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[2014] ZAGPPHC 373
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O.S.G v S.A.G (66408/09) [2014] ZAGPPHC 373 (23 May 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 66408/09
DATE:
23 MAY 2014
In
the matter between:
O.
S. G.
APPLICANT
(1
ST
DEFENDANT)
and
S.
A. G.
RESPONDENT
(PLAINTIFF)
In
Re:
S.
A. G.
PLAINTIFF
and
O.
S. G.
1
ST
DEFENDANT
K.
G.
2
ND
DEFENDANT
Coram:
HUGHES J
JUDGMENT
Delivered on: 23 May 2014
Heard on: 16 May 2014
HUGHES
J
1.
On 20 July 1991 the parties were married to each
other out of community of property subject to the accrual system. Two
children
were born out of this marriage.
2.
In these proceedings the parties are cited as
follows, the first defendant in the main action is the applicant and
the plaintiff
is the respondent for easy reference the parties will
be referred to as applicant and respondent.
3.
The applicant seeks an order that his counter
claim for the forfeiture of the respondent’s right to share in
the accrual between
the parties respective estates in terms of the
provisions of Section 9 of the Act 88 of 1984 be decided first and
separately.
4.
In the main action the respondent in her summons
in the divorce proceedings claimed payment by the applicant to her,
an amount equal
to half of the accrual in their respective estates.
5.
The parties managed to resolve most of the
disputes in the divorce action except the issues set out below:
5.1
The reasons for the breakdown of the marriage
between the parties insofar as such reasons are relevant for the
remainder of the
issues.
5.2
Whether or not the plaintiff (respondent) is
entitled to nominal maintenance i.e. whether there are any present
conditions which
would render the plaintiff in need for maintenance
in future.
5.3
Whether the defendant is entitled to an order that
the plaintiff forfeit the right to share in the accrual between the
parties’
respective estates in terms of the provisions of
Section 9 of Act 88 of 1984.
5.4
In the event that the defendant is not successful
with the claim for forfeiture as set out supra, the quantum of the
plaintiff’s
claim for accrual determined in terms of section
3(1) of Act 88 of 1984.
5.5
Which party should pay the costs of the action?
6.
Rule 33(4) of the Uniform Rules of Court provides:
“
If,
in any pending action, it appears to the court mero motu that there
is a question of law or fact which may conveniently be decided
either
before any evidence is led or separately from any other question, the
court may make an order directing the disposal of
such question in
such manner as it may deem fit and may order that all further
proceedings be stayed until such question has been
disposed of, and
the court shall on the application of any party make such order
unless it appears that the questions cannot conveniently
be decided
separately.
”
7.
The thrust of the applicant’s argument for
separation to be granted is primarily the reliance on the decision of
CC v CM
2014 (2) SA 430
(GJ)
and other decisions.
8.
It is succinctly submitted by the applicant that a
separation in terms of Rule 33(4) will be granted in the following
circumstances
as set out in
CC v CM
and its related paragraphs as set out below:
“
4.1
A Court should grant an application for separation unless it is
inconvenient, in other words, the Court is obliged
to order
separation except where the balance of convenience does not justify
such a separation.
4.2
The Court will consider whether the question of law or fact may be
decided separately before others or whether
the issue sought to be
separated may be conveniently separated. In considering the question
of convenience, a court will have regard
to its convenience as well
as the convenience of the parties and the possible prejudice either
party may suffer if separation is
granted.
4.3
An important consideration will be whether or not a preliminary
hearing for the separation decision of specified
issues will
materially shorten the proceedings.
4.4
The nature and extent of the advantages which would flow from the
granting of the separation order sought
in terms of Rule 33(4) should
be weighed up against the disadvantages. The Court is obliged to
order the separation of issues unless
it appears that the issues
cannot conveniently be decided separately. Accordingly it is for the
respondent to satisfy the Court
that the separation application
should not be granted.
”
9.
The respondent makes the following submissions in
its opposition of the separation application:
“
2.8.1
that it would not be convenient to separate issues in the manner in
which the First Defendant is seeking
to do;
2.8.2
that it would not be to the benefit of the Plaintiff nor the First
Defendant to have the remainder
of the divorce action heard piecemeal
in the fashion proposed by the First Defendant;
2.8.3
that it would be appropriate and in the interest of expedition and
finality of litigation between
them, that the divorce proceedings be
disposed of as soon as reasonably possible in a single hearing;
2.8.4
the divorce action already commenced during October 2009, and a
considerable sum has already
been spent on the costs of litigation
and the parties are affected by the lack of finality thereof;
2.8.5
The divorce proceedings have been acrimonious and require to be
brought to an end;
2.8.6
The delays in finalising of the divorce may be attributed to the
failure of the First Defendant
to make proper and full discovery
where his co-operation is required.
2.8.7
The estates of the First Defendant and the Plaintiff are not complex
and there is no reason
why the accrual cannot be dealt with together
with the other aspects of the divorce.
2.8.8
Separation would result in both parties having to testify in two
separate trials, if forfeiture
were not granted.
