About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2019
>>
[2019] ZAWCHC 77
|
|
I.F and Another v B.B.D and Others (9797/2019) [2019] ZAWCHC 77 (24 June 2019)
The
name of this matter has been anonymised to preserve confidentiality.
Republic of South
Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. 9797/2019
Before: The Hon. Mr
Justice Binns-Ward
Date
of hearing: 20 June 2019
Judgment:
24 June 2019
In
the matter between:
IF
First Applicant
YF
Second Applicant
and
BBD
First
Respondent
BCF
Second
Respondent
CFA
Third
Respondent
ABC
(PTY) LTD
Fourth
Respondent
JUDGMENT
BINNS-WARD J:
[1]
The applicants seek an order interdicting
the third respondent (a firm of attorneys) from making payment of the
funds held by it
in trust to the second respondent pending the final
determination of maintenance proceedings between the applicants and
the second
respondent. The object of the interdict is the
preservation of the funds to satisfy the judgment sounding in money
that the
applicants expect they will then be in a position to execute
against the second respondent’s property.
[2]
The funds in issue may for the purposes of
these proceedings be characterised as being of two parts.
[3]
The first part, in the sum of R300 000,
comprises an amount held in trust by the third respondent pursuant to
the terms of
a settlement agreement in litigation in this court under
case no. 13288/2015 between the second respondent and the first
respondent
in the current matter. The first and second
respondents were previously married to each other, and are the
parents of the
applicants in the current matter. Clause 2.3 of
the settlement agreement provided that the third respondent firm of
attorneys
would hold the amount of R300 000 in trust on behalf
of the second respondent pending the finalisation of maintenance
proceedings
between the first and second respondents. The clear
intention of the clause was that the funds would be available, if
necessary,
to satisfy any unpaid maintenance that might be due in
favour in favour of the first respondent in respect of the
maintenance of
the applicants upon the final determination of such
proceedings. The applicants in the current matter were minors
at the
time, and the pending maintenance proceedings related in part
to the second respondent’s obligations in respect of their
support. The terms of the divorce order granted dissolving the
bonds of marriage between the first and second applicants obliged
the
second respondent to contribute towards the maintenance of the
applicants until they completed their tertiary education or
became
earlier self-supporting. The applicants have not completed
their tertiary education and are not yet fully self-supporting.
Having attained the age of majority, they have become parties
in their own right to seeking performance by the second respondent
of
the obligations that are sought to be exacted in terms of the pending
maintenance proceedings.
[4]
The second part comprises of funds held in
trust by the third respondent attorneys that are the proceeds from
the winding up of
the business of a certain company (cited as the
fourth respondent in these proceedings) in which both the first and
second respondents
held an interest. At the time that the first
and second respondent entered into the aforementioned settlement
agreement in
respect of the litigation in case no. 13288/2015,
the company had certain outstanding contingent liabilities. It
was
then uncertain whether the incidence of those contingencies would
ultimately require the first and second respondents to make a
pro
rata personal contribution towards the settlement of the company’s
liabilities, or whether there would instead be an
amount available
for distribution to them. As matters eventuated, an amount
became available for distribution. And
it is the part of it to
which the second respondent is entitled that the applicants seek to
have preserved in the third respondent
attorneys’ trust account
so that it will be available to be appropriated in satisfaction of
the judgment they expect to be
able to enforce against the second
respondent upon the finalisation of the maintenance proceedings.
[5]
The basis for the interdictory relief
insofar as it goes to the first part of the funds held in trust by
the third respondent is
contractual. It is founded on clause
2.3 of the settlement agreement. It is clear, notwithstanding
that they did not
say so in terms, that the applicants’ case is
that the clause in question evinced in part a contract for their
benefit, and
that by instituting these proceedings they have
demonstrated their acceptance of the benefit.
[6]
It is unnecessary for the purposes of this
judgment to go into the detail of the pending maintenance
proceedings. It suffices
to say that thus far they have
resulted in judgments for the payment of maintenance in respect of
herself and the applicants being
obtained by the first respondent
against the second respondent in the German courts. The
applicants and the first respondent
have for several years now been
resident in Germany. The second respondent, who is a German
citizen but resides locally,
did not actively participate in the
proceedings in Germany and he maintains that the awards obtained
against him there are unsustainable
for the purposes of enforcement
against him in this country. The parties were at one with each
other that the German courts’
maintenance orders would become
enforceable against the second respondent only once proceedings in
respect of them had been completed
in this country under the
Reciprocal Enforcement of Maintenance Orders Act 80 of 1963, and that
that stage has not yet been reached.
