About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2020
>>
[2020] ZAWCHC 76
|
|
G.C v A.C (19203/2018) [2020] ZAWCHC 76 (15 May 2020)
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
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 19203/2018
In
the matter between:
G
C
Applicant
and
A
C Respondent
JUDGMENT
DELIVERED: 15 MAY 2020
SALDANHA
J:
[1]
On 4 May 2020 I granted an order that amended certain provisions of a
divorce order (which incorporated terms of a consent paper)
which had
been granted in this division on 19 March 2019.I specifically ordered
that the costs incurred by the applicant’s
legal representative
in bringing the application shall not be recovered from any party in
the matter.
[2]
Inasmuch as the substantive relief with regard to the variation of
the consent paper was not opposed by the respondent I deem
it
appropriate that reasons be given for the order relating to the costs
in the matter.
[3]
The provisions with regard to the consent paper that required to be
amended specifically related to the agreement between the
applicant
and first respondent with regards to their provident interests as set
out fully in paragraphs 15, 16, 17, 18, 19 and
20 of their consent
paper.
[4]
The provisions of the paragraphs in the consent paper are:
“
15 It is
recorded that G has a Pension Fund as contemplated in Section 1 of
the Divorce Act 70 of 1979 (as amended) in the Improvon
Provident
Fund administered by 1 OX Umbrella Provident Fund with Fund
Registration Number: 12/8/37757 and Membership Number: […]8,
and an Allan Gray retirement annuity with account number […]2
and investor number […]1 as at date of divorce (“the
Pension Funds”). A is entitled to a non-member’s spouse’s
interest in G’s provident fund and retirement
annuity.
16. A shall be
entitled to receive 70% (Seventy Percent) of G’s pension
interest and retirement annuity in terms of the provisions
of
Section
7(7)(a)
of the
Divorce Act No. 70 of 1979
as amended, without any
deductions from the said amount, whatsoever.
17. G hereby assigns
70% (Seventy Percent) of his pension interest in the Pension Fund to
A. G also assigns 70% (Seventy Percent)
of his Retirement Annuity in
Allan Gray to A. Both the Pension Fund and Allan Gray is ordered to
make an endorsement in respect
of its records in accordance with
Section 7(8) of the Divorce Act 70 of 1979 (as amended) and payment
of the assigned pension interest
and retirement annuity to A in terms
of Section 37D of the Pension Funds Act 24 of 1956 (as amended).
18. A’s 70%
before tax, shall be paid into her attorney firm’s trust
account, within 60 (sixty) days of the granting
of the order of
divorce in terms of the Pension Fund Amendment Act 2007. The account
banking details being as follows:
ENDERSTEIN VAN DER
MERWE INC.
STANDARD BANK
TYGER MANOR
TRUST ACCOUNT NUMBER:
3 707 40 904
BRANCH CODE: 0 50 410
REFERENCE:
SWP/lg/S05207
19. In terms of
Section 7(8)(a)(ii)
of the
Divorce Act No. 70 of 1979
as amended, the
aforesaid funds above are hereby specifically ordered to make payment
of A’s non-member spouse’s pension
interest and
retirement annuity interest to A for which purpose this order shall
serve as the necessary authority.
20. G shall, within 10
(ten) days of the granting of the decree of divorce, take all such
steps and do all such things as may be
necessary in order to affect
such payment by the said pension fund and investment house and
provide proof thereof.”
The
founding affidavit was deposed to by an attorney employed in the
applicant’s attorneys of record in which she set out
the
reasons for seeking the amendment to the provisions of the consent
paper. She also motivated as to why the matter had to be
dealt with
urgently in the light of the restrictions under the national lockdown
in terms of the
Disaster Management Act No 57 of 2002
and the
financial crises and vulnerability that the applicant had since found
herself in.
[5]
In the founding affidavit, the deponents states that the
aforesaid provisions agreed to and incorporated in the consent
paper
between the applicant and first respondent was incomplete and was an
erroneous recordal of what was actually agreed between
the parties
for two reasons:
i. It had made reference
to a pensions fund instead of the applicant’s provident fund
and
ii. That it lacked
sufficient details of the applicant’s provident fund with the
result that it did not fall within the ambit
of
Section 77
(7) and
(8) of the
Divorce Act 70 of 1979
.
She
further stated that as a consequence of this incorrect recordal, the
applicant was unable to obtain payment from the 1 OX Umbrella
Provident Fund
.
She
explained that as matters stood the divorce order could not in
respect of the applicant’s entitlement to the first
respondent’s
provident fund be enforced, and to that extent it
was ineffective.
