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[2011] ZAGPPHC 143
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Ferreira v Rossberg and Another (6317/2010) [2011] ZAGPPHC 143 (27 May 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE
NO: 6317/2010
DATE:27/05/2011
In
the matter between:
FERREIRA
DAVID
HERMANUS
..............................................................................
APPLICANT
And
ROSSBERG,
SOPHIA
MAGRIETA
..............................................................
1
ST
RESPONDENT
FERREIRA,
ELIZABETH
HENDRIEKA
.......................................................
2
nd
RESPONDENT
JUDGMENT
[1]
The applicant brought an application for the payment of an amount of
R343 229.54 together with interest accrued to be paid to
the
plaintiff, as well the costs to be paid jointly and severally
alternatively by the second respondent.
[2]
The second respondent has also counterclaimed, seeking the
appointment of a new liquidator alternatively an order for the
payment
of a specific amount as determined by Mr. Prinsloo being the
person appointed by the parties to determine the accrual for the
division
in terms of the Antenuptual Contract with necessary
adjustments with the necessary legal adjustments as proposed.
[3]
It is common cause that the parties were married to each other out of
community of property and of profit and loss, but with
the inclusion
of the Accrual System as contemplated in Chapter one of the
Matrimonial Property Act 88 of 1984
. The parties were subsequently
divorced on the 23 November 2007 at the Central Divorce Act. They
also reached a settlement agreement
which was made an order of the
Court, as regards division of their assets. In terms of the said
agreement, it was agreed inter
alia, that their respective estates
will be determined, with the cut of date being the date on which the
divorce was granted, and
divided in terms of the provisions of
Antenuptual Contract H3174/ 86 concluded by the parties on 20 June
1986, by Mr. Dawid Prinsloo
of Hopetown a Charted Accountant.
[4]
It is trite that there has to be finality to matters. In my view, for
the orders of court to have the efficacy of a legal document,
there
must be finality to the litigation that is the pons of that
particular judgment. Orders of Court, especially if obtained
by
consent, cannot be lightly varied.
[5]
It is common cause that Mr. Prinsloo has not been cited in these
proceedings. The order sought by the second respondent, is
essentially to relieve Mr. Prinsloo of his functions as agreed upon
by the parties. It is suggested by the second respondent that
Prinsloo has no legal knowledge of determining whether the assets and
liabilities are excluded in terms of various contracts concluded
by
the parties. Although incompetence might be reason to relieve an
appointed liquidator of his functions in an estate, he must
be served
with
the papers seeking such
relief. In casu, Mr. Prinsloo has not been served with this
application.
[6]
The second respondent, has not proffered me with cogent reasons why
since November 2007 she did not take appropriate steps to
have Mr.
Prinsloo relieved of his official duties in their estate. Condonation
is a discretionary matter of the court. In casu,
have not been
persuaded why I should exercise my discretion in favour of the second
respondent. Her counter application must therefore
be dismissed with
costs.
[7]
The amount sought by the applicant, Mr. David Hermanus Ferreira is
kept in the trust account of the first respondent, the erstwhile
attorney of record of the second respondent. It would seem that one
of the reasons why the amount is not being paid out to the
applicant
is that applicant owes maintain money to the same amount held in
trust, in respect of the maintenance of his and second
respondent's
daughter. It is common cause that, this daughter, that she is a major
studying B.Com at Stellenbosch University. The
respondents have no
right to withhold payment for this reason because they have no locus
standi to claim maintenance on behalf
of Ms Ferreira, or any of the
major children of the parties.
[8]
The first respondent and the second respondent were aware of the
determination by Mr. Prinsloo of the respective shares of the
parties
1
.The
first respondent was also informed as early in August 2009 that she
no longer has any reason to keep the amount in her trust
account
2
.
The respondents did not take any action to counter this assertion.
[9]
I am of the view that the respondents have not made a case why the
relief sought by the applicant should not be granted. It
is trite
that costs follow record of the second respondent. She could not pay
out the money held in her, unless so instructed by
the second
respondent. As she the agent of the second respondent, it would be
inappropriate to mulct her with costs of this matter.
The second
respondent must bear all the costs.
[10]
In the result, I make the following order:
1.
That the first respondent is ordered to forthwith make payment to
the applicant of the amount of R343, 229, 54 together with
the
interest accrued thereon and to account to the applicant in respect
thereof;
2.
That the first and second respondent jointly and severally, the one
paying the other to be absolved, pay costs of this application.
NM
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE OF JUDGMENT :
27/05/2011
APPLICANT'S
ATT : WEAVIND & WEAVIND INCORPORATED
APPLICANTS
ADV : MR.J.W. STEYN
2
nd
RESPONDENTS' ATT : WOLVAARDT INCORPORATED
2
nd
RESPONDENTS' ADV:MR. I. ENGELBECHT
1
Vide
paginated pages 43-45, 83-90 of the papers
2
Vide
paginated page 92 annexure "DD" of the papers.