WT & others v KT (933/2013) ZASCA 9 (13 March 2015)
The Supreme Court of Appeal handed down judgment in a case concerning whether assets of a discretionary family trust form part of the joint estate of parties married in community of property.
W (the plaintiff in the court below and the first appellant) who was married to K (the defendant in the court below and the respondent) in community of property, instituted divorce action in the Gauteng Local Division, claiming a decree of divorce as well as ancillary relief. Whilst K did not oppose the decree of divorce sought by her husband, she filed a counterclaim relating to the extent of the assets of their joint estate. In her counterclaim, K claimed that assets of a trust established prior to the marriage formed part of the joint estate of the parties.
K’s contention that assets of the trust formed part of the joint estate was based on:
(a) W deceiving her.
(b) The trust being W’s alter ego.
The high court found in favour of K that the joint estate included the assets of the trust. On appeal, the SCA held that there was no evidence supporting K’s contention of W’s deception. The SCA further held that K’s belief that she would be an equal owner of the matrimonial home, which had been registered in the name of the trust, was not corroborated and was improbable given the undisputed evidence relating to establishment of the trust.
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The case of M v B (10175/2013)  ZAKZPHC 49) concerned an application for an interdict restraining the respondent from posting further defamatory postings about the applicant on her Facebook page.Earlier decisions by Satchwell J in Dutch Reformed Church Vergesig & another v Sooknunan 2012 (6) SA 201) (GSJ) and Willis J (as he then was) in H v W  2 All SA 218 (GSJ) contain a comprehensive description of the various terms associated with social networking and Facebook.
The parties involved in the present application, RM, the applicant and the father of the child, and RB, the respondent and the mother of the child, had been in a relationship. They were the biological parents of a five-year-old daughter. The applicant and respondent were never married. The child stayed with the respondent. In terms of an arrangement the applicant had contact with his daughter every alternate weekend. After one such weekend the respondent made certain postings on her Facebook page relating to the applicant’s care of their daughter and referring to the use of alcohol and drugs.
A Facebook debate ensued with many of the respondent’s Facebook ‘friends’ critical of the applicant’s behaviour. At the time of the posting the respondent had 592 ‘Facebook friends’. The applicant alleged that the postings had defamed him as a father and were detrimental to his business reputation. He approached the High Court for an urgent interdict ordering the respondent to –
(a) remove the messages from her Facebook page;
(b) refrain from posting further defamatory statements about him on her Facebook; and
(c) refrain from publishing defamatory statements about him in any other way.
Satisfied that a prima facie case had been made for relief, the court granted a rule nisi as prayed for. In the application for final relief the main area of dispute concerned the ability of the court to restrain material not yet known to the court as per (b) and (c) above.
Chetty J pointed out that other than a denial that the postings were defamatory, the respondent did not make out any argument of the public interest in respect of the statements attributed to the applicant. The rule nisi had therefore to be confirmed in respect of prayer (a).
The court held that not every defamatory statement about the applicant by the respondent would be actionable. If she were to repeat her conduct in the future and make derogatory or defamatory statements about him, the applicant could always approach the court for relief in the form of an interdict or sue for damages. The court further held that despite the possibility of defamatory postings on the internet posing a significant risk to the reputational integrity of individuals, to have granted the relief sought in prayers (b) and (c) above, would have been too drastic a limitation and restraint on the respondent’s freedom of expression. The court accordingly dismissed prayers (b) and (c).
As a case had been made on the papers by the applicant for the first part of the rule nisi it was accordingly confirmed. The respondent was ordered to pay the costs of the application.
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