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[2017] ZASCA 5
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M v M (332/2015) [2017] ZASCA 5; [2017] 2 All SA 364 (SCA); 2017 (3) SA 371 (SCA) (9 March 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 332/2015
In
the matter between:
REM
APPELLANT
and
VM
RESPONDENT
Neutral
citation
:
M
v M
(332/2015)
[2016] ZASCA 5
(9
March 2017)
Coram
:
Shongwe, Swain, Mathopo and Mocumie JJA and Dlodlo AJA
Heard
:
10 November 2016
Delivered:
9
March 2017
Summary:
Matrimonial
Property Act 88 of 1984
– Marriage out of community of property
with accrual – Antenuptual contract – Exclusion of
defined assets from
accrual – Proof of assets ‘acquired
by such party by virtue of the possession or former possession of
such asset’
– Particular asset, its proceeds and assets
which replace the excluded asset, or acquired with its proceeds
excluded –
Trust Property Control Act 57 of 1988 –
Unconscionable abuse of trust through fraud, dishonesty or improper
purpose with
object of avoiding accrual claim – piercing of
trust veneer - spouse having standing to advance claim against
husband
as trustee – evidence not establishing such conduct.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria
(Kubushi
J sitting as court of first instance):
1 The appeal is upheld to
the extent of the order contained in para 2 below.
2 Paragraph 2 of the
order of the court a quo is set aside and substituted with the
following order:
‘
The
first defendant is to pay to the plaintiff the sum of R2 669 822.78’.
3
The respondent is ordered to pay the appellant’s costs of the
appeal.
JUDGMENT
JA
and Dlodlo AJA concurring):
[1]
It
would be no exaggeration to describe the relationship between the
appellant, REM, and his former wife, the respondent, VM, as
tumultuous. They have been married and divorced three times. The
proprietary consequences of the most recent divorce were the subject
of a trial that was conducted before the Gauteng Division of the High
Court, Pretoria (Kubushi J). The outcome of that trial is
before this
court by way of leave granted by the court a quo on certain issues,
and thereafter leave having been granted by this
court in respect of
the whole judgment.
[2]
The
respondent as plaintiff in the court a quo advanced a number of
proprietary claims based upon the terms of an antenuptual contract
(ANC) concluded between the parties. This provided for a marriage out
of community of property with the accrual system in terms
of the
Matrimonial Property Act 88 of 1984 (the Act). Central to a
resolution of the issues between the parties is an interpretation
of
certain provisions in the ANC, as well as a determination of whether
certain trust assets form part of the accrual of the appellant’s
estate.
[3]
The
claims advanced by the respondent were as follows:
(a)
Claim A was for the
provision by the appellant of fixed property to the value
of R300 000
escalated at the rate of 10 per cent per annum. This was based upon a
provision in the ANC that in the event of
an extramarital affair of
the appellant being the cause of a divorce, the appellant would be
obliged to furnish this asset to the
respondent.
(b)
Claims B, E and F were for orders declaring that the assets held by
the
Shajo Trust, the RMF Trust and Capmark Business Trust were the
assets of the appellant. It was alleged that these assets were to
be
taken into account when determining the extent of the accrual of the
appellant’s estate for the purposes of the respondent’s
accrual claim, because they were not excluded from the accrual in
terms of the ANC. In the alternative, it was alleged that the
trusts
were simply the alter ego of the appellant and the assets of the
trusts were in reality the assets of the appellant.
(c)
Claim C was for an order setting aside the transfer of the
appellant’s
50 per cent membership interest in Milcar
Development CC (Milcar) to the Shajo Trust, based upon the
appellant’s fraudulent
intent to defeat the respondent’s
accrual claim.
(d)
Claim D was for an order declaring that ‘contributions’
made
to the RMF Trust formed part of the estate of the appellant in
terms of the ANC, which had to be taken into account when assessing
the respondent’s accrual claim.
