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[2018] ZAWCHC 131
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B v B (21175/2013) [2018] ZAWCHC 131 (10 October 2018)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 21175/2013
In
the matter between:
A
B
Applicant
and
J
B
Respondent
Coram:
P.A.L.Gamble J
Date
of Hearing: 27 August 2018
Date
of Judgment: 10 October 2018
JUDGMENT
DELIVERED ON 10 OCTOBER 2018
GAMBLE,
J:
INTRODUCTION
[1]
The parties to this litigation, to whom I
shall conveniently refer as “
the
husband”
and “
the
wife
”, were married to each other
on 27
February
1993 in terms of an antenuptial contract which made provision for the
application of the accrual system. When their marriage
broke down
irretrievably, they separated in 2012 and on 23 December 2013 the
wife issued summons against the husband for a decree
of divorce and
ancillary relief. At that stage the parties’ children were
still minors and provision was made in the particulars
of claim for
care and contact arrangements in respect of the children, as well as
maintenance for them. In the interim the children
have all attained
majority and they no longer feature in this litigation.
[2]
The wife’s claims included personal
maintenance, the provision of a motor vehicle and implementation of
the terms of the antenuptial
contract relating to her portion of the
accrual as contemplated in Chapter 1 of the Matrimonial Property Act,
88 of 1984 (“
the MPA”
).
[3]
The husband filed a plea and counterclaim
on 2 April 2014 and, in the main, disputed the substance of the
wife’s allegations.
In relation to her accrual claim, however,
the husband conceded that his estate had shown a greater accrual than
his wife’s
and he accepted that he was liable to pay to her one
half of the difference between the net value of his estate and that
of the
wife. Given that the wife’s estate is evidently of
negligible value, the husband’s concession essentially amounts
to
a division of his net estate in equal shares.
THE
FIRST APPLICATION IN TERMS OF RULE 33(4)
[4]
The
husband is a farmer by profession and owns large tracts of farmland
in the Overberg which are said to be of substantial value.
In order
that the parties could properly apply their minds to resolution of
the accrual dispute, it was necessary for agreement
to be reached on
the value of the husband’s estate. In reality, this meant a
valuation of his farming business and, in particular,
the immovable
properties on which that business is conducted. Conscious of the fact
that in terms of s3(1) and (2) of the MPA an
order for division of
the accrual can only be made upon the granting of decree of
divorce
[1]
,
the parties sought to establish a mechanism to achieve this. In the
result, it was agreed that, through the application of Rule
33(4),
this court would be asked to establish those values at the outset.
[5]
And so, in mid-2016 Fortuin J was requested
by the parties to determine two discrete issues. Firstly, Her
Ladyship was requested
to determine whether the husband’s
accrual was in any manner reduced by virtue of donations allegedly
made to him by his
late father. Secondly, the court was asked to
determine the fair market value of the two farms on which the husband
conducts his
farming operations – “Luipaardskloof”
and “De Turon” in the Swellendam district. To this end
the
court heard oral evidence from experts as to the value of those
farms.
[6]
On 21 November 2016 Fortuin J handed down
judgment and found that no donation as alleged had been established
by the husband. Regarding
the value of farms the court found that
Luiperdskloof was worth R36m and De Turon R6,3m. The husband was
evidently dissatisfied
with the court’s findings and made
application for leave to appeal. When this was refused by Fortuin J
the husband did not
pursue the matter further by way of an
application for leave to the Supreme Court of Appeal.
THE
SECOND APPLICATION IN TERMS OF RULE 33(4)
[7]
During 2017 the litigation seems to have
meandered aimlessly as offers and counter-offers of settlement were
reciprocated. Eventually
on 8 May 2018 the husband approached this
court for further relief in terms of Rule 33(4) seeking an order,
inter alia
-
“
1.
Directing that the issue with regards to the grant of a decree of
divorce be decided separately in terms of R33(4) from the remaining
issues in the matter which can stand over until the aforementioned
issue has been decided….
3. The costs of
this application to be costs in the cause of the main action between
the parties, unless the Respondent opposes
this application, in which
event, the Applicant prays that the Respondent be ordered to pay the
costs thereof.”
The
thinking behind that application was to procure only an order for
divorce so that the date for calculation of the accrual could
be
fixed in time, and thereafter the proprietary consequences and a
potential maintenance order in favour of the wife could be
considered
in the context of such date.
[8]
The wife opposed the application contending
that no useful purpose would be served by a further separation of
issues at that time.
