About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 277
|
|
L v S (A3052/2015) [2015] ZAGPJHC 277 (21 October 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A3052/2015
In
the matter between:
C.
J. L.
APPELLANT
and
A.
C. S.
RESPONDENT
JUDGMENT
CHAITRAM
AJ:
[1]
The issue for determination in this appeal is whether the court a quo
was correct, on the facts, to grant an application ordering
the
appointment of a Receiver and Liquidator to divide the joint estate
of the parties four years after their divorce.
[2]
The appellant was the respondent in the application in the court
below, and the respondent was the applicant. I will refer
to
the parties as appellant and respondent.
[3]
The key facts are the following:
[3.1]
The appellant and respondent had been married to each other in
community of property
and had divorced in the former Central Divorce
Court on 24 August 2009. The court’s order in relation to
the proprietary
consequences of the marriage was simply that the
joint estate be divided. The court order went on to provide for
an endorsement
of the appellant’s pension fund for the sharing
of his pension interest. The balance of the court’s order
is
not relevant for present purposes.
[3.2]
On 01 July 2013 the respondent launched an application in the
Vereeniging Civil
Regional Court for the appointment of a Receiver
and Liquidator in order to give effect to the divorce order for the
division of
the joint estate. At that stage, the only asset of
relevance to the application was the parties’ former
matrimonial
home, described as 11 Umtata Street, Three Rivers,
Vereeniging.
[3.3]
The appellant opposed the application on the basis that it was not
necessary to
appoint a Receiver and Liquidator as the parties had
finalised the division of their joint estate in 2009 already with the
assistance
of their attorneys.
[3.4]
The learned magistrate, however, suggested in her judgment either
that the appellant
had failed to establish that there was an
agreement concluded between the parties, or that if there was such an
agreement, that
the court was not bound to give effect to it as it
had not been endorsed by the court. The magistrate,
accordingly, granted
an order in favour of the respondent in terms of
which she appointed an attorney, Mr Hendrik Jacobus Roelofse, as
Receiver and
Liquidator of the parties’ joint estate.
[4]
It is against this order that the appellant now appeals.
[5]
I would like to make the following preliminary observations in the
matter which may set the scene for what is to follow:
[5.1]
The cases of the former Central Divorce Court seem to have been
absorbed by the
civil regional courts of Gauteng and the North West
Province, which have, in many respects, replaced the former Central
Divorce
Court. There was no jurisdictional or procedural
challenge before us in this regard, and the matter will be addressed
on
the assumption that this was procedurally legally correct.
[5.2]
There was no record of the proceedings in the court a quo that
accompanied this
appeal. We were informed that this is because
the application had been heard and finalised by the learned
magistrate in chambers.
Courts ought to strive to hear motion
matters in open court with a proper recording of the proceedings.
If, for good reason,
the matter had to be heard in chambers, the
court was still obliged to ensure that a proper record of the
proceedings was maintained,
even by short-hand, if necessary.
See Rule 30 of the Magistrates Court Rules generally.
[5.3]
Both, the respondent’s founding papers, and the appellant’s
answering
papers in the court below were rather poorly compiled.
The founding papers lack salient facts in relation to the merits of
the application. All that the respondent states as motivation
for the order is the following:
‘
I
am being prejudiced if the joint estate is
(sic)
not
divided and I be given my share.
’
[5.4]
This is hardly compelling. A court needs to properly assess
whether the joint
estate ought to be burdened with the appointment of
a Receiver and Liquidator. Besides the fact that one has to
virtually
interpret the founding papers in order to conclude that the
respondent was actually alleging that the joint estate had not yet
been divided in accordance with the court order, the relevant facts
relating to the four-year delay in seeking the order were not
addressed, and neither were there any facts presented about what had
transpired between the parties in that time in relation to
this
issue. At face value, it was improbable that after the divorce
in August 2009, that absolutely nothing had occurred
in relation to
this matter for the next four years. Courts need to be alive to
what parties sometimes do not disclose to
the court, and appropriate
inferences ought to be drawn when necessary.
[5.5]
The appellant’s answering papers in opposition to the
application were not
much better either, and crucial annexures to the
papers were negligently omitted to be attached.
