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[2017] ZAGPJHC 398
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Tshamela v Tshamela and Others (31663/2015) [2017] ZAGPJHC 398 (8 November 2017)
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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
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 31663/2015
Not
reportable
Not
of interest to other judges
8/11/2017
In
the matter between:
MAKAZIWE
TSHAMELA (NEE
MBANGATA)
Applicant
and
JACOB
NDUMISO
TSHAMELA
First
Respondent
STELLA
OWETHUS
TSHAMELA
Second
Respondent
THE
REGISTRAR OF DEEDS,
JOHANNESBURG
Third
Respondent
JUDGMENT
MIA,
AJ:
[1]
The applicant seeks among other relief foremost the following orders:
1.
that the first
respondent repay an amount of R244 886,58 to the applicant, as part
of the monies that accrued to him from
his pension fund pay-out on 22
September 2015 in the amount of R489 773,16.
2.
in order to give effect
to the order in paragraph 1 above, that the property situated at Erf
[…], Welgedacht which is registered
in the name of the second
respondent is to be sold within 30 days of the granting of this
order;
3.
the first respondent to
be solely responsible for the costs of the sale of the property
associated with the above sale;
4.
the proceeds of the
above sale in paragraph 1 or 2 above shall be deposited into the
applicant’s attorneys trust account which
details are as
follows:
BANK:
FIRST NATIONAL BANK
ACCOUNT NUMBER:
[…]
BRANCH
CODE:
250655
REFERENCE:
Mr H Bezuidenhout/Tshamela
5.
In the event that the
property sold for less that R244 886, 58 that the first respondent
will be responsible for the shortfall;
The
balance of the relief related to securing the co-operation of the
first and second respondent in relation to the above relief
sought.
The relief herein is opposed by the first respondent only. There is
not opposition by the second or third respondent herein.
[2]
The applicant and respondent are married in community of property
since 15 October 2009. The parties are the joint owners of
the
matrimonial home situated at […] N Street, Paynville, Springs
(‘the matrimonial home’). The applicant issued
summons on
7 September 2015 wherein she requested division of the joint estate
which included the assets built up during the parties
union including
the matrimonial home situated in Paynville, Springs.
[3]
The respondent vacated the marital home during September 2015. The
applicant became concerned when the respondent was seen during
working hours in the area and requested information in this regard.
The enquiries yielded the information that the first respondent
elected to apply for a voluntary early retirement package. He was
offered an amount of R489 773,16 as a total package in settlement
of
his claim against the pension fund. An amount of R84 649, 38
was paid as tax and a further amount of R102 058, 37 was
paid to
Standard Bank into the bond. An amount of R303 065, 41 was available
and transferred to a Capitec bank account.
[4]
The first respondent opened a First National Bank account on 9 March
2015 as is evident from the bank statement attached to
the founding
affidavit.
[1]
The first respondent transferred an amount of R290 000, 00 on 22
September 2015 from the Capitec bank account into the First National
bank account.
[2]
On 28 September 2015 the first respondent withdrew R270 000, 00 of
the initial amount deposited. The applicant states that
the first
respondent purchased a property in the name of the second respondent
who is his niece. She is a student with no access
to funds and no
ascertainable resources to purchase the property according to the
applicant. The property is situated at Erf […],
Welgedacht.
The applicant is of the view the first respondent’s actions
constitute a dissipation of the pension fund
monies and the property
was registered in the name of the first respondent’s niece to
deprive the applicant of her half share
of the money paid out by the
pension fund.
[5]
The first respondent opposed the application on the basis that the
applicant is not entitled to half of his pension pay-out
and that she
is only entitled to half of the pension which accrued from the date
of their marriage. He further opposed the application
on the basis
that he utilised the pension money paid to him to pay school fees in
the amount of R14 700,00; to purchase clothing
for the children in
the amount of R12 000,00 and to effect renovations to the matrimonial
home in the amount of R50 000,00. No
receipts were attached to the
first respondent’s opposing affidavit to support the statement
that he made the aforementioned
payments. In her replying affidavit,
the applicant denied that the payments were made.
[6]
The pension fund monies were paid into the first respondent’s
Capitec account as is evident from the Telkom Retirement
Fund
correspondence and statement
[3]
attached to the applicant’s founding affidavit. The first
respondent opened a First National bank account and transferred
a
portion of the money namely R290 000, 00 into this account and
withdrew R270 000, 00 seven days later. This is not disputed by
the
first respondent. The first respondent does not explain what happens
to this R270 000,00 other than to state that certain expenses
were
paid for without furnishing receipts as proof of these payments. This
is denied by the applicant. The expenses referred to
by the first
respondent amount to approximately R77 000, 00 of the R290 000,
00. He does not account for the balance of the
money which is
approximately R213 000, 00.
