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[2016] ZAWCHC 183
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Coughlan v Kossar and Another (15209/16) [2016] ZAWCHC 183 (25 November 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION,
GEORGE)
CASE NO: 15209/16
In
the matter between:
TRACY
COUGHLAN
Applicant
And
IWAN
OTTO
KOSSAR
1
st
Respondent
SANLAM
PRIVATE WEALTH
LIMITED
2
nd
Respondent
Coram:
Yekiso J
Dates
of Hearing: 18 November
2016
Judgment
Date: 25
November 2016
JUDGMENT
YEKISO, J
[1]
On 16 September 2016 and, on
ex
parte
basis, the applicant
instituted proceedings out of this court, on notice of motion, for
the relief set out in paragraphs 1, 2, 3
and 4 of the notice of
motion. The matter was enrolled for hearing on that same day.
On 19 September 2016 the matter
served before Veldhuizen J.
After hearing the application, Veldhuizen J issued a
Rule
Nisi
substantially along
the lines of the relief sought in the notice of motion, returnable on
Monday, 24 October 2016.
On 24 October 2016 the matter
served before Dolamo J. On 26 October 2016 Dolamo J
extended the
Rule Nisi
to 18 November 2016 simultaneously directing the applicant to file
her replying affidavit, if any, by no later than 7 November
2016.
The essence of the relief sought is an order that the second
respondent retains monies held in the first respondent’s
name
pending an action to be instituted by the applicant against the first
applicant for arrear and future maintenance.
[2]
On 18 November 2016 the matter
served before me. After hearing argument I reserved judgment,
simultaneously advising the parties
that my judgment in the matter
will be handed down during the course of the week commencing on 21
November 2016. In the paragraphs
which follow, is my judgment
in the matter.
THE PARTIES
[3]
The applicant is an adult
female person residing at No […] [..] Road, Heatherlands,
George. The first respondent is
an adult male person and a
professional diver by trade. He states in his answering
affidavit that from the beginning of September
2016 he, together with
his partner, have been residing at […], Le Petit Morne, La
Gaulette, Mauritius. The second
respondent is a private
investment company having its registdered office at Vinyeard Office
Estate, 199 Jip de Jager Drive, Welgemoed,
Cape Town. It has a
branch office at 2 Church Street, Church Corner Building, George.
BACKGROUND
[4]
The applicant and the first
respondent were involved in a relationship for a period of more than
10 years. Two children were
born of this relationship, being
E., who is 12 years of age, and M., who is 9 years of age. The
parties subsequently terminated
their relationship amicably. In
so doing, the parties concluded a written agreement which they both
signed on 30 August 2012.
The first respondent’s
obligation towards maintenance of the minor children is set out in
paragraph 2 of that agreement.
As at the time of the
institution of these proceedings, according to the applicant, the
first respondent was in arrears with his
maintenance payments in an
amount of R29,726-57. At the time of the termination of their
relationship the first respondent
owned a property in George, being
erf 5[…], George and commonly known as […] J[…]
Street, George. After
termination of the parties’
relationship the applicant was mandated by the first respondent to
manage the lease of the property
and the collection of rentals
arising therefrom.
[5]
On 23 February 2015 the first
respondent addressed an email to the applicant wherein the first
respondent, amongst other things,
informed the applicant that he had
instructed an estate agent to place the property on the market and
that, henceforth, the applicant’s
mandate to manage the lease
thereof and the collection of rentals would be terminated. The
mandate was to terminate at the
end of February 2015. The
property was subsequently sold during March 2016 at a purchase
consideration in an amount of R850,000-00.
Early during
2016 a paternity dispute arose between the applicant and the first
respondent with regards to the paternity of the
minor children.
This was resolved by way of a DNA-blood analysis. The results
of the DNA-blood analysis confirmed the
first respondent’s
paternity of the minor children.
[6]
On the same date that the first
respondent informed the applicant that he was putting his property on
the market, the first respondent
informed the applicant that
circumstances in the diving industry where the first respondent was
employed at the time had changed
and that this would have an effect
on his ability to pay maintenance and, possibly, termination of his
employment. The respondent
annexes, as annexure “IOK”,
a document entitled “Settlement Agreement and Discharge of All
Claims” suggesting
that, as at 27 April 2016, termination of
his employment with his then employers was being negotiated. On
or about 3 June
2016 onwards there was exchange of email
communication between the applicant’s and the first
respondent’s attorneys
with a view to negotiate a reduction in
maintenance due to the first respondent’s imminent loss of
employment.
[7]
The first respondent has funds
invested with Sanlam Private Wealth Limited, the second respondent in
these proceedings.
During the course of 2016 the first
respondent had instructed his investment consultant with the second
respondent to transfer
$50 000-00 of his invested funds to a
different account. The reason for the transfer was triggered by
financial advice
the first respondent had received. This was
based on possible instability in the markets due to the then looming
elections
both in South Africa and the United States of America. That
transfer, so the first respondent states in his answering affidavit,
was purely for investment reasons.
