D.T.M and Another v M.C Van Der Berg Attorneys and Others (2025/028096) [2025] ZAGPPHC 387 (4 April 2025)

D.T.M and Another v M.C Van Der Berg Attorneys and Others (2025/028096) [2025] ZAGPPHC 387 (4 April 2025)

The court found that while a case may have been made out for the preservation of the funds, the relief sought was improper as the funds were not in the possession of the First or Second Respondent, but with the Third Respondent, against whom no relief was sought in the founding papers. The Applicants attempted to rely on the prayer for further and/or alternative relief to amend their claim at the hearing, but this was not justified by the facts set out in the founding affidavit and was procedurally irregular. The court held that such an amendment, sought at a late stage without proper notice to the Respondents, amounted to litigation by ambush and was impermissible. Accordingly, the...

Citation
[2025] ZAGPPHC 387
Parties
Applicant: D[...] T[...] M[...]; Applicant: J[...] N[...] M[...]; Respondent: M.C Van Der Berg Attorneys; Respondent: M[...] P[...] (FORMALY M[...]); Respondent: P[...] L[...] M[...] M[...]
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 April 2025
Case Number
2025/028096
Procedural Posture
Urgent Application / Judgment on Urgent Application for Preservation/interdict
Outcome
Application dismissed; condonation for late filing of answering affidavit granted; no order as to costs.
Judges
E.M Kubushi
Legal Topics
Urgent Interdict, Preservation of Funds, Amendment of Notice of Motion, Divorce Settlement, Trust Account, Procedural Irregularity
Civil Procedure Land and Property Urgent Interdict Preservation of Funds Amendment of Notice of Motion Divorce Settlement Trust Account Procedural Irregularity

Case Brief

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Parties

D[...] T[...] M[...]

Applicant

J[...] N[...] M[...]

Applicant

M.C Van Der Berg Attorneys

Respondent

M[...] P[...] (FORMALY M[...])

Respondent

P[...] L[...] M[...] M[...]

Respondent

Procedural Posture

Urgent Application / Judgment on Urgent Application for Preservation/interdict

Legal Issues

  1. 1 Whether the application for urgent relief to preserve funds is properly before the court.
  2. 2 Whether the Applicants are entitled to amend their notice of motion at the hearing to seek relief against the Third Respondent.
  3. 3 Whether urgency is self-created or justified under Uniform Rule 6(12).

Ratio Decidendi

The court found that while a case may have been made out for the preservation of the funds, the relief sought was improper as the funds were not in the possession of the First or Second Respondent, but with the Third Respondent, against whom no relief was sought in the founding papers. The Applicants attempted to rely on the prayer for further and/or alternative relief to amend their claim at the hearing, but this was not justified by the facts set out in the founding affidavit and was procedurally irregular. The court held that such an amendment, sought at a late stage without proper notice to the Respondents, amounted to litigation by ambush and was impermissible. Accordingly, the...

Court Disposition

Application dismissed; condonation for late filing of answering affidavit granted; no order as to costs.

Orders

  • Condonation for the late filing of the answering affidavit is granted.
  • The application is dismissed.