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[2022] ZAFSHC 179
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A.C.K v F.K (A143/2021) [2022] ZAFSHC 179 (28 July 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A143/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
A[....]
C[....]K[....]
Appellant
and
F[....]
K[....]
Respondent
CORAM:
LOUBSER,
J
et
DANISO, J et LITHEKO, AJ
HEARD
ON:
13
JUNE 2022
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
28
JULY 2022
[1]
This is an appeal against the judgement of a single Judge sitting in
this Division.
The judgement appealed against, followed in the wake
of another judgement by Murray, AJ a few years earlier in the divorce
action
between the parties. The judgement now under appeal, concerned
a correct interpretation of the judgement delivered by Murray, AJ.
The Appellant was granted leave to appeal against the later judgement
since it appeared to the Court hearing the leave application
that the
earlier judgement was not correctly interpreted in the later
judgement as far as a singular crucial question was concerned.
[2]
That single question forms the subject-matter in the present appeal.
The question
is whether half of the Respondent’s pension fund,
which was awarded to the Appellant in the divorce action, ought to be
considered
as an asset of the Appellant in the computation of the
accrual of the estates of the respective parties. In this respect the
judgement
of Murray, AJ in the divorce action becomes relevant
because that judgement was not taken on appeal by any of the parties
and because
the judgement became the focus point of the later
proceedings that are now under appeal.
[3]
The background facts are the following: In a comprehensive judgement
handed down in
July 2015, Murray, AJ made a number of orders, of
which I quote only those that are relevant to the present enquiry.
The judgement
was in Afrikaans, and the orders so quoted are based on
a loose translation thereof. The relevant orders are the following:
“
1.
A decree of divorce is granted.
6.
The Defendant (present Respondent) is ordered to pay to the Plaintiff
maintenance in the
amount of R7 500.00 per month for a period of
5 years from the date of divorce, the first payment to be made before
or on
1 August 2015, and thereafter before or on the first day of
every subsequent month.
8.
The Plaintiff is entitled to share in the accrual in accordance with
the provisions
of the
Matrimonial Property Act 88 of 1984
, the amount
calculated as on date of divorce to be agreed between the parties
within 14 days after date of divorce, failing which
the parties are
granted leave to approach this Court for the appointment of a
receiver with the necessary rights and competency
to determine the
accrual.
9.
The Plaintiff is entitled to 50% of the Defendant’s pension
interest in
the Eskom Pension and Provident Fund as on date of
divorce. The Defendant is ordered to inform the Eskom Pension and
Provident
Fund accordingly and to request it to make such an entry in
their records.”
[4]
Some five years later the abovementioned Defendant, Mr. K[....],
issued summons against
Mrs. K[....] to recoup monies allegedly
accruing to him pursuant to the dissolution of their marriage. It
transpired that Mrs.
K[....], the Defendant in that action, had
received an amount of R1 944 036.36 as the 50% pension interest
of Mr. K[....]
as per the Court Order of Murray, AJ. Mr. K[....]
contended in that action that this payment formed an asset
transferred to the
estate of the Defendant and that it had to be
taken into consideration when calculating the accrual, which was the
only outstanding
issue post-divorce. The Defendant, on the other
hand, contended that the payment so received was meant to be
maintenance for herself,
because she had asked for lifelong
maintenance in the divorce action, but the Court awarded her only
maintenance of R7 500.00
per month for 5 years.
[5]
The learned Acting Judge hearing this action instituted by Mr.
K[....] interpreted
the judgment handed down by Murray, AJ, and came
to the conclusion that in the judgment, the anticipated amount (the
50% of the
pension interest) was meant to be utilized by the
Defendant as an asset that was transferred to her estate and “stand
to
be utilized in the mathematical calculation of the accrual”.
The learned Acting Judge then ordered the Defendant to pay the
amount
of R 417 000.00 plus interest to Mrs. K[....] as a consequence. The
present appeal lies against this finding of the learned
Acting Judge.
[6]
Consequently, this Court of Appeal has to interpret the judgment of
Murray, AJ to
establish whether the second judgment incorrectly
interpreted same. Again, a loose translation of certain passages in
the judgment
of Murray, AJ will be used in this process.
[7]
The first indication of what Murray, AJ meant, is to be found in the
orders she made.
Paragraph 8 of the order reads that “the
Plaintiff is entitled to share in the accrual in accordance with the
provisions
of the
Matrimonial Property Act 88 of 1984
, the amount
calculated as on date of divorce…” This part of
the order corresponds with
Section 3(1)
and (2), read with
Section
4(1)
of the said Act, which provides that the accrual of a spouse’s
estate is the amount with which the net value of his estate
at the
time of the dissolution of the marriage exceeds the net value of the
estate at the time of the conclusion of the marriage.
It needs to be
noted that on the day of the divorce order, the accrual still had to
be calculated and determined, and the same
counts for the 50% pension
interest. The effect thereof is that, at the dissolution of the
marriage, the 50% pension interest had
not formed part of the net
value of the Plaintiff’s estate, strictly speaking. Of further
significance is the fact that the
order relating to the pension fund
was made after the dissolution of the marriage had taken place. It
could therefore not form
part of the Plaintiff’s estate for
purposes of the accrual.
[8]
In the judgment itself, Murray, AJ had the following to say in
paragraph 103 thereof:
“In the present matter… the
Plaintiff is in my view clearly entitled to share in the accrual as
calculated on date
of divorce. The Plaintiff is entitled to what is
due to her over and above the 50% of the Defendant’s pension
interest if
it should transpire at the calculation of the accrual as
on date of divorce that she is entitled to further amounts in terms
of
Section 3
of the
Matrimonial Property Act.”