[7]
The second respondent, however, gave to
understand in his answering affidavit that he considered that the
extent of his obligations
in respect of the maintenance of the
applicants had been determined in terms of a decision made by a local
attorney who had been
appointed as a facilitator for the purposes of
clause 2.6 of the consent paper concluded between the first and
second respondents
when they were divorced. The terms of the
consent paper were made an order of court in case no. 2413/10 on
24 March
2010. Clause 2.6 thereof provided:
The parents [i.e. the
first and second respondents] agree that in the event that any
dispute should arise between them regarding
any aspect of maintenance
in respect of the children [i.e. the applicants] as provided for
above, such dispute shall be referred
to a facilitator who shall be
appointed and shall deal with the issues in the manner set out in
paragraphs 1.5 to 1.9 above.
[8]
The substance of the second respondent’s
contention in this regard was that the maintenance proceedings had
been finalised
by the facilitator, and that pursuant to the
facilitator’s determination he was in point of fact not
indebted to the applicants.
There was no merit in the point the
second respondent sought to take in this regard, and his counsel,
advisedly, did not
seek to defend it at the hearing.
[9]
It would not have been competent for the
court that granted the divorce and incorporated the terms of the
consent paper as part
of the order to purport to devolve the function
of determining any future dispute between the parties concerning a
variation of
the then agreed maintenance obligations on a private
party such as the facilitator. That is because the function is
one that
by its nature can be fulfilled only by a court of competent
jurisdiction in the exercise of an inalienable authority. It is
in any event clear upon a proper contextual reading of the consent
paper that the parties thereto, and by extension the judge who
made
its terms an order of court, did not intend clause 2.6 to have the
import now contended for by the second respondent.
It is
evident that the envisaged role of the facilitator was merely to act,
if necessary, as a mediator in respect of disputes
between the
parties in respect of the implementation of the maintenance agreement
incorporated in the consent paper. The
facilitator’s
designated role did not extend to that of an adjudicator in lieu of
the maintenance courts.
[10]
In the circumstances I am satisfied, and
the second respondent’s counsel did not try to argue to the
contrary, that the sum
of R300 000 still falls to be retained in
the name of the second respondent in the third respondent attorneys’
trust
account pending finalisation of the maintenance proceedings
under the Reciprocal Enforcement of Maintenance Orders Act.
[11]
As to the second part of the funds that the
applicants seek to preserve, it is clear, as their counsel
acknowledged, that the nature
of the relief sought is (for want of a
better name) an anti-dissipatory order of the sort comprehended under
the common law; in
other words, broadly speaking, the local
equivalent of the type of freezing order that English lawyers refer
to as ‘a
Mareva
injunction’. The locus classicus on this remedy in our
jurisprudence is
Knox D’Arcy Ltd
and Others v Jamieson and Others
[1996] ZASCA 58
;
1996
(4) SA 348
(SCA), especially at p. 372.
[12]
An applicant seeking to obtain an anti-dissipation
order has to satisfy stringent requirements. He or she has to
establish
the existence of a particular state of mind in the
respondent; namely, ‘
that he is getting rid of the
funds, or is likely to do so,
with the intention of defeating the
claims of creditors
’ (emphasis supplied).
E.M. Grosskopf JA reasoned the position in
Knox
D’Arcy
loc.cit. as follows, ‘Justice may require this
restriction in cases where the respondent is shown to be acting
mala
fide
with the intent of preventing execution in respect of the
applicant’s claim. However, there would not normally be
any
justification to compel a respondent to regulate his bona fide
expenditure so as to retain funds in his patrimony for the payment
of
claims (particularly disputed ones) against him’.
[13]
The applicants have not satisfied the
demanding requirements for anti-dissipatory relief, nor have they
shown that theirs is an
exceptional case in which those requirements
might arguably fall to be relaxed. In the circumstances they
have not made out
a case for the freezing of what I have called the
second part of the second respondent’s funds held in the third
respondent
attorneys’ trust account.
[14]
The applicants have been partly
successful. I consider the measure of their success to have
been substantial enough to merit
them being awarded part of their
costs. Justice will be done if the second respondent pays half
the applicants’ costs
of suit.
[15]
The following order will issue:
(a)
The third respondent attorneys are hereby
interdicted, pending the finalisation of proceedings under the
Reciprocal Enforcement
of Maintenance Orders Act 80 of 1963 for the
enforcement of the maintenance order obtained against the second
respondent in the
Maintenance Court at Hamburg, Germany, for the
payment of maintenance in respect of the applicants, from making
payment to the
second respondent of the sum of R300 000 held by
them in trust in terms of clause 2.3 of the settlement agreement,
dated 5
December 2017, entered into in case no. 13288/2015, a
copy of which is annexed as annexure IF4 to the founding papers.
(b)
Save as set out in paragraph (a) of this
order, the further relief sought by the applicants in respect of the
balance of the funds
held in trust by the third respondent attorneys
for the second respondent is refused.
(c)
The second respondent is ordered to pay one
half of the applicants’ costs of suit.
A.G. BINNS-WARD
Judge of the High
Court