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[2017] ZAGPPHC 105
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K.K.T v M.S.R (4081/2013) [2017] ZAGPPHC 105 (10 March 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
10/3/2017
CASE
NO: 4081/2013
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
K.
K.
T.
Plaintiff
and
M.
S. R.
Defendant
JUDGMENT
DAVIS,
AJ:
[1]
NATURE OF THE APPLICATION:
1.1
The Plaintiff styled its application as an
"anti-dissipation
application"
and claimed the following relief:
"
1. That, pending
the determination
and
finalisation of the application for
leave
to
appeal (or
a
petition for
leave to
appeal)
and
the appeal
itself, the
Defendant be
and
is
hereby interdicted
and
restrained forthwith from selling, disposing and/or dissipating
any and all of the assets that form part of the joint estate between
the parties, they being inter alia:
1.1
an immovable
property,
being
Erf
No.
[...] H. Extension [...]
as
held under
Title
Deed
T[...];
1.2
an
immovable property,
being Erf
No.
[...] M. E., X11
as
held under
Title Deed
T[...];
1.3
an
immovable
property, being
Erf
No. [...] B. R., Afrique
de
Estate,
Hartebeespoortdam
as
held
under
Title Deed T[...];
1.4
business interests, shareholding and/or
equity
in
the registered
and
operating
companies
as
more
fully described in Annexure
"K3" to
the Founding Affidavit;
1.5
policies,
savings
and/or
investments
as
held
with any
and/or various financial institutions in the
name of
and under the identity document of the Defendant;
1.6
a
motor
vehicle, being
a
Range
Rover
bearing
registration letters
and numbers [M...]; and
1.7
a
motor
vehicle,
being
a
Mercedes
Benz
C63
AMG
registered
in
the
name
of
the
Defendant
and
whose registration
letters and numbers are to
the
Plaintiff unknown.
2.
That
the
Defendant be ordered to
pay the
costs
of
this
application
only
in
the
event
that
he
opposes
the
relief
sought herein.
1.2
The aforesaid application was brought on notice for hearing
on the
days on which the divorce action was set down, being 7 and 8 March
2017.
1.3
The Plaintiff in the divorce action is the Applicant
in this
application and the Defendant in the divorce action is the
Respondent. For ease of reference and sake of convenience the
parties
shall be referred to as in the divorce action.
1.4
The Defendant opposed the application by way of
a notice in terms of
Rule 6(5)(d)(iii).
1.5
The application was heard prior to the commencement of
the divorce
action. Judgment was reserved to be delivered simultaneous with the
separate judgment in the divorce action. The oral
arguments were, at
my invitation at the conclusion of the divorce action, supplemented
by written Heads of Argument.
[2]
BASIS FOR THE PLAINTIFF'S APPLICATION:
2.1
During the course of long and heavily contested
divorce litigation
between the parties, Kollapen J ordered forfeiture of the benefits of
the marriage in community of property
in favour of the Defendant (in
respect of all but one of the assets of the estate). This was done on
10 August 2016 and the judgment
has since been reported as
KT v
MR
2017(1) SA 97 (GP).
2.2
The
dies
for the delivery of an application for leave
to appeal the aforesaid order expired on 31 August 2016. The
Plaintiff delivered an
application for leave to appeal together with
an application for extension of time/condonation on 22 September
2016. These applications
came before Kollapen J on 20 October 2016 on
which date they were postponed
sine die.
2.3
The Plaintiff claims that the delivery of the application
for leave
to appeal suspended the operation of the forfeiture order by virtue
of the provisions of
Sections 18(1)
and
18
(5) of the
Superior Courts
Act, No. 10 of 2013
.
2.4
The Plaintiff further claims that the present application
merely
affirms the aforesaid position of suspension and that she is
furthermore entitled to the relief claimed on the following
grounds:
"5.
1
Recently
and
after the postponement
of the application
for leave
to
appeal,
the
Respondent
has
taken
steps
to dispose
of
some
of the
assets
forming
part
of
the joint estate.
5.
2
In particular,
the Respondent
had
put on the market one of the properties
forming part
of the
joint
estate,
being
House No.
[...], B. M. E.,
Centurion,
Gauteng Province
[the asset referred to in prayer
1.2 of the Notice of Motion].
This the Respondent
did
on
the basis
that
the said
property
is
in
his
view
of
the
forfeiture
order
granted (sic).
5.3
It is trite that the
joint
estate
constituted
as
a
result
of
the marriage
that subsists between the
Respondent
and I means that
I
own
one
half
of
all
the
assets
in
the
joint estate.
5.4
The forfeiture
order granted
meant
that all of the assets in the
joint
estate now
belong
to the
Respondent, except
the property
excluded
as per paragraph
25(i) of th
e
judgment.
