About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 228
|
|
N D v M D (24953/2019) [2020] ZAGPJHC 228; [2021] 1 All SA 909 (GJ) (16 September 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No.: 24953/2019
In
the matter between:
D
,
N Applicant
and
D
,
M Respondent
JUDGMENT
Gilbert
AJ
1.
The law is settled that, save
for the statutory exception which is the subject of this judgment, a
spouse’s accrual claim
in terms of
section 3
of the
Matrimonial Property Act, 1984
only arises at the dissolution of the
marriage and that the determinative date for calculating the value of
that accrual claim
is the date of dissolution of the marriage.
[1]
2.
This brings with it the difficulty that one spouse may seek to
dissipate his or her assets in anticipation of the dissolution
of the
marriage and the resultant determination of the value of the accrual
claim. A dissipation of assets before that determinative
date has two
direct negative effects on the accrual claim:
2.1. the alienator spouse has less
assets in his or her estate at the determinative date, which reduces
the extent of the difference
in accrual between that estate and the
estate of the beneficiary spouse;
2.2.
the less assets there are in
the alienator spouse’s estate once the value of the accrual
claim has been determined upon the
dissolution of the marriage, the
less assets there are available to satisfy that accrual claim once
awarded by the court.
[2]
3.
It is not unusual that the
spouse who believes that he or she will have an accrual claim against
the other upon dissolution of the
marriage will be fearful of the
other spouse dissipating assets and so would take steps to protect
his or her contingent right
to that accrual claim. As Schulze
observes,
[3]
once one of the spouses has filed for a divorce the risk that one of
the spouses may attempt to diminish the value of his or her
final
assets increases considerably, as the institution of divorce
proceedings usually results in estrangement and hostility developing
between the spouses, thus leading to lack of confidence in each other
and mistrust between them.
4.
The present matter is such a case.
5.
The applicant, having already instituted divorce proceedings which
included a claim for accrual, approached court on an urgent
ex parte
basis and obtained
inter alia
interim relief on 5 November
2019:
5.1. preventing her husband as
respondent from dissipating various assets pending the finalisation
of the divorce action;
5.2. that there be an immediate
division of the accrual in the parties’ respective estates in
terms of
section 8(1)
of the
Matrimonial Property Act,
calculated
as at 30 September 2019, with ancillary relief
including that a liquidator be appointed with the power to calculate
the accrual.
6.
Although the formulation of the interim order is not without
difficulty, the parties accepted that both the interdictory relief
and the
section 8(1)
relief was interim in nature, particularly
as it had been granted on an
ex parte
basis, and was open to
reconsideration by this court.
7.
The applicant seeks that this court grants a final division of the
accrual as at 30 September 2019 and that the interim
interdictory relief presently in place be extended until the
finalisation of the divorce action and/or determination of the
accrual
claim.
8.
The applicant has accordingly made use of two methods to seek to
protect what she contends is her contingent right to share in
the
accrual, namely interim interdictory proceedings pending the
determination of the accrual claim and an immediate division of
the
accrual in terms of
section 8(1)
of the
Matrimonial Property
Act.
9.
Each
method raises issues of
particular interest, some of which are
res nova
,
especially in relation to the immediate division of the accrual. As
far as I can establish there has been no reported case where
there
has been an analysis of
section 8(1)
of the
Matrimonial Property
Act or
where a party has been successful in obtaining such relief. In
relation to the interim interdictory relief, there does not appear
to
have been a close consideration of the nature of the interim relief
which has on occasion been sought and granted, particularly
whether
the usual requirements for interim interdictory relief need be
satisfied
[4]
or whether the generally more stringent requirements of
anti-dissipatory relief (
Knox
d’Arcy
-type relief)
are to be satisfied, the latter of which generally requires the
applicant to demonstrate an intent on the part of
the respondent to
dissipate or secret away his or her assets in order to defeat the
applicant’s claim.
[5]
10.
Given the potential of the alienator spouse to prejudice the
beneficiary spouse’s contingent accrual claim, a purposive
approach should be taken to considering and applying the remedies so
as to protect the proprietary position of the vulnerable spouse.
SOME
GENERAL PRINCIPLES RELATING TO THE ACCRUAL CLAIM
11.
To facilitate a conceptual analysis of these two forms of relief
seeking to protect an accrual claim, it is useful to summarise
certain principles in relation to the accrual claim.
12.
The accrual claim is a monetary
claim that the spouse who has lesser of the accrual during the
marriage has against the spouse who
has the greater accrual during
the marriage, upon dissolution of a marriage subject to the accrual
system. The claim can be described
as an equalisation claim as
between the spouses.
[6]
13.
The accrual claim is not a
claim to a share in the other spouse’s assets themselves.
[7]
That the claim is a monetary claim is clear from the provisions of
section 3(1)
and
section 10
of the
Matrimonial Property
Act. The
one spouse does not own any portion of the other spouse’s
assets. It is a deferred equalisation claim. This distinction
is important as it impacts upon the nature of the interdictory relief
to protect the claim.
[8]
[Author1]
14.
The accrual claim is contingent
in nature until it vests upon dissolution of the marriage or earlier
in the event that an immediate
division of the accrual is granted in
terms of
section 8(1).
[9]
15.
As will appear below, the contingent nature of the accrual claim,
until it vests whether upon dissolution of the marriage or
an
immediate division in terms of
section 8
, has an impact on the
interim interdictory relief that may be available.
16.
The determinative date for
calculating the extent of the accrual claim is the date of
dissolution of the marriage. Although certain
cases provided for an
earlier date, such as at
litis
contestatio
rather than the
date of dissolution of the marriage, the Supreme Court of Appeal in
AB v JB
[10]
rejected that line of cases and held that the determinative date is
the date of dissolution of the marriage, notwithstanding that
this
increased the potential for the alienator spouse to dissipate his or
her assets in anticipation of that date. Tsoka AJA found
[11]
that given the clear and unambiguous wording of
section 3
, the
date for determination of the accrual could not be brought forward
from the date of dissolution of the marriage, and further
[12]
that the time when the right comes into existence is determinative of
the calculation of the value of that right. Tsoka AJA did
refer to
the exception that arises in terms of
section 8
of the
Matrimonial
Property Act, to
which consideration will be given in this judgment
as the applicant seeks such relief.
17.
Although the accrual claim only
arises or vests upon the dissolution of the marriage in terms of
section 3(1)
and therefore is only capable of being valued after
it has arisen,
[13]
the parties during the divorce proceedings can lead evidence to
establish the value of the accrual claim and so enable the court
to
award a quantified monetary judgment in respect of the accrual claim
contemporaneously upon granting the divorce. This has the
advantage
of avoiding a more costly and delayed two-stage process to the
litigation, where in the first stage the divorce is granted
with the
resultant dissolution of the marriage giving rise to the accrual
claim, and then a second stage in which the value of
the accrual
claim itself is determined.
[14]
18.
Absent agreement on the extent
of the accrual claim or agreement to refer the determination of the
extent of the accrual claim to
a third party, the court must decide
the extent of the accrual claim. This is a function of the court that
cannot be delegated
to a third party without agreement by the
parties. Neither counsel were able to refer me to any case where a
liquidator or third
party was appointed to determine the value of the
accrual in a marriage subject to the accrual system, at least absent
agreement
of the parties. This can be contrasted to the position
prevailing upon a dissolution of a marriage in community of property
where
the division of the joint communal estate can be referred to a
liquidator, on principles analogous to those which prevail in
partnership
law.
[15]
19.
