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[2014] ZAFSHC 204
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L v L and Another (164/2014) [2014] ZAFSHC 204; 2015 (4) SA 271 (FB) (30 October 2014)
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IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No.: 164/2014
In the matter between:
B[…]
L[…]
….............................................................................................................................
Applicant
and
F[…]
J[…] L[…]
…........................................................................................................
First
Respondent
METROPOLITAN
RETIREMENT
ADMINISTRATORS
…............................................................................................
Second
Respondent
HEARD ON:
14 AUGUST 2014
JUDGMENT BY:
E.K. TSATSI, AJ
DELIVERED ON:
30 OCTOBER 2014
INTRODUCTION
:
[1] This is an opposed mandatory
interdict application. The applicant, who was the former spouse
of the first respondent,
sought a mandatory order against the first
and second respondents. The order was to compel the first and
second respondents
to provide certain information pertaining to the
first respondent’s pension fund.
[2] The applicant sought the order in
the following terms:
2.1
that the first and second respondents be ordered to furnish to the
applicant within 10 (ten) days of the granting of this order,
a true
and proper statement, together with substantiating documents,
reflecting the value of the benefits paid to the first respondent
which he held in the Transnet Retirement Fund;
2.2
that the first and second respondents be ordered to furnish to the
applicant, within 10 (ten) days of the granting of this order,
a true
and proper statement, together with substantiating documents
reflecting the value of the first respondent’s pension
interest
in the Transnet Retirement Fund as at 14 October 2008;
2.3
that the applicant be granted leave to approach this Honourable
Court, on the same papers amplified – if so advised –
for
an order that the first respondent be ordered to pay to the applicant
whatever amount appears to be due to the applicant in
terms of the
aforesaid statements rendered;
2.4
that the first respondent be ordered to pay the costs of this
application, save in the event if it being opposed by the second
respondent in which event first and second respondents be ordered,
jointly and severally, to pay the costs of the application;
2.5
Further and alternative relief.
FACTS
[3] It was agreed at the hearing of this
application that both counsel for the applicant and respondent file
supplementary heads
ten days from the date of the hearing. I
only find supplementary heads of argument filed on behalf of the
applicant.
[4] The applicant and first respondent
were married in community of property on 2 September 2000 in
Bloemfontein. The parties
divorced in 2008. According to
the court order 50% of the first respondent’s pension interest
in the Transnet Retirement
Fund was to be paid to the applicant.
The first respondent was also ordered to cause the records of the
second respondent
to be endorsed so as to give effect to the
transfer.
[5] The first respondent’s pension
fund benefits allegedly accrued to him in September 2012.
Subsequently the applicant
attempted to secure her 50% share of the
allowed pension fund benefits. This she did by asking her attorneys
to write
letters to the first respondent reminding him of
transferring the pension benefits to the applicant. In response
thereto, the first
respondent transferred an amount of R156 634.79
to the trust account of the applicant’s attorney of record.
According
to the first respondent the R156 634.79 amount was the
50% of the applicant’s share. In addition an amount of
R5 090.18, was paid on behalf of the applicant as her legal
costs.
[6] The applicant believed that on 23
November 2009 the value of the first respondent’s pension fund
interest was approximately
R 1298 724.41. As a result the
applicant’s share was supposed to be R639 909.37.
Letters were written to
the second respondent asking the second
respondent to confirm the value of the benefits by the first
respondent. At the time
of the hearing no answer was
forthcoming from the second respondent. There was a letter dated 23
November 2009 form Metropolitan
Retirement Administrators indicating
the value of the first respondent’s pension fund at the date of
divorce. The applicant
decided to approach this court for an order as
stated in the notice of motion.
ISSUES
[7] The main issue is whether or not the
applicant satisfied the requirements of a mandatory interdict to
compel respondents to
furnish certain documentation pertaining to a
pension fund to the applicant.
SUBMISSIONS
[8] It was submitted on behalf of the
applicant that the applicant was entitled to be provided with the
required documents to establish
the value of her real 50% pension
fund interest. An argument on behalf of the applicant was that
the application before court
was not about payment of any money. The
application was about access to the documents required. The first
respondent was previously
employed by Transwerk, which was the
predecessor of Transnet. The name of the applicable pension
Retirement Fund was amended
on 1 December 2000 and it was now known
as Transnet Retirement Fund.
