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[2015] ZAGPPHC 420
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Mmampane and Another v Mmampane nee Moshitoa (54061/2014) [2015] ZAGPPHC 420 (29 May 2015)
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 54061/2014
DATE OF HEARING: 14 MAY 2015
DATE
OF JUDGMENT: 29 MAY 2015
In
the matter between:
WALTER
NWANE
MMAMPANE
First
Applicant
LISBETH
NOMADUBA
MMAMPANE
Second
Applicant
and
DERNEY
DIKGOMO MMAMPANE nee
MOSHITOA
Respondent
J U D G M E N T
AVVAKOUMIDES,
AJ
1.
In
D v D (15402/2010) [2013] ZAGPJHC 194 (10 May 2013) Miltz AJ stated
the following:
“
Marriage
in community of property carries major implications for ownership of
the parties’ assets, liability for their debts
as well as their
capacity to enter into legal transactions. Community of property
entails the pooling of all assets and liabilities
of the spouses
immediately on marriage, automatically and by operation of law. The
same regime applies to assets and liabilities
which either spouse
acquires or incurs after entering into the marriage. The joint estate
created by marriage in community is held
by the spouses in
co-ownership, in equal, undivided shares
.”
(See
Boberg’s Law of Persons and the Family (2nd ed) at page 185 and
also HR Hahlo, The South African Law of Husband and Wife
(5th ed) at
157 to 158).
“
The
natural consequence of holding the parties to their marriage
agreement is that on divorce the joint estate will be divided equally
between them unless a forfeiture order is made. In such event the
value of the assets in the joint estate that must be divided
will be
determined at the date of the divorce
.”
See
Matthee v Koen
1984 (2) SA 543
(C). This is the usual position when
the divorced parties give effect to the order for division of the
joint estate. In this case
however the parties failed to effect to
the order for division of the joint estate since 2001 and now
approach the court for the
relief sought.
2.
The
first applicant and the respondent were married to each other in
community of property and were divorced by the then North Eastern
Divorce Court, held at Pretoria on 2 August 2001. The divorce order
reads as follows:
“
That
the bonds of marriage subsisting between the Plaintiff and the
Defendant be and are hereby dissolved.
That the joint estate shall
be divided.
That custody of Barlican
Makgase, the one minor child of the marriage, is awarded to the
plaintiff until the end of the 2001 school
year, whereafter the
plaintiff is to have access to the minor child at all reasonable
times.
That the matter of
maintenance for the minor child for the year 2002 is referred to the
Maintenance Court.
That
the plaintiff is responsible for all reasonable educational expenses
of the minor child
.
”
3.
The
first and second applicants were married to each other on 18
September 2002 by way of civil marriage, also in community of
property. The applicants apply for an order as follows:
1.
“
Declaring
that the Respondent is entitled to half of the joint estate between
her and the first applicant as it was on the 02
nd
of August 2001.
2.
That
the parties are ordered to appoint an independent valuator jointly to
determine the market value of the property known as erf
[….],
Pretoria as it was in August 2001.
3.
That
the value determined by an independent valuator is final and binding
on the parties.
4.
That
the Respondent is ordered to pay the costs of this application.
5.
Further
and/or alternative relief
.”
4.
The
first applicant alleges that the court has jurisdiction to hear this
application because both parties reside within the jurisdictional
are
of the court and because the estate which forms the basis of the
application is worth more than R300 000.00. He says that after
the
divorce the joint estate was never formally divided as no liquidator
was appointed and there was no agreement on how the estate
wold be
divided.
5.
The
respondent vacated the former common home prior to the divorce and
removed some of the movable assets of the joint estate and
only left
the first applicant with some movables which he says, he had
apparently inherited from his parents. After the respondent
left with
the assets taken by her the first applicant accepted all movable
assets had been divided when the decree of divorce was
granted. The
only asset in the joint estate which is not divided is the former
common home, known as […..], Pretoria. The
Deed of Transfer
No. T90537/99 annexed to the founding papers reflects the first
applicant and the respondent as joint owners.
6.
The
first applicant says that the only asset in the joint estate is the
immovable property and that the respondent is entitled to
one half of
such property however contends that the respondent can only share in
the value of the property as at the date of divorce.
The respondent
contends that she is entitled to one half of the property as it
currently stands. The first applicant says that
neither he nor the
respondent took any steps to divide the property, save for the
movable assets. The property was never sold and
it has remained in
the names of both parties.
7.
The
first applicant says that when the second applicant moved into the
property, and after their marriage in community of property,
the
items listed in the joint estate between him and the respondent
consisted of approximately 13 movable items, mainly kitchenware
and
the 4 bedroom house. This is listed in an annexure to the founding
papers. The first applicant then annexes a second
list of
assets wherein he lists some 52 items of movable assets presumably to
show what he and the second applicant have amassed
during their
marriage. I find this to be of no relevance to the issues herein,
except to note that the house (property) does not
form part of the
second list.
