay:

1.2.1

periodical payments to the plaintiff, in the sum of R50 000 (fifty thousand rands) per month, until the plaintiff's death or remarriage;

1.2.2

an amount equal to one-half of the net value of the defendant's estate.

[2]

The defendant, having denied the averments in plaintiff s particulars of claim, the plaintiff subsequently issued a notice in terms of Uniform rule 28 wherein she sought to amend her particulars of claim by:

2.1

the deletion of the existing particulars of claim, and a substitution therefore, of the particulars of claim annexed to the Rule 28 notice. The orders sought as per the substituted claim are as follows:

2.1.1

the defendant pays to the plaintiff periodical payments, in the sum of R100 000.00 (one hundred thousand rands) per month, until the death or remarriage of the plaintiff;

2.1.2

the defendant pays to the plaintiff an amount equal to one-half of the defendant's estate.

[3]

In the alternative and in the event that the court finds that the plaintiff and the defendant were not married to each other, the plaintiff would, by reason of the defendant's representations that the marriage ceremony was a proper one, and the plaintiff having accepted that she enjoyed all the benefits and protections of a wife, she would thus be entitled to the orders that she seeks as per paragraph 2 herein.

[4]

In a further alternative, the plaintiff places reliance on a document filed with her papers which she refers to as the written agreement (the agreement of 2 April 2007)

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purportedly concluded between the plaintiff and the defendant (the parties). Based on this document the plaintiff avers that she is entitled to an order directing the defendant to:

4.1

cause to be registered in the name of the plaintiff, a house to the value of R5 000 000.00 (five million rands);

4.2

pay a monthly income to the plaintiff of R100 000.00 (one hundred thousand rands) per month, calculated from 11 December 2007, being the date upon which the defendant advised the plaintiff that he was divorcing her, and that their relationship was over;

4.3

pay a cash sum of R20 000 000.00 (twenty million rands);

4.4

purchase a motor vehicle registered in her name to the value of R2 000 000.00 (two million rands); and

4.5

deliver two (2) engagement rings, one being an engagement ring with a four carat diamond, presented to her on Christmas day, 2005.

In addition to these orders, the plaintiff also seeks costs of suit, including the costs occasioned by the employment of two counsel. It is worth noting at this stage that even though the plaintiff sought an order directing the defendant to pay to her an amount equal to one-half of the defendant's estate, under cross-examination by Mr Subel SC defendants' counsel, she conceded that she had not spent a lifetime with the defendant. She effectively abandoned her claim in this regard.

[5]

The defendant raised an objection to the plaintiff's Rule 28 notice. In the process, the defendant raised concerns that some of the averments in the plaintiff's particulars of claim were vague and embarrassing and that pleading to them would entail embarrassment for the defendant. I will revert to these in due course in this judgment.

Background facts (plaintiff's case)

[6]

The parties met in September of 2005; according to the plaintiff, which fact is not disputed by the defendant the parties became engaged in 2005. In April 2007 an agreement was signed by the parties wherein proprietary issues were dealt with in the event the parties finally got married. (I will revert to the nature of this agreement between the parties in so far as the nature thereof is concerned). In the meantime, the parties resided together, travelling between London and South Africa.

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[7]

On 18 August 2007, the parties hosted a ceremony which was meant to be a wedding ceremony (the ceremony). This was at the Lanesborough Hotel, West Minister (the Lanesborough Hotel). Invitation cards were issued, family and friends of the plaintiff were flown from South Africa to London at the defendant's expense. A wedding planner was on standby in London. A wedding dress was made by top London designers. All the guests were housed in London at the expense of the defendant.

[8]

In her evidence, the plaintiff produced a document which purported to be vows that were to be exchanged between the parties, which, however never happened. This will be elaborated on later in the judgment. A programme of how events would unfold was also in place. According to the plaintiff, the parties exchanged rings at this ceremony. After all these elaborate preparations, however, the wedding had not been registered. According to the plaintiff, the reason for this failure was that such registration could not have happened on short notice as in fact two weeks was required to get a licence.

