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[2012] ZAGPJHC 269
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CM v PM (22725/2008) [2012] ZAGPJHC 269 (15 November 2012)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
(SOUTH GAUTENG HIGH COURT, JOHANNESBURG)
CASE NO
: 22725/2008
DATE
: 2012-11-15
In the matter between:
C M
…...............................................................................................
Applicant
and
P M (nee
G)
......................................................................................
Respondent
JUDGMENT
WILLIS J
:
[1] On 31 August 2010 Tshabalala AJ (as he then was) made the
following order:
"1. The marriage (i.e. between the parties) is dissolved.
2. The two properties specifically excluded by the ante nuptial
contract, in favour of both parties, i.e. the property at 233 Kew
Township and number 34 Madison Farms East Sandton, remain excluded
from the assets of the parties.
3. The fixed property at number 1406 Deneysville, and the
plaintiff’s shares in Behati Solutions (Pty) Limited are
declared
the plaintiff’s assets and form part of the accrual.
4. The plaintiff is to pay the wasted costs on Friday 27 August 2010
and the costs of the action for 30 and 31 August 2010.
5. No costs order is made for the day of 26 August 2010.”
[2] On 1 February 2010 my brother Tsoka J, made an order appointing
one Esaias Johannes Janse van Rensburg, as the receiver and
liquidator of the parties accrued estate. It is common cause that,
owing to squabbles between the parties, he has not yet succeeded
in
dividing the accrued estate between the parties.
[3] The defendant in the divorce action is now the applicant in the
matter before me in which he seeks an order that the order
of
Tshabalala AJ on 31 August 2010 is varied as follows:
"1.1 The marriage is dissolved.
1.2 The two properties specifically excluded by the ante nuptial
contract in favour of the properties i.e. the property 233 Kew
Township and number 34 Madison Farms East, Sandton, remain excluded
from the assets of the parties.
1.33. The fixed property at number 1406 Deneysville and the
plaintiff’s shares in Kahayalabo Women’s Investments
(Pty) Limited which company hold 15% on Behati Solutions (Pty)
Limited are declare the plaintiff’s assets and form part of
the
accrual.
1.4 The plaintiff’s pensionable interest in DBSA Provident
Fund, administered by Alexander Forbes (‘the pension fund’],
with membership number M00753488 form part of the accrued estate of
the parties and the defendant shall be entitled to any portion
as
determined by the receiver and liquidator, appointed in terms of the
court order dated 1 February 2011 or order of the court.
Shall be
entitled to any portion as determined by the receiver and liquidator
appointed in terms of the court order dated 1 February
2011, or order
of the court.
1.5 The assets of the parties acquired after 3 October 1994 and not
specifically excluded by ante nuptial contract form part of
the
accrued estate between the parties.
1.6 The defendant is entitled to make his election in terms of
section 37(d)(1)(3) of the Pension Fund Amendment Act and notify
the
pension fund of his election in writing within 14 days of the
determination (mentioned in 1.4 of above) of the accrued estate
between the parties.
1.7 The pension fund is directed to implemented the election opted
by the defendant within 60 days of the written notification
mentioned
in 1.6 above.
1.8 The plaintiff is to pay the wasted costs of Friday 27 August 2010
and the costs of the action for 30 and 31 August 2010.”
1.9 No cost order is made for the day of 26 August 2010.”
[4] A point in
limine
has been taken by the respondent, namely
that a proper case has not been made out for the variation of the
order. I agree that
it is not normally open for this court to vary
orders previously made by other colleagues in this division.
[5] The appropriate remedy ordinarily would be, if a judge in this
division made an error, to take that judge on appeal or, if
there are
problems in the interpretation of the order, to take Mr Van Rensburg
appointed as receiver and liquidator of the parties
on review.
[6] It is, however, common cause having heard argument for the
parties, that the plaintiff did not and does not own shares in Behati
Solutions (Pty) Limited. Accordingly as it is common cause that this
is an error, it is a patent error, it is a common cause error,
the
words in paragraph 3 of Tshabalala AJ’s order, reading “and
the plaintiff’s shares in Behati Solutions (Pty)
Limited are”
are deleted and replaced with the word ‘is’.
[7] I also, in order to assist Mr Van Rensburg, wish to make it clear
that it seems apparent to me that on a plain reading of paragraph
3
it does not mean that there are no other assets of the plaintiff that
may form part of the accrual. All that it means is that
it is made
clear beyond any doubt for the assistance of the parties and
presumably any receiver appointed, that the fixed property
at number
1406 Deneysville is part of the accrual.
[8] I hope that this minor direction will assist the parties to
resolve the matter according to a plain reading of the order of
Tshabalala AJ. The remaining relief does not require any order. I
shall simply make an order to the effect that no order is made
in
respect of the remaining relief sought by the applicant. Insofar as
costs are concerned, it seems to me appropriate not to penalise
either party at this stage.
[9] Certainly, there has been a measure of success on the part of the
applicant, in terms of obtaining clarity on the question
of the
plaintiff’s interest in Behati Solutions (Pty) Limited. It
seems to me best that the costs of this application are
to be
calculated as part of the accrual when the receiver and liquidator
divides up the estate between the parties.
[10] The following is the order of this court:
ORDER
1. Paragraph 3 of the order of Tshabalala AJ on 31 August 2010 is
varied to the extent that the words ‘and the plaintiff’s
shares in Behati Solutions (Pty) Limited are’ after the words
‘1406 Deneysville’ are deleted and replaced with
the word
‘is’.
2. No order is made in respect of the remaining relief sought by the
applicant in the notice of motion dated 28 February 2012.
3. The costs of this application are to be costs in the accrual of
the estate in respect of which Mr Janse van Rensburg has been
appointed receiver and liquidator.
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