[4]
The
defences raised by the appellant to these claims were as follows:
(a)
In respect of claim
A the appellant alleged that the respondent had failed
to prove that
the extramarital affair of the appellant was the ‘cause’
of the divorce, as required by the ANC.
(b)
In respect of claims B, E and F the appellant alleged that the assets
held by these trusts were excluded from the determination of the
accrual of the appellant’s estate by virtue of the provisions
of clause 6 of the ANC. In the alternative, it was alleged that the
respondent had not alleged that these trusts were a sham and
without
any evidence that the appellant had acted fraudulently in controlling
these trusts, that these assets could not be regarded
as forming part
of the appellant’s estate for the purposes of an accrual.
(c)
In respect of claim C the appellant denied that the transfer of his
interest
in Milcar to the Shajo Trust, was done with the fraudulent
intent to defeat the appellant’s accrual claim.
(d)
In respect of claim D the appellant alleged that properly
interpreted,
the term ‘contribution’ in the ANC, implied
a positive act which benefits the contributee without there being a
concomitant
legal obligation to do so, and that these assets should
not be regarded as part of the accrual system.
[5]
The
court a quo dealt with the claims of the respondent as follows:
(a)
In respect of claim
A, it held that the appellant’s extramarital affair
led to a
breakdown in trust, which eventually caused the breakdown of the
marriage and the ensuing divorce. The escalated amount
awarded to the
respondent, being the value of the immovable property that the
appellant was obliged to provide to the respondent,
was calculated as
R1 144 004 as at 20 October 2011.
(b)
In respect of claims B and F, it held that the assets in these trusts
were not excluded from the accrual by the terms of the antenuptual
contract. It had not been proved by the appellant that there
was any
causal connection between the initial assets excluded in terms of the
ANC and these assets. As regards the alternative
defences to claims B
and F, it was held that the Shajo and Capmark Trusts were the alter
egos of the appellant, because the appellant
had managed these trusts
in an improper manner. The trust assets of these two trusts were
accordingly to be taken into account
when determining the accrual of
the appellant’s estate. As regards claim E in respect of the
RMF Trust, the court a quo held
that the appellant’s beneficial
interest in this trust was excluded for accrual purposes in terms of
the ANC. The court a
quo determined that the value of the assets in
the Shajo Trust was R16 967 866 and the value of the assets
held in the
Capmark Business Trust was R517 054.
(c)
In respect of claim C, the court a quo made no finding because of the
conclusion it had reached in regard to claim B.
(d)
In respect of claim D, it held that the use of the word
‘contribution’
in the ANC meant any asset that
accumulated in the RMF Trust after the marriage, irrespective of how
it was accumulated. It found
that the total value of contributions
made to the RMF Trust was R4 087 335.40. The respondent was
entitled to 75 per
cent of this amount being R3 065 501.58.
[6]
I
turn to deal with each of these claims. In respect of claim A the
relevant clause in the ANC provides that:
‘
Should
it be proven that the principal, REM be the cause of a future divorce
through an extramarital relationship, he will effect
that the
principal VT obtains a fixed property to the value of R300 000
(Three Hundred Thousand Rand). Such property shall
be given to the
principal VT within 3 (three) months after dissolving of the
marriage. REM shall pay the transfer and bond registration
costs of
the said fixed property as well as the monthly instalments on the
said property, bonded by a financial institution. This
figure of
R300 000 (Three Hundred Thousand Rand), is to escalate at 10%
(Ten Percent) per annum.’
[7]
The
clause must be interpreted in context and against the background in
which it was concluded.
[1]
The
parties had been divorced on two previous occasions which, according
to the respondent, were caused by the appellant’s
involvement
in extramarital affairs. Although these allegations are disputed by
the appellant, the object of the clause must have
been to deter the
appellant from being involved in an extramarital affair in the
future. I do not agree with the appellant’s
argument that the
clause is
contra
bonos mores
and unenforceable because it serves to encourage the dissolution of
the marriage, instead of attempting to reconcile the parties.