[9] Counsel for the applicant further
submitted that the Supreme Court of Appeal said that it could be
accepted for the purposes
of the present case that a court in
appropriate circumstances had the jurisdiction to order a party
against whom an applicant had
no cause of action and who was not a
party or intended party to litigation with the applicant. The
court could order such
a party to supply the required information –
Krygkor Pensioenfonds v Smith
[1993] ZASCA 47
;
1993 (3) SA 459
(A).
[10] Counsel for the first respondent
submitted that the application was ill-conceived. A further
submission was that this
kind of application did not enjoy judicial
approval. It was counsel for the first respondent’s
contention that the
issue on the pleadings was Transwerk not
Transnet. The court should not condone this error as no
application to request an
amendment was before court. The court
ordered the payment of 50% of Transwerk Pension Fund to the applicant
not Transnet.
[11] It was argued on behalf of the
first respondent that an order of a court of law stands until set
aside by a court of competent
jurisdiction. Until that was done
the court order must be obeyed even if it was wrong. So trite
was this principle,
charged counsel for the first respondent, that a
party may be barred from approaching the court. This may be the
case until
such party obeyed an order of court. It was not
possible for the first respondent to provide information requested.
The first respondent has already given the applicant all the
information that she needed.
THE LAW
[12] It is trite that the three
requirements for an interdict are a clear right, an injury actually
committed or reasonably apprehended
and the absence of any other
satisfactory remedy –
Setlogelo v Setlogelo
1914
AD 221.
[13]
Section 7
of the
Divorce Act 70 of
1979
reads as follows:
“
(7)
(a) In the determination of the patrimonial benefits to which the
parties to any divorce action may be entitled, the pension
interest
of a party shall, subject to paragraphs (b) and (c), be deemed to be
part of his assets.
(b)
The amount so deemed to be part of a party's assets, shall be
reduced by any amount of his pension interest which, by virtue
of
paragraph (a), in a previous divorce-
(i)
was paid over or awarded to another party; or
(ii)
for the purposes of an agreement contemplated in subsection (1), was
accounted in favour of another party.
(c)
Paragraph (a) shall not apply to a divorce action in respect of a
marriage out of community of property entered into on or
after 1
November 1984 in terms of an antenuptial contract by which community
of property, community of profit and loss and the
accrual system are
excluded.
(8)
Notwithstanding the provisions of any other law or of the rules of
any pension fund-
(a)
the court granting a decree of divorce in respect of a member of such
a fund, may make an order that-
(i)
any part of the pension interest of that member which, by virtue of
subsection (7), is due or assigned to the other party to
the divorce
action concerned, shall be paid by that fund to that other party when
any pension benefits accrue in respect of that
member;”
(I
was referred to the above Act by counsel for the applicant.)
[14] In
Sempapalele v Sempapalele
2001 (2) SA 306
(O) Musi J, after having considered the
Divorce Act,
held
at 312E – H that
“…
(A)
spouse seeking a share in the pension interest of the other spouse
must apply for and obtain an appropriate court order during
the
entire proceedings.”
He quoted Part of
section 7
of the
Divorce Act and
said:
“
'In
the determination of the patrimonial benefits to which the parties to
any divorce action may be entitled. . . .'”
APPLICATION OF THE LAW
[15] A mandatory interdict directs a
person to do something he or she was in law obliged to do. In
this case the first and
second respondents were directed, through an
application, to furnish to the applicant a true and proper
statements, together with
documents reflecting the value of the
benefits paid to the first respondent.
[16] The applicant relied on the court
order and on
section 7
of the
Divorce Act, as
stated above, to
demonstrate a clear right. In addition the applicant
demonstrated the first respondent’s conduct showed
interference
with the exercise of her clear tight. (See
Bok v The
Transvaal Gold Exploration and Land Co
(1883) 1 SAR 75 at
76.) The interference of the threat to the right will continue
for as long as the respondents refuse to
provide the applicant with
the information and documents that she required (
Philip Morris
Incorporated and Another v Marlboro Shirt Company SA Ltd and Another
1991 (2) SA 720
(A) at 735B. I am satisfied that the applicant
has demonstrated a clear right for the relief sought.
[17] The applicant has shown that there
may be injury committed or reasonably apprehended by the respondents’
refusal to provide
her with the information and documents that she
required. There was no doubt that this caused the applicant
hardship.
The term “injury” should be understood to
mean infringement of the right which has been established and
resultant prejudice.