The importance of this principle is that the relief sought by the
applicant in the present instance that a liquidator be appointed
to
determine the extent of the accrual, without the agreement of the
respondent who opposes the relief, cannot be granted.
A
consideration of
section 8(1)
of the
Matrimonial Property Act
20.
Although
section 8(1)
can be invoked where the spouses intend
remaining married, the remedy will arise mainly where there are
divorce proceedings afoot
or contemplated.
21.
Sutherland J in
JA v DA
recognised the potentially prejudicial
implications for the beneficiary spouse in his
obiter dictum
,
as subsequently affirmed
obiter
by the Supreme Court of Appeal
in
AB v JB
, that the determinative date for calculating the
accrual claim is the date of dissolution of the marriage:
“
If this analysis is correct,
then the sole source of a lawful intrusion onto the unfettered rights
of the alienator spouse to dispose
of assets, can only be a
statutorily created right, with an accompanying remedy, which despite
the logical contradiction of the
concept of distinct estates,
entitles a beneficiary spouse to a form of relief. Such a result
would be a triumph of policy over
logic.”
[16]
22.
It is in this context that
section 8(1)
of the
Matrimonial Property
Act should
be interpreted in order to protect the position of the
vulnerable beneficiary spouse.
23.
Section 8(1)
of the
Matrimonial Property Act provides
:
“
8(1) A court may on the
application of a spouse whose marriage is subject to the accrual
system and who satisfies the court that
his right to share in the
accrual of the estate of the other spouse at the dissolution of the
marriage is being or will probably
be seriously prejudiced by the
conduct or proposed conduct of the other spouse, and that other
persons will not be prejudiced thereby,
order the immediate division
of the accrual concerned in accordance with the provisions of this
Chapter or on such other basis
as the court may deem just.”
24.
As is clear from the wording of
section 8(1)
, the spouse who seeks an
order for the immediate division of the accrual must satisfy the
court that:
24.1. the marriage is subject to the
accrual system;
24.2. he or she would have a right to
share in the accrual of the estate of the other spouse at the
dissolution of the marriage;
24.3. such right is being or will
probably be seriously prejudiced by the conduct or proposed conduct
of the other spouse; and
24.4. other persons will not be
prejudiced by an immediate division of the accrual.
25.
As the immediate division of
the accrual is final relief, the well-known test enunciated in
Plascon-Evans
is
to be applied in resolving any factual disputes,
[17]
namely the relief can only be granted if the facts as stated by the
respondents, together with the admitted facts in the applicants’
affidavits, justify the granting of the relief. Effectively, any
factual disputes ought to be resolved by accepting the respondents’
version, save where such version is “
so
far-fetched or clearly untenable that the court is justified in
rejecting (it) merely on the papers.
”
[18]
26.
This was evident in
Reeders
[19]
where the court refused the immediate division because of factual
disputes that could not be resolved in those motion proceedings.
Nonetheless, in any particular instance close consideration must be
given to whether any apparent factual disputes are genuine
so as to
advance immediate division as an effective remedy to protect the
position of the vulnerable spouse.
27.
As the
Plascon-Evans
approach is used to resolve
bona fide
factual disputes, the first step is to determine whether there is a
bona fide
dispute of fact:
"The crucial
question is always
whether
there is a real
dispute of fact. That
being so, and the applicant being entitled
in the absence
of such dispute
to secure relief by
means of affidavit evidence,
it does
not appear
that a respondent
is entitled to defeat
the applicant
merely by bare denials
such as
he might employ
in the pleadings
of a trial action, for
the sole purpose
of
forcing
his
opponent
in
the witness
box
to undergo cross-examination. Nor is the respondent's
mere allegation of the
existence
of
the dispute of fact conclusive
of such existence."
[20]
28.
If there is no genuine dispute,
and so the respondent’s version can be rejected, then the
applicant’s version will effectively
stand alone and so there
would be no need to resolve a factual dispute by the
Plascon-Evans
[Author2]
.
Whether there is a
bona fide
factual dispute is an anterior issue to the application of
Plascon-Evans
.
29.
In deciding whether there is a factual dispute, the court adopts a
“robust, common sense approach:”
“
If by
a
mere denial
in
general terms
a
respondent can defeat or delay an applicant who comes to Court on
motion, then motion
proceedings
are worthless for a respondent can always defeat or delay a
petitioner by such
a
device.
It
is necessary to make a robust, common-sense approach to a dispute on
motion as otherwise the effective functioning
of
the Court can be hamstrung and circumvented by the most simple and
blatant stratagem. The Court must not hesitate to decide an
issue of
fact on affidavit
merely
because it may be difficult to do so. Justice can be defeated or
seriously impeded and delayed by an over-fastidious approach
to a
dispute raised in affidavits.
"
[21]
30.
The "robust, common sense approach" also applies where the
version is untenable as a whole although detailed:
"I am also
mindful of the fact that the so-called
'robust,
common-sense, approach'
which
was
adopted
in
cases such as Soffiantini
v
Mould
1956 (4) SA 150
(E) in relation to the resolution of disputed
issues
on
paper
usually
relates to a situation
where
a respondent
contents
himself
with bald and hollow denials
of
factual matter confronting
him.
There is, however,
no
reason in logic why it should
not
be applied in assessing
a
detailed version which
is
wholly fanciful
and
untenable."
[22]
31.
As to whether there is a
genuine dispute of fact, the well-known
Room
Hire
Co
(Pty) Limited v Jeppe Street Mansions (Pty) Ltd
[23]
identifies various
categories of disputes.
32.
A denial will be inadequate for
creating a genuine dispute of fact where the person making the denial
has in his or her possession
the relevant facts to amplify the
denial.
[24]
A court should be wary in
accepting bare or unsubstantiated denials by the alienator spouse as
creating a
bona fide
dispute of fact, especially where the relevant detail is within the
peculiar knowledge of the alienator spouse. This will be particularly
acute where the alienator spouse may be seeking to avoid a disclosure
of his or her assets.
33.
The right to share in the
accrual of the estate as referred to in
section 8(1)
only arises
and vests upon dissolution of the marriage or, if immediate division
is ordered in terms of the subsection, upon the
order being granted.
Until then, the right to share in the accrual is a contingent right
only. It therefore follows, if any sense
is to be made of the
reference to a spouse’s right to share in the accrual as
referred to in
section 8(1)
, it must be a reference to that
spouse’s contingent right rather than to the right as it vests.
Otherwise, it would be impossible
as a matter of logic to give effect
to
section 8(1).
Accordingly, the right that an applicant in terms of
section 8(1)
must demonstrate
[Author3]
is
being or will probably be seriously prejudiced by the conduct of the
other spouse is the contingent right to share in the accrual.
34.
The spouse seeking an immediate
division must demonstrate that he or she will have an accrual claim
if immediate division is ordered
by the court. This is not to find
that the value of that accrual claim must be determined
simultaneously with ordering the immediate
division of the accrual,
just as it is unnecessary to determine the value of the accrual claim
upon that accrual claim being awarded
in divorce proceedings upon the
dissolution of the marriage. To require of an applicant to establish
the extent of the accrual
claim as part of the
section 8(1)
relief will largely emasculate the section as affording effective
relief to a vulnerable spouse as it is unlikely, except perhaps
in
extraordinary circumstances, that the applicant spouse will have at
his or her disposal sufficient information to discharge
the onus to
demonstrate the extent of the accrual claim as a matter of final
relief.
[25]
35.