[5.6]
The agreement that the appellant relies upon, namely an oral
agreement that he would
retain sole ownership of the immovable
property, was quite inadequately expressed. It is difficult to
discern the precise
terms and conditions of the agreement that he
relies upon, especially as this was immovable property that could not
simply be transferred
or an endorsement made on its title deed merely
on the strength of an oral agreement.
[5.7]
This was a motion matter, in terms of which there are generally three
sets of papers
placed before the court, namely the founding,
answering, and replying papers. Although the replying papers
are optional,
negative inferences are often drawn by their absence if
an allegation in the answering papers ought to have been replied to.
The mere two sets of papers that were before the court were poor
enough by themselves, and it would certainly have assisted the
court
to know what the respondent had to say about the appellant’s
alleged agreement about the immovable property.
Yet no replying
papers were delivered.
[5.8]
A judicial officer ought to, generally, strive to ensure that he/she
has as complete
a set of papers before him/her as possible in order
to properly understand the case over which he/she is required to
render a decision.
An incomplete set of papers prevents a
judicial officer from fully appreciating the real issues between the
parties, with the result
that the decision that is ultimately
rendered is more likely to be an incorrect decision.
[6]
In this case the learned magistrate had refused the appellant the
opportunity of rectifying the shortcomings in his answering
papers in
relation to the omitted annexures. Although negligent, the
appellant’s attorneys were, clearly, not acting
in bad faith.
These were crucial documents in relation to the appellant’s
defence to the application in that they apparently
established the
existence of the agreement that the appellant relied upon.
[7]
There was no apparent urgency in the matter. A simple
postponement, with leave to the appellant to supplement his papers
would have sufficed. It was the type of situation that could
adequately be taken care of with an appropriate costs order,
and if
necessary, a costs order against the responsible attorney de bonis
propriis, if such an order was requested by the respondent.
Courts must be firm, but not unreasonable. The learned
magistrate did not exercise her discretion properly when she refused
to allow the appellant’s attorney the opportunity of correcting
his error.
[8]
If I understand the learned magistrate’s reasons for judgment
correctly, however, it seems that even if the documents
had been
attached, she may still not have been persuaded by them, as she
states the following, verbatim, in her written judgment:
‘
The said
written Consent Paper was not submitted to Court and the Court was
not privy to the terms of the parties Settlement Agreement.
Above all
the Court did not incorporate the Written Deed of Settlement on to
the Divorce Decree.
If
the Consent Paper has been not made an order of court, it is not
feasible to enforce it
.
It is then only binding
inter-partes
.
The
court cannot be called upon to enforce it
.
’
[9]
I cannot agree with the learned magistrate’s assessment.
[10]
The appellant contends that in pursuance of the divorce order of 24
August 2009 that the parties divide the joint estate, they
did so
during or about 05 October 2009 through negotiations between their
respective attorneys. If, indeed, this had occurred
then the
parties are bound by their agreement, and it amounts to a complete
defence by the appellant.
[11]
The parties’ agreement need not necessarily be incorporated
into the divorce order, although, in respect of immovable
property,
it may have been prudent to do so, and it may be necessary to compile
a proper written agreement for the purposes of
effecting an
appropriate transfer of the property or endorsement on the title
deed. However, even in the absence of a written
agreement or a
court order, the parties’ oral agreement as to the terms of the
division of their joint estate would be mutually
binding upon them.
[12]
The learned magistrate correctly appreciated that the parties would
be bound by their agreement. However, she was not
correct in
concluding that the court cannot be called upon to enforce it.
The court would be bound to enforce the agreement
in the sense of
upholding the appellant’s point that the parties had already
divided the joint estate, and thereby dismissing
the respondent’s
application for the appointment of a Receiver and Liquidator.
[13]
The only question, then, is whether it was reasonably clearly
established in the papers that the parties had, indeed, concluded
an
agreement with each other in terms of which the joint estate had been
divided. This is simply a question of fact, and
the onus of
establishing same would have been on the appellant on a balance of
probabilities.
[14]
On the assumption that the two letters that the appellant had omitted
to attach to his answering papers are to be taken into
account, the
key facts in his papers would then have been the following parts of
those letters that were exchanged between the
parties’
respective attorneys.
