About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 676
|
|
L M v R T (28133/2009) [2018] ZAGPJHC 676 (16 November 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
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 28133/2009
In the matter
between:
L
M
Applicant
and
R
T
Respondent
J U D G M E N T
MABESELE,
J
:
[1] This is an opposed application in
terms of which an order is sought in the following terms:
(i)
the respondent be held in
contempt of the court order dated 5 November 2015;
alternatively, it should be declared
that the respondent has failed to comply with the court order dated 5
November 2015;
(ii)
the respondent comply with
clause 3.1.3 of the settlement agreement incorporated in the divorce
order dated 5 November 2015;
(iii)
the respondent make all
necessary arrangements and to facilitate contact between applicant
and the parties’ children, immediately
after completion of the
reconstructive therapy;
(iv)
the proceeds of the sale
of property registered in both parties’ names form part of the
applicant’s estate for purpose
of determining the accrual;
(v)
the respondent provide the
liquidator with the information and/or documents she requires within
30 (thirty) days of this order and
continue to comply with the
liquidator’s further requests within 7 (seven) days after such
requests have been made to her
by the liquidator;
(vi)
the respondent to pay
costs of this application on a scale as between attorney and own
client;
(vii)
further and/or alternative
relief.
[2] By agreement between the parties a
draft order was prepared to form part of the order to be granted in
this judgment in respect
of outstanding prayers (iv) and (vi) which
the parties did not agree on after they were given last opportunity
in court to attempt
to resolve them.
[3] It is common cause that the
parties were married to each other out of community of property.
Although the property known as
[…], Meyersdal Nature Estate,
Extension 11 township, was registered in both parties’ names,
same was bought by the
applicant.
[4] The applicant contends that
although the property was owned by both of them, the proceeds of the
sale of that property should
form part of his estate because the
respondent did not make any financial contribution when it was
bought.
[5] The respondent, in her answering
affidavit states that: during or about 2010 when she and the
applicant were separated,
they attempted reconciliation. Part
of such reconciliation involved applicant agreeing with her that he
would pay for all
costs associated with the said property and that
each would own 50% of the property. The property was purchased with
the intention
that it would be their matrimonial home. It was thus
agreed that the property would be registered in both their names in
terms
of which they would become registered co-owners in equal
undivided shares thereof, it being understood that in the event of
the
property being sold, they would each receive 50% of the net
proceeds of the sale. Registration took place as agreed and they
became
such registered co-owners of the property in equal undivided
shares.
[6] It seems to be common cause that
after the registration of the property had taken place both parties
became registered co-owners
of the property in equal undivided
shares. The question is whether the applicant is entitled to 100% of
the proceeds from the sale
of the property in view of the fact that
he bought the property alone.
[7] The general rule is that one who
owns or co-owns the property legally, is entitled to the proceeds of
the sale of such property.
The respondent is by law, co-owner
of the property in question. According to the respondent, both
parties intended to benefit from
the said property when it gets
sold. I agree. If that was not the intention of the parties,
the property would have been
registered in the name of the applicant
only. In addition, the applicant failed to substantiate his
argument that he is entitled
to 100% of the proceeds of the sale of
the property even though the respondent is co-owner. For this
reason, prayer (iv)
of the applicant’s amended notice of motion
cannot be acceded to. This means that not all the proceeds of the
sale of the
property will form part of the applicant’s estate
for the purpose of determining accrual. The applicant is entitled to
50%
of the proceeds.
[8] With regard to the issue of costs,
it is beyond dispute that the respondent did not comply with the
order of this court, dated
5 November 2015, in its entirety.
Therefore the applicant was justified to launch this application.
The result is that
the applicant is entitled to costs.
[9] Therefore I make the following
order:
9.1 The respondent is ordered to
transport the minor child T M, to the reconstruction therapy sessions
with the therapist Karen
Meyer or any other therapist recommended by
her between 10 and 14 December 2018. The therapist is at
liberty to determine
whether further reconstruction therapy sessions
and/or further assessment is necessary and if so, to advise the
parties accordingly
within 30 days after such determination.
9.2 In the event that Karin Meyer is
no longer available and cannot recommend another therapist to
continue with the sessions the
parties agree that applicant should
appoint Kirsten Randall at his own costs to continue with and
complete the reconstruction therapy
sessions as per Leonie Henig’s
recommendations on the dates referred to in prayer 9.1 above.
9.3 Kirsten Randall will also be at
liberty to determine whether further reconstruction therapy sessions
and/or further assessment
is necessary and if so, to advise the
parties accordingly within 30 days after such determination.
9.4 In the event that the respondent
is not available to transport the minor child to the therapy on the
above dates, she should
make alternative arrangements to have the
child transported to the therapy.
9.5 Both parties are ordered to
furnish each other and the appointed liquidator with proof of value
of their assets and liabilities
listed in their respective
inventories on or before 07
th
December 2018 and their
comments to the inventories of the other party on or before 25
January 2019.
9.6 The applicant is ordered to sign
all documentation and take all necessary steps to renew T M’s
passport, including attending
the Department of Home Affairs at
Alberton on the 06
th
of December 2018 between 09h00 to
12h00 failing which the Department of Home Affairs is authorized and
directed to renew the passport
without the applicant’s written
consent.
9.7 Half of the proceeds (50%) of the
sale of the property registered in both parties’ names should
form part of the applicant’s
estate for purpose of determining
the accrual.
9.8 The respondent to pay costs of
this application.
________________________________________
M M MABESELE
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date of hearing: 13 November 2018
Date of judgment: 16 November 2018
For the appellant: Adv. R.B Mphela
Instructed by: M H P Malesa Attorneys
For the respondent: Adv. C.Gordon
Instructed by: Craig Baillie Attorneys