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[2018] ZAGPPHC 480
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H v H (51099/2007) [2018] ZAGPPHC 480 (15 March 2018)
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REPUBLIC OF SOUTH AFRICA
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT
OF INTEREST TO OTHER JUDGES
CASE NO: 51099/2007
15/3/2018
In the matter between:
H, M
E
Applicant
and
H,
M
J
Respondent
JUDGMENT
SHANGISA
AJ:
Introduction
1
The
applicant seeks an order for the appointment of the liquidator and
receiver of the parties' joint estate. The application is
opposed by
the respondent. Before considering the issues, I consider it
convenient to set out a brief factual background to the
dispute
between the parties.
Factual Matrix
2
The
applicant and the respondent ("the parties") were married
to each other in-community of property on 11 August 1973.
On 08
February 2010, the parties' marriage was dissolved by an order of
decree of divorce of this court.
3
Subsequent
to the aforementioned order of divorce, on 30 November 2015 the
parties entered into a settlement agreement the effect
of which was
to amend the order of decree of divorce of 08 February 2010.
4
The
nub of the issue between the parties turns on the question as to
whether the applicant is entitled to have a liquidator appointed
to
divide the joint estate of the parties.
5
At
the outset it is worth noting that the applicant has made numerous
attempts to secure the respondent's agreement on the division
of the
joint estate. As appears from the common cause facts, the respondent
has not been amenable to the applicant's overtures.
In what follows I
therefore deal with some of the applicant's aforementioned attempts
and the basis upon which the respondent resists
the present
application.
6
The
applicant retired from work in December 2014. She contends that the
respondent has control and possession of the two movable
properties
owned by the parties' joint estate. He also controls other assets of
the joint estate including a number of vehicles.
7
The
applicant contends that on the day of her divorce to her husband in
2010, the respondent, the parties immediately entered into
a
settlement agreement. The latter provided for the division of the
parties' joint estate.
8
However,
despite the terms of the settlement agreement reached in 2010, the
applicant contends that her husband continuously frustrated
her by
failing to cooperate and that she was consequently prejudiced by his
conduct.
9
I
pause here to mention that the main thrust of the settlement
agreement that was made an order of court is that the parties' joint
estate be divided in two equal halves, and that the value of the
estate be determined as at the date of divorce.
10
Owing to the respondent's refusal to abide by the order of court as
set out above, in 2011
the applicant approached the high court for a
further relief. In effect, she sought to compel her former husband's
compliance with
the court order that required a division of the joint
estate.
11
On
30 November 2015 the applicant obtained a final order which provided
for the division of the parties' joint estate in two equal
halves.
The effect of the order of 30 November 2015 was that the earlier
settlement of 2010 was cancelled.
12
The
applicant asserts that the joint estate comprises mainly of the two
immovable properties, fifteen motor vehicles and some household
furniture. The immovable properties that form part of the joint
estate are situated in the Provinces of Gauteng and Limpopo.
13
On
15 March 2016 the parties' attorneys attempted to reach an agreement
on the division of the joint estate. However, such attempts
were
unsuccessful. The applicant contends that there has been no
willingness on the part of the respondent's to comply with the
court
order of 2015 and that consequently, the respondent refuses without
justification to have the division of the joint estate
effected.
The issues
14
The
applicant accordingly seeks an order for the appointment of a
liquidator and receiver to divide the joint estate.
15
The
respondent opposes the application on the basis that he bought the
immovable property in Limpopo solely for his mother. He accordingly
avers in his answering affidavit that the Limpopo property was
"wrongfully included in the
joint estate."
He proffers no
further substantiation or factual basis for his assertion that the
Limpopo property does not form part of the joint
estate.
16
The
respondent also opposes the appointment of the Liquidator and
Receiver as suggested by the applicant. Instead, he contends that
the
Liquidator and Receiver should be appointed by the President of the
Law Society. However, he does not refute the applicant's
suggestion
that the Liquidator and Receive r she has suggested is an impartial
and independent attorney of this court. It is also
noteworthy that
despite being invited by the applicant's attorneys to suggest a
suitable name of the liquidator and receiver, he
has failed to do so.
17
The
respondent places much emphasis on the fact that the Liquidator and
Receiver must be appointed by agreement between the parties
whilst
refusing to suggest one. However, if one pays regard to the
applicant's numerous attempts to have the division of the joint
estate reach finality, and the respondent's refusal to comply with
court orders, including the cancelled previous settlement agreement
of 2010, it seems clear the respondent is hesitant to have the matter
finalized. Whilst his conduct is prejudicial to the applicant,
it
seems to suit him since he controls the important assets of the joint
estate including the two immovable properties and the
vehicles.
