N-A.K v T.P.K and Others

The applicant and the first respondent are married out of community of property with the accrual system. The applicant instituted divorce proceedings after discovering the first respondent's infidelity in November 2017. The applicant alleges the first respondent attempted to deprive her of her share in the accrual by resigning as a director of Harley Beauty Wax UK Ltd, causing his shares to be transferred to the Masard Family Trust, and by asserting a loan of R800,000 owed to the Trust which reduces the free residue for accrual calculation. The first respondent also registered a further bond over the immovable property in favour of the Trust without the applicant's knowledge, effectively eliminating the free surplus. The second and third respondents are trustees of the Masard Family Trust and parents of the first respondent. They claim the Trust lent funds for the purchase and renovation of the property, and that the first respondent's shares reverted to the company rather than being transferred to the Trust. The applicant sought to join the trustees to the divorce action to claim transfer of shares back to the first respondent and cancellation of the bond.

• Whether the second and third respondents, in their capacities as trustees of the Masard Family Trust, should be joined as parties to the ongoing divorce action between the applicant and the first respondent.
• Whether the applicant has shown that the trustees have a direct and substantial legal interest in the subject matter of the proceedings that may be prejudicially affected by the court's order.

1. The second and third respondents are joined in the divorce action instituted by the applicant against the first respondent under case number 2503/2020. 2. The matter of costs stands over for later determination.

For purposes of a joinder application, the court does not consider the correctness of the facts on which the applicant relies; the applicant need only raise facts which, if proved, would constitute the relief sought against the party to be joined, and show that the party to be joined has a direct and substantial legal interest that may be prejudicially affected by the order sought. The merits of the joinder and the merits of the relief sought at trial must be kept separate.

The court noted that the second and third respondents are not without a remedy, as it remains open to them to raise an exception if no cause of action is made out against them or if the relief sought cannot be supported by any reasonable interpretation of the amended particulars of claim.

This case reaffirms the established test for joinder in the context of divorce proceedings where a trust is alleged to be used as a vehicle to conceal assets and defeat an accrual claim. It confirms that at the joinder stage, a court need not make factual findings, and that allegations of trust assets being de facto the property of a spouse are sufficient to justify joinder of trustees as parties to divorce proceedings.