[7]
Section 15(3)
of the
Matrimonial Property Act 88 of 1984
provides:
‘
A spouse
shall not without consent of the other spouse-
(a)
alienate, pledge or otherwise burden any
furniture or other effects of the common household forming part of
the joint estate;
(b)
receive any money due or accruing to the
other spouse or the joint estate by way of-
(i)
remuneration, earnings, bonus,
allowance, royalty, pension or gratuity, by virtue of his profession,
trade, business, or services
rendered by him
;
(ii)
…
.
(iii)
…’
(my emphasis)
[8]
Mr Pool, counsel for the applicant, submitted that the first
respondent’s opposing affidavit constituted a bare denial.
He
does not explain where he received the amount of R290 000, 00 from.
He makes allegations that he improved the property which
he does not
reside in and which he states he was forced to vacate due to discord
between the applicant and himself and which property
he gives the
impression he was forced to vacate due to the discord. If the money
was not pension money he does not state whether
it was an inheritance
or any other source which could be excluded from the joint estate.
[9]
Mr Pool submitted that the second respondent has remained silent
throughout and has not explained where the money came from
for the
purchase of the property. The withdrawal of the amount of
R270 000, 00 from the first respondent’s account
on
28 September 2015 and the purchase of the property shortly thereafter
leads to the only reasonable conclusion that the second
respondent’s
source of income is the first respondent. In the event that a dispute
of fact is anticipated he referred this
Court to the decision in
Wightman t/a JW
Construction v Headfour (Pty) Ltd and Another
2008(3) SA 371(SCA) at para 13 where Heher J stated at paragraph
[13]:
‘
A real,
genuine and bona fide dispute of fact can exist only where the court
is satisfied that the party who purports to raise the
dispute has in
his affidavit seriously and unambiguously addressed the fact said to
be disputed. There will of course be instances
where a bare denial
meets the requirement because there is no other way open to the
disputing party and nothing more can therefore
be expected of him.
But even that may not be sufficient if the fact averred lies purely
within the knowledge of the averring party
and no basis is laid for
disputing the veracity or accuracy of the averment. When the facts
averred are such that the disputing
party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true
or accurate but, instead of doing so,
rests his case on bare or ambiguous denial the court will generally
have difficulty in finding
that the test is satisfied. I say
‘generally’ because factual averments seldom stand apart
from a broader matrix of
circumstances all of which needs to be borne
in mind when arriving at a decision. A litigant may not necessarily
recognise or understand
the nuances of a bare or general denial as
against a real attempt to grapple with all relevant factual
allegations made by the
other party. But when he signs the answering
affidavit, he commits himself to its contents, inadequate as they may
be and will
only in exceptional circumstances be permitted to disavow
them. There is thus a serious duty imposed on a legal adviser who
settles
an answering affidavit to ascertain and engage with the facts
which his client disputes and to reflect such disputes fully and
accurately in the answering affidavit. If that does not happen it
should come as no surprise that the court takes a robust view
of the
matter.’
[10]
Mr Pool submits that the first respondent has not seriously and
without ambiguity raised a dispute of fact. He submitted that
this
was an instance where this Court could refer to the decision in
Room
Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T), at pp 1163-5 to find that the denial by the
respondent of the facts alleged by the applicant did not raise a
real, genuine
and
bona
fide
dispute of
fact (see also
Da
Mata v Otto, NO
,
1972 (3) SA 585
(A)) as the pension pay-out was without the knowledge
of the applicant paid into his Capitec bank account. He transferred
the money
into the First National bank account which he opened in
September and withdrew the funds knowing that a portion thereof
accrued
to the applicant. He submitted that this Court ought to
consider the matter having regard to the applicant’s version
and
the first respondent’s version ought not to be accepted.
[11]
Mr Leso appearing on behalf of the first respondent submitted that
the applicant had calculated the amount incorrectly in that
she
failed to consider that from the amount of R489 773,16 reflected as a
total package in settlement of his claim against the
pension fund,
the amount of R84 649,38 was paid as tax and a further amount of
R102 058, 37 was paid to Standard Bank into
the bond. The first
respondent only received an amount of R303 065,41. He submitted
further that the applicant was in any event
only entitled to half of
the first respondent’s pension which accrued from the date of
the marriage being 15 October 2009
to the date of dissolution. He was
not able to refer to any authority to support this submission.