It appears that the wife held the view that
there had been significant appreciation in the value of the farms in
the interim, a
view seemingly shared by the husband, who, however,
claimed that the valuation of the farms was
res
judicata.
The wife accordingly applied
by way of a counter application, on 24 May 2018, for the dismissal of
the husband’s Rule 33(4)
application while requesting a
declaratory order that the determination by Fortuin J of the values
of the husband’s farms
on 21 November 2016 was not
res
judicata.
The wife further asked that
“
the percentage to be applied
regarding appreciation [in the values of the farms] is to be agreed
between the parties. If no agreement
is reached, evidence is to be
adduced in this regard in the divorce trial
.”
She also sought permission for experts of her choice to be given
access to the farms for purposes of reconsidering the
valuations
thereof and other related relief.
[9]
This
court heard both applications on 27 August 2018 and reserved
judgment. The parties were invited to approach this court in the
interim, while judgment was being prepared, for a decree of divorce
to enable the date to be fixed for the purposes of the application
of
s3(2) of the MPA. Both parties were in agreement with this proposal.
Given that the question regarding the interests of the
parties’
children was no longer a live issue in light of their majority, s6 of
the Divorce Act, 70 of 1979 (“
the
Act
”)
did not apply and it was open to the court to grant a decree of
divorce at that stage.
[2]
[10]
In the result, the wife attended court on 7
September 2018 and testified briefly whereafter a decree of divorce
was granted by this
court. All outstanding issues were held in
abeyance and it was expressly stipulated in the presence of the
husband’s legal
representatives (who attended court
ex
abundante cautela
) that the wife would
be entitled to adduce such further evidence as she considered
admissible and relevant for purposes of determining
the outstanding
issues in this litigation. If relevant and necessary, this included
detailed evidence regarding the breakdown of
the marriage insofar as
that is a factor capable of consideration by the court in
determination of an order for maintenance in
terms of s7(2) of the
Act.
THE
RES JUDICATA ARGUMENT
[11]
Mr.J.W.Olivier SC, who represented the
husband, submitted in argument in the response to the wife’s
counter application that
the decision of Fortuin J had finally fixed
the value of the husband’s farms for the purposes of
determining that component
of the share in the accrual to which the
wife was entitled. Further, it was said that, since these properties
represented by far
the bulk of the husband’s estate, the issue
of their fair market value was no longer open for debate or
determination by
the court.
[12]
Mr.H.M.Raubenheimer SC, for the wife,
stressed the importance of the date of divorce as being the date upon
which the accrual calculation
was required to be made. In the event
that the value of an asset which had been established some time prior
to that date had increased
significantly, said counsel, it would not
be just and equitable to grant an order because this would be to the
prejudice and detriment
of the wife. For that reason it was said that
the order of Fortuin J had done no more
than
to fix the value of the farms as at that date
[3]
.
However, it was argued, there was nothing to preclude the wife from
seeking to allege (and prove) a higher value as at the actual
date of
dissolution of the marriage.
[13]
It
should be noted that the Rule 33(4) application brought by the
husband was intended to achieve finality in only one aspect (albeit
a
very important one) of the matrimonial proceedings: the pronouncement
of a decree of divorce. The motivation for that application,
as I
have said, was to fix a date for the calculation of the accrual. The
purpose behind the application was based on the well-established
principle in our law that an order for separation of issues must be
“
aimed
at facilitating the convenient and expeditious disposal of
litigation”,
while
always bearing in mind that “
even
where the issues are discrete, the expeditious disposal of litigation
is often best served by ventilating all the issues at
one hearing,
particularly where there is more than one issue that might really be
dispositive of the matter.”
[4]
[14]
During argument, Mr. Raubenheimer SC
readily accepted that a decree of divorce might be issued. After all,
the parties have been
separated since 2012 and they have apparently
each gone their separate ways and entered into new relationships. And
with the children
no longer a factor for compulsory consideration by
the divorce court, all that remained really was the resolution of the
“
commercial
”
side of the parties’ matrimonial relationship.
[15]
It was clear too that consideration of the
wife’s entitlement to maintenance under s7(2) of the Act would
be influenced by
the extent of her share of the accrual: it is
possible that the investment of a sizeable capital sum flowing from
the accrual determination
might take care of her maintenance needs,
if not completely, then certainly in part. But the accrual could only
be calculated once
the divorce order had been granted and so, for the
avoidance of an interminable game of snakes and ladders, it made
eminent sense
to fix that date sooner rather than later.