[2]
The clause seeks to achieve the contrary objective, being the
preservation of the marriage by discouraging an extramarital affair
by the appellant.
[8]
The
appellant also submits that the requirement that the conduct be ‘the
cause’ of the divorce must be interpreted narrowly,
in the
legal sense. In other words, the principles of legal causation must
be applied. The appellant submits that the marriage
of the parties on
the evidence as a whole, never had a realistic prospect of continuing
successfully and it is for this reason
that the provisions must be
narrowly construed.
[9]
It
is not helpful to import the rules of legal causation when the
meaning of the phrase ‘the cause of a future divorce’
has
to be determined. The respondent clearly believed that extramarital
affairs of the appellant had caused the breakdown of their
marriage
on two previous occasions and wished to preserve their third
marriage, by discouraging future infidelity on the part of
the
appellant. The appellant conceded during cross-examination that his
extramarital affair destroyed the trust in their marriage.
In my
view, this concession viewed in the context of the purpose of the
clause, established that his conduct was the cause of the
divorce.
[10]
I
turn to consider claims B, E and F which relate to the Shajo Trust,
RMF Trust and the Capmark Business Trust. I agree with the
court a
quo’s conclusion that the appellant’s beneficial interest
in the RMF Trust was excluded for accrual purposes
in terms of the
ANC.
[3]
The enquiry is whether
the court a quo was correct in concluding that the assets held by the
Shajo Trust and the Capmark Business
Trust were not excluded by the
terms of the ANC. If these assets were not excluded, the further
issue is whether they legitimately
form part of the assets of these
trusts and do not form part of the appellant’s estate, for
purposes of the accrual system.
[11]
The
relevant clause in the ANC provides as follows:
‘
That
the assets of the parties herein contracting with each other,
belonging to either of them, which are listed hereunder and having
the values shown herein above, together with all liabilities
presently associated with such assets, or any other asset acquired
by
such party by virtue of the possession or former possession of such
asset, shall not be taken into account as part of the other
party’s
estate and/or form part of the accrual system on the dissolution of
the marriage.
All
assets as referred to in this paragraph herein above under 4 (four)
and 5 (five) shall be the assets of such party alone, and
shall all
loss and profit on such asset form the sole and exclusive profit
and/or loss of such party without the other party having
any right to
any part and/or profit or loss on such asset, except for
contributions made to the RMF Trust after date of marriage,
which
contributions and growth on such contributions will be subject to the
accrual system.
The
assets of
REM
so
to be excluded are:
A
beneficial interest in Vacation Investment Port Folio Trust and/or
any other trust conducting business in the vacation time share
property market.
Members
interest in RM Consultants CC
Beneficial
interest in the RMF Trust, fixed property within RMF Trust Portion
400 of erf 375 RIETFONTEIN . . .’
[12]
The
excluded assets therefore comprise the listed assets, together with
any assets acquired by a party by virtue of the possession,
or former
possession of these assets. The only excluded asset of relevance to
the present enquiry is the Vacation Investment Portfolio
Trust (VIP
Trust), because the appellant stated in evidence that according to
his recollection the only trust in which he held
a ‘beneficial
interest’ at the date of the marriage, was this trust.
[13]
The
appellant stated that at the time of the marriage, he was involved in
the time share industry and during 2001 there was a dispute
between
the appellant and a certain Mr Ian Wilcox. The consequence of this
was that a so-called asset swap agreement was concluded
between them,
in terms of which the appellant acquired the right to proceed with a
business in Cape Town which was involved in
the time share industry.
In return, he relinquished his interests in certain assets specified
in the agreement. The appellant’s
argument was that he was
always involved in the timeshare industry and had not been involved
in any other form of business. It
was not disputed that the present
interests of the appellant, whether in trusts or other entities, were
funded solely from the
appellant’s involvement in the timeshare
industry. The appellant accordingly contended that clause 6 of the
ANC excluded
from the accrual of his estate, any asset acquired as a
result of his activities in the timeshare industry. I do not agree
that
the clause is capable of bearing such a wide meaning. It only
provides for the exclusion of the appellant’s beneficial
interest
in the VIP Trust, together with any asset acquired by virtue
of his possession, or former possession of this asset.
