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[2018] ZAGPJHC 58
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B v B (42704/2016) [2018] ZAGPJHC 58 (13 March 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 42704/2016
Not
reportable
Not
of interest to other judges
Revised.
B,
K
Applicant
and
B,
P
Respondent
Heard
on:
27 February 2017
Delivered
on:
13
March 2017
JUDGMENT
DE
VILLIERS AJ
:
[1]
This is an application for leave to appeal
against part of my judgment dated 7 December 2017. I refer to the
parties as “
Mr B
”,
being the applicant before me, and who was the respondent in the main
application, and to “
Mrs B
”
who had brought the original application.
[2]
I was informed that the attorneys
representing Mr B that Mrs B’s attorneys withdrew after service
of the notice of application
for leave to appeal. I still heard the
matter, as the date was arranged with both parties, Mrs B’s
erstwhile attorneys assisting
with the arrangements.
[3]
Mr and Mrs B were divorced on 21 February
2014 when this court made the following order:
‘
1. The
marriage is dissolved.
2. The Deed of
Settlement (marked "B") is hereby made an order of Court.
’
[4]
The agreement of settlement concluded on 11
November 2013, and that was made an order of court, contained this
clause:
‘
The
Defendant shall cede the benefits of the Liberty Life Retirement
Annuity, No. 5…0 to the Plaintiff and shall ensure
that
payment of the benefits of this policy shall be made to the Plaintiff
upon the selected retirement date of the 1st April 2014
.’
[5]
1 April 2014 has come can it is gone. It is
common cause that Liberty Life refuses to give effect to that
agreement to cede the
retirement annuity. That refusal was raised
first in a letter dated 23 August 2016 addressed to Mr B’s
attorneys and it has
never been disputed. In dealing with this letter
in the answering affidavit, the points raised by Mr B were
non-joinder and that
Mrs B has not dealt with Liberty Life’s
motivation for refusing to make the payment. Mr B also offered to
claim the payment
himself and to pay the “nett” proceeds
to Mrs B. In my view, the reasons for non-payment were obvious from
the relief
sought and the applicable legislation. Still, in reply,
Mrs B provided the reasons that Liberty Life gave.
[6]
Mrs B sought an order before me to rectify
the settlement agreement in order to obtain payment of the retirement
annuity. I granted
ancillary relief by amending the original court
order under Rule 42:
“
Clause 2
of the order of court of 21 February 2014 under case number
2012/39127 is deleted and replaced with:
‘
2. The
Deed of Settlement (marked "B") is hereby made an order of
Court, save for clause 7 thereof;
3. The defendant's Retirement
Annuity held with Liberty Life (Certificate Number: 5…0) is to
be endorsed to pay the plaintiff
100% of the defendant's retirement
annuity interest upon the selected retirement date of the 1st of
April 2014.
4. The plaintiff
is responsible for payment of any and all tax liability which may be
incurred by claiming the defendant's 100%
from this retirement
annuity
.’”
[7]
Leave to appeal is sought in respect of
that decision. I also dismissed a counter-application for
anti-dissipation relief. No relief
is sought in respect of that
decision.
[8]
The issue taken with my judgment is that
the founding affidavit allegedly contained insufficient facts for the
relief that I granted.
It is alleged that I erred in allowing the
case to be supplemented in the replying affidavit. It has not been
suggested that Mrs
B does not make out a case for the relief if the
founding and replying affidavits were to be read together, as they
indeed do.
[9]
No issue has been taken with my findings in
the main judgment that:
[9.1]
The clause in the settlement agreement at
the very least means that Mr B waives any claim to the retirement
annuity and agrees that
its proceeds are to be paid Mrs B on 1 April
2014;
[9.2]
It was common cause at the hearing that the
purported cession is an invalid cession;
[9.3]
The concession of invalidity seems to be
based on
section 37A(1)
of the
Pension
Funds Act
24 of 1956
, a section that
prohibits transfer or cession of any “
benefit
provided for in the rules of a registered fund
”,
unless such a transfer or cession takes place in accordance with the
act. No contrary reason has been suggested at the
hearing or at the
application for leave to appeal. If that is the case, then it
necessarily must be common cause that the retirement
annuity in this
case is as a so-called
pension
interest
as addressed below.
[10]
I stated in my main judgment that it being
common cause that the cession was an invalid cession (and hence could
not be given effect
to), it should have been common cause that the
divorce order contained a patent error, and/or was given as a result
of a common
mistake to the parties. No reason has been suggested at
the hearing or at the application for leave to appeal as to why the
parties
would have entered into an invalid cession, or have asked the
court to make an invalid cession an order of court.
[11]
The obvious error, to my mind, flows from
the failure by the parties to properly comply with two acts, the
Divorce Act
70
of 1979
and
Pension Funds Act
in concluding the divorce settlement agreement. I do not repeat the
procedure set out in those two acts that a court has to follow
(a) to
deal with the transfer of a so-called
pension
interest
(which includes a
membership of a retirement annuity fund) from one spouse to the other
upon divorce [sections 1(1), and 7(7) and
(8) of the
Divorce
Act
] and (b) to reflect the required
particularity in the divorce order pertaining to the pension fund
(which is widely defined)
[sections 1(1), and 37D(4) of the
Pensions
Fund Act
] in order not to fall foul of
a finding of an invalid transfer or cession.
[12]
Liberty Life, having regard to the
aforesaid, refused to make payment of the retirement annuity to Mrs
B. I dealt in my main judgment
with the attempts by Mrs B’s
attorneys to amend the divorce agreement to comply with the
legislated constraints, and the
belligerent responses they evoked. I
read those responses again, in none of them is any reason suggested
why a court should not
rectify the obvious error of the parties, or
that indeed the parties had intended to enter into an unenforceable
cession, or that
Liberty Life was acting in error of the law.
[13]
I found in my main judgment that the
divorce order, as it stands, cannot be given effect to and that a
court should not grant an
order that would be a
brutum
fulmen
. As a consequence, I applied
Firestone South Africa (Pty) Ltd v
Genticuro AG
1977 (4) SA 298 (A) at 306
and 307, and as had been done in
Chiloane
v Chiloane
(27836/06) [2007] ZAGPHC 183
(7 September 2007), I applied Rule 42.
(I
did distinguish the facts of this case and those in the
Chiloane
-case
in the main judgment where no settlement agreement was involved, but
still gave similar relief.)
[14]
The requirements for an enforceable order
of divorce dealing with the transfer of a so-called “
pension
interest
”, are now well known. I
summarised them in my main judgment and in so doing acknowledged that
I relied on some formulations
as put forward in a document attached
to the replying affidavit that (Mrs B averred originated from Liberty
Life). This caused
a degree of consternation in that it was argued at
the hearing of the application for leave to appeal that my findings
were based
on evidence that is hearsay attached to an affidavit in
reply. This is incorrect, but brings me to the central argument at
the
hearing of the application for leave to appeal: I was told that
the central objection is that I erred in allowing Mrs B to make
up
for the defects in her founding affidavit in reply.
[15]
The attorney for Mr B was at pains to argue
that his client (allegedly) does not begrudge Mrs B from obtaining
the relief agreed
upon when the order of divorce was granted, but
simply wanted me to dismiss the application (with costs), so that she
could approach
the court again (after incurring more costs), this
time after having set out her case with greater precision in her
founding affidavit.
Mr B now wants leave to appeal to prosecute an
appeal (incurring more costs) to reach an outcome that should have
been reached
in an exchange of letters, a variation to the settlement
agreement and a simple unopposed application. The attorney for Mr B
did
not inform me why his client does not simply agree to give effect
to the bargain that he had struck. This matter should never have
been
the subject matter of an opposed application.
[16]
As reflected in my original judgment, I did
allow Mrs B to supplement her case in reply. She pleaded in reply
sections in the
Divorce Act
,
and the
Pension Funds Act
.
She also, as reflected earlier, added an e-mail from Liberty Life.
[17]
In so doing I exercised a discretion as the
law against new matter in reply is nuanced and should be applied with
common sense.
I allowed Mrs B to supplement her case in reply where
the facts were common cause, and she dealt in reply with the
technical objection
taken by Mr B that she did not plead her case
with sufficient particularity. She pleaded the legal basis in reply
and further corroborated
the version in the founding papers. I
exercised this discretion further under the following circumstances:
[17.1]
As reflected in my earlier judgment-
[17.1.1]
I considered the lack of a dispute between
the parties as set out in the correspondence that preceded the
application;
[17.1.2]
I considered that the legal provisions play
themselves out every Friday in the divorce court and that the
requirements for valid
orders are well known;
[17.1.3]
Mr B will suffer no prejudice if I allow
the case to be supplemented in reply with more detail about the
defects in the settlement
agreement;
[17.2]
I add-
[17.2.1]
The heads of argument submitted on behalf
of Mr B raised a number of the defences of alleged prescription,
non-joinder of Liberty
Life, and new matter in reply. The heads of
argument foreshadowed a striking out application of the new matter in
reply. It was
not delivered and was not persisted with at the
hearing;
[17.2.2]
I was not informed of any prejudice that Mr
B would suffer by the matter being decided on the affidavits as they
stood. See
Smith v Kwanonqubela Town
Council
1999 (4) SA 947 (SCA) Para 15.
Apart from not being able to raise technical objections, I can think
of none. See
Anglo Operations Ltd v
Sandhurst Estates (Pty) Ltd
2007 (2) SA
363 (SCA) Para 32;
[17.2.3]
Even although the room for an in limine
objection that the founding papers do not make out a case where there
are no factual disputes,
such relief was not sought at the hearing.
See
Valentino Globe BV v Phillips and
Another
1998 (3) SA 775 (SCA) at 779E –
780C. No permission was sought to deal with the new matter in reply
in a further affidavit;
[17.2.4]
I had a discretion and a duty
as a
n
administrator of justice. In context, I would have failed in that
duty had I allowed Mr B to take advantage of founding papers
that
were less than perfect. See
Take and
Save Trading CC and Others v Standard Bank of SA Ltd
2004 (4) SA 1 (SCA) Para 3.
[18]
Neither in the application for leave to
appeal, nor in argument, was it suggested that I did not have a
discretion to allow new
matter in reply in an appropriate case. No
authority or fact was quoted to me as to in what respect I allegedly
erred in the exercise
of my discretion.
[19]
The test in considering leave to appeal is
settled in this division. See See
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance In Re: Democratic Alliance v Acting National Director
of
Public Prosecutions and Others
(19577/09) [2016] ZAGPPHC 489 (24 June 2016)
Para 25. As set
out in
Dexgroup (Pty) Ltd v Trustco Group
International (Pty) Ltd and Others
2013
(6) SA 520 (SCA) Para 24: “ . . .
The
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit
.
. . . “
[20]
The application for leave to appeal must
fail.
[21]
Accordingly I grant the following order:
a)
The application for leave to appeal is
dismissed with costs.
______________
DP de Villiers AJ
On
behalf of the Applicant: M J Hood & Associates
Instructed
by: Mr M J Hood
On
behalf of the Respondent: No appearance