[9]

The plaintiff testified that the information she had received from the defendant was that this was a matter of simply the signing of the register when they got back to South Africa as they were both South African citizens. She further told the court after the ceremony in London, the parties had returned to stay together at the Saxon Hotel in Johannesburg. According to the plaintiff, she was then referred to as Mrs S by the defendant's staff who ran the Hotel. The defendant took care of her every need. Although she did not perform any work at the insistence of the defendant, she was, however reflected as an employee of the defendant, first under her maiden name B, then after the ceremony under the surname of S.

[10]

The parties had continued cohabiting as husband and wife until 2 December 2007 when the defendant called the plaintiff's family and told them that he wanted "a divorce", according to the plaintiff. The relationship between the parties had then ended. It would seem after this separation; the relationship was rekindled in 2008. Though not permanently staying together, the parties resumed their travels together and again the plaintiff became dependent on the defendant for her financial needs. At

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some stage, during a period not specifically stated in the plaintiff's evidence, she faced a criminal charge. She was again supported by the defendant on the issue of legal fees. At the finalisation of the criminal trial, in 2009 the relationship ended permanently. According to the plaintiff, this came about when she made a choice to walk away and never to take the defendant's calls.

The litigation:

[11]

In November 2014 the plaintiff started the litigation in this matter by issuing summons against the defendant. In a Rule 33(4) [1] application brought before Kruger J, by the defendant in the present matter on 15 May 2017, the learned Judge granted the following orders:

"A

APPLICATION IN TERMS OF RULE 33(4)

1.

The questions of law/and or fact contained in paragraph 4 of the Plaintiff's particulars of claim (read with paragraph 4 of the Defendant's plea) and paragraphs 1 and 2 of the Defendant's special plea under Case No. 13336/2014 are to be determined separately by the trial court in terms of Rule 33(4) and prior to any other questions of law and/fact.

2.

The remaining issues arising in the action are to be determined, if necessary, after the final determination of the issues referred to in 1 above.

B.

COUNTER-APPLICATION

1.

The Plaintiff's counter-application is dismissed.

C.

COSTS

1.

The plaintiff, [DB] is directed to pay the defendant's costs of the Rule 33(4) application as well as the counter-application. Such costs are:

(a)

to be paid on the scale as between attorney and client.

(b)

to include the costs of two counsel where the services of two counsel have been engaged".

[12]

The matter was again before Kruger J on 25 August 2017 when the plaintiff brought an application to appeal Kruger J's judgment of 15 May 2017 and also an

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application to adduce further evidence. In that matter Kruger J made the following order:

"12.1

The application to adduce further evidence is dismissed with costs.

12.2

The application for leave to appeal is also refused with costs. Such costs are ordered to include the costs of both senior and junior counsel, and the costs are to be paid on the scale as between attorney and client".

Some of the pronouncements and observations made by Kruger J in both judgments are of relevance in the present judgment and will be referred to later on.

[13]

On 24 January 2020, before Topping AJ and in an order taken by consent, the defendant was granted leave to withdraw his first application to dismiss the plaintiff s claim. The plaintiff was again ordered to pay the costs on the scale as between attorney and client. On 31 January 2020, in an order granted by Kruger J the matter was certified ready for hearing for a period of five days from 2 to 6 November 2020. Hence the matter served before me from 2 November to 4 November 2020.

The defendant's case considered in terms of the applicable (English) law at the time of the ceremony

[14]

In amplification of his denial of the plaintiff's averments, the defendant presented both oral evidence as well as evidence on affidavit. Mr Adrian Christmas (Mr Christmas) testified that he is a Solicitor in England, Wales, that he still held a practising certificate though already retired. He had come to know the defendant in the late 1980s, early 1990s when the defendant came to set up a business in the United Kingdom. The defendant had been referred to him and...