Nonetheless, it remains necessary for the applicant to establish that
he or she will be the beneficiary of an accrual claim,
whatever its
value as may be subsequently determined. It will not suffice for an
applicant spouse to rely upon a notional contingent
right to an
accrual claim arising from the mere fact that he or she is married
subject to the accrual system. To find otherwise
may result in
anomalies. For example, a spouse who is expecting a substantial
upside in his or her estate, and who would
not be the beneficiary of
the accrual claim as his or her estate shows the greater accrual, may
abuse the remedy by relying on
section 8(1)
to achieve an
immediate division of the accrual and change of marital regime in
terms of
section 8(2)
before the upside in his or her estate
materialises, and so deprive the other spouse of a corresponding
increase in the difference
of accrual between the two estates.
Requiring the applicant spouse to demonstrate that he or she will
actually be the beneficiary
of an accrual claim curbs the potential
for such abuse.
36.
In some cases it would be clear who would be the beneficiary of an
accrual claim, and this would be easily established, even
on motion,
such as where there is a large disparity between the extent of the
respective spouses’ estates. But where each
spouse asserts that
his or her estate has had the lesser accrual during the marriage, as
in the present instance, the spouse seeking
immediate division must
demonstrate that he or she will be the beneficiary of the accrual
claim, whatever the determination of
the extent of the claim.
37.
The related question of whether it would be necessary for an
applicant in establishing that he or she would the beneficiary
of an
accrual claim to also demonstrate that he or she will not forfeit his
or her right to share in the accrual, particularly
given that the
relief sought in
section 8(1)
is final, need not be determined
in the present instance as the respondent does not claim any such
forfeiture.
38.
An immediate division of the
accrual achieves an earlier date at which the accrual claim is to be
determined than would otherwise
be the case when that determinative
date would be the date of dissolution of the marriage. This accords
with
section 3(2)
of the
Matrimonial Property Act, which
expressly provides for an exception in the form of
section 8(1).
This
then will enable the successful applicant spouse under
section 8(1)
to subsequently determine, such as in the divorce action
(
[Author4]
whether
pending or still to be launched), the extent of the accrual claim
where the determinative date for the determination of
that accrual
has already been established by way of the immediate division in
terms of
section 8(1).
This relieves the applicant spouse of
having to demonstrate in motion proceedings the extent of the accrual
claim, and the
amount of the monetary award, and so limiting the
scope for factual disputes to derail an immediate division as an
effective remedy
to a vulnerable spouse.
39.
The question arises as to whether that determinative date, if relief
is granted under
section 8(1)
, is the date the court grants the
immediate division of the accrual or whether the court is able under
section 8(1)
to order that the determinative date be some other
date. In the present matter the applicant seeks that the
determinative date
in respect of the immediate division of the
accrual be 30 September 2019 but where the application for such
relief was launched
on 30 October 2019 and where a final order
in terms of
section 8(1)
has not yet been made.
40.
The applicant submits that
section 8(1)
in providing that the court
may order the immediate division of the accrual concerned in
accordance with the provisions of Chapter
1 of the
Matrimonial
Property Act or
“
on such other basis as the court may deem
just”
, enables the court to order an earlier determinative
date should it be just. That earlier date would be before the
alienation by
the spoliator spouse of his or her assets. Should the
court be able to do so, it would provide more scope to protect a
vulnerable
spouse. This would also diminish the need for the
vulnerable spouse to seek interim relief pending the determination of
an application
in terms of
section 8(1)
preventing the alienator
spouse from dissipating his or her assets so as to the reduce the
extent of the accrual in his or her
estate before immediate division
is ordered, as an earlier date for calculating the accrual claim can
be established. On the other
hand, a finding of a determinative date
earlier than the date that the court grants the immediate division is
inconsistent with
the logic accepted by the Supreme Court of Appeal
in
AB v JB
that the value of the accrual claim can only be
determined once it vests.
41.
As will appear later in this judgment, it is unnecessary for me to
make a finding on this particular issue. As will also appear
later in
this judgment, there are other remedies available to a vulnerable
spouse such as interim interdictory relief to protect
his or her
contingent right to share in the accrual pending the outcome of an
application for immediate division.
42.
The use of the wording that a spouse’s right to share in the
accrual of the estate “
is being or will probably be
seriously prejudiced by the conduct or proposed conduct of the other
spouse
” implies that
section 8(1)
is to be used to
address ongoing prejudice or prejudice that may still happen and is
not a remedy to address past prejudice. Should
the prejudicial
conduct have already taken place and the applicant cannot demonstrate
that there will be further prejudicial conduct,
then the relief under
section 8(1)
would not be appropriate. Again, as will appear
below, I need not make any finding on this issue.
43.
A question arises as to whether it is sufficient for the applicant to
demonstrate the requirement of ongoing or future prejudice
as at the
date the application was launched or must the prejudice still be
on-going when the application is heard. The former would
advance the
scope of
section 8(1)
as an effective a remedy to a vulnerable
spouse. Should it be required that such prejudicial conduct is
on-going when the application
is ultimately heard and the order
granted, which may be many months later, as in the present instance,
that may defeat the purpose
of
section 8(1)
as by then the
alienator spouse may have made considerable progress in dissipating
all of his or her assets. This too though is
an issue I need not
decide in this matter.
A
consideration of interim interdictory relief to preserve the
contingent accrual claim
44.
When considering interdictory relief aimed at protecting the
contingent right to share in the accrual, a distinction should
be
drawn between ordinary interim relief and what can be described as
anti-dissipatory or
Knox d’Arcy
-type relief. The
requirements for each are not the same and it assists to keep in mind
that the two forms of relief are distinct
although both can be used
to protect the contingent accrual claim.
45.
As stated above, the alienator
spouse in alienating his or her assets before the accrual claim vests
prejudices the claim in two
respects. The first respect is to deplete
the assets before the determinative date of the accrual claim,
thereby reducing, if not
extinguishing the difference in accrual
between the two estates. In such instance
[Author5]
,
interdictory relief aimed at preventing a dissipation of assets to
preserve the extent of the difference in the accrual claim
is
appropriate – it is aimed at preserving the contingent right to
share in the accrual, so that when the accrual claim is
awarded,
there is an accrual left in the marriage. Anti-dissipatory relief
features where the alienator spouse alienates his or
her assets so
that once the accrual claim is granted and quantified there may be no
assets left to satisfy that monetary judgment.
46.
The requirements for an ordinary interim interdict are well-known:
46.1.
the existence of a
prima
facie
right, although open
to some doubt;
[26]
[Author6]
46.2. a well-grounded apprehension of
irreparable harm if the interim relief is not granted and the
ultimate relief is granted;
46.3. that the balance of convenience
favours the granting of the interdict;
46.4.
the absence of a suitable
alternative remedy.
[27]
47.
The courts have already found
that the contingent accrual claim, if
prima
facie
established though
open to some doubt, is susceptible to preservation by way of an
interim interdict preventing the dissipation
of assets pending the
vesting and determination of that claim.
[28]
This is so irrespective of the contingent nature of the accrual right
but provided that the applicant can demonstrate
prima
facie
although open to some
doubt that an accrual claim will accrue in his or her favour, once
vested, although the extent thereof need
not be determined.
[29]
48.
Importantly, and decisively as will be seen in the present instance,
the applicant’s contingent right to share in the
accrual as the
subject of interim interdictory proceedings need only be established
prima facie
although open to some doubt, in contrast to
establishing on the more stringent
Plascon-Evans
approach the
same right for purposes of final relief in
section 8(1)
proceedings
for an immediate division of the accrual.
49.