[16]
The
effect of Mr. Raubenheimer SC’s concession was that the
husband’s application for a separation of issues became
moot,
save for the question of costs. However, correspondence between the
parties’ lawyers revealed that there was a dispute
as to the
effect of Fortuin J’s order and that this dispute could
usefully be resolved by the court considering a declaratory
order in
the terms sought by the wife in her counter application. In my view
the dispute raised in the wife’s application
is of such a
nature that it may be usefully resolved in accordance with the
established principles applicable to declaratory relief.
[5]
[17]
A
plea of
res
judicata
will
ordinarily be raised by a party in defence to an unsustainable claim
by the other side and is often taken by way of a special
plea. In
Bertram
[6]
the court explained that –
“
The
meaning of the rule is that the authority of
res
judicata
induces a presumption
that the judgment upon any claim submitted to a competent court is
correct, and this presumption being
juris
et de jure
, excluded every proof
to the contrary. The presumption is founded upon public policy which
requires that litigation should not
be endless and upon the
requirements of good faith which, as was said by
Gaius
(Dig.50.17.57)
, does not permit
of the same thing being demanded more than once.”
[18]
In
Bafokeng
Tribe
[7]
,
Friedman JP, relying on earlier appellate authority
[8]
gave the following useful summary of the approach to be applied.
“
From the
foregoing analysis I find that the essentials of the
exceptio
res judicata
are threefold,
namely that the previous judgment was given in an action or
application by a competent court (1) between the same
parties, (2)
based on the same cause of action
(ex
petendi causa
),(3) with respect
to the same subject-matter, or thing (
de
eadem re
). Requirements (2) and
(3) are not immutable requirements of
res
judicata
. The subject-matter
claimed in the two relevant actions does not necessarily and in all
circumstances have to be the same. However,
where there is a
likelihood of a litigant being denied access to the courts in a
second action, and to prevent injustice, it is
necessary that the
said essentials of the threefold test be applied. Conversely, in
order to ensure overall fairness, (2) and (3)
above may be relaxed. A
court must have regard to the object of the
exceptio
res judicata
that it was
introduced with the endeavour of putting a limit to needless
litigation and in order to prevent the recapitulation
of the same
thing in dispute in diverse actions, with the concomitant deleterious
effect of conflicting and contradictory decisions.
This principle
must be carefully delineated and demarcated in order to prevent
hardship and actual injustice to parties. The doctrine
of issue
estoppel has the following requirements: (a) where a court in a final
judgment on a cause has determined an issue involved
in the cause of
action in a certain way, (b) if the same issue is again involved, and
the right to reclaim depends on that issue,
the determination in (a)
may be advanced as an estoppel in a later action between the same
parties, even if the later action is
founded on a dissimilar cause of
action. Issue estoppel is a rule of
res
judicata
that is distinguished
from the Roman-Dutch law exception in that in issue estoppel the
requirement that the same subject-matter
or thing must be claimed in
the subsequent action is not required.”
[19]
In
National
Sorghum
[9]
,
Olivier
JA articulated the position as follows.
“
The
exceptio rei judicatae vel litis finitae
[2] The
requirements for a successful reliance on the
exception
were, and still are:
idem actor
,
idem reus,
eadem res
and
eadem causa petendi.
This means that the
exceptio
can be raised by a defendant in a later suit against a plaintiff who
is ‘demanding the same thing on the same ground’…
or which comes to the same thing, ‘on the same cause for the
same relief’…or which also comes to the same thing,
whether the ‘same issue’ had been adjudicated upon.”
(Authorities omitted)
[20]
In this matter the wife’s cause of
action is a composite one. She has sought a decree of divorce in
terms of s4 of the Act.
She has also asked to be maintained by the
husband in terms of s7(2) of the Act and has, further, asked for the
implementation
of the provisions of Chapter 1 of MPA and to be paid
what is due to her thereunder. The wife has been granted a decree of
divorce
and it is common cause that she is entitled to payment by the
husband of a capital amount yet to be determined by the court. For
the rest the wife’s claims remain in dispute and she is obliged
to prosecute them in due course.
[21]
On the basis of the pleadings as they
currently stand, I conclude that when the trial in this matter is
resumed the court will be
asked by the wife to determine at least the
following issues.
21.1
What was the net value of the husband’s
estate on 7 September 2018?
21.2
What was the net value of the wife’s
estate on 7 September 2018?
21.3
What is the difference between the
aforesaid net values?
