Gasa v Singh NO and Others (13338/2008) [2009] ZAKZDHC 26 (25 June 2009)

Gasa v Singh NO and Others (13338/2008) [2009] ZAKZDHC 26 (25 June 2009)

The court found that the application was both unnecessary and incompetent. The relief sought would pre-empt the referee's report and the subsequent hearing required by the divorce order, resulting in a piecemeal approach. The powers and scope of the referee, appointed under section 19bis of Act 59 of 1959, could not be varied without the consent of all parties. The applicant failed to make out a case for variation of the divorce order or for declaratory and interdictory relief. Furthermore, the anticipated disputes of fact rendered application proceedings inappropriate, and the applicant proceeded at his own risk. The application was dismissed, and costs were awarded against the...

Citation
[2009] ZAKZDHC 26
Parties
Applicant: Nhlanhla Azariah Gasa; Respondent: Camilla Jane Singh N.O.; Respondent: Angeline S’Nenhlanhla Gasa; Respondent: N.A. Gasa N.O.; Respondent: A.S. Gasa N.O.; Respondent: M.B. Gasa N.O.; Respondent: P.D. Jacobs N.O.; Respondent: The Master of the High Court
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
25 June 2009
Case Number
13338/2008
Procedural Posture
Civil Application / Judgment on Opposed Motion
Outcome
Application dismissed with costs, including costs of two counsel for the second respondent.
Judges
Skinner AJ
Legal Topics
Referee Appointment, Trusts in Divorce, Variation of Interlocutory Orders, Disputes of Fact, Costs Award
Civil Procedure Family and Children Referee Appointment Trusts in Divorce Variation of Interlocutory Orders Disputes of Fact Costs Award

Case Brief

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Parties

Nhlanhla Azariah Gasa

Applicant

Camilla Jane Singh N.O.

Respondent

Angeline S’Nenhlanhla Gasa

Respondent

N.A. Gasa N.O.

Respondent

A.S. Gasa N.O.

Respondent

M.B. Gasa N.O.

Respondent

P.D. Jacobs N.O.

Respondent

The Master of the High Court

Respondent

Procedural Posture

Civil Application / Judgment on Opposed Motion

Legal Issues

  1. 1 Whether the net assets of the Thabela Trust form part of the joint estate for purposes of divorce distribution.
  2. 2 Whether the applicant is entitled to declaratory and interdictory relief excluding the Thabela Trust assets from the joint estate.
  3. 3 Whether the application should have been brought by way of motion given anticipated disputes of fact.

Ratio Decidendi

The court found that the application was both unnecessary and incompetent. The relief sought would pre-empt the referee's report and the subsequent hearing required by the divorce order, resulting in a piecemeal approach. The powers and scope of the referee, appointed under section 19bis of Act 59 of 1959, could not be varied without the consent of all parties. The applicant failed to make out a case for variation of the divorce order or for declaratory and interdictory relief. Furthermore, the anticipated disputes of fact rendered application proceedings inappropriate, and the applicant proceeded at his own risk. The application was dismissed, and costs were awarded against the...

Court Disposition

Application dismissed with costs, including costs of two counsel for the second respondent.

Orders

  • The application is dismissed.
  • The applicant is directed to pay the costs incurred by the second respondent in opposing the application, including those costs consequent upon the employment of two counsel.