[15]
First, the appellant’s attorney’s letter dated 02 October
2009, addressed to the respondent’s attorneys,
addresses
various aspects of the divorce that had recently been finalised, and
concludes with the following in relation to the
division of the
estate:
‘
Ons plaas
verder op rekord dat u klient afstand doen van haar aanspraak op die
helfte van die vaste eiendom. Ons klient sal
hierdie eiendom op
sy naam oordra sodra hy in staat is om met die Bank ‘n reeling
te tref da thy alleen aanspreeklik is vir
die verband. Intussen
sal hy maandeliks die paaimente betaal
.’
[16]
Second, in response, the respondent’s attorney’s letter
dated 05 October 2009, in relation to the division of the
estate
reads as follows:
‘
Skrywer
het gelet op die inhoud van u skrywe en is dit ons instruksie om as
volg daarop te antwoord:
Onroerende
eiendom:
Dit is inderdaad ons instruksie da
tons klient nie belangstel of enige aanspraak wil maak op ‘n
50% aanspraak op die onroerendeeiendom
ooreenkomstig die partye se
gewese Huweliksgoederebedeling nie.’
Roerende
eiendom:
Dit is verder
skrywer se instruksie dat ons klient geen aanspraak wil maak op enige
roerende eiendom tans in u klient se besit nie
aangesien ons klient
‘n skoon blad wil begin met haar nuwe huwelik en vertrou ons u
klient sal dit so verstaan.
’
[17]
At face value, it appears that the parties had, indeed, agreed on the
terms of the division of their estate. It is, however,
not
entirely clear whether these were the full terms and conditions of
their agreement. The appellant seems to suggest in
his
answering affidavit in the court below that he was to retain the
immovable property as the respondent had received a share
of his
pension interest. Although his suggestion is not consistent
with the terms of the divorce order, as the respondent
was entitled
to share in his pension interest in any event, the respondent would
have been entitled to contract to her detriment
in relation to the
balance of the assets, as appears to have been the case. The
finer details of the division of the estate,
however, appear not to
have been fully addressed by the attorneys in their letters.
[18]
The four-year delay in the matter also creates an element of
uncertainty whether the parties’ initial agreement was
subsequently varied in any way. The sparsely-drafted affidavits
of the parties add to the uncertainty. Either, the respondent
is now being opportunistic in seeking a share of the immovable
property, or the parties’ apparent agreement of 05 October
2009
was subsequently varied.
[19]
On the papers before the court, the learned magistrate would have had
to assess whether the respondent had proven her entitlement
to an
order for the appointment of a Receiver and Liquidator, whether the
appellant had discharged his burden in establishing that
the estate
was already divided, or whether there was a dispute of fact on the
papers that she was unable to resolve on the papers
themselves.
If it was the latter, she could have considered hearing oral evidence
in accordance with the approach set out
in the case of
Plascon-Evans
Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
AD. In any event, it would be appropriate, in
my view, if this matter were to be remitted to the magistrate to be
heard in
the manner that it originally ought to have been.
[20]
In the circumstances, I make the following order:
1.
The
respondent’s application for the condonation of the late filing
of her Heads of Argument is granted;
2.
The
respondent is to pay the costs of the condonation application;
3.
The
appeal is upheld;
4.
The
magistrate’s order in the court a quo is set aside;
5.
The
appellant and respondent are granted leave to supplement their
answering and founding papers respectively as they deem necessary,
and the respondent is granted leave to file a replying affidavit if
she deems it necessary;
6.
The
respondent is to deliver her supplementary founding affidavit, if
any, by 16:00 on 20 November 2015, whereafter the dies for
the
exchange of further papers will be regulated by the Magistrates Court
Rules;
7.
Any
extension of time that the parties require in relation to this order
may be sought in terms of Rule 60(5) of the Magistrate’s
Court
Rules;
8.
The
matter is remitted to the magistrate to be heard afresh;
9.
Costs
of this appeal will be costs in the application to be heard afresh.
_________________________
A
CHAITRAM
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
I
agree.
________________________
G
WRIGHT
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
Appearances
:
On
behalf of the Appellant:
Adv. Wijnbeek
On
behalf of the Respondents:
Adv. Prinsloo
Date
Heard: 19 October 2015
Date
Judgment Delivered: 21 October 2015