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[2019] ZAFSHC 124
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KM v SM (357/2018) [2019] ZAFSHC 124 (22 July 2019)
SAFLII
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: 357/2018
In
the matter between:-
K
M
PLAINTIFF
And
S
M
DEFENDANT
CORAM:
MOLITSOANE, J
HEARD
ON:
16
MAY 2019
JUDGMENT
BY:
MOLITSOANE,
J
DELIVERED:
22 JULY 2019
[1]
The Plaintiff instituted an action against the defendant for payment
of an amount of One Million Rand together with interest
at 10, 25%
per annum
a
tempore morae
.
This claim arises out of a divorce order granted by the court on the
19
th
February 1998. Pursuant to the divorce order the parties entered into
an agreement on the 9
th
February 1999 relating, inter alia, to the division of the pension
interest of the defendant.
[2]
The defendant raised a special plea of prescription. The parties
requested that I
adjudicate on the special plea only and I
acceded
to the request and ordered separation of this issue
from
the merits in terms of Rule 33(4). Both parties testified and did not
call any witnesses.
[3]
The following facts are common cause between the parties:
1.
That a
final order of divorce was granted by the Court on the 9
th
February 1998;
2.
That the
Court ordered that Mr Van Biljon of the then firm, Kriek and Cloete
be appointed as a liquidator to divide the joint estate
of the
parties;
3.
That on the
9
th
February 1999 the parties entered into a written agreement in terms
of which they agreed that the plaintiff would be entitled to
50% of
the pension interest of the defendant as at the date of divorce;
4.
That the
defendant received his pension interest during or about September
2014.
[4]
It is apposite at this stage to mention that it is the plaintiff’s
case that during or about the year 2016 the defendant
undertook to
pay 50% of his pension interest to the plaintiff. This allegation is
denied by the defendant. In view of the finding
I make later, it is
unnecessary to traverse this dispute.
[5]
It is the defendant’s case that plaintiff’s claim is
based on a contract which was concluded on the 9
th
February 1999. Defendant alleges thus that the claim of the plaintiff
fell due on the said date of the conclusion of the agreement.
Defendant further pleads, in the alternative, that the plaintiff’s
claim fell due on the date the defendant’s pension
interest was
paid out
,
to wit,
the 1
st
September 2014.Seeing that the plaintiff only served her summons
during or about 2018, more than three years after the pension
interest was paid out, it is contended that the plaintiff’s
claim has prescribed.
[6]
The defendant raised various reasons on which she asserts that her
claim has not prescribed.
[7]
In my view the question for determination is whether the claim of the
Plaintiff has prescribed. It is not in dispute that an
order of
divorce was granted by the court including the division of the
estate. The Parties then entered into an agreement specifying
in
detail how the division should take place. In her particulars of
claim the Plaintiff pleads as follows:
AD
PARAGRAPH 8
“
The agreement
was concluded as a result of the Court Order and merely regulated how
division of the joint estate should take place
in terms of the Court
Order.”
To
this end the defendant pleads as follows to paragraphs 1 to 8 of the
plaintiff’s Particulars of Claim:
AD
PARAGHRAPHS 1 TO 8
“
The
defendant admits the contents of these paragraphs (
my
emphasis
)
.
The defendant specifically pleads that the joint estate has already
been divided between the parties.”
[9]
It is clear in my view that the defendant does not dispute that the
subsequent agreement regulated how division ought to take
place. It
is my considered view that if the parties agree that the subsequent
written agreement entered into on the 9
th
February 1999 only regulated how division should take place, it
follows that the plaintiff’s claim is not based on the written
agreement but on the judgment granted on the day of divorce.
[10]
Section 10 of the Prescription Act 68 of 1969(the Act) provides as
follows: “
Subject
to the provisions of this Chapter and of Chapter 1V, a debt shall be
extinguished by prescription after the lapse of the
period which in
terms of the relevant law applies in respect of the
prescription of that such debt.”
The
agreement in this case regulated a judgment. The period of the
running of prescription is in turn governed by s11 (a)
of the
Act which provides that the period of prescription of judgment debt
shall be thirty years.
[11]
It is indeed so that the divorce order is silent on the issue of
pension. That, however, does not detract from the fact that
the Court
had ordered the division of the estate and the parties in their quest
to regulate the terms of the division agreed to
share the pension
interest equally. This agreement and/or the alleged undertaking of
2016 referred above do not, in my view novate
the Court order granted
when the parties divorced.
[12]
The written agreement was not made an order of court. I am of the
view that, absent the judgment, the result would have been
different
as the claim could invariably have prescribed in three years. Unlike
in this case where there is a judgment. In my view
the cause of
action seeking to enforce the division of the pension interest goes
to the heart of the order of divorce itself and
not on the subsequent
written agreement intended to regulate the divorce order. I am
satisfied that the plaintiff’s claim
is based on a judgment and
a judgment prescribes in 30 years. Thirty years has not elapsed and
it is unnecessary to traverse the
issue of the alleged undertaking.
[13]
I now turn to the issued of costs of this special plea and the
reserved costs of the 5
th
March 2019. The award of costs
lie in the discretion of the Court. I have listened to the testimony
of both parties. Both struck
me as people whose memory had faded with
time .It would not be in the interest of justice that anyone of them
be mulct with a cost
order although one may say that the defendant
was successful in resisting the special plea.
It
is indeed so that I ordered the defendant when he sought a
postponement on the basis that he was sick to bring a medical
certificate.
He did not bring same but his Counsel handed a copy of a
document which purported to prove that the defendant was in hospital
and
sick, styled ‘Patient referral letter’. This document
is dated the 7
th
March 2019.From the document it is difficult to conclude whether he
was sick or not. I will thus give the defendant the benefit
of the
doubt. As a result I am of the view that it would be fair that no
order as to costs be made. I accordingly make the following
order:
ORDER
1.
The
Special plea is dismissed.
2.
Each
party to pay his or her costs.
____________________
P.E.
MOLITSOANE, J
On
behalf of the Plaintiff: Adv B.S Mene
Instructed
by:
Matlho
Attorneys
Bloemfontein
On
behalf of the Defendant: Ms IL De Wet
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN