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[2018] ZALMPPHC 7
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M.N v F.N (HCA11/2017) [2018] ZALMPPHC 7 (16 February 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: HCA 11/2017
16/2/2018
M
N
APPELLANT
And
F
N
RESPONDENT
JUDGEMENT
SEMENYA
J:
[1]
The parties in this appeal, who were married to each other in
community of property, were divorced by the then North Eastern
Divorce court on the 6 December 2004. The court ordered, among
others, that the appellant is entitled to 50% of the respondent's
rights and interest in the University of the North (now University of
Limpopo) Pension Fund. It was ordered that payment would
be made when
the money becomes due and payable to the respondent. The order was
granted per the parties' settlement agreement.
[2]
In 2011, pursuant to the amendment of the
Divorce Act 70 of 1979
, the
appellant approached the administrators of the pension Fund (the
administrators), in order to claim payment of the amount
due to her
in terms of the court order. Appellant states that she was informed
by the administrators that payment would be made
from the Pension
Fund only, in view of the fact that the court order is silent about
the Provident Fund.
[3]
Applicant approached the Regional Court with an application for a
variation of the Divorce Court order dated the 6 December
2004.
Appellant in short sought that the order be varied to read that the
appellant is entitled to 50% of the respondent's rights
and interest
in the University of Limpopo Retirement Fund, (Pension and Provident
Section) and not University of the North Pension
Fund.
[4]
The application was opposed. The Regional Court ruled in favour of
the respondent and dismissed the application for variation
of the
Divorce Court order. The Regional Court found that the definition of
Pension Fund in the
Divorce Act and
Pension Funds Act 24 of 1956 do
not include a Provident Fund. This appeal is against the order of the
Regional Court.
[5]
The appeal is opposed, firstly on the ground that the appeal was
lodged out of time, secondly, that the appeal is deemed to
have
lapsed in that the appellant failed to prosecute it within the
prescribed period, of 60 (sixty) days as provided for in Rule
50 (1)
of the Uniform rules of Court read with Rule 51(9) of the
Magistrates' Court Rules, and, lastly, on the merits.
[6]
It is common cause that judgement in the Regional Court was handed
down on the 14 November 2014. On the 3 December 2014, and
without
paying an amount of R1000.00 as security towards the respondent's
costs, as required in terms of rule 51 (4) of the Magistrates'
Court
Rules, appellant proceeded to note the appeal. The said amount was
eventually paid on the 27 January 2015. It has to be borne
in mind
that according to the ruling in
O'Sullivan v
Mantel
1981 (1) SA 664
(W) at 668,
the noting
of an appeal is not complete until payment of security is made. In
the circumstances I make a finding that this appeal
was lodged out of
time as averred by the respondent.
[7]
It is further common cause that the appellant applied for date of
hearing of the appeal on the 27 March 2017. In terms of Rule
6 of the
Rules Regulating the Conduct of Proceedings of the Transvaal
Provincial Division (now the North and South Gauteng) Division
of the
Supreme Court of South Africa (now the High Court), the appellant was
required to prosecute this appeal within sixty day7that
is on or
before the 15 May 2015.
[8]
It was contended on behalf of the respondent, and correctly so, that
the appeal is deemed to have lapsed as envisaged in Rule
51 (1) of
the Uniform Rules of Court, in that, the appellant applied for a date
of hearing of the appeal without bringing an application
for
condonation for late prosecution of the appeal. The appellant
conceded to this fact. I have no reason to disagree with the
respondent in this regard.
[9]
On the basis of the above two points
in limine
raised by the respondent the appeal ought to
be struck from the roll. Having said so, I am of the view that
application for condonation
for the late noting and prosecution of
the appeal would have been a futile exercise in that such application
would not have been
entertained in isolation. The appeal court would
still have to determine whether, on the merits, the appeal would have
reasonable
prospects of success.
[10]
With regard to the merits, I am of the view that the appeal has no
prospects of success. It was contended on behalf of the
appellant
that the court should place more emphasis on the word "Pension
Fund" in deciding whether the appeal should
succeed or not. It
was contended that there is only one Fund and that the Divorce Court
order states that the appellant is entitled
to 50o/o of the
respondent's rights in the pension interest of the respondent in that
Fund. The appellant submitted that the administrator
was bound to
make payment from the Pension Fund, which, by definition, encompasses
Provident Fund as well.
[11]
The appellant's submission lends support to the respondent's argument
that the order of the Divorce Court is
perfecta
and cannot, on this basis, be varied. The
Divorce Court ordered the Fund to pay as per the parties' settlement
agreement, which
was made an order of court. It was not contended or
suggested that the order was granted by mistake.
[12]
The respondent referred the Court a
quo
to the decision in
Fourie v Merchant Investors (Pty) Ltd and Another
2004
(3)
SA
422
(C).
I agree with the sentiments raised in that judgement
that:
"a
party, having obtained a court order, cannot then
seek to undo the agreement by seeking to clothe its apparent desire
not to be
bound by its
end
of the bargain by seeking to appeal against the court order which
made an agreement an order of court".
[13]
It is evident that the appellant is aggrieved, in the main, by the
administrator's refusal to pay a certain amount, than by
the wording
and terms of the court order. The respondent is further correct in
submitting that the appellant ought to have joined
the administrator
to these proceedings, as the party, who, according to the appellant,
is refusing to give effect to the court
order.
[14]
On the submissions made by the appellant alone, Ifind that the appeal
stands to fail also on the merits.
[15]
On the issue of costs, the respondent argued that the divorce action
was finalized in 2004. It was finalized in terms of a
settlement
agreement. However, the respondent is unable to find closure as he is
still been dragged to court, 18 years after the
final order was made.
Iagree with the contention that the court must show its displeasure
by ordering the appellant to pay punitive
costs of seeking to
prosecute a lapsed appeal.
[16]
It is ordered:
The
appeal is dismissed with costs on attorney and client scale.
_____________________
M
V SEMENYA
JUDGE
OF THE HIGH COURT
I
agree
_______________________
E
M MAKGOBA:
JUDGE
PRESIDENT OF THE HIGH
COURT;
LIMPOPO DIVISION.
APPEARANCES
ATIORNEYS
FOR THE APPELLANT: DDKK ATI. INC.
COUNSEL
FOR THE APPELLANT: Att. MC DE KLERK
ADORNEY
FOR THE RESPONDENT: MAKWELA & MABOTJA ATT.
COUNSEL
FOR THE RESPONDENT: Att. L.M MABOTJA
DATE
OF HEARING: 2 FEBRUARY 2018
DATE
OF JUDGMENT: 16 FEBRUARY 2018