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[2018] ZAFSHC 44
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W v W and Others (282/2018) [2018] ZAFSHC 44 (26 April 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 282/2018
In
the matter between:
S.
S. I. I. W.
Applicant
and
R.
R. W.
First
Respondent
GOVERNMENT
EMPLOYEES PENSION FUND
Second Respondent
ABSA
BANK LTD
Third
Respondent
HEARD
ON:
29
MARCH 2018
JUDGMENT
BY:
C
REINDERS, J
DELIVERED
ON:
26
APRIL 2018
[1]
This is the extended return date of a
rule
nisi
issued by this court on 24 January 2018. The applicant, Mrs W., and
the first respondent, Mr W., are embroiled in divorce proceedings.
On
18 April 1992 the couple were married out of community of property
with the inclusion of the accrual system. Summons were issued
by Mrs
W. on 13 June 2017 in which she claims, amongst others, dissolution
of the marriage bond and ancillary relief. These proceedings
are
still pending
[2]
Mrs W. brought this application on an urgent ex parte basis, with the
primary purpose of the relief sought by her (as set out
in the notice
of motion) to secure and preserve an amount equal to fifty percent of
Mr W.’s pension benefit, pending finalisation
of the main
action. The second respondent is the Government Employees Pension
Fund (the GEPF) of which the first respondent is
a member, whilst the
third respondent is Absa Bank (Absa) with whom Mr W. holds an
account.
[3]
Having been satisfied that a proper case had been made out, Jordaan J
on 24 January 2018 granted interim relief with immediate
effect in
the following terms:
“
3.
That a rule
nisi
is hereby issued calling upon the respondents to show cause, if any,
on
THURSDAY,
22 FEBRUARY 2018
at
09h30
or so
soon thereafter as the matter may be heard, as to why the following
order should not be granted:
3.1
That pending the finalisation of the divorce action under case no
2967/2017 in this Honourable Court:
3.1.1 The second
respondent is ordered and directed to pay one half of the first
respondent’s pension benefit, which was previously
held as a
pension interest at the second respondent, into the Trust Account of
the applicant’s Attorneys, alternatively in
the event that the
Pension Fund has already been paid to the first respondent ot (sic)
furnish full particulars of such payment
and any possible
reinvestement;
3.1.2 Alternatively and
in the event that the abovementioned amount of monies had already
been paid to the first respondent, that
the first respondent is
ordered and directed to pay one half of the first respondent’s
pension benefit, which was previously
held as a pension interest at
the second respondent, into the Trust Account of the applicant’s
Attorneys;
3.1.3 Alternatively and
in the event that the above mentioned amount of monies has already
been paid to the first respondent and
if the first respondent did
deposit the said amount of monies at the third respondent, that the
third respondent is ordered and
directed to pay 50% of any credit
held on behalf of the first respondent into the trust account of the
applicant’s attorneys;
3.1.4 The monies referred
to in prayer 3.1.1 alternatively prayer 3.1.2 and 3.1.3
supra
remains
in the Trust Account of Honey Attorneys only to be paid out to the
applicant, alternatively to such party as the Court may
order in
accordance with the final Decree of Divorce.
3.2
Costs of the application to be paid by first respondent and if the
second and third respondent oppose the
application then in such an
event that the first, second and third respondents are ordered to pay
the costs of the application
jointly and severally, the one paying
the other to be absolved from payment.”
[4]
Mrs W. moves for confirmation of prayers 3.1.2, 3.1.4 and costs to be
paid by Mr W. who opposes the application. In her founding
affidavit
she indicates the reason for the relief sought as a fear of not
obtaining proper redress at a hearing in due course as
her share of
the accrual of Mr W.’s estate (funds from GEPF) might have been
squandered by him, thus disabling her from recovering
same. In his
opposing papers filed on 9 March 2018 Mr W. confirms that upon his
retirement he received payment in the amount of
R 1 491 334.00
on 2 December 2017, which amount constitutes two thirds of his
pension. However, on 2 January 2018 an amount
of R 1 400 000.00
was paid over by him to his brother as settlement of his indebtedness
in respect of “several loans
to me over the years.” In
her replying affidavit Mrs W. denies having knowledge of such loans.
Not only was same never mentioned
during any settlement negotiations
but are no particulars of the averred loans forwarded by Mr W. in his
affidavit. Furthermore,
it came to her knowledge on 16 March 2018
that Mr W. invested an amount of R 1 400 000.00, which
investment was ceded
to Mr W.’s brother.
[5]
Section 3 of the Matrimonial Property Act 88 of 1984 (“the
Act”) directs as follows:
(1)
At the dissolution of a marriage subject to the accrual system, by
divorce or by death of one or both
of the spouses, the spouse whose
estate shows no accrual or a smaller accrual than the estate of the
other spouse , or his estate
if he is deceased, acquires a claim
against the other spouse or his estate for an amount equal to half of
the difference between
the accrual of the respective estates of the
spouses.
(2)
Subject to the provisions of s 8(1), a claim in terms of ss (1)
arises at the dissolution of the marriage
and the right of a spouse
to share in terms of this Act in the accrual of the estate of the
other spouse is during the subsistence
of the marriage not
transferable or liable to attachment, and does not form part of the
insolvent estate of a spouse.
The
Supreme Court of Appeal recently confirmed that this claim arises
when an order of divorce is granted.
