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[2012] ZAGPPHC 333
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E.K v L.K (4606/2005) [2012] ZAGPPHC 333 (7 December 2012)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO: 4606/2005
DATE:07/12/2012
In
the matter between:
K:
E
.................................................................
APPLICANT
And
K:
L
.................................................................
RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1]
The applicant seeks leave to appeal to the Full Bench of this
Division, alternatively the Supreme Court of Appeal against the
whole
judgment, including costs on 23 September 2010.
[2]
The applicant had brought an application seeking an order compelling
the respondent to comply with the applicant’s notice
in terms
of Rule 35(3) and Rule 36(5) and that the respondent particularly
make available items referred to therein relating to
the inherited
and donated assets by his father.
[3]
On behalf of the applicant it was submitted, inter alia, that the
order against the leave to appeal is sought, is final and
of
definitive effect and accordingly capable of being appealed against.
It was further submitted that the Court erred in refusing
to grant an
order as was claimed by the applicant and dismissing the application
with costs.
[4]
It was further submitted on behalf of the applicant that the parties
were married to each other for more than 30 years and that
the
inheritance and donations vested with the respondent about fifteen
years ago. Regard being had to the issues in the divorce
action
between the parties, that the assets and liabilities and income of
the respondent in entirety and inclusive of inheritance
assets is
relevant to the applicant’s claim in the divorce for
maintenance and redistribution of assets, also considering
o the
provisions of ss7 (2), 7(3), 7(4) and 7(5) of the Divorce Act 70 of
1979.
[5]
It was further contended that to the extent that the order sought was
in the discretion of the Court a quo, it erred in the
exercise of its
discretion and refusal to order discovery of the documents and the
relief sought by the applicant.
[6]It
was further submitted on behalf of the applicant that the Court erred
in following the Beira v Beira
1
without distinguishing it from the facts of this matter. It was
further submitted that the latter decision was distinguishable
from
the facts of the present case because in the Beira case the
inheritance had not as yet vested with the respondent whereas,
in
casu, it had already vested with the respondent. It was also
submitted that the Court a quo erred in not following the Jordaan
v
Jordaan
2
decision to the present matter. It was contended further that the
very fact that there are two opposite decisions on the central
issue
relevant in this matter, that is indicative that there are reasonable
prospects that another court may come to a different
decision and
follow the Jordaan decision.
[7]
It was further submitted that the Court a quo erred in that it
prejudged what the divorce court would have to decide, namely
whether
the relevant assets derived from the inheritance should be included
or excluded, for purposes of determining the respondent’s
means
to support the applicant.
[8]
It was further submitted on behalf of the applicant that the
Respondent did not deny that the relevant documents were in his
possession nor rely on privilege in refusing to discover them, and as
he had no reason to refuse to discover them and the decision
was
therefore appealable. In this regard reliance is made in the matter
of Santam v Segal
3
.
It was further contended that the said documents are relevant in
enabling the applicant to proving her claim as is required by
s7 (3)
of the Divorce Act.
[9]
On behalf of the respondent it was submitted, inter alia, that the
matter of Zweni v Minister of Law and Order
4
is not applicable in casu. It was submitted that the order of the
Court a quo in this matter, related to the process and not the
merits
of the divorce action and therefore not appealable. It was further
submitted that the applicant would have to await the
finalization of
the divorce action before she can seek to appeal.
[10]
It is trite that leave to appeal will be granted when:
10.1
There is a reasonable prospect of success on appeal;
10.2The
amount in dispute is not trifling. In the consideration of this
aspect the Court must have regard only to the amount of
the claim
itself and not to the costs that have already been incurred;
10.3
The matter is of substantial importance to one or both of the
parties;
10.4
That a practical effect or result can be achieved by the appeal
5
.
[11]
It is equally trite that in an application for leave to appeal, the
applicant must satisfy the Court that he has a reasonable
prospect of
success on appeal, and that the appeal is not frivolous and that the
case is of importance to him.
