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[2018] ZAGPJHC 493
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M v S (33610/2014) [2018] ZAGPJHC 493 (19 April 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
number: 33610/2014
In
the matter between:
D
M APPLICANT
AND
M
S
RESPONDENT
JUDGMENT
WENTZEL, AJ:
1.
The
applicant has brought an application to declare the respondent in
contempt of the court order granted by Tsoka J on 30
January
2017. The order was made pursuant to an agreement of settlement
between the parties at the date of their divorce.
2.
Prior
hereto, the parties had concluded an agreement of settlement in
principal, but at the day set down for their divorce (27 November
2015), the respondent refused to signe the agreement of settlement
have the agreement made an order of court.
3.
As
a result, the respondent appointed new attorneys, entered an
appearance ot defend, and filed a plea.
4.
This
action was finally settled in terms of the agreement of settlement
now relied on these proceedings.
5.
In
terms of the latter settlement, it was provided that, as a
consequence of their marriage in community of property:
5.1.
the
applicant would buy out the defendant’s 50% share of the
matrimonial home at the aggregate value of the “
two
independently appointed valuators to be appointed by each party
respectively
”,
within 30 days of the parties agreement on such valuation;and
5.2.
the
respondent undertook to vacate the matrimonial home within three
weeks of the receipt of his share of the applicant’s
pension
interest.
6.
The
difficulty that has arisen is the identity of the pension interest
which it was agreed should be shared between the parties.
7.
At
the time that the applicant instituted divorce proceedings against
the respondent on 11 September 2014, she was employed by Shanduka
(Pty) Ltd (“ Shanduka”). In her particualrs of claim, the
applicant sought that the respondent forfeit of the benefits
of their
joint estate, inclusive of this pension interest and the respondent’s
half share of their matrimonial home.
8.
However,
sunsequent to instituting the said action, and after the first
settlement agreement concluded between the parties, the
applicant
withdrew her pension interest at Shanduka prior to it being
transferred to the Pembani Group Ltd’s pension interest
(
“
Pembani
”)
pursuant to a merger between Shanduka and Pembani.
9.
However,
when the respondent entered into the second settlement agreement, he
avers that it was not disclosed that the applicant
had withdrawn her
pension interest in the amount of R495 599.2, and that the respondent
was told subsequent to the divorce that
all that had accrued to
her since the takeover by the Pembani Group of Shanduka was R 61
669.76 after 12 years of employment,
entitling the respondent to a
mere R 30 834.88. This was subsequently increased to R 83 550.02,
with the respondent’s half
share being R41 775.01.
10.
It
is clear from the provisions of
section 7(7)
(a) of the
Divorce Act,
1979
, that where parties are married in community of property, their
joint estate includes the pension interests of the parties.
11.
When
it emerged that the applicant had claimed her pension interest from
Shanduka and had not accounted to the respondent herefor,
the
applicant claimed that she had utilized the proceeds towards the
maintenance of the children and support of the joint household.
12.
However
her bank statements revealed that between 8 March 2016 and 8 February
2017 she had virtually dissipated the entire pension
interest on
luxuries for herself on expensive shoes and clothes. She had also
paid for the funeral expenses of a person who she
did not reveal why
were to be regarded as an expense of the joint estate. The expenses
pertaining to the chilren’s education
was minimal in the scheme
of the other amount expended.
13.
With
this background in mind, I will now deal with the basis for the
current contempt application.
14.
It
would seem that subsequent to the divorce between the parties on 30
January 2017 incorporating the agreement of settlement, each
party
interpreted the agreement to mean that they could each obtaine two
valuations of the matrimonial home and that the aggregate
hereof
would constitute their valuation of the property, which would then
ultimately be aggregated to determine the value of the
property. I
believe this to have been a misreading of the agreement of settlement
which makes it clear that each of the parties
could obtain a
valuation and the aggregate of that single valuation would serve as
the agreed valuation of the property.
15.
Be
that as it may, the respondent ultimately offered to pay the
respondent his half share of the property in the amount of
R
400 000 exclusive of an amount of R 36 380 commission payable to the
estate agent commissioned by the applicant. Why it is averred
this
amount is payable by the estate briefed by the applicant and not the
respondent and why this amount would be payable at all
for a
valuation is not explained. I have little doubt in accepting that the
amount tendered should not have included estate agents
commission and
that the respondent was justified in rejecting this offer and
refusing to sign the sale agreement. This does
not make him in
contempt of court.
16.
The
respondent avers that in light of this dispute and the fact that he
has not received his half share of the applicant’s
Shanduka
pension interest, he is not obliged to vacate the matrimonial home.
17.
The
applicant points out that the agreement of settlement signed by the
respondent makes no mention of the Shanduka pension interest
and only
refers to the Pembani Group.
18.
The
applicant denies that she is obliged to share the amount paid to her
by Shanduka as this was paid out to her prior to the divorce
and the
relevant time for determining the value of the pension interests of
the parties forming an asset in their joint estate
is the date of
their divorce.
19.
In
this respect reliance is placed on the matter of De Kock v Jackobson
and Another
1999 (4) SA 346
W. This principle has been applied in
several other cases.
20.
However,
where parties are embroiled in divorce proceedings and the
applicant’s pension interest is an asset of their joint
estate
as at the date of institution of these proceedings, where that asset
is paid out to one of the parties prior to the
divorce, this is
a material fact that ought properly to have been disclosed to the
respondent . He reasonably assumed that the
applicant’s pension
interest had been transferred to the Pembani Group. Had it been
disclosed that the respondent had withdrawn,
and largely spent, the
entire pension interest as at the date of divorce, I have
little doubt that the respondent would not
have signed the agreement
of settlement.
21.
In
these circumstances, I have little doubt that the applicant is
obliged to account to the respondent for the amount of her pension
interest spent and to establish those amounts spent on the education
of their children and their joint expenses.
22.
This
may be a ground to set aside the settlement agreement, but this is
not an application before me.
23.
But
what is abundantly clear is that the respondent was justified in
refusing to accept payment of his half share of the the substantially
reduced pension payment offered to him and was not in willful
default. As this was linked to his vacating the matrimonial home,
he
was justified in refusing to vacate the matrimonial home. He was also
entitled not accept the offer of his half share of the
matrimonial
home which included estate agent’s commission.
24.
I
thus have no hesitation in finding that the respondent has not acted
in contempt of court. Court orders incorporating agreements
of
settlements, like any documents, must be read in context in light of
the factual matrix. That factual matrix includes the assumption
that
the appliccant’s pension interest which she had agreed to share
in terms of the originally proposed agreement of settlement
still
existed and had not been withdrawn.
25.
I
understand the frustration of the applicant in having to share her
hard earned money with the respondent when she avers he had
not
contributed to the joint estate. That, I am afraid is the consequence
of many a marriage in community of property, but usually
works the
other way. Whilst this may have entitled the applicant to claim a
forfeiture of beneifts of their marriage in community
of property,
the applicant elected not to pursue this, and to settle
patrimonial consequences of their marriage.
26.
In
the circumstces, I have no alternative but to dismiss the applicant’s
application with costs.
----------------------------------
SM
WENTZEL, AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Counsel
for the applicant:S Rawat instructed by Koor Attorneys
Counsel
for the respondent M.A Mavodze instructed by LP Skosana Attorneys
Date
of hearing: 15 November 2017
Date
of Judgment: 19 April 2018