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[2017] ZAGPPHC 93
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M v M (62488/15) [2017] ZAGPPHC 93 (15 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
62488/15
In the matter
between:
M
Plaintiff/Respondent
and
M
Defendant/Appellant
JUDGMENT IN RESPECT OF LEAVE TO
APPEAL
OPPERMAN
j
[1]
This is an application for leave to appeal
against the judgment handed down by this court on 1 December 2016.
[2]
Prior to dealing with the merits of the
application for leave to appeal, it is necessary to deal with a
feature of the order, which
contains a patent error as envisaged in
terms of rule 42 (1) (b) of the Uniform Rules of Court. The appellant
was ordered to pay
the respondent the amount of R 3 500 000, being
her benefit in respect of the accrual to which she is entitled. The
parties agreed
that if the commencement value of both parties’
estates were accepted as being nil, then the benefit to which the
respondent
would be entitled, would be R7,5 million/2 = R 3,75
million, should no forfeiture order be made. The court found that the
commencement
value of both parties’ estates was nil and that
the respondent was not to forfeit any part of her benefit. That being
so,
the appellant ought to have been ordered to pay the respondent
the sum of R 3,75 million. Paragraph 3 of the typed order (and
paragraph
107.3 of the judgment) should read: “
The
defendant is ordered to pay to the plaintiff the amount of R3,75
(three million seven hundred and fifty thousand rand) being
her
benefit in respect of the accrual to which she is entitled.”
[3]
I deal then with the application for leave
to appeal:
[4]
At the conclusion of the evidence at the
trial, the court granted a decree of divorce, set aside an interim
maintenance order granted
in the Middelburg Regional Court under case
number MRCB557/2014 and reserved judgment on:
4.1.
The appellant’s claim for
rectification of the antenuptial contract;
4.2.
The appellant’s claim for a
declaratory order regarding the commencement value of his estate as
recorded in the antenuptial
contract;
4.3.
The appellant’s claim that the
respondent should forfeit the benefits of the marriage either wholly
or in part;
4.4.
Costs.
All such issues were referred to as
‘
the reserved issues’
.
[5]
The interpretation of section 6 of the
Matrimonial Property Act 88 of 1984 (‘
MPA
”)
and the numerous conflicting judgments which exist in respect thereof
is, in my view, the decisive factor which warrants
this court
granting leave to appeal. This, despite having found that the
appellant failed to prove the value of his estate at the
commencement
of the marriage and that this finding, on any construction of section
6 of the MPA, would not avail the appellant
in altering the order
granted. However, the nature and identity of the assets, which the
appellant had brought into the marriage
at the commencement thereof,
is common cause between the parties. This fact, might avail the
appellant, should section 6 of the
MPA be interpreted in his favour.
[6]
The facts of this case are quite unique.
There are reasonable prospects that another court would order
forfeiture, either wholly
or in part, or that it might find that
section 9 of the Divorce Act 70 of 1979 (‘
the
Divorce Act’
) or certain
requirements embodied therein, no longer has application under a no
fault divorce regime.
[7]
I hold the view that no reasonable
prospects of success exist in respect of the appellant’s
rectification claim. The probabilities
are overwhelmingly against him
persuading another court that Mrs Wentzel’s evidence is to be
rejected in favour of his version
on this aspect.
[8]
I am of the opinion that the appeal would
have reasonable prospects of success in respect of three of the four
reserved issues.
I also hold the view that the existence of
conflicting judgments in respect of the interpretation of
section 6
of the MPA, provides compelling reasons why the appeal should be
heard.
[9]
I accordingly grant the following order:
9.1.
Leave to appeal to the Full Court of the
High Court of South Africa, Gauteng Division, Pretoria is granted in
respect of all the
reserved issues on the grounds mentioned in
appellant’s application for leave to appeal dated 19 December
2016, save for
the rectification claim. In respect of the
rectification claim, leave to appeal is refused.
9.2.
Costs of the application for leave to
appeal are to be costs in the appeal.
___________________________
I
OPPERMAN
Judge
of the High Court
Gauteng
Division, Pretoria
Heard:
15 March 2017
Judgment
delivered: 15 March 2017
Appearances:
For
Plaintiff/Respondent : Adv AF Arnoldi SC
Instructed
by: Couzyn Hertzog & Horak
For
Defendant/Appellant : Adv ML Haskins SC
Instructed
by: De Beer Attorneys