M.K v C.K (2023/030132) [2024] ZAGPJHC 487 (15 May 2024)

M.K v C.K (2023/030132) [2024] ZAGPJHC 487 (15 May 2024)

The applicant is entitled to amend her particulars of claim to introduce a claim for forfeiture of patrimonial benefits, as the respondent's counterclaim for 50% of her pension interest necessitated such amendment. In accordance with Rule 28(9), the applicant must bear the costs occasioned by the amendment itself. The respondent, having withdrawn his objection at the last minute, is regarded as the unsuccessful party in the opposition to the amendment and is liable for the costs of opposition, including the costs of the hearing. There are no exceptional circumstances justifying a punitive costs order or an order de bonis propriis against the respondent or his attorneys; the conduct did...

Citation
[2024] ZAGPJHC 487
Parties
Applicant: M[...] K[...] K[...] (born M[…]); Respondent: C[...] S[...] K[...]
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 May 2024
Case Number
2023/030132
Procedural Posture
Leave to Amend / Opposed Application for Leave to Amend Pleadings; Costs Determination Following Withdrawal of Objection
Outcome
Leave to amend granted. Costs of amendment and opposition apportioned between parties as specified.
Judges
H.D.C Pretorius
Legal Topics
Amendment of Pleadings, Costs Awards, Forfeiture of Patrimonial Benefits, Divorce Action
Civil Procedure Family and Children Amendment of Pleadings Costs Awards Forfeiture of Patrimonial Benefits Divorce Action

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Parties

M[...] K[...] K[...] (born M[…])

Applicant

C[...] S[...] K[...]

Respondent

Procedural Posture

Leave to Amend / Opposed Application for Leave to Amend Pleadings; Costs Determination Following Withdrawal of Objection

Legal Issues

  1. 1 Who should bear the costs occasioned by the applicant's proposed amendment to her particulars of claim.
  2. 2 Who should bear the costs of the respondent's opposition to the proposed amendment, given the withdrawal of objection.
  3. 3 Whether a punitive costs order or a de bonis propriis order is warranted against the respondent or his attorneys.

Ratio Decidendi

The applicant is entitled to amend her particulars of claim to introduce a claim for forfeiture of patrimonial benefits, as the respondent's counterclaim for 50% of her pension interest necessitated such amendment. In accordance with Rule 28(9), the applicant must bear the costs occasioned by the amendment itself. The respondent, having withdrawn his objection at the last minute, is regarded as the unsuccessful party in the opposition to the amendment and is liable for the costs of opposition, including the costs of the hearing. There are no exceptional circumstances justifying a punitive costs order or an order de bonis propriis against the respondent or his attorneys; the conduct did...

Court Disposition

Leave to amend granted. Costs of amendment and opposition apportioned between parties as specified.

Orders

  • The applicant is granted leave to amend her particulars of claim.
  • The applicant must effect the amendment within 10 court days from the date of electronic handing down of this judgment, by delivering the amended pages in accordance with the notice of intention to amend served on 17 July 2023.