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The Supreme Court of Appeal in National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) held that the judicial function of a judicial officer is to confine the judgment to the issues before the court; by deciding matters that are germane or relevant; by not creating new factual issues; or by making gratuitous findings against persons who were not called upon to defend themselves and by failing to distinguish between allegation, fact and suspicion. The principle Harms DP relied upon was a foundational principle of our legal system that justice can only be achieved if the procedure leading to a decision is fair. The rules of procedural fairness that have developed over the centuries are the product of wisdom gained through experience. All parties must have an opportunity to be heard by presenting all their evidence, having an opportunity to scrutinize the evidence of the other party, and making submissions as to their positions on the law and the facts.
It is both fundamentally unfair and inherently unreliable for a court to make findings against a party based on a theory of legal liability not advanced by the opposing party. ‘It is fundamental to the litigation process that [legal matters] be decided within the boundaries of the pleadings. … The parties to a legal [proceeding] are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings. A finding of liability … against [a party] on a basis that was not pleaded in the statement of claim cannot stand. It deprives the [opposing party] of the opportunity to address that issue in the evidence at trial’ (Rodaro v Royal Bank of Canada 2002 CanLII 41834 (ON CA).
The Supreme Court of Appeal fell into the same trap it warned itself of in 2009 in CB v DB 2023 (1) SA 381 (SCA) at para 12 with reference to s 7(1) of the Divorce Act 70 of 1979 and the remarks made about public policy having never been raised in pleadings between the parties. The Constitutional Court in the majority decision in DHB v CSB 2024 (8) BCLR 1080 (CC) delivered on 22 May 2024 criticizes Kgoele AJA at para 50 where Theron J writes: ‘In the matter before this court, the issues expanded from what was originally before the Regional Court. The issue before the Regional Court was whether the prenuptial agreement was enforceable vis-à-vis the antenuptial contract. This then morphed into questions about section 7 of the Divorce Act and public policy before the High Court, the Supreme Court of Appeal and in oral argument before this court.’
The purpose of pleadings is to define the issues for the other party and the court. Courts are called upon to adjudicate the disputes that arise from the pleadings and those disputes alone. Our jurisprudence in Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA) and Notyawa v Makana Municipality and Others 2020 (2) BCLR 136 (CC); (2020) 41 ILJ 1069 (CC) held that courts are bound not to decide issues falling outside the pleadings, without determining issues of fairness and prejudice. It is impermissible for a party to plead a particular case and seek to establish a different case at the trial. In ‘stepping outside of the pleadings’, courts deny respective parties ‘the right to know the case they had to meet and the right to a fair opportunity to meet that case’ (Rodaro at para 61). ‘The introduction of a new theory of liability in the reasons for judgment also raises concerns about the reliability of that theory’ (Rodaro at para 62). Our jurisprudence relies on the adversarial process to get to the truth. ‘That process assumes that the truth best emerges after a full and vigorous competition amongst the various opposing parties. A theory of liability that emerges for the first time in the reasons for judgment is never tested in the crucible of the adversarial process’ (Rodaro at para 62). Jurists simply do not know how the decision-making by a court and the reasoning it adopts ‘would have held up had it been subject to the rigours of the adversarial process’ (Rodaro at para 62). Decision-making based upon a theory to which battle was never joined during the pleading proceedings, is fatal.
‘In a framework within which private parties are permitted to take personal responsibility for their financial well-being upon the dissolution of marriage, courts should be reluctant to second-guess the arrangement on which they are reasonably expected to rely. Individuals may choose to structure their affairs in a number of different ways, and it is their prerogative to do so’ (Hartshorne v Hartshorne [2004] 1 SCR). The Constitutional Court held the parties agreed, that it was common cause that the prenuptial agreement was a donation agreement. The High Court and Supreme Court of Appeal were not entitled to decide a dispute that was raised for the first time on appeal. Once it is accepted that, on the pleadings, as they stood, the prenuptial agreement is a donation agreement, it cannot be said with any degree of certainty that the donation fell within the ambit of s 7 of the Divorce Act. The question of unfairness and prejudice must be considered when a party raises an issue for the first time on appeal. ‘[Courts] must be careful when suggesting that the contract is unfair not to inadvertently suggest bad faith, or an intention on the part of one or both parties to cheat. At no point have allegations of this sort been made’ (Hartshorne at para 37). What the parties view as fair at the time of executing the agreement (the prenuptial agreement or vis-à-vis the donation) may become unfair as the relationship evolves, and as circumstances change. ‘It does not follow that the agreement, and the considerations underlying it, can be ignored’ (Hartshorne at para 29). The minority judgment of the Constitutional Court discussed the difference between the prenuptial and antenuptial agreements and whether the former falls under the Divorce Act. This does not require discussion in this article. It forms part of a discussion between marriage and separation agreements.
Over time, issues are often refined, clarified, and sometimes amplified during the pre-trial, discovery and production processes and at trial. The issues framed by the pleadings in such actions do not always reflect the developed positions of the parties or the precise issues as articulated and pursued at trial. At the end of the day, the issues between the parties are defined by and confined to those pleaded. The formulation of the pleadings at the court of first instance at the Springs Regional Court (B v B (unreported case no GP/SPR/RC352/2018, 21-11-2019) (Regional Court judgment) and the decision-making at the High Court (DB v CB 2021 JDR 0896 (GP)) and the Supreme Court of Appeal might have led to different steps in the litigation if the parties had been properly informed by Bam AJ, Collis J and later Kgoele AJA about their decision-making in widening the pleadings. It includes –
The parties would have proceeded differently in advancing their different cases.
Courts at times cite cases and authority that the parties did not refer to in argument, because their pleadings were not based upon it. ‘They may realise, during deliberations, that the parties have not addressed a particular point. This is not a problem if the point is uncontroversial or minor, and it can be resolved on the evidence presented. It is however problematic if it is the lynchpin for the disposition of a party’s argument or gives rise to a defence that was never pleaded or argued’ (Tall Ships Landing Devt Inc v City of Brockville 2019 ONSC 6597 (CanLII)). ‘The standard for determining whether a [court] complied with the duty of procedural fairness is correctness: Mission Institution v Khela 2014 SCC 24’ (Tall Ships Landing at para 40). ‘The rule of law ultimately requires that [higher] courts still ask whether the decision is itself borne of a “‘just’ exercise of power” … . So, while awkward, this is best reflected in the correctness standard’ of remaining within the boundaries of pleadings (Tall Ships Landing at para 40).
Lastly, it must be remembered ‘pleadings not only serve to define the issues but give the opposing parties fair notice of the case to meet, provide the boundaries and context for effective pre-trial case management, define the extent of disclosure required, and set the parameters of expert opinion. Clear pleadings minimize wasted time and may enhance prospects for settlement’ (Lax Kw’alaams Indian Band v Canada (Attorney General) 2011 SCC 56 at para 41).
Desmond Francke BIuris (UWC) is a magistrate in Wynberg.
This article was first published in De Rebus in 2024 (Sept) DR 26.
