Steyn v Botha

• Jurisdiction: South Africa
• Judge: Kruger J
• Judgment Date: 15 May 2017
• Docket Number: 13336/16
• Court: KwaZulu-Natal Division, Durban
• Hearing Date: 08 May 2017
• Citation: 2017 JDR 0883 (KZD)

Kruger J:

BACKGROUND

[1]

On the 18th November 2014, the Respondent/Plaintiff instituted an action out of this Court, against the Applicant/Defendant. For the sake of convenience, the parties will be referred to as in the said action, as Plaintiff and Defendant

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respectively. In the said action, the Plaintiff claimed a decree of divorce and further relief in respect of maintenance and "an amount equal to one half of the net (sic) value of the Defendant's estate".

[2]

Paragraph 4 of the particulars of claim provides:

"The Plaintiff and the Defendant were married to each other, according to the laws of England, in London, England, on 18th August 2007."

[3]

The Defendant has defended the action. In a special plea he has averred:

"1.

The Defendant denies that the Plaintiff and Defendant were married to each other either as alleged or at all.

2.

The Defendant accordingly further denies that this Honourable Court has jurisdiction in this action".

[4]

The Action has not as yet been set down for trial. Given the nature of the averments in paragraph 4 of the particulars of claim and the special plea raised in response thereto, (as outlined above) and given the Plaintiff's reluctance to agree to a separation of the issues, the Defendant brought an application, in terms of the provisions of Rule 33(4), for the separate determination of the Plaintiff's averment as well as the special plea.

[5]

In response thereto the Plaintiff sought to amend her particulars of claim and served the relevant notice on the Defendant. The Defendant objected to the proposed amendment. For reasons unknown, the Plaintiff failed to timeously bring an application to effect the amendments and the amendments duly lapsed. Thereafter the Plaintiff filed another notice of her intention to amend her particulars of claim. This notice was in the exact terms as the previous one. The Defendant once again objected to the proposed amendment in exactly the same terms as the previous objection.

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[6]

The Plaintiff thereafter opposed the application in terms of Rule 33(4) and has filed a counter-application in terms of which she seeks (a) to amend her particulars of claim, in terms of Rule 28, and (b) that Sharon Wapnick and her firm Tugendhaft Wapnick Banchetti & Partners are declared to have a conflict of interest and be directed to withdraw as attorneys for the Defendant.

[7]

This counter-application has been opposed by the Defendant and a lengthy affidavit has been filed on his behalf. The Plaintiff however has elected not to file a replying affidavit thereto.

PROPOSED AMENDMENT TO THE PLEADINGS

[8]

In her notice in terms of Rule 28, the Plaintiff has sought to amend her particulars of claim as follows:

"1.

By the deletion of the existing particulars of claim and a substitution therefore of the particulars of claim annexed hereto."

[9]

The first eleven paragraphs of the plaintiff's proposed amended particulars of claim are identical to the original particulars of claim save that in paragraph 11.1, the amount claimed by the Plaintiff as "periodical payments" has been increased from R50 000,00 per month to R100 000,00 per month. In addition thereto, and in paragraphs 12 to 24 of the proposed amendment, the Plaintiff has sought to introduce alternate claims against the Defendant. These alternate claims are;

(a)

In the event that a Court finds that the marriage was not valid, then it is alleged that there was a putative marriage and the Plaintiff is entitled to the consequences that flow therefrom;

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(b)

A claim for breach of a promise to marry, in the event that the Court does not find that there was a putative marriage, and

(c)

In terms of a written agreement concluded on the 2nd April 2007, the Defendant is liable to pay to the Plaintiff certain cash payments and property.

[10]

The Defendant has objected to the Plaintiff's proposed amendments and has filed a detailed notice outlining the grounds of his objection. These may be summarised as being, inter alia, the following:

a)

That the averments lack sufficient particularity and are accordingly vague and embarrassing;

b)

That the alternate claims which the Plaintiff seeks to introduce have prescribed;

c)

In the event that the Court finds that there is no marriage between the parties, this Court would lack jurisdiction in respect of the proposed alternate claims;

d)

In addition thereto the Defendant has alleged that any claims by the Plaintiff have been compromised by virtue of a settlement agreement dated 11th December 2007.

