S.Y v A.D

Divorce action instituted in 2016 with remaining disputes concerning the valuation of the joint estate, the defendant's (Ms D...) claim for rehabilitative maintenance, and the plaintiff's (Mr Y...) contribution to maintenance of the minor child. The defendant brought a substantive application on the morning of 5 February 2024 seeking postponement of the trial sine die, contending that Mr Y... had failed to make full discovery of documents relevant to his financial position. Mr Y... opposed the postponement. Evidence revealed Mr Y... had failed to disclose a FNB Private Wealth current account, and bank statements obtained under subpoena showed undisclosed investment contributions, undisclosed pension fund payments, an undisclosed Citibank account, payments to Overstrand Municipality for undisclosed immovable property, and unexplained foreign payments – all contrary to his sworn affidavit stating he had only two bank accounts, no investments, no pension benefits, and only a salary of $4,000 per month as a cruise ship chef. Mr Y... elected not to file an answering affidavit to the postponement application.

• Whether the trial should be postponed sine die pending proper discovery by the plaintiff
• Whether the plaintiff had failed to make full and frank disclosure of his financial circumstances
• Whether the matter was trial ready
• Whether the defendant's late application for postponement should nonetheless be granted in the interests of justice

1. The trial is postponed sine die. 2. The parties are directed to approach the Registrar to re-enrol the matter on the pre-trial roll at the earliest available date. 3. Each party shall pay their own costs in respect of the postponement application.

A court has a discretion to grant a postponement where the true reason for a party's non-preparedness has been fully explained, is not due to delaying tactics, and where justice demands that the party should have further time to present its case. Even where the application is not made timeously, a postponement may be granted if fundamental fairness and justice justify it. Where a party has failed to make full discovery and has been dishonest with the court, the matter is not trial ready and a postponement is warranted in the interests of justice.

The court's observation that a receiver would be in no better position than the court to determine the extent of Mr Y...'s undisclosed assets in the absence of a forensic audit, and that the court seized with the divorce action could not determine the valuation of the joint estate or the quantum of maintenance claims without full discovery.

The case illustrates the High Court's approach to postponement applications in divorce matters where one party has failed to make full financial disclosure. It reinforces that a court may grant a late postponement application where the applicant's non-preparedness results from the other party's dishonesty and failure to make full discovery, and where justice requires further time for proper case preparation including forensic audits.