Gross v D.M (2021/43212) [2024] ZAGPJHC 767; 2025 (2) SA 172 (GJ) (6 August 2024)

Gross v D.M (2021/43212) [2024] ZAGPJHC 767; 2025 (2) SA 172 (GJ) (6 August 2024)

The court held that the plaintiff's particulars of claim, although novel and unprecedented, are pleaded with sufficient particularity to establish a triable issue against the excipient. The constitutional challenge to section 21(2) of the Superior Courts Act and the proposed development of the common law to permit jurisdiction over foreign peregrines in divorce actions are not inconceivable under South African law as potentially developed in terms of section 39(2) of the Constitution. The exception stage is not appropriate for determining complex factual and legal issues, especially those involving constitutional validity or development of the common law. The court found that the...

Citation
[2024] ZAGPJHC 767
Parties
Applicant: Paul Gross; Respondent: D[...] M[...]; Plaintiff: M[...] D[...]; Defendant: M[...] D[...]; Defendant: M[...] D[…] N.O.; Defendant: GROSS PAUL; Defendant: THE MASTER OF THE HIGH COURT NORTH GAUTENG; Defendant: M[...] D[...] B[...]; Defendant: M[...] A[...] L[...]; Defendant: OSIRIS INTERNATIONAL TRUSTEES LIMITED; Defendant: OSIRIS CORPORATE SOLUTIONS (MAURITIUS) LIMITED; Defendant: TRESCALINI PROPERTY INVESTMENT (PTY) LIMITED; Defendant: WEDNESDAY HOLDINGS LIMITED; Defendant: BVI BAY SPIRIT TRADE & INVEST (PTY) LIMITED; Defendant: INTELLIGENT LEARNING SOLUTIONS (PTY) LIMITED; Defendant: INTELLIGENT SOLUTIONS INVESTMENT LIMITED BVI; Defendant: M[...] E[...] S[...] (PTY) LIMITED; Defendant: MALAPILA CATHERINE SALELENI
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 August 2024
Case Number
2021/43212
Procedural Posture
Exception Application / Exception to Particulars of Claim in Divorce Action; Jurisdictional Challenge
Outcome
Exception dismissed with costs, including costs of two counsel.
Judges
Windell
Legal Topics
Divorce Jurisdiction, Peregrinus Attachment, Constitutional Invalidity, Development of Common Law, Accrual Claim, Access to Court
Family and Children Civil Procedure Constitutional Law Divorce Jurisdiction Peregrinus Attachment Constitutional Invalidity Development of Common Law Accrual Claim +1 more

Case Brief

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Parties

Paul Gross

Applicant

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

Respondent

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

Plaintiff

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

Defendant

M[...] D[…] N.O.

Defendant

GROSS PAUL

Defendant

THE MASTER OF THE HIGH COURT NORTH GAUTENG

Defendant

M[...] D[...] B[...]

Defendant

M[...] A[...] L[...]

Defendant

OSIRIS INTERNATIONAL TRUSTEES LIMITED

Defendant

OSIRIS CORPORATE SOLUTIONS (MAURITIUS) LIMITED

Defendant

TRESCALINI PROPERTY INVESTMENT (PTY) LIMITED

Defendant

WEDNESDAY HOLDINGS LIMITED

Defendant

BVI BAY SPIRIT TRADE & INVEST (PTY) LIMITED

Defendant

INTELLIGENT LEARNING SOLUTIONS (PTY) LIMITED

Defendant

INTELLIGENT SOLUTIONS INVESTMENT LIMITED BVI

Defendant

M[...] E[...] S[...] (PTY) LIMITED

Defendant

MALAPILA CATHERINE SALELENI

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim in Divorce Action; Jurisdictional Challenge

Legal Issues

  1. 1 Whether the court has jurisdiction over a foreign peregrine joined as a party to a divorce action for declaratory relief regarding property.
  2. 2 Whether section 21(2) of the Superior Courts Act is constitutionally invalid for excluding jurisdiction over foreign peregrines where effective relief is possible.
  3. 3 Whether the common law should be developed to permit jurisdiction over foreign peregrines in divorce actions where there is sufficient connection and effective relief can be granted.

Ratio Decidendi

The court held that the plaintiff's particulars of claim, although novel and unprecedented, are pleaded with sufficient particularity to establish a triable issue against the excipient. The constitutional challenge to section 21(2) of the Superior Courts Act and the proposed development of the common law to permit jurisdiction over foreign peregrines in divorce actions are not inconceivable under South African law as potentially developed in terms of section 39(2) of the Constitution. The exception stage is not appropriate for determining complex factual and legal issues, especially those involving constitutional validity or development of the common law. The court found that the...

Court Disposition

Exception dismissed with costs, including costs of two counsel.

Orders

  • The exception is dismissed with costs, including the costs of two counsel.