Accordingly, in the present instance, the applicant would have to
show for purposes of interim interdictory relief a
prima facie
right, although open to some doubt, of an accrual claim in her
favour. It follows that it would generally be easier for an applicant
spouse to succeed in obtaining interim relief by way of ordinary
interdictory proceedings than obtaining an immediate division
of the
accrual relief under
section 8(1)
, which is final in nature.
50.
The requirements for ordinary
interdictory relief must not be considered in isolation to each
other, but holistically so that a
weakness in any of the requirements
can be counter-balanced by the strength in relation to the other
requirements.
[30]
This will enable more scope for a court to come to the assistance of
a vulnerable spouse, particularly by way of the application
of the
balance of convenience.
51.
Should the interim interdictory
relief be construed as being quasi-proprietary in nature, then there
would be no need for an applicant
to demonstrate irreparable harm if
the interim relief is not granted (as such harm is presumed) or that
there is no other satisfactory
remedy.
[31]
In any event, given the nature of the accrual claim, it is
difficult to imagine what would constitute an alternate satisfactory
remedy.
52.
An interim interdict by an
applicant to preserve the contingent accrual claim is capable of
being construed as quasi-proprietary.
In so finding, this advances
the availability of this remedy to the vulnerable spouse.
Sutherland J in
JA
v DA
stated
obite
r
that such interdictory relief would fall into a
sui
generis
category.
[32]
53.
As distinct from ordinary interim interdictory relief, should an
applicant seek anti-dissipatory relief in the sense that he
or she
seeks to prevent the other spouse from dissipating his or her assets
so that such other spouse has assets remaining against
which the
beneficiary spouse can execute once a judgment is granted in his or
her favour consequent upon the court’s determination
of the
extent of the accrual claim, such relief is not directed at
safeguarding the contingent accrual claim before it vests. Rather
such anti-dissipatory relief is to ensure that there are sufficient
assets to satisfy the accrual claim once determined by way
of
judgment.
54.
Bester AJ in
RS
v MS and others
[33]
held in relation to such relief
[34]
that the applicant spouse would have to demonstrate that:
54.1. the respondent spouse has assets
within the jurisdiction of the court;
54.2. the respondent,
prima facie
,
has no
bona fide
defence against the applicant’s
contended for contingent accrual claim;
54.3. the respondent spouse has the
intention to defeat the applicant’s claim or to render it
hollow by dissipating or secreting
assets.
55.
It is especially this last
requirement that may be difficult for an applicant to establish.
Bester AJ
[35]
continued that even if these jurisdictional requirements are present,
the applicant must still show well-grounded apprehension
of
irreparable loss and that because of the draconian nature of such
anti-dissipatory relief, its invasiveness and conceivably
inequitable
consequences a court will be reluctant to grant such relief except in
the clearest of cases.
56.
With respect, this may be too
strongly put. Seeking anti-dissipatory relief in relation to
preserving assets to satisfy a judgment
on an accrual claim may be
one of “the special situations” envisaged in
Knox
d’Arcy
[36]
where the intention to
mala
fide
dissipate to prevent
execution need not be demonstrated. As observed by Davis AJ in
MG
v KG,
[37]
in
Knox d’Arcy
the
court was dealing with anti-dissipatory proceedings pending the
outcome of an action for damages, where the applicant asserted
no
proprietary or quasi-proprietary interest in the respondent’s
assets, and the position may be different if an applicant
spouse’s
asserted right was viewed as quasi-proprietary in nature. In that
matter Davis AJ found that anti-dissipatory relief
aimed at
preserving assets to satisfy a claim for arrear maintenance may be
considered as one of the “special circumstances”
contemplated in
Knox d’Arcy
and so where the requisite intent to dissipate need not be
established by the applicant.
57.
In my view,
a fortiori
in relation to anti-dissipatory relief
directed at preserving assets to satisfy an accrual claim once
awarded.
58.
But the precise boundaries and
requirements of anti-dissipatory relief in the context of an accrual
claim, and whether the requirements
as stipulated in
RS
v MS
need be tempered
,
can be left for
determination to another day as the applicant in the present
proceedings does not seek this form of relief but rather
ordinary
interim relief directed at preserving her contingent accrual claim,
both until it is granted and vests and the quantification
thereof.
[38]
Some
observations of the interaction between the three remedies
59.
Whether the spouse seeks to protect his or her contingent right to
share in the accrual as it may vest upon dissolution of the
marriage
in terms of
section 3
of the
Matrimonial Property Act or
as it
may vest upon the court ordering the immediate division of the
accrual in terms of
section 8(1)
of that Act, the spouse may seek
ordinary interdictory relief pending the vesting of that accrual
claim. As appears above, the
spouse need not establish all the
requirements for interim interdictory relief given that his or her
claim to share in the accrual,
although contingent, is
quasi-proprietary in nature.
60.
If immediate division of the accrual is granted under
section 8(1)
of the
Matrimonial Property Act, and
the value of that claim is
determined by way of judgment, there is no need for interim
interdictory relief as the beneficiary spouse’s
right to share
in the accrual will have vested and been determined.
61.
In such instance, the successful spouse armed with a monetary
judgment can execute against the other spouse’s assets subject
to such relief as the court may grant for deferment of the
satisfaction of the established accrual claim in terms of
section 10
of the
Matrimonial Property Act.
>
62.
Should the spouse be successful
in obtaining the immediate division of the accrual but the extent of
that accrual claim has not
yet been calculated, as the determinative
date for the quantification of the accrual is known, namely the date
the immediate division
is ordered (
[Author7]
or
such earlier date as the court may order depending upon whether it
has the jurisdiction to do so under
section 8(1))
, there is no need
for any interim interdictory relief to protect that accrual claim
which has already been awarded and has vested.
Should the other
spouse dissipate assets after the immediate division, the
determinative date protects the successful spouse in
the
quantification of his or her claim.
63.
To the extent that the successful spouse seeks to prevent the other
spouse from dissipating his or her assets pending the vesting
of the
claim and/or determination of the extent of the accrual claim as at
the already established determinative date, so as to
ensure that
there are assets against which to execute once the extent of the
claim is determined, the spouse would have to satisfy
the
requirements for anti dissipatory relief.
Application
of these principles to the present facts
64. Based upon the relief sought by
the applicant in her amended draft order, I am called on to decide:
64.1. whether the applicant has
established her claim to an immediate division of accrual, bearing in
mind that such relief is final
in nature and therefore the usual
Plascon-Evans
rule will apply. If the applicant does succeed
in this claim, the court will then have to consider the issues that
follow thereupon
such as the determinative date for calculating the
extent of the accrual and whether a liquidator can be appointed to
determine
the extent of the accrual and to perform various other
functions;
64.2. whether the applicant is
entitled to interim relief preventing the respondent from alienating
his assets pending the determination
of the applicant’s
contended for accrual claim including the extent thereof, whether
consequent upon an immediate division
if granted, or, if an immediate
division is refused, until the determination of the accrual claim in
the pending divorce proceedings.
65.
The applicant and respondent were married to each other on
20 September 2013, subject to the accrual system. Two daughters
were born of the marriage, who remain minors.
66.
The applicant and the respondent separated in early 2019 and the
applicant vacated the former matrimonial home with the minor
children
in February 2019. Since then the applicant had no access to the
former matrimonial home or the assets situated within
the home. The
respondent also changed the locks after the applicant vacated the
former matrimonial home.
67.
Each of the parties allege abuse at the hands of the other. Although
the parties each dispute that he or she abused the other,
it is
common cause that there is an irretrievable breakdown in the
marriage.