[14]
No
evidence was led by the appellant to show any nexus between the
assets held by the trusts in question and the assets held by
the VIP
Trust, at the time of the marriage. No mention is made in the asset
swap agreement of the VIP Trust, which is not surprising
as the
appellant stated that it did not play a major role at that stage in
his activities in the timeshare industry. I agree with
the view of
Professor Jacqueline Heaton, as to the meaning of the phrase ‘any
other asset acquired by such party by virtue
of the possession or
former possession of such asset’. What is envisaged is ‘the
particular asset, its proceeds, and
assets which replace the excluded
asset or are acquired with its proceeds’.
[4]
This phrase in the ANC owes its origin to s 4(1)
(b)
(ii)
of the Act which provides that:
‘
An
asset which has been excluded from the accrual system in terms of the
antenuptual contract of the spouses, as well as any other
asset which
he acquired by virtue of his possession of the first-mentioned asset,
is not taken into account as part of that estate
at the commencement
or the dissolution of his marriage.’
The
court a quo accordingly correctly concluded that the assets held by
the Shajo Trust and Capmark Business Trust, were not excluded
from
the accrual of the appellant’s estate in terms of the ANC.
[15]
In support of the respondent’s contention that the assets held
by these trusts formed part of the appellant’s estate
the
respondent sought orders declaring that these trusts were the alter
ego of the appellant. The respondent alleged that the appellant
established these trusts to conceal his assets and with the purpose
of defeating the patrimonial claims of the respondent. It was
also
alleged that the appellant transferred personal assets to these
trusts and in registering these assets in the trusts, did
not intend
to transfer ownership. He dealt with these assets as his own and were
it not for the trusts would have acquired and
owned these assets in
his own name. It was also alleged that the appellant had failed
properly to perform his fiduciary duties
as a trustee. In support of
these claims the respondent relied on a number of concessions made by
the appellant when giving evidence.
The appellant conceded that he
had used the funds of these trusts to pay personal maintenance
obligations. This was effected by
crediting his loan accounts in
these trusts, after he had made these payments. He would also utilise
funds in the account of a
trust to pay personal liabilities. He would
then leave it to his accountant, a Mr Forssman, a joint trustee in
the Shajo Trust,
to reconcile these payments and allocate them to
various entities. He also conceded that he shifted money between
various accounts
including his personal account and used the funds of
the trusts to fund his business enterprises.
[16]
It is also apparent that the appellant disposed of his 50 per cent
member’s interest in Milcar to the Shajo Trust without
receiving value, as no payment was made for the transfer, it being a
transaction on paper. This transfer took place after the respondent
had instituted action for divorce. The respondent submits that the
purpose of the transfer was to fraudulently exclude this asset
from
the reach of the respondent’s accrual claim.
[17]
The claim that the appellant used these trusts as his alter ego,
necessarily involves an acceptance of the valid existence
of the
trusts.
[5]
The respondent
did not claim that the trusts were a sham and therefor did not exist,
with the consequence that the assets
did not vest in them on this
ground. The remedy of going behind a validly established trust form,
or ‘piercing its veneer’
is correctly described as:
‘
an
equitable remedy in the ordinary, rather than technical, sense of the
term; one that lends itself to a flexible approach to fairly
and
justly address the consequences of an unconscionable abuse of the
trust form in given circumstances. It is a remedy that will
generally
be given when the trust form is used in a dishonest or unconscionable
manner to evade a liability, or avoid an obligation.’
[6]
[18]
The appellant early on in the development of his businesses in the
timeshare industry on the advice of his accountant would
create a new
legal entity, whether in the form of a trust, close corporation or
company to pursue any venture. The object was to
isolate each
business so that the financial demise of one, would not affect the
financial viability of any of the others. This
was obviously a
legitimate business activity and the trusts in question must be
viewed as part of the appellant’s overall
business strategy.