21.4
Assuming that the husband’s estate as
at 7 September 2018 was larger than the wife’s, what is the
amount that the wife
is entitled to by way of her half share of such
difference?
21.5
How should the husband be ordered to meet
his obligation to pay such half share to the wife?
21.6
What are the wife’s current
reasonable maintenance requirements?
21.7
What income is available to the wife to
meet such maintenance requirements?
21.8
Is
the wife entitled, in the circumstances, to be further
[10]
maintained by the husband?
21.9
If so, in what amount and for how long?
21.10
What costs order (if any) should be made in
the divorce action?
[22]
It is
correct, as Mr. Olivier SC submitted, that the order of Fortuin J was
final and cannot be set aside by the court hearing the
divorce trial.
And, it is similarly correct that the order of Fortuin J was
appealable in accordance with the established principles.
[11]
But the purpose of the hearing before Her Ladyship, aside from
deciding the donation issue was, as the court set out in the
judgment,
to establish the value of the respective farms for purposes
of calculating the wife’s accrual.
[12]
[23]
It is common cause that the accrual falls
to be calculated as at the date of divorce, 7 September 2018: that is
the date which is
relevant for the valuation of the parties’
respective assets and not 21 November 2016. Unless the value of the
farms has
remained unchanged since 21 November 2016, it would serve
no purpose to have regard to the value of the husband’s other
assets
and liabilities (such as farming implements, livestock,
debtors, creditors, bank balances and shareholdings) in September
2018
together with an outdated value of the principal assets of 2
years ago. One would simply not be comparing like with like and not
doing justice to the parties or applying the statute as it is
intended to be. In saying so, I do not exclude the possibility that
the farms may have dropped in value and that the wife’s
contentions of an increase may redound to her detriment. If that
is
the case, then so be it – she must take the rough with the
smooth.
[24]
The order of Fortuin J has not directly
addressed any of the issues set out in [21] above. At best for the
husband it may be said
that that Her Ladyship’s order touches
upon the issue raised in [21.1], but then only to the extent that a
determination
has been made of the value of certain defined assets in
the husband’s estate as at 21 November 2016. Accordingly, when
the
matter continues the wife will not be claiming “
the
same thing on the same ground”
nor
will she be asking for the “
same
issue
” to be adjudicated upon.
The litigation between these parties is far from finished and in the
circumstances I conclude that
the husband is not permitted to rely on
the
exceptio rei judicatae vel litis
finitae
and that the wife is entitled
to the relief sought in her counter application.
[25]
I should point out that the question of
issue estoppel referred to by Friedman JP in
Bafokeng
,
was not raised in argument by either counsel and it would not be
correct in the circumstances to determine the case on that basis.
That having been said, it does not appear to me that the result would
be any different if that defence had been raised,
COSTS
[26]
The result of this round of litigation is
anything but satisfactory for the parties. They might have thought
that their divorce
trial would have been resolved within the 5 years
that have elapsed since the initiation thereof. Had they acted
promptly after
the order of Fortuin J was handed down they would have
most likely long since been divorced with all the necessary ancillary
relief
granted. Why this did not happen is not something which this
court can determine on the affidavits and it is preferable that any
such determination stands over for the trial court. That court can
assess why it took the parties so long to procure a final order
of
divorce and it is that court, too, which will be best suited to
establish whether the wife’s counter application was indeed
based on sound facts or just optimistic speculation. In the result
the costs associated with both the husband’s application
under
Rule 33(4) and the wife’s counter application will stand over
for later determination.
FURTHER
RELIEF SOUGHT IN THE COUNTER APPLICATION.
[27]
In addition to asking for a declaratory
order, in the counter application the wife asked for access to be
afforded to her experts
to the farms for purposes of further
valuations. I did not understand Mr. Olivier SC to contend that this
should not take place
in the event that the
res
judicata
point failed. The counter
application also asked for an anti-dissipatory interdict to issue
against the husband in light of allegations
that he was considering
selling up and emigrating to Australia. Such an application
fortuitously served before this court in the
Third Division on 31 May
2018 when an agreed order was taken incorporating the husband’s
undertaking, pending the hearing
of his Rule 33(4) application on 27
August 2018, to give the wife notice of the receipt by him of any
offers to purchase either
of the farms. Once again I did not
understand counsel to intend to limit that undertaking to the hearing
on that date and, given
that there is to be further litigation in
this matter, it makes sense for the undertaking to be further binding
on the husband
in terms of a court order.
