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[2018] ZAGPPHC 313
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E.M v W.S.M (51743/16) [2018] ZAGPPHC 313 (25 January 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO: 51743/16
DATE
OF JUDGMENT: 25/1/2018
In
the application of
:
E.
M
APPLICANT
and
W.S.M
RESPONDENT
JUDGEMENT
NAIR AJ:
[1]
This is an application for the appointment of a liquidator/receiver
in respect of
the erstwhile joint estate of the parties. The
applicant and the respondent were married to each other in community
of property
on the 2
r
3d
November 1988 and divorced on 22
nd
October 2012
.
[2]
The applicant approaches the Court on the basis that the joint estate
has not been
divided in a complete and proper manner as per the
settlement agreement which was incorporated into the decree of
divorce
.
[3]
The
respondent raised three preliminary issues at the commencement of the
hearing. These are that the applicant's claim has prescribed;
that
the nature of the relief sought will nullify the agreement which was
already made an order of Court
;
and
further that the applicant ought to apply for rescission or variation
of the final divorce order
.
[4]
The
respondent seeks relief in the counterclaim for an order that the
applicant be directed to sign all documents necessary to effect
transfer of the applicant's undivided half share in the immovable
property into the name of the respondent.
[5]
The
background facts are the fo
l
lowing
:
In terms of the settlement agreement the
joint estate was divided on the following basis
:
a. With
regard of the movable property it was agreed that the applicant would
receive the
movable property except for the Hyundai Sonata vehicle
.
b.
The
parties will be entitled to 50% of each other's policies and
investments etcetera as on the date of signature of these documents
,
should same
exist.
It is specifically recorded that should
it come to light that either party did not disclose ownership of any
policy
,
investment
portfolio
,
et cetera
,
before the date of divis
i
on
,
the other party may claim 50% of the
monetary value of the policy
.
c. The
parties will be entitled to 50% of the benefits of each other's
pensions on date
of signature of this document
,
shou
l
d
same exist. It is specifically recorded that should it come to
light
that either party did not disclose
ownership of any pension
,
provident
fund, et cetera
,
before
the date of division, the other party may claim 50
%
of the monetary value of such pensions
,
provident fund
,
et cetera.
d. The
parties agree that plaintiff and defendant are both owners of the
immovable property
,
situated
[….], the value of which is unknown to the parties
,
but encumbered with a bond of plus/minus
R 2
,
000
000
.
e. The
communal immovable property will be
evaluated
by an independent
valuator
,
appointed by Investec bank
,
such valuation
fees
will be paid by both the parties
equally
.
f. The
property shall after valuation be placed on the open market and sold
for the
highest offer and both parties will agree to full
co-operation of the same effect. Shou
l
d
any of the parties not give cooperation the applicable sheriff will
have the right to sign
in
such
parties behalf
.
g. After
sale of the immovable property
,
the
profits
,
if
any after the settling of the bond and the
communal
debts relating to
the
communal home
,
will be divided equally between the
parties
.
h. Th
i
s
agreement constitutes the whole agreement between the parties and no
variation or amendment hereof shall be valid and binding
unless
reduced to in writing and signed by both parties
.
[6]
Following the divorce
,
the applicant received a cash amount in
lieu of the Sonata vehicle and on the 16
th
November 2012 she received a further amount of R 1 350 000
,
00 which amount is the focus of the
dispute between the parties
.
[7]
The respondent maintains that this amount was
paid as the applicant's half share of the immovable property whilst
the applicant
maintains that she believed this sum was her
contribution of half share of the joint estate excluding the
matrimonial home
.
[8]
The
applicant believes that the joint estate has not been div
i
ded
whe
r
eas the
respondent believes that the joint estate was dissolved by the decree
of divorce. The respondent argues that the parties
had agreed on the
modus of the division of the estate and what must follow
i
s
the enforcement of the agreement.
[9]
He
contends that it is not unusual for parties to amend their settlement
agreements
.
He
argues further that parties may either agree to a settlement
agreement which deals with such division or appo
i
nt
a receiver and liquidator
.
Once
that dec
i
sion
is taken the matter is res iudicata and accordingly there
i
s
no basis for the applicant to approach the Court for the relief as
set out in the notice of mot
i
on
.
[10]
The
preliminary
i
ssue
relating to prescription can be dealt with short shrift
.
In Prime Fund Managers (Pty) Ltd v Rowan
Angel (Pty) Ltd and Another 2014
(
2
)
All SA 227 Murphy J he
l
d
:
"Once
an award is
made
an
order of court in will become a judgement debt in respect of which
the period of prescription will be 30 years".
[11]
I agree with the Advocate Willemse (counsel for the applicant) that
the settlement agreement
constitutes a judgement debt as envisaged in
section 1
(1)
(a)
(ii) of the
Prescription Act 68 of 1969
.
[12]
It is clear that the settlement agreement deals with the division of
the joint estate at length.
It follows that for that reason there was
no appointment of a receiver or liquidator. The question
is
what must happen
where parties do not comply with the terms of the settlement
agreement. In Maharaj v Maharaj and Others 2002(2)
SA 648 (D &
CLD) at 652 C
,
Magid
J stated
"The
parties
are entitled of course
to
agree on the manner
of division
.