5.5
As
mentioned
hereinabove
I
have now
applied
for leave
to
appeal
against
the
forfeiture
order
and
the judgment
concerning
same
...
5.
8
In
the premises
the forfeiture
order
is suspended
pending the
decision
of
the
application
for
leave
to
appeal
or
the appeal
itself.
The
Respondent
can
therefore
not
dispute (sic) of the assets forming part of the
joint
estate
.
.
.
6.
Conclusion:
In
the
premises
and
all
things considered, it
is
my
respectful submission
that I have made out
a
case
for the relief I seek in the present application."
[3]
THE DEFENDANT'S OPPOSITION RAISED IN TERMS
OF
RULE 6(5)(d)(iii):
The
Defendant raised the following issues:
3.1
The application is an irregular step within the meaning of
Rule 30
;
200
%">
3.2
The requirements for a temporary interdict have not been met:
3.2.1
There is an absence of a
prima
facie
right;
3.2.2
The Plaintiff has failed to allege and prove that she
has a
well-grounded apprehension of irreparable harm if the interim relief
is not granted;
3.2.3
The balance of convenience is against the grant of
the interdict;
3.2.4
The Plaintiff failed to allege and prove the absence
of similar
protection by any other ordinary remedy.
[4]
AD
THE
IRREGULARITY:
4.1
The objection is that the application is styled
as an interlocutory
application in terms of
Rule 6(11).
The current procedures before
court are however the finalisation of the divorce action and
"the
forfeiture
order
under appeal
is
not
incidental
to, subordinate or accessory to the divorce
action" ,
so the Defendant argues.
4.2
I do not agree. The divorce action between the
parties consisted of
three parts. In terms of a first question separated in terms of
Rule
33(4)
the issue of the existence of a marriage between the parties
was decided separately. The Defendant denied that the parties were
married to each other in terms of customary law pursuant to
Section 3
of the
Recognition of Customary Marriages Act, 120 of 1998
. This
issue was decided in favour of the Plaintiff by Makgoka J on 4 April
2014. In his judgment the learned
judge reserved
the question of costs as he was of the view that it should be decided
"with the
determination
of the
remaining
issues" .
He also made
express reference to the Defendant's then counterclaim for forfeiture
of benefits.
4.3
The issue regarding the forfeiture of benefits
was also decided
separately in terms of
Rule 33(4)
by Kollapen J as already referred
to above.
4.4
The issue of forfeiture of benefits is one of the
factors which a
court can and should take into account in adjudicating the
Plaintiff's outstanding claim in the divorce action
set down for 7
and 8 March 2017 wherein she claims rehabilitative maintenance for
herself. The issue of forfeiture or not impacts
on the Plaintiff's
asset position and her ability to maintain herself.
4.5
Although the aforementioned issues were decided
separately in terms
of
Rule 33(4)
they are clearly part and parcel of the same action and
litigation between the parties and the issues which feature in the
separated
issues all impact to varying degrees on each other. To my
mind therefore, the current application can be seen as interlocutory
in both the forfeiture part of the divorce action as well as the
remaining part of the divorce action itself.
4.6
None of the preceding steps in terms of
Rule 30
regarding the alleged
irregularity have in any event been taken by the Defendant.
4.7
The first point of objection is therefore dismissed.
[5]
AD
THE
ABSENCE
OF A
PRIMA
FACIE
RIGHT:
5.1
The Defendant's opposition on this basis is somewhat
confusing. The
notice in terms of
Rule 6(5)(d)(iii)
states the following:
"(i)
The Applicant
is
applying
for
an
interim
interdict
pending an
appeal. On Applicant's
own
ipse
dixit
there
is
a
judgment
granted
after
a
full trial in which
judgment
a
forfeiture
order
was granted
against her thus
denuding her of
her
alleged
right
to
the
properties she
now
wishes
to interdict
the
Respondent
from
dealing
with
and/or disposing of
(ii)
The above
notwithstanding,
Applicant
in her
affidavit
does not at all
deal with the prospects
of success on her appeal. In
the premises
Applicant
has
failed
to
establish
a
prima facie right."
5.2
The abovementioned argument is flawed: If the operation
of the
forfeiture order was validly suspended by a timeously delivered
application for leave to appeal, then the Defendant would
not have
had the right to deal with the property as if his own and would have
had to deal with the property as if still part of
the joint estate.
He could conceivably then have been restrained from unilaterally
dealing with immovable property other than in
accordance with the
Matrimonial Property Act, No 88 of 1984
.
5.3
At the conclusion of the trial and whilst the judgment
regarding this
application was still reserved, I referred the parties to the
judgment of
Panaviotou
v
Shoprite
Checkers
(Pty)
Ltd and
Others
2016(3) SA 110 (GJ).