68.
On 16 July 2019 the applicant as plaintiff initiated divorce
proceedings against the respondent as the defendant under the present
case number. Although the applicant in the present motion proceedings
seeks an immediate division of the accrual in terms of
section 8(1)
,
the particulars of claim include an accrual claim. The applicant as
the plaintiff seeks an order that the defendant pay to the
plaintiff
an amount equal to one-half of the difference between the accrual of
the respective estates of the parties. It is unclear
whether the
determination of the extent of the accrual claim, if awarded, would
form part of the pending divorce action under this
case number or
would take place in subsequent proceedings.
69.
The defendant does not appear to have pleaded to this portion of the
particulars of claim. The paragraph numbering of the applicant’s
particulars of claim is confusing and this may explain the omission
of the respondent as defendant to have pleaded to the accrual
claim
in his plea. It is nonetheless clear from the respondent’s
papers in the present proceedings that he disputes that
the applicant
has an accrual claim, contending that she is a successful
businesswoman in her own right.
70.
The respondent does not contend for any forfeiture by the applicant
of her accrual claim, if she has such a claim.
71.
The applicant contends that on 25 September 2019 the respondent
forcibly and without her consent removed a Mercedes Benz from
her
possession and that she immediately contacted her attorney of record
to raise the matter with the respondent’s attorneys.
After an
exchange of correspondence, the vehicle was returned to the
applicant. The applicant contends that this is a factor demonstrating
her need for relief, as the respondent is seeking to dissipate
assets. The respondent admits that he did take possession of the
vehicle in the Fourways area whilst it was being driven by an unknown
man, thinking that the car had been hijacked. Neither parties’
factual version of the circumstances surrounding the removal of this
vehicle is detailed and I am therefore unable to make any
final
finding on such factual disputes as there may be as to the intent of
the respondent in removing the vehicle. Notably though
the
respondent’s attorneys in responding to the applicant’s
attorneys in relation to the removal of the vehicle did
not set out
the respondent’s version subsequently presented in his
answering affidavit.
72.
The applicant describes that
shortly after that incident, during the early morning at 06h00 on
Friday morning, 27 September
2019, the respondent gained access
to her residential complex. The applicant describes that she does not
know how this access was
achieved as she had cancelled her access tag
to the residential complex, which was in the vehicle that the
respondent had taken
possession of a few days’
previously
[Author8]
.
The respondent nonetheless managed to gain access to the residential
complex and to the applicant’s garage, which had an
inter-linking door into the house. The applicant describes that the
respondent was waiting at the inter-leading garage door and
when her
domestic worker opened the door that morning, he gained entry into
the main residential home. The applicant then describes
how the
respondent assaulted her, in the presence of the minor children and
the domestic worker. The assault was so severe that
the applicant was
admitted to an intensive care unit where she remained for three days
before being released to a care ward and
then from hospital on
3 October 2019.
73.
The applicant further describes that the SAPS and ambulance services
arrived on the scene of the assault, that the respondent
was arrested
and charged with assault and released on police bail. When the
respondent appeared in court on 30 September 2019,
his bail was
revoked, the charges were amended to attempted murder and pursuant to
which the respondent remained incarcerated,
after his bail
application was dismissed, until 16 January 2020 when bail was
granted.
74.
The respondent admits that he is currently on bail for the assault of
the applicant and that the incident of 27 September
2019 is
currently being investigated by the SAPS and is before the criminal
courts. The respondent however elects not to deal with
any of the
allegations made by the applicant in relation to the assault,
contending that he has been advised not to deal with the
issues
surrounding the assault, because of the pending criminal proceedings
against him.
75.
The respondent has a right not
to respond to the averments in the founding affidavit, particularly
should he be of the view that
to do so may prejudice him in his
criminal trial. But that election comes with consequences.
[39]
The respondent having elected not to respond to the applicant’s
averments in relation to the assault has the consequence
that this
court must accept those averments as being correct for purposes of
assessing whether relief should be granted in these
proceedings.
There is nothing in any of the papers that would justify the
applicant’s averments being rejected out of hand.
I therefore
accept that the respondent did assault the applicant for purposes of
these proceedings.
76.
The question remains what is to
be made of this assault insofar as is relevant to the present
proceedings. The applicant contends
that the assault or more
accurately what she describes as the respondent’s attempt to
kill her were
[Author9]
aimed
at preventing her from benefiting financially from the marriage. This
motivation for the assault or attempted murder does
not necessarily
follow as there may be other motives for the respondent doing so.
Nonetheless, the court cannot be blinded to the
assault and it
remains a factor to be taken into account.
77.
The next incident was on 23 October 2019. The applicant alleges
that by chance she discovered that the respondent’s
brother was
removing all the assets from the former matrimonial home and that the
respondent, being incarcerated at the time, had
instructed his
brother to do so. This was being done by way of a large removal
truck. The applicant again acted urgently, which
resulted in the SAPS
attending at the former matrimonial home and the applicant’s
attorneys contacting the respondent’s
attorneys to ascertain
why assets were being removed from the former matrimonial home.
78.
The SAPS arrived at the scene and pursuant to which the respondent’s
brother was ordered to and did offload and return
to the former
matrimonial home all the furniture and household assets. This was
followed by a letter by the applicant’s attorneys
to the
respondent’s attorneys demanding an undertaking from the
respondent that he would not dispose of or alienate any assets,
failing which the applicant would seek an immediate division in terms
of
section 8
of the
Matrimonial Property Act.
>
79.
The respondent does not dispute these averments. The respondent
admits that he had instructed his brother to remove certain
of the
assets. Rather the respondent disputes his motivation for doing so.
The respondent disputes that he did so for purposes
of frustrating
the applicant’s accrual claim, but rather because he feared
that whilst he was incarcerated the applicant
would remove and sell
his belongings. The respondent explains that he therefore asked his
brother to take his belongings into safekeeping.
The respondent
contends that the applicant had when vacating the former matrimonial
home in February 2019 removed assets and that
this fortified his
belief that the applicant would now do so again.
80.
There are difficulties with the respondent’s version. As he had
changed the locks to the former matrimonial home when
the applicant
vacated it in February 2019, his assertion that she could gain access
and remove his belongings is problematic. If
the respondent was
concerned that whilst he was incarcerated the applicant would gain
access to the former matrimonial home and
remove his assets, this
could have been addressed by his attorneys seeking undertakings of
the applicant through her attorneys.
Although there is a factual
dispute in relation to the applicant having, according to the
respondent, removed assets from the former
matrimonial home when she
vacated the home in February 2019, not much can be inferred from the
conduct of a spouse taking assets
when he or she leaves the
matrimonial home. It is hardly likely that a person leaving the
matrimonial home would not take some
assets with him or her.
Nonetheless, I am not able to reject the respondent’s version
as being farfetched and fanciful.
81.
The next incident was the following day, on 24 October 2019. The
applicant when attending at the former matrimonial home
discovered
that the respondent’s brother had nonetheless returned and
removed from the former matrimonial home certain motor
vehicles
together with other movable items such as television sets. This
removal took place after and notwithstanding the SAPS’
intervention the previous day to prevent assets being removed from
the property. Again, the applicant’s attorneys addressed
a
letter to the respondent’s attorneys demanding the return of
the motor vehicles and movable items.
82.
The respondent admits these allegations but denies that the removal
of his assets was unlawful and that such removal was prejudicial
to
the applicant’s accrual claim. He admits that notwithstanding
the police’s intervention he was nonetheless entitled
to remove
the assets as the police did not have any right to stop his brother
from doing so. The respondent repeats his fear that
the applicant
would remove and sell his assets whilst he was in prison.