18
I
should also mention that the respondent contends that part of the
joint estate took place in terms of the 2010 settlement agreement.
He
then avers that the applicant took possession of some of the movable
items that form part of the joint estate. He also contends
as I have
already mentioned above, that the Limpopo property does not form part
of the joint estate. That is not all, he also argues
that the
applicant earned a provident fund, and contends that it should form
part of the joint estate.
19
It
is easy to dispose of the respondent's contention about the pension
amount obtained by the applicant. She states that she received
a sum
of R227 682.76 in April 2015. She argues that she used some of the
proceeds to finance the litigation against the respondent
and that
she uses part of the proceeds as a means of her daily sustenance.
Does the Limpopo Property form
part of the joint estate?
20
In
my view, the common cause facts clearly establish that the parties
acquired assets of the joint estate, including both immovable
properties, during the subsistence of their marriage in community of
property. Significantly, the respondent does not dispute that
the
Limpopo property was acquired during such subsistence of the parties'
marriage in community of property. Instead, he makes
a bald assertion
that he meant to exclude it from the joint estate.
21
In
any event, there is a court order of 30 November 2015 which clearly
states that the joint estate must be divided equally between
the
applicant and the respondent. That being the case, the Limpopo
property also forms part of the joint estate since the parties
were
married in community of property.
22
There
is simply no merit in the respondent's opposition. His defence
appears calculated to prejudice the applicant by failing to
have the
equal division of the joint estate. What is more, the respondent has
advanced unmeritorious and spurious grounds as bases
for his
opposition. That is so if one considers that there is this court's
order with which the respondent appears reluctant to
comply with. His
conduct in the face of the court order of 30 November 2015 verges on
the contempt of court.
Conclusion
23
The
aforementioned being the case, I am satisfied that the applicant has
made out a proper case for the appointment of the Receiver
and
Liquidator of the parties' joint estate. There is ample justification
for the appointment of an independent and impartial party
as a
receiver and liquidator who should attend to the equal division of
the parties' joint estate. The applicant has suggested
the name of an
attorney of this court, Mr. Phillip Jordaan. The respondent has not
proffered any principled objection to the aforesaid
appointment. In
the absence of any alternative suggestion by the respondent, I
accordingly intend making an order of the applicant's
suggested
appointee.
24
I
hasten to add that, contrary to the respondent's assertions, on the
facts of this matter the immovable property situated in [….]
Limpopo forms part of the parties' joint estate. It must therefore be
included in the assets that form part of the joint estate.
Costs
25
I
should perhaps here pause and note that on 30 November 2015 this
court ordered the respondent to pay the costs on an attorney
and
client scale. It seems to me that a similar order is equally
warranted in this matter. The respondent has deliberately ignored
and
blatantly failed to comply with at least two previous court orders of
this court, of 2010 and 2015. He filed an answering affidavit
in
which he opposed the granting of the relief. He has deliberately been
frustrating the applicant in the finalization of the division
of the
joint estate as contemplated in the order of this court of 30
November 2015.
26
In
the ordinary course of events the appropriate costs order of this
application would have been costs in the liquidation. However,
in the
circumstances of this matter, the respondent's conduct warrants the
court's strongest possible censure. It therefore seems
to me that it
is appropriate in the circumstances of this matter to visit the
respondent with a punitive costs order. I accordingly
agree with
counsel for the applicant that the conduct of the respondent warrants
a costs order on a punitive scale.
27
In
the premises I make the following order:
1.
That
PHILLIP JORDAAN of DIVORCE SETILEMENT SERVICES of PRETORIA be and is
hereby appointed as Liquidator of the joint estate which
exists
between the Applicant and the Respondent with the powers and
obligations as set out in ANNEXURE "MEH6" attached
to the
Applicant's Notice of Motion.
2.
The
respondent is ordered to pay the costs of the applicant on an
attorney and client scale.
SHANGISA AJ
Acting Judge of the High Court,
Gauteng Division, Pretoria
DATE
OF JUDGMENT:
APPEARANCES:
COUNSEL
FOR THE APPLICANT:
Mr. L.E SEKELE
INSTRUCTED
BY:
SIHLANGU ATTORNEYS
COUNSEL
FOR THE RESPONDENT:
INSTRUCTED
BY: