S v S (71/2015) [2016] ZAFSHC 202 (15 December 2016)

S v S (71/2015) [2016] ZAFSHC 202 (15 December 2016)

The court found that the defendant's amended plea, although inelegant and self-drafted, disclosed a defence with reasonable clarity and was not bad in law. The plea sufficiently informed the plaintiff of the defendant's case, and the exception could not be upheld unless the plaintiff demonstrated that no cause of action was disclosed under any reasonable interpretation. The court held that the marriage between the parties, contracted after the repeal of the Black Administration Act, did not automatically become one in community of property, and the parties' conduct and documentation supported their belief that they were married out of community of property. The non-joinder argument was...

Citation
[2016] ZAFSHC 202
Parties
Plaintiff: V I S; Defendant: M A S
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
15 December 2016
Case Number
71/2015
Procedural Posture
Exception Application / Exception to Amended Plea in Divorce Action
Outcome
Exception dismissed; defendant granted leave to amend plea; costs reserved for trial court.
Judges
E K Tsatsi
Legal Topics
Matrimonial Property Regime, Putative Marriage, Exception Procedure, Non Joinder, Universal Partnership
Family and Children Civil Procedure Matrimonial Property Regime Putative Marriage Exception Procedure Non Joinder Universal Partnership

Case Brief

Summary, issues, holding and outcome

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Parties

V I S

Plaintiff

M A S

Defendant

Procedural Posture

Exception Application / Exception to Amended Plea in Divorce Action

Legal Issues

  1. 1 Whether the defendant's amended plea lacks the necessary averments to sustain a defence.
  2. 2 Whether the averments in the amended plea are bad in law.
  3. 3 Whether the plaintiff discharged the onus of proof for the exception to be upheld.

Ratio Decidendi

The court found that the defendant's amended plea, although inelegant and self-drafted, disclosed a defence with reasonable clarity and was not bad in law. The plea sufficiently informed the plaintiff of the defendant's case, and the exception could not be upheld unless the plaintiff demonstrated that no cause of action was disclosed under any reasonable interpretation. The court held that the marriage between the parties, contracted after the repeal of the Black Administration Act, did not automatically become one in community of property, and the parties' conduct and documentation supported their belief that they were married out of community of property. The non-joinder argument was...

Court Disposition

Exception dismissed; defendant granted leave to amend plea; costs reserved for trial court.

Orders

  • The exception is dismissed.
  • The defendant is granted leave to amend the plea.