83.
The respondent again did not seek of his attorneys to protect his
interests by way of seeking undertakings from the applicant
that she
would not remove and sell any of the assets. This notwithstanding the
two letters from the applicant’s attorneys
relating to his
removal of the assets, which remained substantially unanswered by the
respondent.
84.
When the respondent’s removal of assets immediately after the
attempted removal of the previous day and in the face of
two letters
from the applicant’s attorneys demanding undertakings from him
is considered, the applicant’s assertions
that the respondent
has conducted himself in such a manner as was prejudicial to her
accrual claim are well-founded.
85.
The respondent has demonstrated that he is inclined to take the law
into his own hands rather than to seek to protect his rights
through
his attorneys in an appropriate manner. Whatever is to be made of the
respondent’s assertion that he had a legitimate
fear the
applicant would proceed to remove and sell his assets, it does not
detract from his conduct probably being seriously prejudicial
to the
applicant’s accrual claim. No disclosure is made in the papers
as to precisely what assets were removed by him and
the value thereof
for purposes of those assets being taken into account in the
determination of any subsequent accrual claim.
86.
The applicant also relies upon
what she describes is
[Author10]
the
respondent’s selective disclosure of assets pursuant to his
obligation in terms of
section 7
of the
Matrimonial Property Act
to
furnish particulars of the value of his estate for purposes of
determining the accrual. The
[Author11]
deficient
disclosure is asserted by the applicant in the respondent’s
failure to disclose his interests in various companies
and close
corporations and of various investments, savings and motor vehicles.
This assertion by the applicant is made for the
first time in her
replying affidavit, which does detract somewhat from the force
thereof. The applicant also relies upon the respondent’s
failure to comply with the order granted on 5 November 2019
requiring the respondent to disclose his assets under oath. As
that
order had not been granted by the time the applicant delivered her
founding affidavit, the applicant cannot obviously be faulted
for not
including that in that affidavit. The applicant does raise it in her
replying affidavit. The respondent as at date of the
hearing of this
application has still not made such a disclosure under oath.
87.
For reasons that will follow, I need not decide whether the applicant
on the facts and versions set out above has discharged
the onus of
demonstrating on the application of the usual
Plascon-Evans
approach whether the respondent is conducting himself in a manner
which is being or will probably be seriously prejudicial to her
accrual claim for purposes of final relief under
section 8(1).
But I
am satisfied that the applicant has sufficiently made out a case that
there is a reasonable apprehension that the respondent
has conducted
himself in such a manner that warrants protection by way of interim
interdictory relief to the extent that the applicant
can establish a
prima facie
right to share in the accrual, although open to
some doubt.
88.
I now turn to whether the applicant has established that she would be
a beneficiary of an accrual claim, once and if it vests.
As appear
above, for the applicant to succeed by way of final relief in the
form of an immediate division of the accrual, she would
have to
satisfy this court that there are no
bona fide
factual
disputes on this issue that would preclude the court from ordering
the relief. In contrast, as also appears above, for purposes
of
interim interdictory relief, the applicant need only demonstrate a
prima facie
right, although open to some doubt, that she would
be a beneficiary of an accrual claim.
89.
The applicant contents herself with the following assertion in her
founding affidavit as demonstrative of her right to share
in the
accrual, without any supporting details:
“
During the subsistence of
the marriage my estate has shown no accrual alternatively a lesser
accrual than the estate of the respondent
”.
90.
In answer the respondent denies this assertion, pointing out that the
applicant has not supported her bare assertion and that
the notice
furnished by the plaintiff in terms of
section 7
of the
Matrimonial
Property Act disclosing
her assets and the value thereof reflects net
assets of R3 million. The respondent also contends in his
answering affidavit
that “
the applicant is a wealthy person
in her own right and in fact I have an accrual claim against her
estate
”.
91.
The applicant in reply does not detail her financial position but
instead contends that it is for a liquidator once appointed
to assess
both parties’ estates and come to a determination of whose
estate shows the bigger accrual. The difficulty with
the applicant’s
approach is that as I have already found absent agreement between the
parties, as is presently the position,
the court cannot delegate its
duty to determine the accrual to a third party such as a liquidator.
92.
In response to the respondent’s assertion that she is a wealthy
businesswoman in her own right, the applicant denies this,
attaching
copies of her bank statements and various other documents. The
applicant also refers to the respondent’s failure
to disclose
further assets and also asserts in her replying affidavit that the
respondent stated at his first bail hearing that
his estate was worth
approximately R17 million.
93.
The difficulty is that these allegations only appear in reply and the
respondent accordingly was not afforded an opportunity
to respond
thereto.
94.
Based on the applicant’s section 7 notice, her net asset
position is R3 million. There does not appear to be
any
disclosure of her business interests. In comparison, the respondent’s
section 7 notice shows a net asset position
of just under
R2.6 million. Based on these disclosures, the applicant would
not enjoy an accrual claim. But to the respondent’s
disclosure
it may be necessary to add further assets, such as potentially the
respondent’s half-share in an immovable property
situated in
Spruitview, a Range Rover Evoque and what the applicant contends are
the respondent’s undisclosed interests in
various business
entities. Although it does appear that he has such interests, there
is no evidence of the value thereof.
95.
I am unable to dismiss as farfetched and fanciful the respondent’s
version as to why the applicant does not have an accrual
claim. The
applicant did not seek a referral to oral evidence. In the
circumstances, I am unable to find that the applicant has
demonstrated on a
Plascon-Evans
approach that she would be a
beneficiary to an accrual claim, even taking into account the
allegations made by her in her replying
affidavit which should have
featured in the founding affidavit.
96.
Nonetheless, I do find that there is sufficient evidence in the
affidavits to arrive at a conclusion that the applicant has
established at least a
prima facie
right, although open to
some doubt, that she may be a beneficiary on an accrual claim.
Although most of her allegations in support
thereof appear in reply,
given the urgency with which the application was initially launched,
this is understandable. The respondent
also did not seek an
opportunity to file a further affidavit in response to those
allegations once they appeared in the replying
affidavit or to
strike-out those allegations. The respondent also did fail to comply
with the court order requiring him to disclose
under oath his assets,
although this was drawn to his attention in the applicant’s
replying affidavit.
Relief
97.
The applicant has accordingly failed to demonstrate her entitlement
to an immediate division of the accrual as she cannot demonstrate
that she will be the beneficiary of an accrual claim. I therefore do
not have to determine whether the applicant has demonstrated
the
other requirements for relief under
section 8(1)
on the application
of the
Plascon-Evans
approach.
98.
I also therefore do not have to consider whether the determinative
date for calculating the extent of the accrual claim flowing
upon
such immediate division would be the date such relief was granted, or
an earlier date, as contended for by the applicant.
99.
The applicant is entitled to continued interim interdictory relief
pending the determination in the divorce action as to whether
she has
an accrual claim, as sought in her particulars of claim in the
pending divorce action. It follows that the interdictory
relief that
is granted is of the character described above as ordinary
interdictory relief to preserve her
prima facie
contingent
right to share in the accrual of the estate, being quasi-proprietary
in nature, although open to some doubt. It is not
anti-dissipatory
relief in the sense of preventing the respondent from dissipating his
assets once and if judgment has been granted
against him, and
therefore the applicant need not show that the respondent had the
intention of dissipating or secreting away his
assets to prejudice
her claim (and assuming that would need to have been shown, in
respect of which I have expressed doubt).
