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[2013] ZAECPEHC 59
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D M v N M (549/04) [2013] ZAECPEHC 59 (19 November 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT ELIZABETH)
CASE NO.: 549/04
In the matter between:
D M M
.................................................................................................
Applicant
And
N P M
..........................................................................................
1
st
Respondent
(BORN N)
CRAIG TODD DE LANGE
....................................................
2
nd
Respondent
JUDGMENT
BESHE, J:
[1] The applicant, who is represented by
Mr
Nkanunu
, was the defendant in a divorce
action between him and the respondent. On the finalization of the
action, he was granted a decree
of divorce with
inter
alia
an order for the division of the joint
estate. This decree was issued in May 2001. He now approaches this
court for a declaratory
order that the valuation of the assets of the
joint estate be determined as at 4 May 2001 (date of issuing of the
order for a decree
of divorce).
[2] The first respondent who is represented by
Mr
Naidu
is opposing the application. The second
respondent who is the receiver and liquidator of the joint estate of
the parties gave notice
that he will abide by the court’s
ruling in the matter.
[3] It would appear that the only substantial asset of
the joint estate is immovable property: Erf. 2399 which is situated
at KwaDwesi
Township, Port Elizabeth, which was valued at R120 000.00
as at May 2001. It is common cause that the division of the estate
has
not taken place. The parties point fingers at each other as to
why division has not taken place. But the fact of the matter is that
division has not yet taken place.
[4] The basis upon which applicant seeks the relief as
aforementioned in paragraph 1, as would appear from the notice of
motion,
is that:
“
As a marriage in community of property was
dissolved on the 4 May 2001, the determination of the value of the
assets of the estate
should be as at that date.”
He
seeks an order to the effect.
[5]
Mr Nkanunu
who
appears for the applicant argued that the joint estate ended on the
date of the dissolution of the marriage and that the valuation
of the
joint estate should be determined as at date of the dissolution of
the marriage.
[6] First respondent opposes the application on the
basis that the grant of the order sought by the applicant will render
an unfair
advantage on him. She contends that the parties are
entitled to inherit in equal shares, all benefits derived from the
assets of
the joint estate.
[7] In
Peacock NO v Peacock
N.O
1956 (3) SA 136
, where it transpired
that, after approximately 20 years, the deceased had failed to
mention the rights that he had in respect of
a farm that he co-owned
with his first wife when he lodged an inventory of the first joint
estate. This, after the death of his
first wife. Upon his death,
having married in community of property for the second time, the
executor of the first joint estate
brought an action against the
executor of the second joint estate for orders,
inter
alia
, declaring part of the farm as the
property of the first joint estate. As is the case with the present
matter, the existence of
the right in question was not denied only
the extent or value thereof was contested.
Hoexter
JA
at page 141 had this to say:
“
On that view it is clear that as between
the deceased and the first joint estate, the
dominium
in the contractual rights remained vested in the joint estate and the
deceased remained under a continuing obligation as a surviving
spouse, to deliver those rights to the first joint estate.”
Later at B-C the learned judge states:
“
But the result of his failure to comply
with the requirements of the Act is that the
dominium
in the contractual rights still remains vested in the joint estate
and must be liquidated and distributed by the executor of the
estate.
As the
dominium
has remained vested in the first joint estate,
any
interim increase in the value
of those
rights must necessarily be regarded as having accrued to the first
joint estate.”
(
my
underlining
)
[8] In my view
Hoexter JA’s
remarks apply with equal force to the present
matter. I agree with
Mr Naidu
that
if the immovable property were to be evaluated as at date of the
dissolution of the marriage for purpose of the division of
the joint
estate, that will give the applicant an unfair advantage over the
first respondent. The marriage may have been dissolved
in 2001 but
the joint estate and therefore the parties’ rights in the joint
estate remain undivided to this date. I see no
reason why
respondent’s rights in the joint estate, in particular the
immovable property, should be limited to value of the
property as it
was at time of the dissolution of the marriage. I am not persuaded
that the declaration sought by the applicant
will result in a fair
and equitable division of the joint estate.
[9] In the result the following order will issue:
The application is dismissed with costs.
_______________
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant : Mr S Nkanunu
Instructed by : SILAS NKANUNU &
VAN LOGGERENBERG
522 Govan Mbeki Avenue
North End
PORT ELIZABETH
Tel.: 041 – 487 0134
Ref.: S Nkanunu/gb
For the 1
st
Respondent : Mr V Naidu
Instructed by : THE LEGAL AID
BOARD
PORT ELIZABETH JUSTICE CENTRE
1 Uitenhage Road
North End
PORT ELIZABETH
Tel.: 041 – 408 2800
Ref.: D Naidoo
Date Heard : 7 November 2013
Date Reserved : 7 November 2013
Date Delivered :
19
November 2013