8.
The
first applicant states further that he and the second applicant made
massive improvements on the property. During 2012 the applicants
wanted to change the title deed into their names but could not do
this without the consent and co-operation of the respondent.
It is no
surprise, because the respondent was, and still is, a joint owner of
the property. Upon consulting an attorney they were
advised to
approach the respondent and pay her one half of the value of the
property in order to obtain her consent. The first
applicant states
that he instructed a valuator to value the house as it was in 2001
and upon receiving a valuation of R20 000.00
ne instructed his
attorney to make a formal offer to the respondent. What appears quite
clearly is that the initial advice sought
and obtained was to pay the
respondent one half of the value of the house, and not the value as
at date of divorce.
9.
Needless
to say the respondent reacted through her own attorneys that she
disputed the valuation and that she would obtain her own
valuation.
The first applicant noted that the respondent failed to raise any
issue about the date of valuation at that stage. The
respondent
obtained a valuation which is not annexed to the papers but her
attorney wrote and mentioned the sum of R75 000.00 as
at 2002 and
R185 000.00 as at 2012, without the improvements thereon. I find it
difficult to understand how the valuator arrived
at a valuation
without the improvements, in the absence of the valuation. In any
event the stance adopted by the respondent in
her attorney’s
letter is that the value to be taken into account would be the
current value.
10.
The
first applicant disputed the valuation of the respondent as also her
claim to share in the property as at current value and
suggested that
they jointly approach the Law Society for assistance. On 4 October
2013 the respondent approached the Regional Court
for the Regional
Division of Gauteng and obtained an order in terms of which an
attorney of this court, doing business as Batseba
Trust was appointed
as receiver and liquidator of the joint estate, with powers to
distribute the assets and to institute legal
proceedings, appoint
attorneys and counsel and sign all such documents necessary to give
effect to division of the joint estate.
11.
The
liquidator wrote to the first applicant suggesting that he “exercise
a buy-out option” failing which he would be
compelled to sell
the property. The first applicant respondent informed the liquidator
that he intended to bring the current application
and he should be
given an opportunity to do so before the liquidator proceeded. The
liquidator agreed and gave the first applicant
an extension until 16
June 2014. Despite the application only having been brought in 2015
the liquidator has not taken any action.
12.
Because
the liquidator has knowledge of the first applicant’s intention
to proceed with this application, albeit more than
a year later, I
exercised my discretion against dismissing the application for
non-joinder of the liquidator. On the basis
of the above
allegations the first applicant, supported by the second applicant,
says that they are entitled to the relief sought.
13.
The
respondent’s version is largely aimed at telling the court that
she was forcibly removed from the former common home and
“delivered
to her parents’ home” without her clothes and she was
only given two sewing machines. She further
states that there is
another matrimonial home as well, a motor vehicle, a pension fund
interest and provident fund that have not
been divided. The
situation is clearly untenable and it is shocking that the parties
have not resolved the differences since
the divorce in 2001.
14.
In
my view the applicants have not made out a case for the relief
sought. On their own version they happily went about bringing
massive
alternations to the property, whilst knowing that one half of the
property belonged to the respondent. They cannot now
complain about
the improvements they effect to the house. On the other hand event if
they did not bring about any improvements
on the property, it is my
view that the respondent would still be entitled to share in the
value of the property at current value.
The first applicant cannot
sit back and claim that only he is entitled to benefit in the current
value but the respondent can only
have her share in the value as at
2001. Whether the first applicant and perhaps the second applicant
would have a claim against
the respondent for unjust enrichment for
the increase in value brought about by the improvements is not an
issue before me to decide.
15.
The
fact remains that the respondent is entitled to one half of the
property at current value and one half whatever other assets
the
liquidator may find as having been part of the joint estate at the
time of divorce. The only remaining issue to determine is
the
question of costs. Given the facts herein, and the fact that the
first applicant, whilst knowing that the house was registered
in both
his name and that of the respondent, he nevertheless went about
improving the property as if he had every right to do so.
Only when
the shoe pinched and he realised that he could only transfer the
house into his name and the second applicant, he embarked
on strategy
to get the respondent out of the picture by offering her what he in
his mind thought was her right. I am of the view
that costs must
follow the result.
16.
Consequently,
I make the following order: The application is dismissed with costs.
________________________________
AVVAKOUMIDES, AJ
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Representation for Applicants:
Counsel:
R. B.
Mpela
Instructed by:
Schurmann Joubert Attorneys
Representation for the Respondent:
Counsel:
M.
Pompo
Instructed by:
Seleka Attorneys