[9]
Upon a proper interpretation of the Murray judgment, therefore, I
have no doubt that
the learned Acting Judge was of the view that the
accrual had to be calculated as it appeared to be at the dissolution
of the marriage,
and that the later payment of the 50% pension
interest would not form part of the calculation, as being an asset in
the estate
of the Plaintiff. As already indicated, the Court
a quo
hearing the action instituted by Mr. K[....], found differently.
[10]
It also needs mentioning that Murray, AJ in her judgment found
support for her views in the cases
of JA v DA
[1]
,
Reeder v Softline Ltd and Another
[2]
and Le Roux v Le Roux
[3]
.
In those cases, it was found that upon a correct interpretation of
Sections 2
and
3
of the
Matrimonial Property Act, the
only relevant
date for the calculation of the accrual is indeed the date of the
dissolution of the marriage.
[11]
There are further indications that Murray, AJ never envisaged that
the 50% pension interest was
meant to become an asset in the estate
of Mrs. K[....] for purposes of the mathematical calculation of the
accrual. In my view,
Murray, AJ clearly indicated that the 50%
pension interest was rather meant to provide for her maintenance for
the rest of her
life. The following passages in her Judgment are
relevant in this respect:
Par
5: “The Divorce Act bestows upon a Court in terms
of Section 7(2) thereof a general discretion to make a reasonable
maintenance order or not to grant any maintenance at all. It also
granted the Court a discretion to award rehabilitative or so-called
“overbridging” maintenance for a specific period or only
conditional upon the happening of a specific event.”
Par
54: “…it would clearly be in the interest of the
Plaintiff as a non-member spouse to rather cause her 50% share
in the
Defendant’s pension interest to be transformed to another
approved fund to supplement her own pension interest. (55)
This,
however, still does not solve her monthly deficit. Mr. De Wet pointed
out that Plaintiff would only at age 55 be entitled
to withdraw
one-third of the investment… In the absence of a maintenance
order, any proven shortfall in maintenance will
necessarily continue
for the next 5 years.”
Par
63: “In the present case, the Defendant refuses to pay
maintenance to the Plaintiff…..”
Par
91: “I am further satisfied that, if the payment of maintenance
is limited to 5 years, it will allow the Plaintiff to
get on her feet
again and to limit her shortages until such time as she would be able
to withdraw a third of her investment in
order to earn
interest-income from it….”
[12]
Having regard to these passages, there can in my view be no doubt
that Murray, AJ considered
the 50% pension interest as a means to
provide the Plaintiff with maintenance after the initial period of 5
years. The reason why
she dealt with this aspect in some detail, is
also clear. She was no doubt called upon to do so, since in his
Amended Particulars
of Claim in the action that he instituted
pursuant to the Judgment of Murray, AJ, Mr. K[....] pleaded as
follows in paragraph 14
thereof: “During the trial of the
divorce action instituted by Defendant…. Plaintiff consented
to the Court making
an order that Defendant is entitled to 50% of
Plaintiff’s interest in his Eskom Pension Fund as a date of
divorce, the purpose
of such consent being that the realization of
such pension interest should be taken into account in respect of
Defendant’s
“existing or prospective means” and
“financial needs” for purposes of determination of
maintenance as contemplated
by
Section 7
of the
Divorce Act 70 of
1979
.”
[13]
In addition, it appears from the transcribed record of the
proceedings in the Court
a quo
that Mr. K[....] had testified
under oath as follows: “My Lady, I testified … it is a
long time back, but I testified
that the maintenance or the pension
50% of the pension fund could be utilized by the Plaintiff it is my
ex-wife at this stage to
sustain herself financially, yes.”
[14]
Notwithstanding, it was found by the Court
a quo
that “I
find nothing in the interpretation of the Judgment that could be read
to say that the anticipated amount was meant
to be utilized by the
Defendant for her maintenance other than as an asset that was
transferred to her estate and stand to be utilized
in the
mathematical calculation of the accrual”. As shown above,
this finding of the Court
a quo
is not founded upon a proper
interpretation of the Judgment of Murray, AJ. She had clearly
earmarked the 50% pension fund for maintenance.
Had the Court
a
quo
interpreted the Judgment correctly, it would have realized
that by ordering Mrs. K[....] to pay a huge amount to Mr. K[....], it
was in fact compromising her maintenance to a large extent.
[15]
In the premises, I find that the 50 % of the Respondent’s
pension fund awarded to the Appellant
in the divorce action, cannot
be considered to be an asset of the Appellant in the computation of
the accrual of the estates of
the respective parties. As a
consequence, the following orders are made:
1.
The appeal is upheld with costs.
2.
The order of the Court a quo is set aside and substituted by the
following:
2.1.
The Plaintiff’s claim against the Defendant is dismissed with
costs.
P.
J. LOUBSER, J
I
concur:
N.
S. DANISO, J
I
concur:
M.
S. LITHEKO, AJ
For
the Appellant: Adv.
S. J. Reinders with Adv. W. J. Groenewald
Instructed
by:
Symington De Kok Attorneys
Bloemfontein
For
Respondent:
Adv.
S. Tsangarakis
Instructed
by: Hill,
McHardy and Herbst Inc.
Bloemfontein
[1]
2014 (6) SA 233 (GJ)
[2]
2001 (2) SA 844 (W)
[3]
2010 JOL 26003
(NCK)