B v B

The parties were married out of community of property with the accrual system applicable under the Matrimonial Property Act 88 of 1984. Their antenuptial contract (ANC) declared the defendant's commencement estate value to be R2,543,939, comprising various assets and an option to purchase shares in Aristocrat Leisure Limited valued at R1,105,939. The ANC also excluded certain assets from the accrual calculation. After just over 14 years of marriage, the parties divorced. All issues were resolved by consent except the plaintiff's accrual claim. The plaintiff's expert accountant, Mr Duncan, compiled schedules from the defendant's discovered documents showing accrual to the defendant's estate. The defendant, himself a chartered accountant, did not testify but his accountant Ms Wright prepared a different schedule. The defendant failed to discover documents relating to Full House Taverns (Pty) Ltd (where he was sole shareholder and director), failed to trace assets derived from excluded assets, and did not properly comply with section 7 of the Matrimonial Property Act requiring full particulars. The trial court granted an award of R7,324,984.63 plus a declaratory order regarding the Full House Taverns loan account. The defendant appealed.

• Whether the defendant proved an accrual to his estate during the marriage
• Whether documents discovered by the defendant and relied upon by both parties' accountants were admissible without formal proof of authenticity
• Whether assertions made during cross-examination by the defendant's counsel constituted admissions binding on the defendant
• Whether expert evidence not challenged during trial could be objected to for the first time in heads of argument
• How to calculate the accrual commencement value where the ANC declared a commencement value but also excluded certain assets that formed part of that declared value
• Which assets at dissolution derived from excluded assets and should therefore be excluded from the accrual calculation
• The proper valuation of the defendant's loan account in Full House Taverns (Pty) Ltd
• Whether the defendant complied with his obligations under section 7 of the Matrimonial Property Act to furnish full particulars

1. The appeal was dismissed with costs, save to the extent that the order of the court a quo was amended. 2. Paragraphs (a), (b) and (d) of the trial court order were amended to read: (a) The defendant to pay the plaintiff R6,478,717.75 by no later than 30 November 2014. (b) The defendant to transfer to the plaintiff an amount equal to one-half of the defendant's loan account in Full House Taverns (Pty) Ltd as at the date of divorce. (d)(i) The defendant to pay the plaintiff's costs of the action. (ii) The plaintiff to pay the costs of applications to compel her to attend on the defendant's psychologist. (iii) The defendant to pay all reserved orders for costs not dealt with in (d)(ii), save that where costs relate to custody applications, each party to pay their own costs.

The binding legal principles established are: (1) In calculating accrual under the Matrimonial Property Act, where an antenuptial contract declares a commencement value and lists assets comprising that value, but also excludes certain of those assets from the accrual system, the excluded assets must be deducted from the declared value to arrive at the accrual commencement value. (2) Assertions made by counsel during cross-examination constitute unequivocal admissions binding on the party, particularly where that party does not testify and the assertions relate to matters within that party's peculiar knowledge. This applies to both factual matters and valuations. (3) Technical objections to documentary evidence not raised during trial cannot be raised for the first time on appeal where they could have been met by calling further evidence, following the principle in Transnet Limited v Newlyn Investments. (4) Where a spouse fails to discover relevant documents or furnish full particulars as required by section 7 of the Matrimonial Property Act, and fails to testify or lead evidence to contradict the other party's evidence based on discovered documents, the court is entitled to accept the other party's evidence as proved. (5) Unchallenged evidence of a witness must be accepted as correct unless there are grounds to reject it, following the principle in President of the Republic of South Africa v South African Rugby Football Union.

The court made strong obiter comments condemning the 'catch me if you can' approach often adopted by parties in divorce litigation, particularly in accrual claims where one party controls the financial information. The court noted that such parties 'set themselves up as immovable objects in the hopes that they will wear down the other party' by failing to discover properly, failing to provide particulars of assets within their peculiar knowledge, and generally delaying and obfuscating. Gorven AJA stated that this approach 'deserves censure' and 'may have warranted a punitive costs order at trial.' The court also declined to decide the question of onus regarding proof of which assets derive from excluded assets, expressly refraining from ruling on this issue as it was unnecessary in the circumstances. The court noted that the defendant's conduct may have warranted a punitive costs order but no cross-appeal on costs had been brought. The judgment emphasizes that a party compiling documents into a comprehensible format provides 'appreciable help' to the court and such evidence is not 'supererogatory' or 'superfluous', particularly where voluminous documents are involved.

This case is significant for establishing principles regarding: (1) The calculation of accrual commencement values where antenuptial contracts declare a commencement value but also exclude certain assets - the excluded assets must be deducted from the declared value. (2) The admissibility of discovered documents in matrimonial property disputes and the consequences of failing to object to evidence during trial. (3) The binding nature of assertions made during cross-examination as admissions. (4) The obligations of parties to accrual claims under section 7 of the Matrimonial Property Act 88 of 1984 to furnish full particulars of estate values. (5) The court's strong disapproval of the 'catch me if you can' approach in divorce litigation, particularly regarding financial disclosure. The judgment reinforces the need for full and frank disclosure in matrimonial property disputes and the consequences of attempting to obfuscate or delay in providing information about assets.