The evidence accordingly does not support the respondent’s
contention that these trusts were established
with the object of
defeating any patrimonial claims of the respondent.
[19]
The conduct of the appellant in allegedly transferring personal
assets to these trusts, dealing with them as if they were assets
of
these trusts and not properly performing his fiduciary duties, all
with the object of concealing these assets and thereby defeating
the
accrual claim of the respondent, are the central issues in
determining whether the trust veneer should be pierced. Although
the
trust form is debased where it ‘is employed not to separate
beneficial interest from control, but to permit everything
to remain
“as before”, though now on terms that privilege those who
enjoy benefit as before while simultaneously continuing
to exercise
control,’
[7]
this court
has held that these dicta ‘pertaining to the importance of
maintaining the functional separation between control
(by trustees)
and enjoyment (by beneficiaries) in family trusts, are premised upon
the interests of third parties who transacted
with the trust’.
[8]
A fiduciary responsibility would be owed by the trustees to third
parties who transacted with the trust, as well as beneficiaries
of
the trust.
[9]
If the trust form
is ‘debased’ in this sense, justice dictates ‘that
the veneer of the trust be pierced in the
interests of creditors’
and ‘[b]y analogous reasoning, unconscionable abuse of the
trust form through fraud, dishonesty
or an improper purpose will
justify looking behind the trust form’.
[10]
The ambit of a claim of this nature must be considered with due
regard for the provisions of the Trust Property Control Act 57
of
1988. Section 1 provides for the transfer of interest or ownership in
property or assets to a designated person or class of
persons, as
well as control of such property or assets by a trustee or trustees
in accordance with the provisions of the governing
trust instrument.
Section 12 provides that trust property does not form part of the
personal property of a trustee, except to the
extent that a trustee
is entitled to such trust property as a beneficiary in terms of the
trust instrument.
[20]
This Court has however held that a spouse, ‘has no standing to
challenge the management of the trust by her husband in
the
circumstances of the present case, either as a beneficiary of the
trust or as third party who transacted with the trust.’
[11]
The
respondent who was neither a beneficiary of, nor a third party
transacting with these trusts would on this basis lack standing.
I
respectfully disagree with this conclusion which confines standing to
advance such a claim to those to whom a fiduciary responsibility
is
owed by the trustee. There can be no basis in logic or principle for
a distinction to be drawn between legal standing to advance
a claim
to pierce the veil of a trust, by a third party who transacts with
the trust on the one hand, and a spouse who seeks to
advance a
patrimonial claim, on the other. Breach by the trustee of his or her
fiduciary duties in the administration of the trust,
is not the
determining factor. In either case, a claim lies against the trust,
or the errant trustee, on the basis that the unconscionable
abuse of
the trust form by the trustee, in his or her administration of the
trust, through fraud, dishonesty or an improper purpose
prejudices
the enforcement of the obligation owed to the third party, or a
spouse.
[12]
The respondent had
to prove that the appellant transferred personal assets to these
trusts and dealt with them as if they were
assets of these trusts
with the fraudulent or dishonest purpose of avoiding his obligation
to properly account to the responent
for the accrual of his estate
and thereby evade payment of what was due to the respondent, in
accordance with her accrual claim.
If established a declaration could
be made that the trust assets in question are to be used to calculate
the accrual of the appellants
estate, as well as satisfy any personal
liability of the appellant to make payment to the respondent.
Although the appellant administered
the trusts with very little
regard for his fiduciary duties as a trustee and without proper
regard for the essential dichotomy
of control and enjoyment
essential to the nature of a trust and although such conduct may have
justified his removal as a trustee,
or the appointment by the Master
of an independent co-trustee in terms of s 7(2) of the Trust Property
Control Act, the evidence
did not prove that he transferred personal
assets to these trusts and dealt with them as if they were assets of
these trusts, with
the fraudulent or dishonest purpose of
avoiding his obligation to properly account to the respondent for the
accrual of his
estate. In addition it was not established that the
transfer of assets to these trusts by the appellant was simulated
with the
object of cloaking them with the form and appearance of
assets of the trusts, whilst in reality retaining ownership. The
assets
of these trusts are accordingly not to be taken into account
in determining the accrual of the appellant’s estate.
