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South Africa: North Gauteng High Court, Pretoria
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[2021] ZAGPPHC 279
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P.S.R v L.S.R (35539/14) [2021] ZAGPPHC 279 (19 April 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
HIGH
COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED:
yes
19
April 2021
CASE NO: 35539/14
Hearing before Rabie J by way of
Zoom conference.
In
the matter between
:
P.S.
R[....]
Applicant
and
L.S.
R[....]
Respondent
JUDGMENT
1.
This is an application
to amend the parties' divorce order in respect of the name of the
respondent's pension fund in which the
applicant has to share.
The parties have reached a settlement in respect of all issues except
for the issue of costs.
2.
A brief background is
the following. The applicant and the respondent were divorced on 25
April 2016. Subsequent to the divorce
the parties sought to amend the
order of divorce to incorporate a division of benefits arising from
the respondent's pension funds.
In that application the
respondent was the applicant and an order was made on 28 November
2018. However, the respondent described
the pension fund
incorrectly with the result that an incorrect order was made. The
pension fund duly rejected the endorsement.
3.
The respondent failed
to correct the situation and that led to the applicant launching the
present application. At some point
the respondent also launched
a counter application relating to a pension fund of the applicant.
4.
The parties succeeded
in settling all the major issues and are ad idem with the order this
court should make, except for the order
of costs. The merits of
the application as well as the respondent's application were in
reality never in dispute. Regarding
the main issues the parties are
in agreement that the pension funds are now correctly described and
that each party should be declared
entitled to 50% of the share of
the other party in hers/her pension fund.
5.
Regarding the dispute
about costs, the founding affidavit and answering affidavit of the
respective parties are by no means clear.
It appears, however, that
the applicant accuses the respondent of submitting the wrong
information regarding his pension fund which
resulted in her having
to bring the present application. On the other hand the respondent
explained that the particulars relating
to his pension fund had been
changed and that he was not to blame. He also stated that the
applicant should have established the
true facts herself.
6.
It is not necessary to
refer to the arguments on behalf of the parties in any greater
detail. The present application
is an example of a total
and unnecessary waste of costs. If the attorneys of both parties have
simply lifted their telephones and
talked to each other, the correct
application could have been brought to court with the minimum of
costs. Yet, the attorneys remained
at arms length with the parties
now blaming one another for the costs that have been incurred.
7.
It may be correct that
the respondent should have established the correct information and
could hardly have expected the applicant
to do so and his failure
necessitated the present application. However, the applicant
failed to inform the respondent of
her pension fund in which he was
entitled to share and this necessitated the application from the
respondent's side.
8.
A very simple
application was required to amend the original divorce order and that
could and should have been done with relatively
little costs
involved. The matter should never have escalated to an opposed
matter which in any event became settled, which
it actually was from
the start, except for the issue of costs. In my view both parties
carry some blame in respect of the escalation
of costs and for that
reason I am of the view that the parties should pay their own costs.
9.
In the result, the
following order is made:
1.
The decree of divorce granted on 25 April 2016, as amended on 28
November 2018, is hereby varied by substituting paragraph 4 and 5 of
the order of 28 November 2018, with the following:
"4.1
The defendant in the divorce action, namely L[....] S[....] R[....]
is a member of
the NAMPAK CONTRIBUTORY PROVIDENT FUND.
4.2
The plaintiff in the divorce action, being P[....] S[....] R[....]
and the non-member
spouse, is entitled to 50% of the member's pension
interest in the NAMPAK CONTRIBUTORY PROVIDENT FUND as at date of
divorce and
the fund is ordered to make payment to the non-member
spouse.
5.1
The defendant in the divorce action, namely L[....] S[....] R[....]
is a member
of the RETIREMENT-ON-LINE RETIREMENT FUND.
5.2
The plaintiff in the divorce action, being P[....] S[....] R[....]
and the non-member
spouse, is entitled to 50% of the member's pension
interest in the RETIREMENT-ON-LINE RETIREMENT FUND as at date of
divorce and
the fund is ordered to make payment to the non-member
spouse."
2.
Each party shall pay his/her own costs of the application.
C.P. RABIE
JUDGE OF THE HIGH COURT
19 April 2021
Atorney for Plaintiff:
Me Burnett emma@burnett-law.co.za
Attorney for Defendant:
mogomotsiattorneys@gmail.com