Levy v Levy (494/89) [1991] ZASCA 81; 1991 (3) SA 614 (AD); [1991] 2 All SA 407 (A) (30 May 1991)

Levy v Levy (494/89) [1991] ZASCA 81; 1991 (3) SA 614 (AD); [1991] 2 All SA 407 (A) (30 May 1991)

The Supreme Court of Appeal held that the plaintiff should have been permitted to withdraw her particulars of claim, as there was no abuse of process. Upon withdrawal, the defendant's counterclaim became the main claim, and the plaintiff's envisaged counterclaim was permissible as a response. The court confirmed that South African law does not allow a counterclaim to a counterclaim unless the main claim is withdrawn. The court further held that, under the Divorce Act 70 of 1979, once irretrievable breakdown is established, the court lacks discretion to refuse a decree of divorce. The plaintiff's attempt to withdraw her admission of breakdown was rejected, as it was made for tactical...

Citation
[1991] ZASCA 81
Parties
Appellant: Caron Sara Levy; Respondent: Stanley Roy Levy
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 May 1991
Case Number
494/89
Procedural Posture
Civil Appeal / Appeal From Witwatersrand Local Division on Amendment and Withdrawal of Pleadings
Outcome
Appeal partially succeeds. Plaintiff permitted to withdraw particulars of claim and to counterclaim to defendant's counterclaim. Application to amend plea refused. No order as to costs.
Judges
Hefer, Kumleben, Kriegel
Legal Topics
Divorce Act 1979, Withdrawal of Claim, Counterclaim Procedure, Irretrievable Breakdown, Judicial Discretion
Family and Children Civil Procedure Divorce Act 1979 Withdrawal of Claim Counterclaim Procedure Irretrievable Breakdown Judicial Discretion

Case Brief

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Parties

Caron Sara Levy

Appellant

Stanley Roy Levy

Respondent

Procedural Posture

Civil Appeal / Appeal From Witwatersrand Local Division on Amendment and Withdrawal of Pleadings

Legal Issues

  1. 1 Whether the plaintiff should be permitted to withdraw her particulars of claim in the divorce action.
  2. 2 Whether a counterclaim to a counterclaim is permissible under South African civil procedure.
  3. 3 Whether the court has discretion to refuse a decree of divorce where irretrievable breakdown is established.

Ratio Decidendi

The Supreme Court of Appeal held that the plaintiff should have been permitted to withdraw her particulars of claim, as there was no abuse of process. Upon withdrawal, the defendant's counterclaim became the main claim, and the plaintiff's envisaged counterclaim was permissible as a response. The court confirmed that South African law does not allow a counterclaim to a counterclaim unless the main claim is withdrawn. The court further held that, under the Divorce Act 70 of 1979, once irretrievable breakdown is established, the court lacks discretion to refuse a decree of divorce. The plaintiff's attempt to withdraw her admission of breakdown was rejected, as it was made for tactical...

Court Disposition

Appeal partially succeeds. Plaintiff permitted to withdraw particulars of claim and to counterclaim to defendant's counterclaim. Application to amend plea refused. No order as to costs.

Orders

  • The plaintiff is granted leave to withdraw her particulars of claim.
  • The application to amend her plea to the counterclaim, in terms of the notice of amendment dated 9 October 1987, is refused.