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South Africa: Eastern Cape High Court, Port Elizabeth
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[2016] ZAECPEHC 1
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P v P (2033/2008) [2016] ZAECPEHC 1 (2 February 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 2033/2008
In
the matter between:-
G.
F. P.
........................................................
Applicant
and
M.
P. (born S.)
....................................
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL AND ON LEAVE TO CROSS APPEAL
Mbenenge
J:
[1]
The parties in these proceeding shall retain the appellations used in
the main application from which these proceedings arise.
[2]
The applicant sought, in the main, an order rescinding and setting
aside the agreement marked “
A
”
incorporated
in the order of this court dated 4 August 2010 alternatively,
rectifying the agreement by substituting 4 August 2010
in paragraph
2.1 thereof with “
date
of dissolution of the marriage
”
.
[3]
I found that the subject order had been incompetent, but instead of
rescinding the order varied the same, having been of the
view that
the mere variation as against a rescission was the appropriate thing
to do.
[4]
The judgment has now become the subject of an application for leave
to appeal on a plethora of grounds. The respondent is not
only
opposing the application, but has, for her part, also applied for
leave to cross-appeal the judgment in so far as the subject
order was
varied and not rescinded in its entirety.
[5]
In my view, both applications pass muster. The fact that I am
confident that even on appeal my judgment will stand, is nothing
to
go by. There is a reasonable prospect that another court will come to
another conclusion.
[6]
Because there are conflicting judgments as to when the operative
moment at which the accrual should be calculated in the
Matrimonial
Property Act 88 of 1984
, the Supreme Court of Appeal appears to me to
be the appropriate forum to which the appeal and cross appeal sought
should lie.
[7]
Therefore the order that I grant is the following:
1.
The
respondent is granted leave to appeal to the Supreme Court of Appeal
against part of the order and judgment of this court delivered
on 10
November 2015 varying the agreement marked Annexure “A”
incorporated in the order of this court granted on 4
August 2010
(the agreement) and substituting, in clauses 2.1 and 2.2.5 of
the agreement, “4 August 2010” with “the
date
of dissolution of the marriage” as being the date on which
the Receiver will determine accrual entitlement.
2.
The
applicant is granted leave to cross appeal to the Supreme Court of
Appeal against the order in so far it as declines to
rescind
and/or set aside the agreement incorporated in the order of this
court granted on 4 August 2010, and varies the order.
3.
Costs
of the application for leave to appeal and those of the application
for leave to cross appeal shall be costs in the appeal
and the
related cross appeal.
__________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Applicant’s
Counsel : Mr A Beyleveld SC (instructed by Kaplan
Blumberg Attorneys)
Respondent’s
Counsel : Mr JJ Nepgen (instructed by Joyzel L. Obbess Attorneys)
Heard
on : 25 January 2016
Delivered
on : 02 February 2016