If
they cannot agree a liquidator may have to be appointed
."
[13]
The matter is adequately summarised in Gillingham v Gillingham
1904
TS 609
Innes CJ
states
:
"The law governing this
matter seems 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
power to appoint some
person
to effect
the
division on
its
behalf
.
Under
the
general
powers
which the Court has to appoint curators it may nominate and empower
someone
...
to
collect
,
realise,
and divide the estate
.
And that that has
been the practice in South African Courts
is
c
l
ear.
"
[14]
The first occasion that the applicant had reason to believe that the
funds that she had received
were in respect of the property was when
she received a letter from the applicant's attorneys four years later
requesting her to
facilitate the transfer of the property to the
respondent's name
.
[15]
In the letter dated 10
th
March 2016 the
respondent
'
s
attorneys Mkhavele Incorporated dispatched a letter to the respondent
which reads as follows
:
'
The
above matter refers
;
we conf
i
rm
that we act on beha
l
f
of our client
,
Mr
William Simon Makwinja
.
It is our
i
nstruction
that in terms of the final order of divorce dated 25
t
h
October 2012 and the settlement agreement thereto
,
claus
-
e
8.4 took effect and our client has bought your client
out
of the property
.
An offer of
settlement was made to Esnat Makwinja on the 9t
h
of November 2012 in
the amount of one million three hundred and fifty thousand rand
together with the house in Chigumula
,
Malaw
i
and same was
accepted by your client an amount of one million three hundred and
fifty thousand rand was transferred
,
paid into your
clients account on the 15
t
h
November 20
1
2
.
We are informed by
transferring attorneys
,
Lambright attorneys
that they have contacted your client through you in order for her to
sign the transferring documents but your
client has not honoured
same
.
We
therefore request that you
i
nform
your client to cooperate and sign the transferring documen
t
s
on or before 18
th
March 2016 failure
which we will have no option but to approach the High court to compel
her to sign or the sheriff of the high
court sign on her place and
she will be responsible for any wasted legal costs
occasioned
by such action
.
Kindly note that
should she fa
i
ls
to sign the transferring documents within the stipulated time frame
here
i
n
,
th
i
s
letter will also be used in support of our High Court applicat
i
on
and we will also seek for a punit
i
ve
cost order against her. We hope you will
t
reat
this
l
etter
.
with the urgen
c
y
it deserves
.
We
wait
t
o
hear from you as a matter of extreme urgency.
"
[16]
The applicant acknowledges
receipt of
the
R1
350 000 with regard to the immovable property and concedes that she
did not sign over the transfer of the property share to the
respondent.
[17]
The applicant denies having accepted any offer on 9 November
2012 by
email and denies that she disposed of her half-share in the common
property
.
She
maintains that
the
joint
estate has not yet been divided in a complete and proper manne
r.
[18] She
states
that
she
received the amount under the bona fide mistaken belief that it was
her share of the joint estate
.
She
believes that the respondent misled her and the court with regard to
his assets at the
time
of
the settlement agreement.
[19]
The applicant also avers that she was not satisfied with the contents
of the settlement agreement but agreed to same because she acted
under duress
.
Equally
she was not satisfied with the service rendered
to
her
by
the
Legal Aid Board
.
[20]
She states that shortly after the granting of
the
divorce, the respondent spent almost
four million rand on
inte
r
alia a new motor vehicle and business,
she has argued that there
is
no
way
that
such
amount could
have
been
generated in such a short period after the divorce
.
There is nothing
to
substantiate
these
assertions at all.
[21]
The issue is whether the erstwhile
joint
estate has
been
divided
in
terms of
the settlement agreement. It
is
clear
from
the
email
correspondence exchanged between the
applicant and the respondent
that the
applicant accepted the R1350 000,000 as
payment for her share of
the
property
.
[22]
The respondent
had
communicated
with the applicant with
regard to the purchase of her
half
share of
the
property
.
In
so
doing
the respondent
did
not
have regard
to the clause
in
the agreement
and
sought to
buy
out
the applicant in
a
manner
that he saw appropriate
.
He
was not entitled to do
·
so
,
because the agreement contained
non-variation clause-
"
This
agreement constitutes the whole agreement between the parties and no
variation or amendment hereof. Shall be valid and binding
unless
reduced to writing and signed by both parties
.
"
The difficulty that the respondent is
faced with is that there was noncompliance with the terms of the
settlement agreement.
[23]
The applicant states that the terms of the contract provide
for the
manner in which the joint estate was to be divided and did not
include the appointment of a receiver and liquidator when
it clearly
did make provision for same in clause 8
.
2.
It is because the agreement provided for the manner in which the
joint estate was to be divided that no liquidator/receiver was
appointed
.
[24]
The respondent argues that the applicant ought to have dealt
with the
issue of the proceeds of policies and investments at the date of the
divorce
.
Notwithstanding
his assumption
.
that
her claim has prescribed he tenders to provide the respondent with a
consent form to obtain all information regarding his policy
and
investment portfolios at the date of the divorce.
[25]
The respondent further argues that the applicant must lay
a factual
basis for the allegation that he had interests and/ or shares in
various companies and entities that were not disclosed
to the
applicant prior to the signing of the settlement agreement. He
misdirects himself in stating that the joint estate was properly
div
i
ded as
per the agreement. He simply d
i
d
not allude by the terms of the settlement agreement more specifically
paragraph 8 thereof
.
[26]
The high water mark of the respondent's case is that the joint
estate
was terminated w
i
th
granting of a decree of divorce incorporating the settlement
agreement dealing with the division of
the
joint estate
.
He
maintains
that there is no longer a joint estate and a
receiver
and liquidator cannot be appointed in
light of the prevailing court order.
[27]
He also admits that if the applicant is of the
view
that she is entitled to any further
assets in terms of the prevailing court order she should approach the
court for an order that
he should comply with the court order and not
for an order wherein she attempts to nullify
the
present court order and settlement
without any foundation
.
The
question that remains unanswered is where did he get the money for
the house
to
buy
her out?
[28]
There does not appear to be any problem with the movables
at all. She
did
not
receive
any proceeds from policies and investments
.
She believes that the respondent has
interest
and/
or shares in various companies and entities which were not disclosed
to her prior to the signing of
the
agreement. These should be considered as
assets of the joint estate with regard
to
which she did not receive any proceeds.
[29]
The respondent argues that the
applicants claim
for the
division
of the joint estate has prescribed and appointing a liquidator will
nullify
the
agreement
pertaining to the patrimonial consequences of the marriage which
agreement was made an order of court. The
respondent
also contends that there can be
no
appointment of a liquidator/receiver
unless provision
is
made
in
the
settlement
agreement for the division of
the
estate
.
.lt
is
further
argued that the applicant should apply
to
cancel
the
agreement because the
relief
sought will vary
the
court order granted on
26/10/12
.
The respondent
further
argues that
the
applicant should apply
for
rescission
or variation of
the
court
order
.
The
respondent
argues that the court
order
did
not
include a specific term that
the
joint
estate be divided but rather provided that the settlement ag
r
eement
be made an order of court
.
[30]
The question arises on what grounds the respondent should
seek
to
rescind the order
.
The grounds for the rescission of such
an order are governed by
Rule 42(1)
and the common law
.
In terms of
Rule 42
,
the
Court may rescind a judgement on one or
more
of the
following grounds
:
"
An
order o
r
judgement
erroneously sought or granted in the absence of a party affected
thereby. An order or judgement in
terms
whereof
there is
ambiguity or a patent error or omission but only to the extent of
such ambiguity
,
error or omission
and an order or judgement granted as a
result
of a mistake common
to the parties
."
[31]
The provisions of Rule 32 (2) (b) of the Uniform Rules state
that an
applicant must provide a reasonable explanation for his/her defau
lt
and must be bona fide
i
n
the making of such application
.
The
applicant must show
that
he
has a bona fide defence to the plaintiff
'
s
claim. It is sufficient if he/she makes out a prima facie defence
setting out averments, which
if
established at trial
,
would entitle him/her to the relief
asked for
.
The
requirements are essentially
the
requirements
in terms of the common law
.
[32]
The respondent agrees that the settlement deals with the manner
in
which the joint estate was to be
divided
.
The
question remains was it indeed divided
in
the manner
that
the
agreement specifies.
The
respondent
argues that because the
settlement agreement deals with
the
manner i
n
which
the
joint estate was
to
be divided, there is no longer a joint
estate
.
[33]
The respondent contends that the settlement agreement is a
valid
contract
,
binding
on both parties and states that
"
we
"
performed in terms of the contract. The
question is did he perform in terms of the contract.
[34]
It is clear that the respondent agrees that the settlement
agreement
made provision for the division of the estate and with regard to the
immovable property the specific manner in which
that had to be done
.
There was noncompliance with the manner
or modus in which this was to be attained
.
The respondent took it upon
himself to offer the applicant a sum for the property and this is
indeed a variation of the settlement
agreement. In the circumstances
i
t
is appropriate that a receiver and liquidator be appointed to give
effect to the settlement agreement particu
l
arly
in regard to the immovable property.
[35]
In the circumstances I am of the view that this Court should
intervene and grant the applicant the relief sought.
ORDER
1.
The counterclaim is dismissed with costs
2.
Adv Vernon Strauss is hereby appointed as receiver and liqu
i
dator
in the erstwhile common estate of the applicant and respondent. He is
bestowed with the powers and authorities as set out
in Annexure XYZ01
annexed to the Notice of Motion
.
3.
Applicant
i
s
awarded costs of the application
NAIR AJ
ACTING JUDGE OF THE
HIGH
COURT
Date
of hearing
:
Date
of Judgment:
Attorneys
for the applicants
:
Carien
Lauw
Incorporated
Counsel
for the applicants
:
Advocate J
Willemse
Attorney
for the respondent
:
C
J Mkavele
Counsel
for respondent
:
Advocate Van
Niekerk