[8]
On 27 July 2016 the applicant
obtained information from an undisclosed source that the first
respondent was in the process of moving
investments he holds with the
second respondent offshore and that the first respondent planned to
put such offshore investment
on his current partner’s name.
The applicant received this information from a person whose identity
she promised not
to reveal. She states in her founding affidavit that
she has full confidence in the reliability of the person and the
information
received.
[9]
Based on that information the
applicant instituted proceedings out of the maintenance court, George
on
ex parte
basis,
for a
rule nisi
returnable on 8 September 2016 calling on the first respondent to
show cause why an order in the following terms should not be
confirmed and made final:
[9.1.]
That the second respondent be
ordered to retain all funds of the first respondent invested with it,
or under its control, of an
amount which is to be calculated
actuarially for the future maintenance of the minor children, and for
the amount of R15,370-26
in terms of the maintenance order issued in
terms of the Maintenance Act, 99 of 1988.
[9.2.]
That the second respondent be
ordered to pay the aforementioned amount to the applicant, and the
actuarially calculated balance
to the third respondent who ostensibly
would have been the Master of the High Court, Cape Town.
[9.3.]
That the second respondent pays
the money to the Master’s guardian fund, who will manage the
funds and pay to the applicant
a monthly amount for the benefit of
the children’s future maintenance, as actuarially calculated,
for a period till the minor
children reach the age of majority.
[9.4.]
That the first respondent, or
his estate, shall be entitled to be paid from the sum retained in the
Master’s guardian fund
any balance that remains once the
children would no longer be in need of support.
[9.5.]
That pending the return date of
the
rule nisi
the second respondent be interdicted from paying any funds of the
first respondent under its control or invested with it, to the
first
respondent.
[10]
The
first respondent opposed confirmation of the
rule
nisi.
In the course
of that litigation it was ascertained that the agreement concluded
between the applicant and the first respondent
on 30 August 2012
terminating their relationship was not made an order of court as
anticipated by the parties. Once
the applicant became
aware of this fact, and on 1 September 2016, the applicant issued yet
another application, on
ex
parte
basis and enrolled
for hearing on 2 September 2016 wherein the applicant sought an order
that the agreement concluded between the
applicant and the first
respondent on 30 August 2012 be made an order of court. That
order was not granted but instead same
was postponed to 21 September
2016. On 15 September 2016, subsequent to the launching
of the second application, the
first respondent’s attorneys of
record, addressed a letter to the applicant’s attorneys, per
email, making the following
request:
“
Geliewe
op ‘n dringende basis te bevestig wat u kliënt van
voorneme is om te doen op 21 September 2016 en verlang ons
ook dat
kennis aan ons kantore verleen word, alvorens u kantore enige ander
forum nader.”
Despite this request there was
instituted the current proceedings, once again on
ex parte
basis,
wherein the applicant sought the form of relief as set out in the
notice of motion. As has already been pointed out
that relief,
in the form of a
rule
nisi,
was granted by Veldhuizen J
on 19 September 2016.
[11]
In
paragraph 22 of his answering affidavit the first respondent
discloses his financial position. In that paragraph the first
respondent states that, apart from his investment with Sanlam, which
is diversified but has a total worth of R3 807 542-44,
he
has the following accounts which include their balances: Nedbank
cheque account – R18 258-25; Nedbank investment
5% -
R181 577-94; Lloyds Isle of Man - £11 500-00;
Mauritian Regular Savings in MUR Rs 70 457-11 (joint account
with partner); and Mauritian Current Account in GBP £1 993-82.
It is the first respondent’s investment with
the second
respondent that the applicant seeks this court to attach as security
for the future maintenance of the parties’
minor children.
EVALUATION
[12]
The
effect of the relief that the applicant seeks is that this court
should order the second respondent to retain the first respondent’s
funds and investments held by it and that the first respondent be
restrained from dealing with such funds and investments pending
an
action to be instituted by the applicant. Thus, what the
applicant seeks this court to do is to restrain the first respondent
from dealing with his assets pending outcome of an action which the
applicant intend to institute against him. Thus,
the
relief the applicant seeks is nothing short of an anti-dissipation
order.
[13]
The
approach in the determination of the kind of relief the applicant
seeks in these proceedings is set out in several authorities.
Knox D’Arcy Limited &
others v Jamieson & others
[1996] ZASCA 58
;
1996
(4) SA 348
(A) at 372F-I is authority for the approach to be adopted
in the determination of the question as to whether an
anti-dissipation
order is the appropriate relief in the given set of
circumstances. In that authority Grosskopf JA made the
following
observation in the determination of that question:
“
The
question which arises from this approach is whether an applicant need
to show a particular state of mind on the part of the
respondent, ie,
that he is getting rid of the funds, or is likely to do so, with the
intention of defeating the claims of creditors.