Compare:
AB v JB
2016 (5) SA 211
(SCA)
[6]
In
Reeder
v Softline Ltd and Another
2001 (2) SA 844
(W)
it was held that although the claim only arises at the date of
divorce, a spouse married with the accrual regime at least has a
contingent right before the claim arises to obtain an interdict to
prevent it from being squandered. The applicant’s right
will
become a vested right if the contingencies materialise.
See:
Reeder
supra
at p 848 J- 849 B.
[7]
I align myself with Cloete J (as he then was) where he concluded and
I quote:
“
A spouse married
out of community of property and subject to the accrual has a
contingent right to share in the accrual of the estate
of the other
spouse which is conferred by the Act. It seems to me that that right
would be protectable by interdict
pendente
lite
,
whether the lis is a divorce action in which the right is asserted,
or a claim in terms of s 8(1) of the Act…….Where,
however, proceedings to enforce the claim of a spouse to participate
in the accrual of the estate of the other spouse have been
instituted, that contingent right can, it seems to me, be protected
if a proper case is made out.”
[8]
In
RS
v MS and Others
2014 (2) SA 511
(GJ)
at 514 para [18] the court made the following remarks:
“
But, even if these
jurisdictional requirements are present, then an applicant must still
show a well grounded apprehension of irreparable
loss should the
interdict
pendente
lite
not be granted. It is perhaps apposite here to point out that,
because of the draconian nature, invasiveness and conceivably
inequitable
consequences of such anti-dissipation relief, the courts
have been reluctant to grant it, except in the clearest of cases.”
[9]
On a conspectus of the papers filed before me it would appear that
the claim of Mrs W. will have to be calculated taking into
account
various assets, which may include two immovable properties, movables
and Mr W.’s pension fund. On face value it would
in my view be
incorrect to merely assert that the applicant is entitled to
preservation of fifty percent of the pension fund.
[10]
The parties are not married in community of property but out of
community of property and Mrs W.’s claim would be, after
all
calculations had been done, for an amount equal to half of the
difference between the accrual of the respective estates. In
as far
as it was applicable, I have a similar difficulty as Cloete J in
Reeder
supra
at 851 I-J where he concluded that the value of the right which is
sought to be protected, has not been quantified. No attempt
whatsoever was made by Mrs W. to quantify the values of the
respective estates and arrive at a calculation of the amount that she
seeks to have protected.
[11]
The evidence tendered by applicant in reply (albeit hearsay) is that
the monies had been deposited into an account which was
ceded to the
brother of the first respondent. I am not convinced that this
constitutes “squandering” as alleged by
the applicant. Mr
W. avers that those monies are in any event due and owing to his
brother and would not form part of the accrual.
Whether this is so
are findings for another court to consider if and when the
determination of the accrual is to be determined
by such court.
Separate therefrom the respondent has two immovable properties. On
the papers before me I cannot come to the finding
that he intends to
squander or is squandering these assets with the sole purpose of
leaving the applicant with a hollow judgment.
I wish to reiterate
that the applicant on the dissolution of the marriage acquires a
claim for payment and not a transfer of assets.
It is incumbent upon
the applicant to show in these proceedings that the respondent’s
conduct is intended to squander his
assets to leave her with a hollow
judgment. In the absence thereof I cannot confirm the interim order
pendente
lite
and it needs to be uplifted.
[12]
Part of the record before me includes an order granted on the 22
nd
February 2018 by Gcabashe AJ. Paragraph 6 thereof directs that the
two immovable properties of the first respondent
will serve as
security for the applicant’s claim, and paragraph 7 thereof
prohibits
pendente
lite
the selling, transferring, donating, alienating, or encumbering of
the immovable properties. I have not been addressed on these
orders
by any of the parties and make no ruling thereon. Neither of these
orders form part of the
rule
nisi
.
These orders therefore stand until they lapse, are uplifted or
amended by court. The costs on 22 February 2018 stood over.
[13]
The usual result is that a cost order should follow suit. I am in my
discretion entitled to deviate from this principle. On
the papers
before me the parties through their legal representatives were
embroiled in settlement proceedings. A draft Deed of
Settlement had
indeed been prepared and the outcome of the pension payment was
awaited. Mrs W.’s legal representative wrote
various letters in
this regard, the earliest dating back as far as 6 October 2017 and
wherein particulars of Mr W.’s pension
fund were requested. For
purposes hereof I have to assume that Mr W.’s attorney informed
him hereof but the first respondent
through his attorney failed to
supply these particulars and in general failed to react to these
letters. Follow up letters were
send to which no reaction came forth.
The undeniable impression created is that the Mr W. on purpose kept
these information from
the applicant whilst he realised that the
applicant’s attorney relied on their
bona
fides
(in anticipation of settlement) to be supplied with the information.
Moreover, although Mr W.’s attorney has been on record
all
throughout, Mr W. instructed him not “to accept service of any
application.” That Mr W. attempted to keep information
relating
to the pay out of his pension fund from the applicant, is evident.
This conduct by the first respondent has led to this
application and
the divorce clearly not being finalised. I cannot condone this. My
disapproval will be reflected in the cost order.
[14]
Accordingly the following orders are granted
14.1 The
provisional order dated 24 January 2018 is uplifted.
14.2
The first respondent is ordered to pay the costs including the costs
of 22 February 2018.
________________
C.
REINDERS, J
On
behalf of the Applicant:
Adv. J. C.
Coetzer
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of the Third Respondent:
Adv. F.G. Janse van Rensburg
Instructed by:
J.G. Kriek & Cloete
BLOEMFONTEIN