[11]

The Plaintiff has not responded to these objections save to the limited degree that is described hereinafter. In her heads of argument and in argument before me, Counsel for the Plaintiff has addressed only the issue of jurisdiction. This will be addressed later in this judgment.

[12]

The primary object of allowing an amendment is "to obtain a proper ventilation of the dispute between the parties, to determine the real issues between them, so that justice may be done." – Cross v Ferreira 1950(3) SA443 (CPD) at 447.

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[13]

"……. The practical rule adopted seems to be that amendments will always be allowed unless the application to amend is male fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs or in other words unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which it is sought to amend was filed." – Moolman v Estate Moolman 1927 CPD 27 at 29. See also Four Tower Investments (Pty) Ltd v Andres Motors 2005 (3) SA 39 (NPD) at paragraph 15.

[14]

"The amendment must be bona fide and if it is, it will be granted, especially where the effect of refusing it would again bring the same parties before the same court on the same issue". Erasmus – Superior Court Practice B1-180; Trans Drakensberg Bank Ltd v Combined Engineering (Pty) Ltd 1967 (3) SA 632 (D) at 640 H.

[15]

Counsel for the Plaintiff has submitted that should the proposed amendment be disallowed, the Plaintiff would be entitled to issue a summons, claiming the alternative relief that she seeks in the proposed amendment and the self-same issues would then come before the Court again. I disagree. This Court would lack the necessary jurisdiction to entertain the "alternate claims" should the Plaintiff elect to issue a summons out of this Court. This is simply because the Defendant is ordinarily resident and carries on business in Gauteng. (This is common cause). The crucial element of "the same Court" is therefore lacking.

[16]

In considering whether an amendment is made bona fide, one must also have regard to the objections raised. The Defendant has averred that the alternate claims in the proposed amendments have prescribed. Although having been made aware of this crucial objection prior to the launching of the application to amend (and indeed the filing of the second notice to amend), the Plaintiff has not countered same nor has she filed a replying affidavit to challenge these

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averments. Counsel for the Plaintiff has also not addressed this issue in her heads of argument and in argument before me has simply submitted that the claims have not prescribed.

[17]

In the proposed alternate claims the Plaintiff seeks damages for alleged breach of promise to marry; alternatively for an order declaring that there was a putative marriage and for an order placing her in the same position that she would allegedly have been had there been a valid marriage (essentially damages); alternatively payment in terms of a dishonoured agreement entered into on the 2nd April 2007.

[18]

During argument however the Plaintiff abandoned the claim for breach of the promise to marry and accordingly does not seek to amend her particulars of claim by including the relief sought as a consequence of the alleged breach.

[19]

On the Defendants version and, at best for the Plaintiff, prescription in respect of these alternate claims commenced to run from the 11th December 2007. This is the date when an agreement between the parties was entered into. The provisions of the agreement are, in my view extremely important and place in perspective the knowledge, attitude and intention of the parties. This agreement provides, inter alia:

"INTRODUCTION

1.

Douw and Donne have had an on off relationship for the past two years which they hoped would result in a marriage. This has not occurred and their relationship and has irretrievably broken down. Douw and Donne have agreed to terminate the relationship and part company.

2.

On 29 August 2007 Douw and Donne concluded an agreement to regulate such an event.

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3.

This agreement supersedes, replaces and novates the agreement concluded on 29 August 2007.

4.

In full and final settlement of all and any claims which Donne may have against Douw (without conceding that there are any) from whatever cause and however arising; - ……."

[20]

The Plaintiff accepted the benefits under this agreement and it is noted that she has not tendered restitution of same.

[21]

As is evident from the aforesaid excerpts of the agreement, the parties acknowledged that they were not married to each other. They also acknowledged that their relationship has irretrievably broken down. Prescription, in respect of all claims that the Plaintiff may have had against the Defendant, commenced to run, in my view, from the 11th December 2007. (The Defendant has averred that it commenced earlier – 29th August 2007 – but...