Having regard
to the purpose of this type of interdict, the answer must be, I
consider, yes, except possibly in exceptional cases.
As I have
said, the effect of the interdict is to prevent the respondent from
freely dealing with his own property to which the
applicant lays no
claim. Justice may require this restriction in cases
where the respondent is shown to be acting
male
fide
with
the intent of preventing execution in respect of the applicant’s
claims. However, there would not normally be any
justification
to compel a respondent to regulate his
bona
fide
expenditure
so as to retain funds in his patrimony for the payment of claims
(particularly disputed ones) against him. I am
not, of course,
at the moment dealing with special situations which might arise, for
instance, by contract or under the law of
insolvency.”
[14]
The
matter before me was triggered by the information the applicant
obtained, on the basis of hearsay, that the first respondent
was in
the process of moving an investment he holds with the second
respondent offshore and to invest it offshore in the name of
his
girlfriend. This, so the applicant states in her founding
affidavit, is structured to take away all security for payment
of
future maintenance for the minor children which she dearly needs to
make ends meet and maintain their lifestyle. But the
first
respondent denies this. Whilst admitting that he had
instructed the second respondent to transfer $50 000-00
to a
different account, he denies that he had intended to transfer his
entire investment with the second respondent offshore; to
close the
account with the second respondent or that he intended to put the
offshore investment into the name of his partner.
He
states that the reason for the transfer was triggered by the
financial advice he received. This related to possible
instability
in the markets due to the looming elections both in South
Africa and the USA and suggestions that he reinvest portions of his
investments
in US dollars. The whole transaction was
purely for investment purposes and was not an endeavour to transfer
his entire
investment with the second respondent offshore.
[15]
Mr
Joubert,
in argument before
me and in seeking to persuade me to grant the relief sought, relies
on the judgment of Hlophe JP in
Pumla
Viola Magewu v Tamsanqa Cosmos Zozo & two others,
CPD
case number 7821/2003 (unreported). That authority related to a
respondent who was a chronic defaulter in discharging
his maintenance
obligations. There had, as for an example, previously been
attempts to secure maintenance payments by way
of an emoluments
attachment order. The circumstances of the matter before me are
different. There is no evidence to
suggest that the first
respondent is a chronic defaulter in his maintenance obligation.
The only evidence that there
is, apart from the alleged arrears in an
amount of R29 726-57, is that all that the first respondent
seeks is an amicable
settlement towards reduction of maintenance
payable necessitated by loss of employment.
[16]
The
requirements for an interim interdict are trite and these are:
a)
prima facie
right, though open to some doubt;
b)
an apprehension of irreparable
harm if the interim relief is not granted and the final relief is
granted in due course;
c)
the balance of convenience in
favour of the applicant; and
d)
the absence of a satisfactory
alternative remedy.
[17]
In
the instance of this matter the applicant resides in South Africa and
the first respondent resides in Mauritius.
It is a matter
of judicial knowledge that both South Africa and Mauritius are
countries existing in a civilised world where reciprocal
enforcement
of maintenance orders is not beyond question. That is an
alternative remedy available to the applicant should
a need arise to
enforce the first respondent’s maintenance obligations.
Moreover, it has not been shown, in the circumstances
of this matter,
that the first respondent is acting
mala
fide
with the intention of
evading his maintenance obligation. The only evidence that
there is, which triggered this application
is information, based on
hearsay, that the first respondent was about to transfer his funds
and investment held by the second respondent
offshore and invest such
funds in investments in the name of his partner. But the first
respondent denies this. His
denial does not seem to be
farfetched warranting the rejection thereof out of hand. I
cannot, in the circumstances of this
matter, grant the relief the
applicant seeks on the basis of evidence I consider to be of doubtful
quantum. All these factors
taken into account, and considered
against the facts as set out by the first respondent in his answering
affidavit, this application
ought to fail.
[18]
In
the result I make the following order:
(1)
The application is dismissed
with costs.
(2)
The
Rule
Nisi
issued by Veldhuizen J
on 19 September 2016, and extended by Dolamo J on 26 October 2016, is
discharged.
____________________
N J Yekiso
Judge of the High Court
Counsel
for Applicant:
Adv LJ Joubert, George
Attorneys
for Applicant:
Cilliers Odendaal, George
Counsel
for First Respondent
Adv A Schmidt, George
Attorney
for First Respondent:
Millers Inc, George
CASE NO: 15209/16 – T
COUGHLAN v I O KOSSAR + 1
25/11/2016 – YEKISO J
(1)
The application is dismissed with costs.
(2)
The Rule Nisi issued by Veldhuizen J on 19 September 2016, and
extended by Dolamo
J on 26 October 2016, is discharged.