[6]
The deponent further explained that subsequent to the divorce their
offices had liaised with the first respondent’s brokers
(the
second respondent) and provided them with a copy of the order wherein
it was requested that payment be made in terms of paragraph
15 to 20.
In about January 2020 the second respondent advised the applicant’s
attorneys that they were unable to effect payment
in terms of the
consent paper until such time as the wording of the consent paper had
been amended. The second respondent had specifically
requested that
reference be made to the Umbrella Provident Fund. On 4 February 2020
the deponent’s office addressed formal
email correspondence to
the legal representative of the first respondent requesting his
consent to amend the wording of the consent
paper. The deponent had
subsequently also provided the first respondent’s attorneys
with a copy of the proposed amendment
and the application. In an
e-mail dated 17 April 2020 the first respondent’s attorneys
stated that their client had no objection
to the relief sought in the
urgent application to amend the consent paper and requested that a
copy be provided to them once obtained.
[7]
On 4 May 2020 the applicant on an ex parte basis sought the relief
amending the various provisions of the consent paper as contained
in
this court’s order of 4 May 2020.
[8]
In the explanation relating to the urgency of the application the
deponent stated that prior to the divorce order being granted
on 29
May 2019 the applicant had been evicted from her premises due to the
non-payment of monthly rental. She subsequently lived
in her motor
vehicle. Upon the divorce being granted and from the maintenance
proceeds received from the first respondent the applicant
rented
residential property on a farm in Philadelphia in the Western Cape.
During November 2019 the applicant received a notice
to vacate the
farm which she did in December 2019. The deponent stated that to the
best of their knowledge the applicant returned
to living in her motor
vehicle. She claimed that their offices were in constant
communication with the applicant after the date
of the divorce since
the applicant required updates on the timelines in terms of which her
funds would be paid out to her in terms
of the divorce order.
[9]
On 18 March 2020 a legal secretary at the applicant’s attorneys
of record received a phone call from her. The applicant
indicated
that she was in a dire financial position and despite receiving
monthly maintenance from the respondent she desperately
required
access to the funds from the second respondent in terms of the
consent paper. During the telephone conversation she also
advised
that (i) her motor vehicle had been stolen and that she no
option other than to live on the streets (ii) her cell
phone
had been stolen on three occasions in a short duration and that the
only way to make contact with her was for messages
to be left with a
person at the Cape Mental Health Society where she would attend
as frequently as possible to check for
messages (iii) whilst living
on the street she had been the victim of sexual assault and attempts
were made to rape her on more
than one occasion.
[10]
The deponent further explained that due to the lockdown occasioned by
the Covid-19 pandemic and the declaration of a Disaster
by the
President in terms of the Act, their offices was only able to set up
a remote infrastructure due to the regulations imposed.
The deponent
had however been able to make contact with Jacobs through the
Cape Mental Health Society wherein she was
informed that the
applicant had advised that she was living on the streets and that an
attempt had been made to rape her. That
advised that she had access
to her bank account and was desperately waiting for the pay out of
funds from her ex-husband’s
“pension fund.” The
applicants arm had also been placed in a sling as a result of an
injury.
[11]
The deponent further explains that the initial invitation was to
bring an application by way of a chamber book application
but due to
the limited operations of the court it was apparently not possible to
do so and therefore this application was launched
on an urgent basis.
She also advised that there would be an approximate amount of
R300 000.00 due to the applicant from the
provident fund which
would enable her to obtain and secure proper accommodation.
[12]
It was apparent that the applicant was living under deplorable
circumstances in vagaries of the street especially during the
lockdown period. Moreover, it appeared that she had reportably been a
victim of both sexual and physical assaults. I was satisfied
that it
was appropriate that the matter be dealt with on an urgent basis to
bring immediate relief to the applicant to ameliorate
her physical
circumstances.
[13]
With regard to the initial draft order provided to the court by the
applicant’s attorneys no order was sought as to costs.
In a
telephonic discussion between the court and the
applicant’s counsel I indicated that I was particularly
concerned about the fact that the applicant had being put
to the unnecessary expense of having to
launch the
application as a result of the errors contained in the initial
consent paper. I reminded the counsel for the applicant
that whenever
I dealt with undefended divorces in the Third Division I insisted as
a matter of good practice that I be assured
by the legal
representative appearing on behalf of party concerned that provisions
relating to pension or provident benefits agreed
to between the
parties strictly complied with the provisions of the Act and with the
rules of the particular pension or provident
fund. This is done and
insisted upon to ensure that parties to a consent paper are not faced
with the very predicament that the
applicant found herself in and
almost a year after the divorce order was granted in having to launch
these proceedings. In any
event that is axiomatically a
responsibility that lies with the legal representatives of the
respective parties when settling the
terms of a consent paper.
