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[2020] ZAGPJHC 328
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S M v B M (29933/2017) [2020] ZAGPJHC 328 (28 August 2020)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, PRETORIA
CASE
NO: 29933/2017
In the matter
between:
S
M Applicant
and
B
M Respondent
(Leave
to Appeal Application)
[1] This is an
application for leave to appeal against the judgment. I handed down
on 26 March 2020.
[2] The applicant
contends that the court misdirected itself by not making an order for
forfeiture by the Respondent of sharing
in the proceeds of the
Applicants pension in Government Employees Pension fund (
GEPF
).
[3] At the hearing
of the application, I asked both Counsels to address me on whether
the Court overlooked evidence that showed
the nature and the extent
to which the Respondent would be unduly benefitted if forfeiture by
the Respondent of the equal share
in the pension fund of the
Applicant was ordered.
[4] Mr Tshabalala
on behalf of the Applicant contended that such averment was contained
in the Applicants counter-claim in the pleadings.
He failed to point
out to me that during trial, evidence was led which showed the nature
and the extent of the undue benefit by
the Respondent was going to
have if forfeiture of sharing in the Applicant’s pension was
ordered.
[5] Ms Thamane, on
behalf of the Respondent argued that no such evidence was led during
trial showing the nature and the extent
of the undue benefit if
forfeiture of sharing in the Applicant’s pension fund was not
ordered.
[6] The judgment is
attacked on the basis that it did not focus on forfeiture of the
proceeds of the pension fund of the Applicant.
[7] It should be
restated that the parties were married in community of property. What
the applicant had sought was impliedly that
all and other assets were
to be shared equally, to the exclusion of her pension fund, in terms
of which she sought an order that
the Respondent had to forfeit
sharing in the proceeds.
[8]
Leave
to appeal judgment is regulated by
section 17(1)
of the
Superior
Courts Act of 2013
which provides as follows:
“
Leave to appeal may only be
given where the Judge or Judges concerned are of the opinion that-
(a)(i) the appeal would have a
reasonable prospect of success; or
(ii) there is some other compelling
reason why the appeal should be heard, including conflicting
judgments on the matter under consideration;
(b) the decision sought on appeal
does not fall within the ambit
of
Section 16
(2) (a); and
(c) where the decision sought to be
appealed against does not dispose of all the issues in the case, the
appeal would lead to a
just and prompt resolution of the real issues
between the parties”
[9]
The bar for the granting of leave to appeal has been raised by this
section. The Court hearing the application must be satisfied
that the
appeal would have a reasonable prospect of success.
[1]
The Court hearing the application for leave to appeal must be certain
that the appeal would have reasonable prospect of success.
[10] Having not
been persuaded by the evidence adduced by the Applicant at trial (on
the nature and the extent of the undue benefit
the Respondent would
have if no forfeiture of the proceeds of the Applicants pension was
not ordered). I am not persuaded that
another Court would come to a
different conclusion and order forfeiture as prayed for by the
Applicant.
[11] It follows therefore that the
leave to appeal application must fail
ORDER:
The following order
is made:
[12] The application for leave to
appeal is refused with costs.
_____________________________
SENYATSI
ML
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
Date of hearing: 27 August 2020
Date of Judgment: 28
August 2020
Appellants Counsel: Adv.
Tshabalala
Instructed by: Naledi Matlhatji
Attorneys, Mabopane
Respondents Counsel: Adv.
JDB Themane
Instructed by: Victor Mabe Inc,
Pretoria
[1]
See
MEC Health, Eastern Cape v Mkhita
[2016] ZASCA 176
at para 17