A reasonable apprehension of injury is one
which a reasonable man or woman might entertain on being faced with
the facts and therefore
the applicant needed not establish on a
balance of probabilities that the injury will follow (
Free
State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining
Co Ltd and Another
1961 (2) SA 505
(W). This means that
on the basis of the facts presented to me I must decide whether there
was any basis for the entertainment
of a reasonable apprehension of
injury by the applicant. I am of the view that if the
respondents have nothing to hide, then
there was nothing to worry
about. I particularly refer to the first respondent as the
second respondent did not oppose the
application. The letter
from Metropolitan Retirement Administrators dated 23 November 2009,
stated that the first respondent’s
total market value on date
of divorce, 14 October 2008, amounted to R1 298 724.41
minus first divorce endorsement of
R18 911.67 equals
R1 279 812.74, 50% of R1 279 812.74 amounted to
R639 906.37. The first respondent
did not deny the
contents of the said letter. There is therefore a reasonable
possibility that the applicant was entitled
to R639 906.37 and
not R156 634.79 plus R5 090.18 as the amounts that were
paid into the applicant’s attorney
trust account on behalf of
the applicant. I am mindful of the fact that the application
before me was not about the amounts
of money paid, but about giving
necessary information and documents to the applicant.
[18] The third requirement for granting
of the mandatory interdict was proof that there was no other
satisfactory remedy available
to the applicant. Generally I
will not grant the order if the applicant could obtain alternative
legal remedy or some other
form of relief (
Peri-Urban Areas
Health Board v Sandhurst Gardens (Pty) Ltd
1965 (1) SA 683
(T) at 684G). I am of the view that the applicant attempted
through her legal representatives to negotiate with the respondents
to provide her with the information and documents that she
requested. The applicant did not succeed. She has got no
alternative but to approach this court.
[19] The court order handed down on 14
October 2008 stated that the applicant was entitled to 50% of
Transwerk Pension Fund.
The first respondent wanted to make an
issue about the change of name from Transwerk to Transnet. The
Metropolitan letter
dated 23 November 2009 confirmed that the first
respondent was a beneficiary of Transnet Retirement Fund. There
was no doubt
that the same Transwerk Pension Fund benefits mentioned
in the court order dated 14 October 2008 were the same ones that were
now
in the custody of Transnet Retirement Fund. I fully agree
with counsel for the applicant that the said amendment could not
have
caused any hypothetical damages to the first respondent. The
reason being that it was always the applicant’s intention
to
claim fifty persent of the first respondent’s pension fund
interest as at the date of divorce. Besides I do not
see why
the applicant should make to suffer to the change that was not her
fault.
[20] It was stated by the first
respondent’s counsel that the applicant did not apply to court
for the amendment of Transwerk
to Transnet. As counsel for the
applicant rightly said in his heads of argument that the court made
an order and made the
amendments
mero motu
after having heard
the
viva voce
evidence of the applicant. I am of the
view that such amendments will not cause the first respondent any
prejudice.
[21] I am of the view that the applicant
is entitled to the relief sought to enable her to determine the true
value of her fifty
percent share of the pension fund benefits.
The applicant was entitled to the fifty percent share as provided for
in
section 7
of the
Divorce Act above
. The applicant has
therefore made out a case on a balance of probabilities for the
relief sought.
[22] I accordingly make the following
order:
22.1
That the first and second respondents are ordered to furnish to the
applicant, within 10 (ten) days of the granting of this
order, a true
and proper statement, together with substantiating documents,
reflecting the value of the benefits paid to the first
respondent,
which he held in the Transnet Retirement Fund.
22.2
That the first and second respondents are ordered to furnish to the
applicant, within 10 (ten) days of the granting of this
order, a true
and proper statement, together with substantiating documents
reflecting the value of the first respondent’s
pension interest
in the Transnet Retirement Fund as at 14 October 2008.
22.3
That the applicant is granted leave to approach this court on the
same papers duly amplified – if so advised –
for an order
that the first respondent be ordered to pay to the applicant whatever
amounts appears to be due to the applicant in
terms of the aforesaid
statements rendered.
22.4
The first respondent is ordered to pay the costs of this application.
______________
E.K. TSATSI, AJ
On behalf of applicant: Adv J.C. Coetzer
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN
On behalf of first respondent: Adv. S.
Tsangarakis
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN