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[2017] ZAGPPHC 220
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M v M (62488/15) [2017] ZAGPPHC 220 (15 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
62488/15
Reportable:
No
Of
interest to other judges: No
Revised.
15/3/2017
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