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[2018] ZAGPPHC 373
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S.A.V v H.J.V (Leave to Appeal) (19579/2013) [2018] ZAGPPHC 373 (12 February 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 19579/2013
12/2/2018
Not
Reportable
Not
of interest to other judges
In
the matter between:
S
A V
Applicant
and
H
J
V
Respondent
JUDGMENT
IN THE APPLICATION FOR LEAVE TO APPEAL
PETERSEN
AJ:
[1]
This is an application for leave to
appeal against the judgment and order in a divorce action granted in
the following terms on
8 December 2017:
"1.
A decree of divorce is granted;
2.
50%
(FIFTY PERCENT) of the plaintiff's assets are to be transferred to
the defendant;
3.
The plaintiff is ordered to pay the
costs of the action."
[2]
Section 17(1) of the Superior Courts
Act, Act 10 of 2013 ("the Superior Courts Act"), regulates
applications for leave
to appeal and provides:
'(1) Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that-
(a)(i) the
appeal would have a reasonable prospect of success; or
(ii) there
is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b)
the
decision sought on appeal does not fall within the ambit of section
16(2)(a); and
(c)
where
the decision sought to be appealed does not dispose of all the issues
in the case, the appeal would lead to a just and prompt
resolution of
the real issues between the parties.'
[3]
The
test in an application for leave to appeal prior to the Superior
Courts Act was whether there were reasonable prospects that
another
court may come to a different conclusion
[1]
Section
17(1) has raised the test, as Bertelsmann J, correctly pointed out in
The Mont Chevaux Trust v Tina
Goosen
&
18 Others
2014
JDR 2325 (LCC) at para
[6]:
'It is clear that the threshold for granting
leave to appeal against a judgment of a High Court has been raised in
the new Act.
The former test whether leave to appeal should be
granted was a reasonable prospect that another court might come to a
different
conclusion, see Van Heerden v Cornwright & Others
1985
(2) SA 342
(T) at 343H. The use of the word "would" in the
new statute indicates a measure of certainty that another court will
differ from the court whose judgment is sought to be appealed
against.'
[4]
The main ground of appeal is essentially
that the court erred in the following finding that
"the
sole issue for determination is whether a divorce decree should be
granted with no further orders or a divorce decree
with a
redistribution order should be granted."
In
this regard the court's finding was premised on the pleadings.
Counsel for the applicant indicates that she had submitted that:
"The
following issues are disputed by the parties:
3.1.1
Whether the defendant made any
contribution (direct/indirect) to the growth or maintenance of the
plaintiff s estate;
3.1.2
The redistribution of 50% of the
plaintiffs assets to the defendant; and
3.1.3
Costs"
Consequently
counsel submits that
"the issue to be determined is the
entitlement of the Defendant to
a
redistribution order and the
value percentage of such entitlement, if any, and costs."
The
submission equates to nothing more than semantics as this is the
issue identified by the court stated otherwise.
[5]
The
only ground of appeal of any significance relates to the nature of a
tender made by the plaintiff to the defendant; whether
same
constituted token maintenance or a tender of redistribution of
assets. In this regard the plaintiff s at the time of trial
made an
offer to the defendant in terms of which he offered the transfer of
the matrimonial home to the defendant; a just and equitable
amount of
post-divorce spousal maintenance in a lump sum totaling R1 500
0000-00; and maintaining the
defendant
on his medical aid scheme until 2022, submitting that same would
constitute 26.7% of his estate. The ground is expounded
upon having
regard to
Bezuidenhout v Bezuidenhout
2005 (2) SA 187
(SCA) at [19]-[26].
The submission being made that our courts have rejected the English
approach that parties should share their
joint net assets equally,
absent any contrary indication. With reference to
Kritzinger
v Kritzinger
[1988] ZASCA 91
;
1989 1 All SA 325
(A),
it is submitted that the conduct relied upon by a claimant as a
contribution must in fact have caused the alleged maintenance
or
increase of the other spouse's estate. That the conduct must be the
immediate cause and not merely the
causa
sine qua non
(but for) cause, of the
alleged maintenance or increase. The court is afforded a discretion
in
section 7(3)
of the
Divorce Act 70 of 1979
, which does not
preclude an equal redistribution of assets, including a 50% division.
In the final analysis it calls upon the court
to have regard to
whether the defendant directly or indirectly contributed to the
estate of the plaintiff or the increase of the
plaintiffs estate
during the subsistence of the marriage to justify a just and
equitable redistribution of assets.
Section 7(4)
of the
Divorce Act
is
clear that the contribution may be direct or indirect and include
the rendering of services or the saving of expenses which would
otherwise have been incurred. On this score the uncontroverted
evidence of the contribution of the defendant was overwhelming.
[6]
To my mind nothing turns on the
submission on the sanctity of contracts as a ground of appeal when
regard is had to the peculiar
facts of the matter.
[7]
Whilst I am not persuaded that there is
any merit in the grounds of appeal and the submissions advanced in
support thereof, I remain
mindful of the fact that in the exercise of
a discretion, as in the case of
section 7(3)
of the
Divorce Act;
another
could reasonably differ and come to another conclusion. It is
on this basis and considering the impact of the redistribution order
that I am inclined to grant leave to appeal on the merits.
[8]
On the issue of costs, I am inclined to grant leave to appeal as any
degree of success
on that part of the applicant, may impact on the
cost order.
[9]
In the result, it is ordered that:
1.
Leave to be appeal be granted to a full
court of the Gauteng Division of the High Court.
2.
Costs shall be costs in the appeal.
AH
PETERSEN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
Appearances:
For
the Applicant: Adv. Cliff
Instructed
by:
Werner Roos and lmmelman
For
the Respondent: Adv. Kyriazis
Instructed
by: Couzyn, Hertzog and Horak
Date
heard: 02 February 2018
Date of Judgment: 12
February 2018
[1]
Commissioner of Inland Revenue v Tuck
1989 (4) SA 888
(T) at
890