2.8.9
It is necessary to first determine whose estate shows a larger
accrual that the other, before
the question of forfeiture is capable
of being determined. The First Defendant denies that his estate shows
a greater accrual than
that of the Plaintiff. The extent of the
prospective benefit ought to be known in order to determine whether
forfeiture ought to
be granted on the ground that to share in
patrimonial benefits would be unjust.”
10.
The claim for forfeiture that the applicant wishes
to have determined prior to the divorce proceeding is governed by
section 3 and
section 9
of the
Matrimonial Property Act 88 of 1984
.
Reference is had to paragraphs 5 above specifically 5.3 and 5.4.
11.
It is prudent to set out the provisions of
section
3
which reads as follows:
“
Accrual
system
(1)
At the dissolution
of a marriage subject to the accrual system, by divorce or by the
death of one or both of the spouses, the spouse
whose estate shows no
accrual or a smaller accrual than the estate of the other spouse, or
his estate if he is deceased, acquires
a claim against the other
spouse or his estate for an amount equal to half of the difference
between the accrual of the respective
estates of the spouses.
(2)
Subject to the provisions
of
section 8
(1),
a claim in terms of subsection (1) arises at the dissolution of the
marriage and the right of a spouse to share in terms of
this Act in
the accrual of the estate of the other spouse is during the
subsistence of the marriage not transferable or liable
to attachment,
and does not form part of the insolvent estate of a spouse.
”
12.
From the submissions made by the applicant
reference is made of the fact that a claim for an amount equal to one
half of the difference
of the accrual between the applicant and the
respondents respective estates only arises upon dissolution of the
marriage between
the parties.
13.
The above submission is in line with the decision
of
Le Roux v Le Roux
2010
JOL
26003
(NCK)
where the learned Judge
Olivier after an analysis was done of section 3 concluded that:
“
(17)
The provisions of section 3 are in my view clear and unambiguous and
their ordinary grammatical
meaning is simply that no such claim (
that is acquired in terms of section 3(1) ) will arise until such
time as the marriage is
dissolved.”
(My
additions in brackets).
14.
To this end it is noted in paragraph 13 above that
the applicant acknowledged the above contention that a claim in terms
of 3(1)
only arises upon dissolution of the marriage.
15.
It is argued by the respondent that
Le
Roux
explains this position aptly
and that in terms of section 3 the respondent has a ‘right’
to share in the accrual of
the applicant which can be ‘claimed’
after the dissolution of the marriage, thereafter transfer and or
attachment can
occur.
16.
In
Le Roux
at
paragraph 28
Olivier J expresses that section 9 provides that a
‘right’ to share may be declared forfeit wholly or
partly. The crux
in section 9 being the ‘right’ and its
established that though the ‘right’ exists it can only be
‘claimed’
upon dissolution of the marriage
(Le
Roux at paragraph 27)
.
17.
In addition refer to
Wijker
v Wijker
1993 (40 SA 720
(A) at 726
which
states:
“…
It
is obvious from the wording of the section that the first step is to
determine whether or not the party against whom the order
is sought
will in fact be benefited. That will be purely a factual issue. Once
that has been established the trial Court must
determine, having
regard to the factors mentioned in the section, whether or not that
party will in relation to the other be unduly
benefited if a
forfeiture order is not made. Although the second determination is a
value judgment, it is made by the trial Court
after having considered
the facts falling within the compass of the three factors
mentioned in the section…”
18.
On an analysis of the respondents argument and
submissions as to why separation should be granted, the respondent
has illustrated
this by virtue of the fact that the respondent though
she has a right to claim from the larger accrual she will have to
first have
the marriage dissolved to claim this right or enforce this
right that she has to claim half of the estate of the applicant.
Having
said so after the dissolution the necessary calculation and
debatement would need to take place.
19.
Thus in the circumstances due to section 3 and 9
of the Act it is evident that an order to separate in the
circumstances would not
be operative, though the respondent has the
right it only becomes operative after the dissolution, thus the
dissolution has to
occur before the respondent initiates the claim
associated with the said right.
20.
Under the circumstances the issue sought to be
separated cannot be conveniently separated as it is clear that the
respondent will
be prejudiced in exercising her right if the
separation occurs, as her right only comes into fruition after the
dissolution of
the marriage. Finally due to section 3 and 9 of the
Act the issue that the applicant seeks to separate cannot
conveniently be separated.
21.
In the circumstances the following order is made:
21.1
The application for separation in terms of Rule
33(4) is refused with costs awarded to the respondent.
______________________________
W.
Hughes Judge of the High Court
Delivered
on: 23 May 2014
Heard
on: 16 May 2014
Attorney
for the Applicant (1
st
Defendant):
WEAVIND
& WEAVIND
Weavind
Forum
573
Fehrsen Street
New
Muckleneuk
PRETORIA
Tel:
012 346 3098
Ref:
D R MANLEY/WO/G36128
Attorney
for the Respondent (Plaintiff):
ADAMS
& ADAMS
Lynnwood
Bridge
4
Daventry Street
Lynnwood
Manor
PRETORIA
Tel:
012 432 6000
Ref:
DBS/JLLG/BDT/F50