ASSIGNMENT
2 - LCLS 201
Instruction:
·
Student should be divided in groups of 4/5;
The cover page of the assignment must list the names and student numbers of the members of the group;
·
Students should peruse the Plaintiff’s
Particulars of Claim, attached hereto as Annexure 1;
·
Students
should then consult the 1st Defendant’s instructions and draft the 1st
Defendant’s Plea and Counterclaim;
·
Students may presume that summons was issued
from the High Court Durban;
·
The Plea and Counterclaim must be typed and
comply with the layout of matrimonial pleadings.
·
The assignment will be assessed and a mark
will be allocated to the group. (The assignment will count towards the
formative assessment mark of 20% of the final semester mark).
·
The assignment will be evaluated taking into
consideration spelling, layout, grammar and application of instructions.
·
The Plea and Counterclaim must be submitted to
Mr. Pambuka and Mr. Strong on Thursday morning, 13 March 2014 during class.
ANNEXURE
1
PLAINTIFF'S PARTICULARS OF CLAIM
1.
The
Plaintiff is AMANDA NAIDOO (born GOVENDER) a major female, employed as a nurse
at The Bay Hospital, RICHARDS BAY and whom is presently resident at Unit 1
Richards bay Golf Estate, RICHARDS BAY, KwaZulu Natal.
2.
The
1st Defendant is Dr. ADAM NAIDOO, an adult male, employed as a pediatrician at
The Bay Hospital, RICHARDS BAY and who is presently resident at Unit 1 Richards
bay Golf Estate, RICHARDS BAY, KwaZulu Natal.
3.
The
2nd Defendant is Dr. MARADETH GREY, an adult female, employed as a doctor at
The Bay Hospital, RICHARDS BAY, resident at 1 Birdswood, RICHARDS BAY, KwaZulu
Natal.
4.
The 3rd Defendant is the BAY HOPSPITAL
PENSION FUND, as administered by Alexander Forbes, trading from number 1
Building, Johannesburg, Gauteng.
5.
The Plaintiff and 1st Defendant are
domiciled within the area of jurisdiction of the above Honorable Court.
6.
The
Plaintiff and the 1st Defendant were married in community of property on the
1st day of April 2000 at EMPANGENI, which marriage still subsists. A copy of
the marriage certificate is attached hereto as Annexure “B”.
7.
There
is one minor child born from the marriage relationship, namely:
7.1 Donald Naidoo, a male, born 5 July 2008; and one minor child
legally adopted by the
1st Defendant, namely;
7.2 Mickey Govender, a male born 5 July 2006.
8.
By
reason of the fact and circumstances set forth hereunder, there has been
irretrievable breakdown of the marriage relationship between the Plaintiff and
the 1st Defendant:
8.1 The 1st Defendant has entered into an adulterous relationship
with the 2nd Defendant which relationship the Plaintiff finds irreconcilable
with the continuation of the marriage relationship;
8.2 The 1st Defendant sends himself from the matrimonial home
without explaining his whereabouts;
8.3 As a result of the aforementioned behavior the Plaintiff has
lost his respect and trust in the 1st Defendant.
9.
In
the premises, the marriage relationship between the Plaintiff and the 1st
Defendant has reached such a state of disintegration that there is no
reasonable prospect of the restoration of a normal marriage relationship
between them.
10.
It
will be in the best interest of the minor children, if the Plaintiff is awarded
primary care giving over them.
11.
The
1st Defendant is a member of the 3rd Defendant, THE BAY HOSPITAL PENSION FUND,
with employment no: 0822043 and Member No: 1461755. In terms of
Article 7(7)(a) of Act 70 of 1979 (as amended), the 1st Defendant's pension interest forms part of
the joint estate of the parties and the Plaintiff is therefore entitled to
receive 50% of the value of the 1st
Defendants pension fund, as calculated on date of divorce.
12.
The Plaintiff furthermore requires an
order directing the 1st Defendant to pay:
12.1 Maintenance in respect of the minor children DONALD NAIDOO and
MICKY GOVENDER, at the rate of R 20 000-00 (Twenty Thousand Rand) per month,
per child, to be increased yearly at the interest rate of 10%;
12.2 All reasonable medical, dental, hospital and ophthalmic expenses
incurred by the Plaintiff in respect of the minor children and herself;
12.3 All costs consequent upon the education of the said minor
children up to and including tertiary level such to include but not limited to
educational fees, books and stationary, school uniforms, school subscriptions,
donation and insurances, school outings, extra lessons (where necessary)
together with the costs of extra-mural activities and the equipment relating
thereto.
124 Maintenance
in respect of the Plaintiff at the rate of R 50 000-00 (Fifty Thousand Rand) per
month, to be increased yearly at the interest rate of 10%.
The
1st Defendant can afford the aforementioned contributions.
13.
During or about 2005 and subsequent
thereto, the 2nd Defendant wrongfully and intentionally:
13.1 Committed
adultery with the 1st Defendant;
13.2 Enticed
and pursued the 1st Defendant and to desert the Plaintiff and spend time away
from the matrimonial home and to direct her affections to the 2nd Defendant;
14.
As a result of the adultery and the
enticement and persuasion, the 1st Defendant has formed an intimate
relationship with the 2nd Defendant as being styled with the 2nd Defendant and
has directed his affections to the 2nd Defendant.
15.
As a
further result of the said adultery, enticement and persuasion, the marriage
relationship between the Plaintiff and 1st Defendant has irretrievably broken
down.
16.
As a result of the foregoing the
Plaintiff suffered damages namely:-
16.1 Contumelia inflicted upon the Plaintiff in the sum of R 50 000-00
(Fifty Thousand Rand), and
16.2 The loss of the affection, comfort, society and services of the
1st Defendant in the sum of R 100 000-00 (One Hundred Thousand Rand).