6
In R v Boya
7
it was held that what is meant about reasonable prospect of success
is that the Court considering the application for leave to
appeal
must be satisfied that on the findings of fact or conclusions of law
involved the Court of Appeal may well take a different
view from that
arrived at by the Court a quo.
[12]
In the matter of Goodwin Stable Trust v Douhex (Pty) Ltd and Another
8
it was held that: “Whilst there may be a tendency to seek to
grant leave to simply to allow outstanding questions to be finally
determined, it seems to me that, balancing the rights of the parties
to the litigation, the Court’s responsibility is to
avoid the
temptation simply to take the opportunity to have a question answered
and rather to apply its mind as to whether or not
the answer will
probably be in favour of the applicant for leave to appeal.”
[13]
In an application for leave to appeal, the Court, in deciding the
prospect of success on appeal, must also have regard to whether
the
cumulative effect of all other factors relevant to the application is
such as to render the application wholly and obviously
unworthy of
consideration. The Court is bound to assess the prospects of success
on appeal, and to weigh such assessment together
with all other
relevant circumstances of the case; vide Finbro Furnishers (Pyt) Ltd
v Registrar of Deeds, Bloemfontein, and Others.
9
The Divorce Act preceded the Matrimonial Property Act.
[14]
In my view, the important aspect upon which this appeal revolves is
whether the Court a quo erred in following the Beira decision
and not
the Jordaan decision. In my view, where there are two diametrically
opposed decisions, it is within the Court’s discretion
to
decide which of these decisions it would follow. Because the Beira
decision emanates from the Witwatersrand Local Division,
which is
within the North Gauteng High Court, I consider myself bound to
follow this decision, rather than the Jordaan decision,
which
emanates from the Cape Provincial Division. In my view, a Court of
appeal is not likely to interfere with the exercise of
a judicial
discretion, as in this matter.
[15]
I further bear in mind that the Matrimonial Property Act, No 88 of
1984 was preceded by the Divorce Act, No 70 of 1979. In
my view, if
it was the Legislature’s intention that the Divorce Act should
supersede the Matrimonial Property Act, the Legislature
would have
crafted the s5 Matrimonial Property Act, in such a way as to
harmonize it with the provisions of sub sections 7(2),
7(3), 7(4) and
7(5), which is not the case.
[16]
Where the Court in the exercise of its discretion, decided to follow
one or the other of diametrically opposed decisions, it
cannot, in my
view, be held to have erred in the exercise of its choice. I am
therefore of the view that there are no prospects
of success on
appeal, that the discretionary exercise of this Court would be
tempered. Consequently, in my view, the application
for leave to
appeal should be refused.
[17]
In the result I make the following order:
1.
That leave to appeal to the Full Bench of this Division is granted;
2.
That costs of this application be costs in the appeal.
N.M.
MAVUNDLA
JUDGE
THE HIGH COURT
DATE
OF HEARING : 27 NOVEMBER 2012
DATE
OF JUDGMENT : 07 DECEMBER 2012
APPICANT'S
ATT: SHAPIRO & SHAPIRO INC.
APPLICANT'S
ADV : MR. M L HASKINS SC.
RESPONDENTS’
ATT : DU PLESSIS DE HEUS & VAN WYK
DEFENDANT'S
ADV : ADV VAN NIEWENHUIZEN (MS)
1
1990
(3) SA 802.
2
2001 (3) SA(CPD).
3
2010 (2) SA 160 at 164 para
[9J].
4
1993
(1) SA 523 (A).
5
Vide Herbstein & Van Winsen: The Civil Practice of the High
Courts of South Africa, fifth Edition at page 1212.
6
Vide Odendaal v Loggerernberg en Andere, NN. O.
(2) 1961 (1) SA 724 at 727B and the authorities therein cited, inter
alia,
(Rv Baloi, 1949(1) SA 523 (AD); R v Kuzwayo,
1949 (3) SA 761 (AD) at 764.
7
1952
(3) SA 574 (CPD) at 577B-C.
8
1999(3)
SA 353 (CPD) at 354J-355A.
9
85
(5) 773 (A).