[21]
In reaching this conclusion I do not overlook the conduct of the
appellant in transferring his interest in Milcar to the Shajo
Trust.
He stated that it was always his intention that his shares in Milcar
be registered in the name of the Shajo Trust, because
his usual
practice was to conduct his business through trusts. The respondent
conceded that she could not dispute this but it was
her belief that
the appellant had done this to defeat her accrual claim. Although the
appellant agreed that the ANC did not refer
to any close
corporations, except for RM Consultants CC as being excluded from the
accrual of his estate, this does not detract
from his general belief,
albeit legally unfounded, that all of these assets were excluded in
terms of the ANC. There would therefor
be no reason for him to place
his interest in Milcar in the Shajo Trust, to defeat the respondent’s
accrual claim. I am accordingly
satisfied on a consideration of the
evidence as a whole, that it was not established that the appellant
fraudulently intended to
deprive the respondent of a claim to any of
his interests in Milcar, by this transaction.
[22]
This conclusion that the appellant did not fraudulently intend to
deprive the respondent of any interest in Milcar, disposes
of claim
C.
[23]
I turn to consider claim D and whether the contributions to the RMF
Trust fall within the accrual system in terms of the ANC.
The
relevant clause provides that ‘contributions made to the RMF
Trust after date of marriage’, including ‘growth
on such
contributions will be subject to the accrual system’.
[24]
The appellant submits that the ANC does not specify whether the use
of the word ‘contribution’ was intended to
mean a
contribution by the parties and/or contributions by third parties.
Because the parties did not use any other language such
as donation,
loan, service, income or the like, the ordinary meaning of the word
applied. A positive act is required which benefits
the contributee,
without there being a concomitant legal obligation to do so.
[25]
In my view, this interpretation of the word ‘contribution’
in the context of the ANC as a whole is far too narrow.
I agree with
the conclusion by the court a quo that the ANC does not state how, or
by whom the contributions are to be made. What
was envisaged was the
accumulation of assets by contributions for the benefit of
beneficiaries. By the use of the word ‘contribution’
what
was meant was any asset that accumulated in the RMF Trust after the
marriage, irrespective of how it was accumulated. It was
not argued
by either of the parties that the conclusion by the court a quo that
the total contributions to the trust, including
the growth of these
contributions amounting to R4 087 335.40, was wrong.
Neither was it argued that the finding that
the respondent was
entitled to 75 per cent of this amount, in the amount of
R3 065 501.55, was wrong.
[26]
Likewise, no argument was advanced by either of the parties, as to
the correctness or otherwise of the manner in which the
court a quo
calculated the accrual of the appellant’s estate and the
respondent’s entitlement to one half of the accrual.
However,
because the assets of the Shajo Trust and Capmark Trust do not form
part of the accrual of the appellant’s estate,
the amount due
to the respondent requires recalculation, in the following manner:
Revised
net asset value of appellant’s
estate
R2 274 144.00
Contributions
made to the RMF Trust
R3 065 501.55
R5 339 645.55
The
appellant’s estate has accordingly accrued by an amount of
R5 339 645.55. The respondent is entitled to one
half of
this amount in the sum of R2 669 822.78.
[27]
The outcome of this appeal does not justify any variation in the
costs order made by the court a quo. The respondent remains
successful in certain of the claims advanced before that court. The
appellant has, however, achieved substantial success in this
appeal
and is entitled to the costs of the appeal.
[28]
In the result, the following order is made:
1
The appeal is upheld to the extent of the order contained in para 2
below.
2
Paragraph 2 of the order of the court a quo is set aside and
substituted with the following order:
‘
The
first defendant is to pay to the plaintiff the sum of R2 669 822.78’.