Wherefore
the Plaintiff prays for judgment as follows:-
A Against the 1st Defendant:
i) A
decree of divorce on grounds of irretrievable breakdown of the marriage
relationship;
ii) A
Order awarding the Plaintiff primary care giving over the minor children,
MICKEY GOVENDER and DONALD NAIDOO;
iii) A
Order directing the 1st Defendant to pay maintenance to the Plaintiff in
respect of the minor children at the rate of R 20 000-00 (Twenty Thousand Rand)
per month per child; to be increased yearly at the interest rate of 10%;
iv) All
reasonable medical, dental, hospital and ophthalmic expenses incurred by the
Plaintiff in respect of the minor children and herself, such expenses to
include but not be limited to school fees, school books, school stationery,
school uniform, extra mural activities, the equipment relating to extra mural
activities, school outings, registration fees, and extra lessons. The aforesaid expenses would be applicable
with regards to the secondary as well as tertiary education of the minor
child/ren;
v) All
costs consequent upon the education of the said minor children up to and
including tertiary level such to include but not limited to educational fees,
books and stationary, school uniforms, school subscriptions, donation and
insurances, school outings, extra lessons (where necessary) together with the
costs of extra-mural activities and the equipment relating thereto;
vi) Maintenance
in respect of the Plaintiff at the rate of R 50 000-00 (Fifty Thousand Rand) per
month, to be increased yearly at the interest rate of 10%;
vii) An
order for the division of the joint estate.
B Against the 2nd Defendant:
i) Payment
of the sum of R 150 000-00 (One Hundred and Fifty Thousand Rand);
ii) Interest
on the sum of R 150 000-00 (One Hundred and Fifty Thousand Rand) at the legally applicable
rate from date of judgment to date of final payment.
C Against the 3rd Defendant:
(i) 50%
of the 1st Defendant's pension fund interest, excluding any loans or other
debts, against the said pension fund, up to and including the date of the divorce
shall be assigned to the Plaintiff and shall be paid by the funds to her when
any pension fund benefits become payable to the 1st Defendant.
An
endorsement be made on the records of the said
fund that 50% of the 1st Defendant's said pension fund interest, excluding any loans or other debts
against the said pension fund, up to and including the date of divorce shall be
payable to the Plaintiff. The amount assigned to the wife shall accrue interest
as at the rate of the said fund’s performance
D Against 1st and 2nd Defendants jointly
and severally:
i) Cost of suit as on attorney and own
client scale;
ii) Further and/or alternative relief.
DATED AT EMPANGENI THIS 11th DAY OF
MARCH 2013.
______________________
Plaintiff’s Attorney
Boston Legal
Unit 1
EMPANGENI
(Ref: Mr Anger)
1st
Defendant’s Instructions:
Unless specifically denied
all submissions made in the Plaintiff’s particulars of claim are admitted.
The
1st defendant does not agree with the following averments made by
the Plaintiff:
· That the Plaintiff is employed as a nurse at
The Bay Hospital and resident at Unit 1 Richards Bay, Golf estate. The 1st
Defendant submits that the Plaintiff is an anesthetist theater assistant employed
at the Bay Hospital and that she left the matrimonial home and is presently
residing with Dr. Sleep at 5 Union Street, Empangeni.
· The 1st Defendant admits the
citation in respect of the 1st , 2nd and 3rd
Defendants except for the fact that the 2nd Defendant is no longer
resident at 1 Birdswood, Richards Bay as she moved in with the 1st
Defendant shortly after the Plaintiff left the matrimonial home.
· The 1st Defendant submits that the
Plaintiff is also a member of the Bay Hospital Pension Fund with employee
number 123 and that he is also entitled to 50% of the Plaintiff’s pension fund
benefit as calculated at date of divorce. Accordingly the 1st
Defendant instructs you to claim 50% of the Plaintiff’s pension fund interest.
· The 1st Defendant denies that he legally
adopted Mickey Govender as the adoption process was not finalized as at the date
of issuing of summons, hence the 1st Defendant denies that he is
liable to maintain Mickey Govender.
· The 1st Defendant denies that the
reason for the breakdown of the marriage is due to him having an adulterous
relationship with the 2nd Defendant. The 1st Defendant
submits that the reasons for the breakdown of the marriage relationship are due
to the Plaintiff having an adulterous relationship with the anesthetist, Dr.
Dora Sleep whom is employed at the Bay Hospital. The 1st Defendant
wish to cite Dr. Dora Sleep as a party to the action and sue her for loss of
consortium in the amount of R 500 000.
· The 1st Defendant denies that
primary care giving in respect of Donald Naidoo should be awarded to the
Plaintiff as the Plaintiff is involved in a same-sex relationship with Dr.
Sleep and that the 1st Defendant does not want his minor child
exposed to potential lesbian conduct.
·
The 1st Defendant submits that
primary care giving of the minor child Donald Naidoo should be awarded to him,
whilst restricting the Plaintiff’s contact rights to supervised contact rights.
In addition the 1st Defendant submits that he will require maintenance
in respect of the minor child in the amount of R 2000-00 per month as well as a
50% contribution from the Plaintiff in respect of the educational and medical
expenses incidental to the minor child.
· The 1st Defendant submits
furthermore that the Plaintiff does not require maintenance for herself, as she
is gainfully employed.
· The 1st Defendant therefore agrees
with a decree of divorce being granted on the ground of irretrievable breakdown
of the marriage relationship between him and the Plaintiff, and that an
endorsement is made to his pension fund interest, provided the Plaintiff’s
pension fund interest is endorsed in favour of the 1st Defendant. The
remainder of the Plaintiff’s prays for judgment is therefore denied.
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