100.
I find that the balance of convenience favours the granting of the
interim relief. Although the respondent complains vaguely
in his
answering affidavit filed in January 2020 that the interim relief
prejudices the conduct of his business interests, the
interim relief
that is to be extended has been in place since November 2019. The
respondent has not sought leave to adduce any
supplementary affidavit
demonstrating any on-going prejudice caused by the interim relief.
101.
The
[Author12]
applicant
as the plaintiff in the pending divorce action seeks an order that
the defendant pay to the plaintiff an amount equal
to one-half of the
difference between the accrual of the respective estates of the
parties. It is unclear from this formulation
of the accrual claim
whether the determination of the extent of the accrual claim, if
awarded, would form part of the pending divorce
action under this
case number or would take place in subsequent proceedings. In the
circumstances, I approach the matter on the
basis that the applicant
is only seeking interim relief pending an award in her favour of an
accrual claim rather than the quantification
thereof.
102.
The interim relief is limited in duration until a determination in
the trial proceedings whether she has an accrual claim.
If the
applicant requires further interdictory relief pending the
determination of the extent of that accrual claim should that
determination not be made simultaneously with whether she has an
accrual claim, it would then be for the applicant to approach
the
court for further interdictory relief.
103.
During the course of argument and by way of an amended draft order
(to which the respondent formally responded), the applicant
sought to
amend the extent of the identified assets failing within the ambit of
the interdictory relief. This included the respondent’s
interests in various entities and more particularly his member’s
interests and member’s emoluments (other than monthly
salaries)
and dividends. There does not appear to be any difficulty in this
extension of the relief, and the respondent did not
raise any
objection thereto.
104.
The applicant also sought to include further assets of the respondent
that had since been discovered including his undivided
half-share in
the Spruitview property and in various bank accounts and investment
retirement annuities. In my view, this extension
is also warranted.
105.
The applicant sought in the
relief as initially formulated
[Author13]
that
all assets registered in the name of Lemmon Peel Management CC
of which the respondent was the sole member fall within
the ambit of
the interdictory relief. In the applicant’s amended relief she
persists in seeking an interdict over this close
corporation’s
assets, and seeks to expand on the range of those assets. The
applicant relies on the judgment in
Langebrink
[40]
why the close corporation’s assets are to fall within the ambit
of the relief. In that matter the successful applicant for
interim
relief obtained an order that the respondent was interdicted from
transferring assets held by him in various trusts pending
the
determination of the applicant’s accrual claim. I have closely
considered that judgment. The court’s reasoning
appears to be
largely influenced by the respondent’s power to deal with the
assets of those trusts in running his international
finance business.
Without making any finding as to the cogency of the reasoning in
Langebrink
,
I do not find support in that judgment for interdicting the close
corporation from dealing in its assets. The applicant has not
made
out a case that the close corporation is a sham or some other device
used by the respondent to hide what as his assets
[Author14]
.
No relief is claimed by the applicant in the divorce action seeking
to pierce a corporate veil between the close corporation and
the
respondent, or any such relief. By all accounts, as can be gathered
from the affidavits, the close corporation is an operational
business
entity, although it may be the main source of the first respondent’s
wealth.
106.
Accordingly, the interdictory relief is to be limited to those
identified assets belonging to the respondent.
107.
The applicant was awarded her
costs in respect of the interim relief that was granted on 5 November
2019 on an
ex parte
basis. I am not required to reconsider that costs order. What remains
are the costs that follow relating to the respondent’s
opposition to the confirmation of the interim relief that had been
granted on 5 November 2019. The applicant has failed in obtaining
an
immediate division of the accrual but has succeeded in extending the
interim interdictory relief. That interim interdictory
relief is to
protect such right of accrual that the applicant may establish during
the divorce action. Should the applicant fail
to demonstrate in the
divorce action that there is any accrual claim in her favour, it
would follow that such
prima
facie
right as she sought
to protect was not finally established. In my discretion, it is
appropriate that the costs of opposition in
relation to the present
application are reserved for determination in the divorce action for
the fate of the applicant’s
accrual claim may have an impact
upon the incidence
[Author15]
of
the costs of the respondent’s opposition.
108.
I order that:
108.1.
Pending the determination in
the action under this case number of the applicant’s accrual
claim, and more particularly
[Author16]
whether the applicant enjoys an accrual claim, the respondent is
prohibited, interdicted and restrained, either directly and/or
indirectly through any third party, from removing, disposing of,
selling, transferring, and/or otherwise alienating in any manner
whatsoever any of the protected assets which are the following:
108.1.1.
all furniture and household effects which are currently situated in
the former matrimonial property being Erf […]
Meyersdal
Ext 12, as per the inventory conducted by the applicant as at
31 January 2020;
108.1.2.
the immovable property situated at Erf […], Meyersdal Ext 12
and the respondent’s undivided half-share in
Erf […],
Spruitview Ext 1;
108.1.3.
any money in the respondent’s personal bank accounts, pension
funds and/or any other investments (other than required
in the
ordinary course of business and/or for day-to-day expenses);
108.1.4.
the respondent’s
open-ended Investment Retirement Annuity (Plan Description: Focussed
[Author17]
Investment
Plan) held at Old Mutual under contract number: […]17;
108.1.5.
the respondent’s open-ended Investment Retirement Annuity (Plan
Description: Committed Investment Plan) held at Old
Mutual under
contract number: […]17;
108.1.6.
the respondent’s member’s interest in Lemmon Peel
Management CC, and any member’s emoluments (other
than his
monthly salary) and/or dividends received by the respondent in the
2019 and 2020 financial years and receivable in the
2021 financial
year;
108.1.7.
the respondent’s member’s interest in GVB Transport CC
(2006/225208/23) and any member’s emoluments
(other than his
monthly salary) and/or dividends received by the respondent in the
2020 financial year and receivable in the 2021
financial year;
108.1.8.
the respondent’s member’s interest in Mampodi Projects CC
(2003/066872/23) and any member’s emoluments
(other than his
monthly salary) and/or dividends received by the respondent in the
2020 financial year and the receivable in the
2021 financial year;
108.1.9.
the respondent’s member’s interest in Intuition
Development Services CC (2006/019380/23) and any member’s
emoluments (other than his monthly salary) and/or dividends received
by the respondent in the 2020 financial year and the receivable
in
the 2021 financial year;
108.1.10.
any director emoluments received by the respondent for the financial
year 2020, or receivable by the respondent for the
financial year end
2021, in respect of his directorship in RRD Marketing (Pty) Ltd
(2017/412063/07);
108.1.11.
any director emoluments received by the respondent for the financial
year 2020, or receivable by the respondent for the
financial year end
2021, in respect of his directorship in Chiskop Investments Solutions
(2014/024730/07);
108.1.12.
any director emoluments received by the respondent for the financial
year 2020, or receivable by the respondent for the
financial year end
2021, in respect of his directorship in Diatla Tsa Dikgale
Construction (Pty) Ltd (2014/024732/07);
108.1.13.
any director emoluments received by the respondent for the financial
year 2020, or receivable by the respondent for the
financial year end
2021, in respect of his directorship in Babereki Ba Makgonthe (Pty)
Ltd (2019/032825/07).
108.1.14.
all motor vehicles registered
in the respondent’s and/or entities’ names
[Author18]
,
which include the Harley Davidson motor bike, VW Caddy, Mitsubishi
Colt and Range Rover Evoque (registration number JD 25 GZ GP).
108.2. The costs of opposition of the
application are reserved for determination in the action.