3
The respondent is ordered to pay the appellant’s costs of the
appeal.
K G
B Swain
Judge
of Appeal
Mocumie
JA
[29]
I have had the benefit of reading the judgment of my colleague, Swain
JA, and agree with his reasoning and conclusion that
the appeal
should be upheld. I unfortunately cannot agree with him on the
question of costs. My reasons for the disagreement are
set out below.
[30]
As much as the appellant has been substantially successful in this
appeal, that is not the only consideration.
[13]
Other factors come into play including the nature of the proceedings
and how the one party came to lose the case in the determination
of
an appropriate costs order.
[31]
Apart from the nature of the proceedings, further unique to this
case, is the issue of trust property provided for in the antenuptial
contract. In circumstances where, as in this case, the appellant is
the only person in possession of all the facts relating to
the assets
in the trusts, it can never be expected of the respondent to say more
than the little she knew. She could not be expected
to be up to date
with the affairs of trusts that she did not herself run or
administer. Although she failed to discharge the onus
which rested on
her, such failure cannot be held against her at appeal level. In any
event, the issue brought before us for determination
i.e exclusion of
trust property from the operation of an antenuptial contract has
never been dealt with by this court. Neither
was there any argument
to the effect that the opposition of this appeal by the respondent
was frivolously made. To the contrary,
there was no certainty in
respect of the legal position in the context of an antenuptial
contract vis-à-vis trust property
in the circumstances of this
case. Both parties had to come to this court as directed by the court
a quo to seek clarity from this
court.
[14]
I am therefore of the view that, to order the respondent to pay the
costs of the appeal would not only be inequitable but would
also be
inappropriate.
[15]
Thus each party should be ordered to pay its own costs and that is
the order I would have made.
B C
Mocumie
Judge
of Appeal
Appearances:
For the Appellant:
P A van
Niekerk SC
Instructed
by:
De
Korte Du Plessis Inc, Pretoria
Honey
Attorneys, Bloemfontein
For the
Respondent:
C Woodrow
Instructed
by:
Snyman
De Jager Attorneys, Pretoria
Bezuidenhouts
Inc, Bloemfontein
[1]
Natal Joint
Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[2]
See
Cumming
v Cumming
1984 (4) SA 588
(T) at 589F-I.
[3]
Whether ‘contributions’
made to this trust after the parties’ marriage form part of
the accrual system is the
subject of Claim D.
[4]
Jacqueline Heaton
(ed)
The
Law of Divorce and Dissolution of Life Partnerships in South Africa
(2014) at 82-83.
[5]
Van Zyl &
another NNO v Kaye NO & others
2014 (4) SA 452
(WCC) para 21.
[6]
Van Zyl
(above) para 22.
[7]
Land
and Agricultural Bank of South Africa v Parker & others
2005
(2) SA 77
(SCA) para 26.
[8]
WT & others
v KT
[2015] ZASCA 9
;
2015 (3) SA 574
(SCA) para 33.
[9]
Ibid para 32
[10]
Ibid para 31
citing
Parker
(above).
[11]
WT v KT
supra para 33
[12]
See Iain M Shipley ‘Trust
assets and the dissolution of a marriage: a practical look at
invalid trusts, sham trusts, and
piercing the veneers of
trusts/going behind the trust form’ (2016) 28
SA
Merc LJ
508.
[13]
A C Cilliers
Law
of Costs
3
ed (2008) para 14.09.
[14]
See
Buttner
v Buttner
[2006] 1 All SA
429
(SCA) para 42.
[15]
See
De
Kock and Others v Van Rooyen
2005
(1) SA 1
(SCA) at 15. See also
De
Reuck v Director of Public Prosecutions (Witwatersrand Local
Division) and Others
2004
(1) SA 405
(CC) para 57;
Shilubana
v Nwamitwa
2009 (2) SA 66
(CC) para 92; and
Gcaba
v Minister for Safety and Security
2010 (1) SA 238
(CC) para 62.