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South Africa: South Gauteng High Court, Johannesburg
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[2016] ZAGPJHC 263
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G v G (01778/2013) [2016] ZAGPJHC 263 (22 September 2016)
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
(GAUTENG
DIVISION, JOHANNESBURG)
CASE
NO: 01778/ 2013
Reportable:
No
Of
interest to other judges: No
Revised.
22/9/2016
In
the matter between
G,
K APPELLANT(PLAINTIFF)
and
G,
A
W RESPONDENT(DEFENDANT)
JUDGMENT
DELIVERED ON 22 SEPTEMBER 2016
VILAKAZI,
AJ:
[1]
This is an application for leave to appeal against the judgment I
handed down on 12 February 2016 in which I granted the
following orders;
(a)
the appellant is ordered to make accrual payment to the respondent an
amount of R 267 510 together with interest thereon at
15.5% from date
of judgment to date of final payment:
(b)
the appellant to pay the respondent’s costs;
(c)
a Receiver and Liquidator to be appointed to dispose of the immovable
property, pay all debts in respect of the property, including
inter
alia all amounts owing in respect of the mortgage bond registered
over the property and to distribute the net proceeds accruing
from
the sale of the property equally between the parties;
(d
) in respect of Rule 43 costs that were reserved, the appellant is
entitled to those costs;
(e)
the interim order of Van Oosten J is discharged with costs;
(f)
contempt of court proceedings, the appellant to pay the costs;
(g)
and the respondent to pay the costs relating to his rectification
application.
[2].
Leave to appeal is sought against the following orders:
2.1.
the appellant is ordered to make accrual payment to the respondent in
the amount of R267 510 together with interest thereon
at 15.5% from
date of judgment to date of final payment
2.2.
the appellant to pay the respondent’s costs;
2.3.
the interim order of Van Oosten J is discharged with costs.
[3].
The respondent opposes the application for leave to appeal
[4].
In the application for leave to appeal, the appellant must show there
is reasonable prospects of success .This means that there
must be a
reasonable prospect of another court may come to a different
conclusion.
[5].
At the hearing of this application for leave to appeal, the ground of
appeal directed to order (c) above was abandoned.
[6].
Although in the application for leave the applicant advanced a number
of grounds on which leave is sought, at the hearing hereof
only two
grounds were persisted with.
[7].
The first ground related to the amount of R 2 691 691 which
respondent’s expert witness said must be deducted from gross
value of R 7 636 688 as tax payable on that amount. The evidence
established that the amount of R7 636 688 was converted
by
the respondent from a Pension Preservation Plan into a Living
Annuity. It was argued by Cohen SC on behalf of the applicant
that I
should not have ignored the evidence of Mr Gallizio, Mr Nagle’s
evidence under cross- examination and the respondent
testimony which
was to the effect that no tax is paid when the conversion of cash
asset into Living Annuity occurred. He accordingly
submitted that
that I erred in allowing an amount of R2 062 043 to be
deducted. He argued that had I not deducted the
amount concerned, the
accrual amount of the estate of the respondent would have been R
3 632 940 which means that the
respondent’s estate
would have exceeded the applicant’s estate by R 3 632 940
with the result that the respondent
would have been liable to pay the
applicant an amount of R 1 816 470.
[11].
Mr Gallizio’s evidence was to the following effect;
(a).
that when the respondent converted this Preservation Pension Plan
in the amount of R 7 636 688 into a Living
Annuity, tax
was not payable. The respondent will pay tax on the monthly income
received.
(b).
SARS will tax the respondent on his monthly annuity that he is
getting.
[12].
I have accepted Mr Gallizio’s testimony and his
testimony was unchallenged.
[13].
The respondent ‘s testimony is that when he did the conversion
of the aforesaid amount into a Living Annuity , he did
not pay tax.
[14].
Mr Nagle ‘s testimony in essence was the following;
(a).
That when the respondent converted a Preservation Pension Fund
of R 7 636 688 into a Living Annuity, not tax was paid.
He elaborated
that when the respondent draws down his annuity, he receives a net
amount and tax is triggered.
[15].
I accepted Mr Nagle’s evidence which in my view was logical and
based on sound conclusion. In my view provision for
tax should be
made in determining the net value of the estate because it is a
liability which the respondent would have to meet
from his estate.
[16].
For reasons stated above and in my judgment this ground of appeal
must fail.
[17]
Secondly, that I erred in discharging the interim order of Van Oosten
J with costs. It was submitted that my factual conclusion
is wrong in
finding that the respondent was entitled to handle his financial
affairs in the manner in which he did.
[18].
This ground of appeal falls to be dismissed because the purpose of
Van Oosten J’s order was to preserve the status quo
pending
finalisation of the divorce proceedings. When the divorce order was
granted, the reason for the interim order ceased to
exist.
[19].
For these reasons, application for leave to appeal is dismissed with
costs.
The
Order
[20.
I make the following order:
1.
The application for leave to appeal is dismissed with costs
_________________________________
T.D.
VILAKAZI
ACTING
JUDGE OF THE HIGH COURT
DATE
HEARD :
29 JULY 2016
JUDGMENT
DELIVERED
:
22
SEPTEMBER 2016
COUNSEL
FOR THE PLAINTIFF :
COHEN SC
INSTRUCTED
BY
: MYERS
INCORPORATED
COUNSEL
FOR THE DEFENDANT :
ZIMERMAN
INSTRUCTED
BY
: TAITZ &
SKIKNE ATTORNEYS