______________________
Gilbert AJ
Date
of hearing: 5 August 2020
Date of judgment: 16
September 2020
For
the applicant: Advocate E Larney
Instructed
by: Canario Cornofsky Attorneys
For
the respondent: Advocate I Strydom
Instructed
by: Jurgens Bekker Attorneys
[1]
AB v JB
2016 (5) SA 211
(SCA) at paras 16, 19 and 20.
[2]
The terms
alienator spouse and beneficiary spouse are borrowed from
Sutherland J in
JA
v DA
2014 (6) SA 233
(GJ) at para 5.
[3]
HCAW
Schulze “Some thoughts on the Interpretation and Application
of
Section 8(1)
of the
Matrimonial Property Act 88 of 1984
”
2000 (63)
THRHR
116
at pp 116, 117.
[4]
Setlogelo
v Setlogelo
1914
AD 221
at 227.
[5]
Knox d’Arcy
Ltd and others v Jamieson and others
1996 (4) SA 248
(A) at 372G.
[6]
See
Schulze
above
at 117 in his comparison of a final division under
section 8(1)
to
the
Ausgleichsforderung
in the
German Civil Code of 1896, section 1363(2).
[7]
Reeder v
Softline Limited and another
2001 (2) SA 844
(W) at 848J- 849A;
RS
v MS and another
2014
(2) SA 511
(GJ) at para 11.
[8]
For an example of
an applicant labouring under this fundamental misconception that she
had an entitlement to a half-share in the
assets themselves, and so
failed in interdictory relief seeking to protect that non-existent
right, see
Reeder
above
at 852D.
[9]
JA v DA
para
9.1;
Reeders
at 849
B/C
.
[10]
2016 (5) SA 211
(SCA) at paras 16, 19 and 20.
[11]
In para 16.
[12]
In para 19,
approving Sutherland J in
JA
v DA
,
para 17.
[13]
AB v JB
at paras 16, 19 and 20.
[14]
See, for example,
the
obiter
remarks by Sutherland J in
JA
v DA
at
para 20, and as approved,
obiter
,
by Tsoka AJA in
AB
v JB
at
para 19.
[15]
Compare
KM
v TM
2018
(3) SA 225
(GP) and
Wilken
v Freysen N.O
2019
JDR 1994 (GJ
)
citing
Gillingham
v Gillingham
1904
TS 609
at 613.
[16]
At
para 32.
[17]
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Limited
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 E G, as reaffirmed in
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at 290 D-G.
[18]
Botha v Law
Society, Northern Provinces
2009
(1) SA 277
(SCA) at para 4, with reference to
Plascon-Evans
Paints
above
at 634 E – 635 C.
[19]
At 846J-847A and
847F.
[20]
Room
Hire Co
(Pty)
Limited v
Jeppe
Street
Mansions
(Pty)
Ltd
1949
(3) SA 1155
(T)
at
1162-1163.
[21]
Soffiantini v
Mould
1956
(4) SA 150
(E)
at154G/H.
[22]
Truth
Verification Testing Centre
v
PSE Truth Detection
CC
and
others
1998
(2) SA 689
(W) at 6981-J,
[23]
1949 (3) SA 1155
(T) at 1163.
[24]
Wightman
trading as
J
W
Construction
v
Headfour
(Pty) Limited and
another
[2008] ZASCA 6
;
2008
(3)
SA
371
(SCA)
at
375G-376B
[25]
The
onus is on the applicant to establish the monetary value of the
share in the accrual of the other spouse’s estate:
MB
v DB
2013 (6) SA 86
(KZD), para 22, unaffected by the SCA’s not
following of this case in other respects in
AB
v JB
.
[26]
Webster
v Mitchell
1948 (1) SA 1186
(W) at 1189.
[27]
Setlogelo
above
at 227.
[28]
Langebrink
v Langebrink
2017 JDR 1059 (GJ), para 24, where the court granted an order
interdicting the dissipation of assets pending the determination
of
the applicant’s claim for an immediate division of the accrual
in terms of section 8(1).
In
Gernetzky
v Gernetzky
2007 JDR 0247 (E) the court found that the contingent accrual claim
was worthy of protection by way of an interim interdict pending
divorce proceedings. Similarly,
obiter,
In
Reeders
above
at 851C-F.
[29]
Gernetzky
,
para 7. I, with respect, differ from the
obiter
comments made in
Reeders
at
851I that the applicant must have quantified the value of the right
to succeed in interim interdictory proceedings.
[30]
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and another
1973
(3) SA 685
(A) at 691F
.
[31]
Erasmus
Superior Court Practice
RS
13, 2020, D6-21, 22 and the authorities cited.
[32]
Para 34 referring
to
Gernetzky
v Gernetzky
.
[33]
2014 (2) SA 511
(GJ) at para 17, per Bester AJ.
[34]
A
close consideration of the judgment shows the court was dealing with
anti-dissipatory relief rather than ordinary interim relief,
and so
the judgment must be assessed in that context.
[35]
At 18.
[36]
At 372H-I.
[37]
[2016] JOL 37048
(WCC), para 57 to 59.
[38]
This
appears from the revised draft order handed up at the conclusion of
the hearing of these proceedings.
This is also
consistent with the manner in which the applicant has approached the
matter as appears from the affidavits and heads
of argument.
[39]
Law Society of
the Cape of Good Hope v Randell
2013 (3) SA 437
(SCA) para 18 to 26, approving of
Davis
v Tip NO and others
1996 (1) SA 1152
(W) and
Equisec
(Pty) Ltd v Rodrigues and another
1999 (2) SA 113
(W) at 115A-C.
[40]
Above.
[Author1]
Please
consider whether the formulation of the text in the footnote,
particularly the use of “being”, is as was intended
[Author2]
Consider
adding “test” or “approach” at the end of
this sentence
[Author3]
Consider
adding the words “as the right that” after this word.
Or
recasting along these lines:
“
Accordingly,
the applicant in terms of section 8(1) must demonstrate that the
right that is being or will probably be seriously…”
[Author4]
This
bracket has not been closed.
[Author5]
I
wasn’t sure if the word “an” should be added
before “instance” or if “instance” should
be
“instances”
[Author6]
If
this footnote is intended to cater for all the four requirements,
consider placing it in the hanging paragraph after “well-known”
and perhaps commencing footnote 27 with “See also…”
[Author7]
this
bracket has not been closed.
[Author8]
consider
removing the apostrophe
[Author9]
I
wondered whether this ought to be "was"
[Author10]
I
wasn’t sure if the use of this word was intentional or if “as”
was intended
[Author11]
Consider
recasting this sentence along these lines”
“
The
deficient disclosure is asserted by the applicant in the
respondent’s failure to disclose his various investments,
savings and motor vehicles as well as his interests in various
companies and close corporations.”
[Author12]
Some
of the content of this paragraph already appeared in para 68 above.
Consider
starting this sentence with “As already stated…”
and the second sentence with “Given that...”
or “As
it is unclear…”
[Author13]
At
first glance, I was not sure if this was reference to the
interdictory relief as previously granted or relief as sought
presently
but prior to the amended draft order.
[Author14]
Please
reconsider
[Author15]
I
was not sure whether “any” was supposed to be “an”.
[Author16]
I
wondered whether this portion is necessary – Assuming that
what it conveys is more precisely captured in “whether
the
applicant enjoys an accrual claim”.
[Author17]
I
noticed that this word has double “s”
[Author18]
[Author18]
I
wondered whether this part of the order is specific enough or too
broad, particularly the reference to entities