[14]
Moreover from the founding affidavit it was apparent that the error
contained in the consent paper was not the making of the
applicant
nor that of the respondent but that of the legal representatives who
drafted the consent paper for them.
[15]
Counsel for the applicant appropriately conceded that it would not be
proper that the applicant’s legal representatives
be entitled
to recover any costs from the applicant or the respondent in the
application.
[16]
The unfortunate circumstances in which the applicant found herself
has also been compounded by the inordinate delay of several
months in
bringing the application for the variation of the consent paper.
Unfortunately the deponent to the founding affidavit
did not provide
full details for the delay.
[17]
The circumstances of this matter demonstrates the importance of the
provisions of consent papers relating to pension and provident
funds
being recorded in accordance with the provisions of Act and in
accordance with the particular regulations and rules of the
relevant
pension or provident funds. I therefore specifically directed that
the draft order be amended to reflect the considered
view of the
court that neither the applicant nor the respondent be required to
carry the costs incurred by the applicant’s
legal
representatives in bringing the application.
[18]
The court is nonetheless mindful that the applicant’s legal
representatives appropriately brought the application by
way of
urgency in an attempt to ameliorate the crises in which their client
found herself.
[19]
The following order was made:
“
UPON READING THE
PAPERS FILED ON RECORD, AND UPON HEARING COUNSEL FOR THE APPLICANT,
an order in the following terms is made:
1.
That the Applicant’s non-compliance with
the Rules of Court pertaining to form, process and service and that
the application
be heard as an urgent application in terms of the
provisions of Uniform Rule 6(12)(a) read with (b), are is hereby
condoned;
2.
That paragraphs 15 – 20 of the Consent
Paper is hereby deleted in its entirety and replaced with the
following paragraphs:
PENSION
INTERESTS, ANNUITIES AND POLICIES
15
. It is recorded
that G has a 10X Umbrella Provident Fund as contemplated in Section 1
of the Divorce Act 70 of 1979 (as amended)
in the lmprovon Provident
Fund administered by 10X Investments (Pty) Ltd with Fund Registration
Number: 12/8/37757 and Membership
Number: […]8, and an Allan
Gray retirement annuity with account number […]2 and investor
number […]1 as at
date of divorce. A is entitled to a
non-member's spouse's interest in G's 10X Umbrella Provident Fund and
retirement annuity.
16
. A shall be
entitled to receive 70% (Seventy Percent) of G's 10X Umbrella
Provident Fund interest and retirement annuity in terms
of the
provisions of
Section 7(7)(a)
of the
Divorce Act No. 70 of 1979
as
amended, without any deductions from the said amount, whatsoever.
17
. G hereby assigns
70% (Seventy Percent) of his interest in his 10X Umbrella Provident
Fund to A, as calculated on date of the divorce.
G also assigns 70%
(Seventy Percent) of his Retirement Annuity in Allan Gray, as
calculated on date of divorce to A. Both the 10X
Umbrella Provident
Fund and Allan Gray is ordered to make an endorsement in respect of
its records in accordance with Section 7(8)
of the Divorce Act 70 of
1979 (as amended) and make payment of the assigned provident interest
and retirement annuity to A in terms
of Section 37D of the Pension
Funds Act 24 of 1956 (as amended).
18
. A's 70% before
tax, shall be paid into her attorney firm’s trust account,
within 60 (sixty) days of the granting of the
order of divorce in
terms of the Pension Fund Amendment Act 2007. The Account banking
details being as follows:
ENDERSTEIN VAN DER MERWE INC.
STANDARD BANK
TYGER MANOR
TRUST ACCOUNT NUMBER: […]
BRANCH CODE: 0 50 410
REFERENCE: SWP/lg/S05207
19
. In terms of
Section 7(8)(a)(ii)
of the
Divorce Act No. 70 of 1979
as amended, the
10X Umbrella Provident Fund and Allan Gray are hereby specifically
ordered to make payment of A's non-member spouse's
provident interest
and retirement annuity interest to A for which purpose this order
shall serve as the necessary authority.
20
. G shall, within
10 (ten) days of the granting of the decree of divorce, take all such
steps and do all such things as may be necessary
in order to affect
such payment by the said 10X Umbrella Provident Fund and investment
house and provide proof thereof.
3.
That
10X INVESTMENTS (PTY)
LTD
is hereby ordered to comply with the
amended provisions of paragraph 15 to 20 of the Consent Paper;
4.
That the costs incurred by the Applicant’s
legal representatives in bringing this application shall not be
recoverable from
any party to this matter.
___________________
VC
Saldanha
Judge
of the High Court