K v K (4843/2015) [2017] ZAFSHC 82 (8 June 2017)

K v K (4843/2015) [2017] ZAFSHC 82 (8 June 2017)

The court found that the applicant's request to amend her counterclaim to include a claim for forfeiture of patrimonial benefits under section 9 of the Divorce Act was made in good faith and raised a triable issue deserving of consideration. The applicant was not irrevocably bound by the pre-trial agreement, as the amendment was sought well in advance of trial and the respondent could still raise waiver as a defence at trial. The court rejected the respondent's argument that the amendment was mala fide or intended to achieve an improper result, noting that the applicant only became aware of her right to claim forfeiture after consulting her new legal team. Any prejudice to the respondent...

Citation
[2017] ZAFSHC 82
Parties
Applicant: M K; Respondent: Z K
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
8 June 2017
Case Number
4843/2015
Procedural Posture
Leave to Amend / Application for Leave to Amend Counterclaim Prior to Trial
Outcome
Leave to amend the counterclaim is granted. The applicant is ordered to pay the costs of the application.
Judges
Snellenburg, AJ
Legal Topics
Amendment of Pleadings, Forfeiture of Patrimonial Benefits, Community of Property, Pre Trial Agreements
Family and Children Civil Procedure Amendment of Pleadings Forfeiture of Patrimonial Benefits Community of Property Pre Trial Agreements

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 23 Party arguments 2
Sign in to unlock

Parties

M K

Applicant

Z K

Respondent

Procedural Posture

Leave to Amend / Application for Leave to Amend Counterclaim Prior to Trial

Legal Issues

  1. 1 Whether the applicant should be granted leave to amend her counterclaim to include a claim for forfeiture of patrimonial benefits under section 9 of the Divorce Act.
  2. 2 Whether the applicant is bound by the pre-trial agreement limiting the issues for trial to division of the joint estate, maintenance, and costs.
  3. 3 Whether the proposed amendment is mala fide or would cause prejudice to the respondent that cannot be remedied by a cost order.

Ratio Decidendi

The court found that the applicant's request to amend her counterclaim to include a claim for forfeiture of patrimonial benefits under section 9 of the Divorce Act was made in good faith and raised a triable issue deserving of consideration. The applicant was not irrevocably bound by the pre-trial agreement, as the amendment was sought well in advance of trial and the respondent could still raise waiver as a defence at trial. The court rejected the respondent's argument that the amendment was mala fide or intended to achieve an improper result, noting that the applicant only became aware of her right to claim forfeiture after consulting her new legal team. Any prejudice to the respondent...

Court Disposition

Leave to amend the counterclaim is granted. The applicant is ordered to pay the costs of the application.

Orders

  • Leave is granted to the applicant in terms of Uniform rule 28(4) to amend the counterclaim in case number 4843/2015 in accordance with the notice of intention to amend dated and filed on 25 November 2016.
  • The applicant must effect the amendment within 10 days from the date of this order.