D.S v D.B (13336/16) [2017] ZAKZDHC 22 (15 May 2017)

D.S v D.B (13336/16) [2017] ZAKZDHC 22 (15 May 2017)

The court found that the plaintiff's proposed amendments introducing alternate claims were not bona fide, as those claims had prescribed and were excipiable for lack of particularity. The plaintiff failed to respond to objections and did not tender restitution for benefits received under a settlement agreement, which compromised any further claims. The court held that it lacked jurisdiction over the alternate claims, as they were not ancillary to a divorce action and the defendant was not resident in the court's area. The application for amendment was refused. The court granted the defendant's application for separation of issues under Rule 33(4), finding it convenient and appropriate to...

Citation
[2017] ZAKZDHC 22
Parties
Applicant: D S; Respondent: D B
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
15 May 2017
Case Number
13336/16
Procedural Posture
Civil Application / Application for Separation of Issues Under Rule 33(4); Counter Application for Amendment and Conflict of Interest
Outcome
Defendant's application for separation of issues under Rule 33(4) granted; plaintiff's counter-application dismissed; costs awarded against plaintiff on attorney and client scale.
Judges
Kruger
Legal Topics
Rule 33 4 Separation of Issues, Amendment of Pleadings, Putative Marriage, Jurisdiction in Divorce Actions, Prescription of Claims
Civil Procedure Family and Children Rule 33 4 Separation of Issues Amendment of Pleadings Putative Marriage Jurisdiction in Divorce Actions Prescription of Claims

Case Brief

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Parties

D S

Applicant

D B

Respondent

Procedural Posture

Civil Application / Application for Separation of Issues Under Rule 33(4); Counter Application for Amendment and Conflict of Interest

Legal Issues

  1. 1 Whether the issues relating to the validity of the marriage and jurisdiction should be determined separately under Rule 33(4).
  2. 2 Whether the plaintiff's proposed amendments to the particulars of claim introducing alternate claims are bona fide and permissible.
  3. 3 Whether the alternate claims have prescribed and whether the court has jurisdiction to entertain them.

Ratio Decidendi

The court found that the plaintiff's proposed amendments introducing alternate claims were not bona fide, as those claims had prescribed and were excipiable for lack of particularity. The plaintiff failed to respond to objections and did not tender restitution for benefits received under a settlement agreement, which compromised any further claims. The court held that it lacked jurisdiction over the alternate claims, as they were not ancillary to a divorce action and the defendant was not resident in the court's area. The application for amendment was refused. The court granted the defendant's application for separation of issues under Rule 33(4), finding it convenient and appropriate to...

Court Disposition

Defendant's application for separation of issues under Rule 33(4) granted; plaintiff's counter-application dismissed; costs awarded against plaintiff on attorney and client scale.

Orders

  • 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 are to be determined separately by the trial court in terms of Rule 33(4) and prior to any other questions of law...
  • The remaining issues arising in the action are to be determined, if necessary, after the final determination of the issues referred to above.