[28]
Finally, it is most desirable that the
outstanding issues between these parties be resolved as speedily as
possible. In the circumstances
the Registrar will be directed to
afford the parties priority on the Trial Roll in accordance with the
prevailing protocols in
this Division. To the extent that there may
be the necessity for further proceedings in terms of Rule 37(8), the
parties are at
liberty to arrange with this Court’s registrar
for such conferences to be held in chambers on dates suitable to the
parties
and the court.
IN
THE RESULT THE FOLLOWING ORDER IS MADE:
A.
It is declared that any proven appreciation
in the values of the farms “Luipaardskloof” and “De
Turon” in
the district of Swellendam (hereinafter referred to
as “
the farms
”)
between 21 November 2016 and 7 September 2018 is not
res
judicata;
B.
The percentage to be applied regarding any
such proven appreciation is to be agreed upon between the parties,
failing which evidence
is to be adduced in this regard at the
continuation of the divorce trial between them;
C.
The applicant (the defendant in the main
action) is ordered to grant any experts acting on behalf of the
respondent (the plaintiff
in the main action) reasonable access to
the farms to establish the appreciation, if any, in the value of the
farms and the percentage
applicable to such increase to enable the
court to calculate the accrual due in terms of Chapter 1 of the
Matrimonial Property Act, 88 of 1984
, as at 7 September 2018.
D.
The applicant’s undertaking furnished
to the respondent in May 2018 to forward any offers to purchase the
farms to her attorneys,
at maritza@mblh.co.za , at least five days
prior to acceptance thereof by him, is made an order of court until
the final determination
of the trial in this matter.
E.
No order is made on the applicant’s
application for an order in terms of
Rule 33(4)
dated 7 May 2018,
save that the costs thereof are reserved for determination by the
trial court.
F.
The costs of the respondent’s counter
application dated 24 May 2018 are reserved for determination by the
trial court.
G.
The Registrar of this Court is directed to
afford the parties priority in relation to the set down of the
further proceedings in
this matter in accordance with the current
protocols in operation in this Division.
H.
The parties are authorised to request the
Registrar to enroll any pre-trial procedures in terms of
Rule 37(8)
before Mr. Justice Gamble, such proceedings to be dealt with by the
Judge in chambers in consultation with the parties’ legal
representatives.
__________________
GAMBLE, J
[1]
“
3(1)
At the dissolution of a marriage subject to the accrual system, by
divorce or buy the death of one or both of the spouses,
the spouse
whose estate shows no accrual or a smaller accrual than the estate
of the other spouse, or his estate if he is deceased,
acquires a
claim against the other spouse or his estate for an amount equal to
half of the difference between the accrual of
the respective estates
of the spouses.
(2)
Subject to the provisions of
section 8(1)
, a claim in terms of
subsection (1)
arises at the
dissolution
of
the marriage
and the right of
the spouse to share in terms of this Act in the accrual of the
estate of the other spouse's during the subsistence
of the marriage
not transferable or liable to attachment, and does not form part of
the insolvent estate of a spouse."
(Emphasis
added)
[2]
Schwartz v Schwartz
[1984] ZASCA 79
;
1984 (4) SA 467
(A);
Levy v
Levy
1991 (3) SA 614 (A).
[3]
“
Na aanhoor van die
getuienis is ek oortuig dat die waarde van die plase
tans
onderskeidelik R36
miljoen en R6,3 miljoen is.
”
(Emphasis added)
[4]
Denel (Edms) Bpk v Vorster
2004 (4) SA 481
(SCA) at [3]
[5]
African Bank Ltd v Weiner
and Others
[2003[ 4 All SA
50
(C) at [33]
[6]
Bertram v Wood
10
SC 177
at 180
[7]
Bafokeng Tribe v Impala
Platinum Ltd
1999 (3) SA
517 (B)
[8]
Kommissaris van Binnelandse
Inkomste v ABSA Bank Bpk
1995 (1) SA 653 (SCA)
[9]
National Sorghum Breweries
(Pty) Limited t/a Vivo African Breweries v International Liquor
Distributors (Pty) Limited
2001 (2) SA 232 (SCA)
[10]
It is common cause that the husband has been complying with an
interim maintenance order issued in terms of Rule 43 and will
continue to do so until this matter is finally resolved.
[11]
David Hersch Organisation
(Pty) Ltd and Another v ABSA Insurance Brokers (Pty) Ltd
1998 (4) SA 783
(T) at 787D.
[12]
“
19.2
Die waarde van die onderskeie eiendomme ten einde die aanwas te
bepaal.”