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[2020] ZALMPPHC 46
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S v Nedbank Limited (5058/2019) [2020] ZALMPPHC 46 (11 June 2020)
SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRlCA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO
(3)
REVISED
CASE NO: 5058/2019
In
the matter between:
S[….]
W[….] S[….]
APPLICANT
And
NEDBANK
LIMITED
FIRST RESPONDENT
M[….]
D[….]
S[….]
SECOND RESPONDENT
JUDGMENT
MULLER
J:
[1]
The facts in this application are
relatively simple. The applicant and the second respondent were
married to each other, in community
of property. The applicant
instituted divorce proceedings in the Regional Court against the
second respondent, who at the time,
was a member of the South African
Police Service who contributed to the Government Employment Pension
Fund.
[1]
The second respondent is the holder of an account with NEDBANK, the
first respondent.
[2]
The
second respondent resigned from his employment in December 2018. Upon
his resignation the second respondent became entitled
to the pension
benefit held by the GEPF.
[3]
The
attorneys of the applicants were informed on 26 March 2019 that the
second respondent's pension benefit of R2 528 038.03 will
be paid
into second respondent's account held with the first respondent. The
applicant applied on an urgent basis to interdict
the second
respondent, pending finalization of the divorce, to withdraw 50% of
the amount of the pension benefit which was paid
into his account. A
rule
nisi
was
granted and which was confirmed on 4
June 2019 without any opposition from the second respondent.
[4]
The
first respondent was ordered to retain and/or preserve 50% of the
funds received from the GEPF in favour of the second respondent
and
to hold the funds pending the finalization of the divorce action.
[5]
On
2 July 2019 the Regional Court at Polokwane issued a decree of
divorce and also ordered division of the joint estate.
[6]
The
applicant forwarded the court order to the first respondent and
demanded payment of the amount of R1 264 019.02, being 50% of
the
pension benefit which was paid into the account of the second
respondent. The first respondent refused.
[7]
The
first respondent refused on the ground that the court order made no
reference to an amount which either respondent has to pay
to the
applicant. The first respondent held the position that it needed the
consent of the second respondent to release the funds.
[8]
Correspondence
between the attorney and the first respondent followed with no
meaningful results. The applicant then launched the
present
application in which she claimed an order against the first
respondent to transfer and/or pay the amount of R1 264 019.02
to her,
together with the costs of the application, on the scale as between
attorney and client.
[9]
The
second respondent did not oppose the application. No relief is
claimed against him. It is of no real surprise that first respondent
opposed the application and in particular, the first respondent
opposed the punitive costs order. The first respondent maintained
that unless the divorce order states that the applicant is entitled
to a specific amount, she is not entitled to payment of any
amount
from the first respondent, much less, the amount of R1 264 019.02.
The first respondent asserted that the applicant has
failed to make
out a case why she is entitled to the amount claimed or how, if at
all, the amount was calculated, as at the date
of the divorce.
Counsel argued that the first respondent is not a party to the
divorce and was dragged into the fray by the order
that the applicant
seeks against it.
[10]
It was put to Counsel for the applicant
that the order the applicant seeks is against the first respondent
exclusively, with no
reference to the account of the second
respondent where the funds are preserved. The first respondent's
involvement goes no further
than being the bank where the second
respondent has an account. Counsel conceded that the order is not
clear but submitted that
the court may amend the order so that the
first respondent be ordered pay the amount from the bank account of
the second respondent.
[11]
Counsel for the applicant argued that
the provisions of section 7(7) and 7(8) of the Divorce Act
[2]
do not find application, as when the application was launched there
was no pension benefit held by the GEPF. It is also submitted
that in
terms of the order for the division of the estate, the 50% of the
funds held in terms of the interim order accrued to the
applicant.
[12]
For a proper understanding of the
application, it important to note that it is not the case of the
applicant that the joint state
had already been divided. It is
therefore accepted that since the divorce order was granted the joint
estate has not been divided.
[13]
Division of the joint estate may be
brought about by agreement between the parties, or, in the event that
no agreement is reach
by them, the appointment of a
curator
or a liquidator or a receiver to
divide the joint estate. Absent an agreement, division of the joint
estate cannot be accomplished
by one of the parties. In
Revill
v Revill
[3]
the legal position is explained:
"The
true position is that no man can be a judge in his own cause. In
other words, neither party can take upon himself or herself
the right
to divide the joint estate. In fact, no party in any form of
community is entitled to divide the common property and
the other
party be forced to accept that position."
[14]
The court referred with approval to the
judgment of Innes CJ in
Gillingham v
Gillingham
[4]
where he stated:
"The
law governing this matter seems to me to be perfectly clear. When two
persons are married in community of property a universal
partnership
in all goods is established between them. When a court of competent
jurisdiction grants a decree of divorce that partnership
ceases. The
question then arises, Who is to administer what was originally the
joint property, in respect of which both spouses
continue to have
rights? As a general rule there is no practical difficulty, because
the parties agree upon a division of the estate,
and generally the
husband remains in possession pending such division. But where they
do not agree the duty devolves upon the Court
to divide the estate,
and the Court has the power to appoint some person to effect the
division on its behalf. Under the general
powers which thee court has
to appoint curators it may nominate and empower some one (whetherhe
is called liquidator, receiver,
or curator-perhaps curator is the
better word) to collect, realise, and divide the estate. And that
that has been the practice
in South African court is clear."
[15] The
principles in relation to dissolution of partnerships can generally
be usefully applied where there
is no agreement between the parties
how the joint estate should be divided.
[5]
[16]
I am in agreement with the submission by
counsel for the applicant that the pension benefit was deemed to be
an asset in the estate
in community. When the benefit was paid into
the account of the second respondent it simply became an asset of the
joint estate.
The court order preserved half of that amount pending
the finalization of the divorce action. Neither the order for the
division
of the joint estate nor the interim
order
entitled the applicant
to the amount
of R1 264 019.02, without a division of the joint estate first being
effected by consent or division by a receiver.
Neither of the orders,
relieved any of the parties from dividing the joint estate.
[17]
It may very well be that the applicant
is entitled to the amount claimed. It is common cause that no
agreement exist as to the division
of the joint estate. The whole
purpose of this application is to achieve payment of a particular
asset in the joint estate, without
an agreement or the appointment of
a receiver to divide of the entire joint estate, as at the date of
divorce. It is reiterated
once again: "no man [or woman] can be
a judge in his [or her] own cause." The applicant has taken upon
herself the right
not to divide the joint estate, but to divide only
the asset of joint estate preserved in the bank account of the second
respondent.
[18]
The second respondent is a necessary
party in the proceedings by virtue of joint ownership of, and his
interest in, the asset which
the applicant seeks to obtain from the
joint estate.
[6]
[19]
The applicant, in my judgment, has
failed to make out a proper case against any of the respondents. In
the result the application
should fail with costs. The first
respondent asked for costs on a punitive scale. I am not prepared to
adhere to the request.
ORDER
The
application is dismissed with costs.
GC MULLER
JUDGE OF THE HIGH COURT LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
1.
For the Applicant:
D Thumbathi
2.
For the Respondent:
C Richard
3.
Date of hearing:
04 June 2020
4.
Judgment delivered:
11 June 2020
[1]
Hereinafter "the GEPF".
[2]
Act 70 of 1979.
[3]
1969 (1) SA 325 (C) 326 E-F
[4]
1904 TS 609, 613.
[5]
Robson v Theron
1978 (1) SA 841
(A).
[6]
It will be recalled that no relief is sought against the second
respondent. Also
Morgan and Another v Salisbury Municipaltiy
1935
AD 167
, 171.