[12]
Mr Leso submitted further that the first respondent utilised the
pension monies to purchase clothing for the children in the
amount of
R12000. Further he paid school fees in the amount of R14, 700. He
also renovated the matrimonial home with he invested
R50 000. The
pension fund money was used for this purpose. The first applicant was
aware of these expenses and did not protest
when it was spent in this
manner. It was thus used with her consent and knowledge. Mr Leso
submitted further that the first applicant
was only entitled to half
of R303 065,41 and after the above amounts were deducted which were
utilised with her knowledge. He conceded
that the first respondent
did not attach receipts supporting the payments he had referred to
and which are denied by the applicant.
[13]
There is no response from the second respondent regarding the source
of the R270 000. The second respondent is silent. She
is a student.
There is no form of income. It is unlikely that she would have access
to this amount readily. The purchase of the
property occurs around
the same time that the first respondent receives his pension pay-out
and withdraws an amount of R270 000
from his First National Bank
account. The first respondent is unable and has not accounted for the
R270 000 withdrawn from his
account. The conclusion is reasonable and
inescapable that he paid for the property and registered the property
in the name of
the second respondent. This is further understandable
in view of the acrimony and breakdown in the parties’
relationship.
The first respondent states in his opposing affidavit
that the applicant is not entitled to all of his pension monies. It
follows
thus that the registration in the second respondent’s
name, appears to be a ploy on his part to withhold part of the
pension
monies paid to him from the applicant.
[14]
The first respondent has failed to provide receipts to support his
statement that he made certain payments to reduce the liabilities
of
their joint estate using the monies received from the pension fund.
His denial of the facts averred by the applicant does not
raise a
genuine dispute of fact. He has failed to address the issues raised
by furnishing the appropriate responses such as the
receipts for the
expenses he refers to. The applicant in any event denies that these
payments were made. The first respondent fails
to explain how he
dealt with the amount of R270 000. This information lies purely
within his knowledge. Much of his case rests
on a bare denial and the
second respondent’s silence. In these circumstances, I cannot
find that the test is satisfied as
he has failed to grapple with the
averments made by the applicant.
[15]
The applicant is entitled to half of the money received from the
pension fund. The first respondent has received same and he
has not
explained satisfactorily how he has dealt with the money. In view
hereof the applicant has made out a case for the relief
sought.
ORDER
[16]
In the result I make the following order:
1. The first respondent
is ordered to pay the amount of R151 532.70 to the applicant as
her part of the pension monies having
accrued to him from his pension
fund pay-out in the amount of R489 773.16, on 22 September 2015.
2. Failing payment of
the amount in paragraph 1 above within a period of 3 months from the
date of this order, the property situated
at Erf […],
Welgedacht, which is presently registered in the name of the second
respondent (the property), is to be sold,
in respect of which:
2.1 The first respondent
shall be solely responsible for the cost of the sale of the property
associated with the above sale;
2.2 The proceeds of the
sale shall be deposited into the applicant’s attorneys trust
account which details are as follows:
BANK: FIRST NATIONAL BANK
ACCOUNT NUMBER:
[…]
BRANCH
CODE:
250655
REFERENCE:
Mr H Bezuidenhout/Tshamela
2.3 In the event of the
net proceeds derived from the sale of the property being less than
the amount of R151 532.70, the first
respondent shall be liable
for payment of the shortfall to the applicant;
2.4 The first and second
respondents shall do all such things and sign all such documents as
may be required to ensure the sale
of the property and to give effect
to the transfer pursuant to such sale, failing which the sheriff is
authorised and directed
to sign any documents to effect the sale of
the property and to register the transfer of the said property.
3.
The first respondent is
interdicted and restrained from further encumbering the joint estate
in any manner whatsoever.
4.
The third respondent is
directed to endorse the title deed of the property to the effect that
the property shall not be encumbered
and/or alienated and/or
transferred prior to the dissolution of the marriage between the
parties alternatively before the first
respondent has paid to the
applicant the amount of R151 532.70, without the applicant or
the applicant’s attorney’s
prior written consent thereto
having been obtained.
5.
The first respondent
shall pay the applicant’s costs of this application.
_________________________________________________
S
C MIA
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
On
behalf of the applicant
: Adv D Pool
Instructed
by
: Heine Bezuidenhout Inc
On
behalf of the respondent
: Adv SM Leso
Instructed
by
: LB Maruwa Attorneys
Date
of hearing
: 30 October 2017
Date
of judgment
: 8 November 2017
[1]
Founding
Affidavit, Annexure, Bank statement, p59
[2]
Founding
Affidavit, Annexure, Bank statement, p59
[3]
Founding
Affidavit, Annexure, p53 and 54