Neither of the parties has in subsequently delivered written Heads of
Argument convinced me that the decision
in this matter is not
applicable to this application.
5.4
In the
Panayiotou
-case Sutherland J investigated what
the minimum requirements are to satisfy the requirements of
Section
18(5)
read with
Section 17(2)
of the
Superior Courts Act, No. 10 of
2013
which will result in a judgment being suspended pending
application for leave to appeal or a petition to the Supreme Court of
Appeal
for leave to appeal. With reference to
Modderfontein
Squatters, Greater
Benoni
City
Council
v
Modderklip
Boerdery
(Pty)
Ltd
(Agri
SA
and
Legal
Resources
Centre,
Ami
ci
Curiae);
President
of
the
Republic
of
South
Africa
and
Others
v
Modderklip
Boerdery (Pty) Ltd
(Agri
SA and
Legal
Resources
Centre,
Amici Curiae)
2004(6) SA 40
(SCA) it was held that a judgment is not suspended
by the late delivery of an
application for leave to appeal even
though lastmentioned may be accompanied by a simultaneous service of
a condonation application.
I see no compelling reason to differ
from this judgment or to conclude that it is wrong and should not be
followed.
5.5
Therefore, similarly as in the
Panayiotou
-matter
,
the judgment of Kollapen J on the facts of this matter is not
suspended and the Plaintiff s application should fail for want of a
prim
a
facie
right.
[6]
AD
APPREHENSION
OF
IRREPARABLE HARM:
6.1
Apart from the aforementioned lack of a
prima
facie
right, the Plaintiff has not set out grounds resulting in a
reasonable apprehension of irreparable harm if the interim relief is
not granted. Say for example the Plaintiff would succeed in her
appeal only to find that the Defendant has in the meantime sold
the
immovable property, then there is still no indication that there
would not be sufficient assets remaining to satisfy the Plaintiff
s
claim for one half of the joint estate.
6.2
It is clear from the judgment of Kollapen J that
the Defendant is a
man of substantial means and that there are numerous other assets
(all of which he had either acquired prior
to his marriage with the
Plaintiff or paid for if acquired during the subsistence of the
marriage). The Plaintiff only refers to
the placing in the market of
a single immovable asset. Even if the proceeds of this asset are
dissipated, there is no indication
or even an allegation that her
claim for one half of the estate would not be able to be satisfied
from the remainder of the assets.
6.3
The Defendant's objection on this ground must therefore
be upheld.
[7]
AD
BALANCE
OF
CONVENIENCE:
7.1
The restraining order sought by the Plaintiff is couched in extremely
wide terms.
The proposed order encompasses not only all immovable and
movable or liquid assets but if granted, would have the effect of
freezing
all of the Defendant's financial investments and bank
accounts or at least so limit his dealing therewith that he would be
economically
disenfranchised. These are draconian and far
reaching measures. The balance of convenience favours the Defendant
and, in the
absence of any irreparable harm, there is no balance
which favours the Plaintiff.
7.2
If the order is granted the Defendant might suffer significant
financial harm
and this should not be countenanced where it is
well-known that he has sufficient funds to satisfy any eventual claim
by the Plaintiff.
See in this regard
RS v
MS and Others
2014(2) SA 511 (GJ).
[8]
AD
AL
TERNA
TE
REMEDIES:
8.1
Even if the Plaintiff is successful in her appeal against the
forfeiture order
and even if it is found consequently that the
Defendant acted unilaterally outside the provisions of
Section 15
of
the
Matrimonial Property Act, No. 88 of 1984
, then any adjustment for
a loss suffered by the Plaintiff can still take place in terms of
Section 15(9) of the aforesaid Act.
8.2
The Plaintiff has failed to indicate that this alternate remedy would
not be
sufficient to meet the needs of the case.
8.3
The objection raised by the Defendant in this regard must also be
upheld.
[9]
COSTS:
I
have, in the separate judgment dealing with the divorce action, not
only dealt with costs previously reserved by Makgoka J in
respect of
the initial separated issue determined by him but also with the costs
of the divorce order itself. The considerations
applicable in the
divorce trial itself are absent from the present application and I
find no compelling reason why the normal principle
that costs should
follow the event should not be adhered to.
[10]
ORDER:
Having
considered all of the above aspects, the Plaintiff's application is
dismissed with costs.
_______________________
N
DAVIS
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing:
6 March 2017
Judgment
delivered: 10 March
2017
Counsel
for Plaintiff:
Adv D Z Kela
Attorneys
for Plaintiff: Ndumiso
Voyi Inc.
Counsel
for Defendant: Adv P Van Niekerk SC
Attorneys
for Defendant: L Mbanjwa Inc.