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South Africa: Western Cape High Court, Cape Town
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[2016] ZAWCHC 103
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Wife v Husband (25394/2010) [2016] ZAWCHC 103 (5 August 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:
25394/2010
DATE: 5
AUGUST 2016
In the matter of:
WIFE
Plaintiff
And
HUSBAND
Defendant
ORDER
IT IS ORDERED THAT:
1.
A
decree of divorce is granted;
The maintenance claim
2.
The
maintenance waiver in clause 9 of the antenuptial contract concluded
between the parties on 16 July 1992 in Hamburg, Germany
is declared
void and unenforceable;
3.
Defendant
is directed to pay maintenance for Plaintiff personally as follows
until her death or remarriage, whichever event occurs
first:
3.1.
Defendant
shall pay to Plaintiff the sum of R30 000.00 per month in
advance on or before the 1st day of every month, by way
of debit
order into such bank account as Plaintiff nominates from time to
time.
3.2.
Subject
to Defendant fully complying with all the terms of this order the
amount payable in terms of paragraph 3.1 shall be reduced
by
R1 000.00 for every R285 000.00 in excess of R4.4 million
which Plaintiff is paid by Defendant in respect of
the accrual set
out below;
3.3.
Defendant
shall, on divorce, make available to Plaintiff for her exclusive use,
the motor vehicle which she currently drives; and
license it as his
costs.
3.4.
On
1 September 2016 and every six years thereafter on 1 August,
Defendant shall provide Plaintiff with a new motor vehicle
of her
choice having the equivalent value of a new Subaru Outback 2.5i
Premium, selected by Plaintiff, with air-conditioning and
power-steering. Such motor vehicle shall have a comprehensive
five-year motor plan funded by Defendant; and shall be licensed by
Defendant at his costs.
3.5 The
maintenance payable in terms of 3.1 above shall be increased annually
on the anniversary date of the divorce order, by the
percentage
change in the Headline inflation rate (also known as the Headline
Consumer Price Index), as notified by Statistics SA
(or its
equivalent) in respect of the Republic of South Africa for the
preceding twelve months. Such percentage change shall
for
purposes of convenience be deemed to be equal to the latest index
available from Statistics SA on the anniversary date;
The
accrual claim
4.
The
accrual in Defendant’s estate is held to be R22 259 702;
as set out in the accrual calculation submitted by
Plaintiff and
annexed hereto.
5.
Defendant
shall pay to Plaintiff one half of this amount, being R11 129 851
(“the accrual amount”), within
60 calendar days of date
of divorce;
6.
Defendant
shall transfer to Plaintiff his half share in the property situated
at 5 Woodlands Road, Rondebosch, Cape Town (“the
Rondebosch property”) within 90 calendar days of divorce
against payment of an amount of R2 million by Plaintiff, which
payment shall be made via a reduction on the accrual amount due and
payable. To avoid any doubt such property shall be bond
free as
Defendant has accepted liability for the existing bond;
7.
Defendant
may collect the movables specified in Exhibit 41 from the Rondebosch
property 90 calendar days after divorce
or
within 15 calendar days after payment of the accrual amount to
Plaintiff, whichever is the later period;
8.
Defendant’s
other counterclaims are dismissed.
Costs
9.
Defendant
shall pay Plaintiff’s costs of suit as between attorney and
client (save as otherwise ordered) in respect of the
following
interlocutory applications, such costs to include the costs of two
counsel where two counsel were engaged.
9.1.
Plaintiff’s
application to compel Defendant to comply with a rule 35(3) notice
and to provide full trial particulars dated
January 2014;
9.2.
Plaintiff’s
application in terms of rule 43 dated February 2014, save that the
tariff prescribed by rules 43(7) and (8) shall
not apply;
9.3.
Plaintiff’s
application for leave to amend dated April 2014;
9.4.
Defendant’s
application for a postponement dated August 2014.
10.
Defendant
shall pay Plaintiff’s costs as between attorney and client in
this action, such costs to include the cost of two
counsel, and he
shall pay the qualifying costs and their attendance fees of the
following experts:
10.1.
Ms
Danielle Ladopoulos
10.2.
Ms
Liza Hofmeyr
10.3.
Mr
John van der Spuy
10.4.
Dr
Czech.
BY
ORDER OF COURT
THE
REGISTRAR
Accrual calculation :
a)
End
value of Defendant’s estate [
per
Greenbaum Exhibit 51
] R12 016 000
b)
Less
Greenbaum
valuation of Defendant’s 25,1% interest in Blouvlei Landgoed
(Pty) Ltd [
note: value too low
]
-R1 951 722
c)
Plus
100%
interest in Blouvlei Landgoed (Pty) Ltd based on the valuation of the
two farm properties by Mr Van der Spuy [
note:
see calculation of adjusted value in Plaintiff’s heads para 180
and 184.1 & 184.2
] R10 924 786
d)
Plus
Glacier
living annuity R3 270 638
[
note:
if held to be part of Defendant’s estate per Kirkland case
]
e)
Less
Defendant’s
legal fees [
note: per Greenbaum’s
evidence
] -R2 000 000
f)
Plus
Defendant’s
counterclaim [
note: amount unknown
]
-
g)
Less
excluded
assets [
note: no nexus established
between pre-marital assets and end value, amount unknown
]
-
h)
Less
commencement
value -
[
note:
the parties agreed a Rnil commencement value
]
i)
Adjusted end value in Defendant’s
estate
R22 259 702
j)
Less
the
accrual in Plaintiff’s estate -
[
note:
Plaintiff’s estate is insolvent and as such the end value is
deemed to be Rnil as per Schedule B to Plaintiff’s
heads
]
k)
The difference between the accrual in
Plaintiff’s estate and Defendant’s estate
R22 259
702
l)
Minimum amount to which Plaintiff is
entitled (being one half of the difference in the accrual of the
respective estates)
R11129
851