About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 13
|
|
P v P (A163/2015) [2016] ZAFSHC 13 (28 January 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
No. : A163/2015
In
the appeal between:-
M.
H. P.
Appellant
and
N.
W. P.
Respondent
CORAM:
PLOOS
VAN AMSTEL, J
et
HINXA, AJ
HEARD
ON:
25
JANUARY 2016
DELIVERED
ON:
28
JANUARY 2016
[1]
The parties in this appeal were previously married to each other in
community of property. They were divorced on 7 September
2012
in terms of an order which provided for the division of the joint
estate. On 16 March 2015 the appellant launched an
application
in the regional court for the appointment of a receiver as the joint
estate had not been divided. The respondent
opposed the
application and it was dismissed by the learned magistrate, who
ordered the appellant’s attorney to pay the costs
of the
application
de
bonis propriis
.
The appeal before us relates to the dismissal of the
application and to the costs order.
[2]
The facts are briefly as follows. The divorce order was granted
on 7 September 2012. The respondent then lodged
an appeal
against the refusal of an order for the forfeiture of the benefits of
the marriage in community of property. The
appeal came to
nought as it was noted late and the application for condonation was
refused on 19 June 2014.
[3]
The respondent is a practising attorney. He continues to occupy
the house which was once the matrimonial home and is owned
by the
joint estate. Shortly after the application for condonation was
refused the respondent and the appellant’s attorney
started to
exchange correspondence in which both parties requested settlement
proposals from the other. The respondent included
figures in
one of his letters, which he said reflected the estimated values of
the assets. These were questioned and not
accepted by the
appellant. It would appear that the appellant was reluctant to
formulate settlements proposals until she
knew how much she was going
to receive in respect of her share of the respondent’s pension
interests. So the matter
dragged on for about nine months, with
letters being exchanged that said little and achieved nothing, until
the appellant launched
the application for the appointment of a
receiver on 16 March 2015.
[4]
In practice the division of a joint estate seldom presents
difficulties as the parties usually agree on how the division should
be done. In the absence of such agreement the court can order
the division itself or it can appoint someone to do so on its
behalf.
The basis on which the magistrate dismissed the application was
that she was not satisfied that the parties had engaged
each other
meaningfully with a view to coming to an agreement, and that the
appellant had failed to prove that she and the respondent
had been
unable to agree.
[5]
The issue in this appeal is whether an applicant for the appointment
of a receiver has to show that the parties have tried to
reach an
agreement but have been unable to do so. The magistrate
referred to
Maharaj
v Maharaj and Others
[1]
where Magid J said:
“
The
parties are entitled of course to agree on the manner of division.
If they cannot agree a liquidator may have to be appointed.”
This
statement must be seen in the context of the facts of that case. The
learned judge was not dealing with an application
for the appointment
of a liquidator and he did not purport to deal with the requirements
for such an appointment. The case
is no authority for the
proposition that a receiver will not be appointed unless the
applicant shows that an agreement cannot be
achieved.
[6]
In
Gillingham
v Gillingham
[2]
Innes CJ said the following:
“
The
law governing this matter seems to me perfectly clear. When two
persons are married in community of property a universal
partnership
in all goods is established between them. When a court of
competent jurisdiction grants a decree of divorce that
partnership
ceases. The question then arises, who is to administer what was
originally the joint property, in respect of
which both spouses
continue to have rights? As a general rule there is no
practical difficulty, because the parties agree
upon a division of
the estate, and generally the husband remains in possession pending
such division. But where they do not
agree the duty devolves
upon the Court to divide the estate, and the Court has power to
appoint some person to effect the division
on its behalf. Under
the general powers which the Court has to appoint curators it may
nominate and empower someone (whether
he is called liquidator,
receiver, or curator …) to collect, realise, and divide the
estate. And that that has been
the practice in South African
courts is clear.”
[7]
In other words, in the absence of agreement between the parties the
court may order the division itself, or it may appoint someone
to
effect the division on its behalf. In
Ex
Parte De Wet NO
[3]
Horwitz J used the expression ‘…in cases where the
spouses do not agree to an amicable division’. The
reason
why the parties have not reached agreement does not seem important to
me. There may be a genuine difference of opinion
or one or both
of the parties may simply be difficult or unreasonable. But the
court cannot compel them to agree, nor should
the court in my view
decline to come to their assistance on the basis that they have not
tried hard enough. In
Van
Onselen NO v Kgengwenyane
[4]
Comrie J said that in exercising the power to divide the joint
estate, or to supervise its division, the courts tended to apply
the
rules developed for the dissolution of commercial partnerships. It
seems plain that in the absence of agreement between
the partners the
court will appoint a liquidator without enquiring why the parties
have not agreed on a division. It is the
absence of an
agreement that is relevant, not whether the parties have made a good
enough effort to agree.
[8]
I can conceive of a case where one of the spouses resists the
appointment of a receiver on the basis that the parties are
negotiating
about the division of the joint estate and are likely to
reach an agreement. But if no agreement is reached in a
reasonable
time and the other party persists in the application I can
see no reason why a receiver will not be appointed. In
The
South African Law of Husband and Wife
[5]
the learned authors say, with reference to
Revill
,
[6]
that neither of the parties is entitled to take it upon himself to
effect the division if the other spouse objects. Whether
or not
the objection is reasonable seems to me to be entirely irrelevant.
[9]
Counsel for the respondent submitted that a court will not appoint a
receiver as a matter of course and simply because one of
the parties
asks for it. That is probably correct. The court should
in my view be told why there is a need for the
appointment of a
receiver. There may be different reasons in different cases,
but I do not agree that a receiver will only
be appointed on proof
that the parties are unable to reach agreement. For example, a
party who does not want to negotiate,
for whatever reason, seems to
me to be entitled to ask the court to order a division or appoint a
receiver.
[10]
I think it is clear on the papers that neither of the parties made a
serious effort to reach agreement expeditiously. Letters
were
not responded to in good time, proper valuations were not obtained,
both parties failed to make settlement proposals which
were worthy of
serious consideration and neither of the parties made
arrangements with the pension funds to transfer to the
appellant what
was owing to her. The magistrate delivered her judgment on 26
June 2015, nearly three years after the parties
were divorced. It
is now January 2016 and there is still no agreement.
[11]
In my view the magistrate should have granted the application for the
appointment of a receiver. Counsel for the appellant
submitted
that in that event the costs of the application before the magistrate
should be paid out of the joint estate. This
seems fair as both
parties must take some of the blame for the failure to reach
agreement on a division.
[12]
The order sought in the notice of motion is unclear in some respects
and both counsel asked us, in the event of us appointing
a receiver,
to reword the order in so far as may be necessary. They also
agreed that the order should be suspended for a
period of thirty days
so as to give the parties a final opportunity to reach agreement on a
division.
ORDER
[13]
The order which we make is as follows:
(a)
The appeal succeeds.
(b)
The order made by the magistrate dismissing the application is set
aside, as is the costs order.
(c)
Mr PJ Joubert, an attorney of the firm Kramer, Weihmann and Joubert
in Bloemfontein is appointed as
receiver of the joint estate of the
parties with the following powers:
(i) To
take possession of all the assets of the parties, movable and
immovable, and for that purpose to enter
upon any property occupied
by either of the parties, and to recover possession of any such
assets from third parties;
(ii) To
sell any assets of the joint estate by public auction or private
treaty;
(iii) To pay
any debts of the joint estate, including his own fees, and to divide
the balance between the parties equally;
(iv) To sign any
documents on behalf of the parties which are required for the sale
and transfer of assets of the joint estate;
(v) To obtain
legal advice at the expense of the joint estate or apply to this
court for directions or declaratory orders
regarding the joint
estate.
(vi) To prepare a
detailed account of what he had done when the division is complete
and furnish this to both parties.
(d)
The parties are directed to co-operate with the receiver in the
carrying out of his functions.
(e)
The orders in (c) and (d) above will only take effect thirty days
after the delivery of this judgment
and will lapse if the parties had
by then concluded a written agreement, signed by both of them,
regarding the division of the
joint estate.
(f)
The costs of the application in the magistrates’ court for the
appointment of a receiver
are to be paid out of the joint estate.
(g)
The respondent is ordered to pay the costs of the appeal.
________________________
J.A.
PLOOS VAN AMSTEL, J
I
agree.
_____________
M.D.
HINXA, AJ
On
behalf of appellant:
Adv S.J. Reinders
Instructed by:
McIntyre & Van Der
Post
BLOEMFONTEIN
On
behalf of respondent:
Adv A. Williams
Instructed
by:
Phalatsi & Partners
BLOEMFONTEIN
[1]
2002
(2) SA 648
(D & CLD) at 652C.
[2]
1904
TS 609.
[3]
1952
(4) SA 122
(OPD) at 125E.
[4]
1997
(2) SA 423
(BSC) at 428 B-C.
[5]
The
South African Law of Husband and Wife
,
5
th
ed, Hahlo and Kahn, p382.
[6]
Revill
v Revill
1969 (1) SA 325
(C)