About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2012
>>
[2012] ZANCHC 20
|
|
M.S.O v M.S.O (941/2008) [2012] ZANCHC 20 (24 February 2012)
Verslagwaardig:
Sirkuleer
Aan Regters:
Sirkuleer
aan Streeklandroste
Sirkuleer
Aan Landdroste:
JA
/ NEE
JA
/ NEE
JA
/ NEE
JA
/ NEE
IN THE HIGH COURT OF SOUTH AFRICA
(Northern Cape High Court,
Kimberley)
Saakno:/Case number:
941/2008
Datum verhoor:/Date heard:
3/02/2012
Datum gelewer:/Date delivered:
24/02/2012
In
the matter between:
M
S O
…..............................................................................
Applicant
and
M
S O (GEB.PLANK)
….....................................................
Respondent
JUDGMENT
HUGHES-MADONDO AJ
In these proceedings the parties
were married to each other in community of property on 17 July 1991.
From the union two children
were born K V O born on 20 June 1995 is
and was a minor as at the time of the divorce proceedings and this
application.
The respondent instituted divorce
proceedings on 4 July 2008. These proceedings were not defended by
the applicant and the divorce
was finalised on 29 August 2008. The
Court order made provision for the customer of the minor child and
division of the joint
estate:
“
7. Dat
diegemeenskaplikeboedel verdeel word”.
The division of the joint estate
has not taken place. The applicant now seeks to amend the existing
divorce order,so as to allow
for the appointment of a receiver to
attend to the division of the joint estate. He further seeks to
amend the order to include
that he obtains half of the respondent’s
pension interest in the Government Employees Pension Fund, as at
time of the divorce.
Lastly, that the respondent pay maintenance to
him in the amount of R2 000.00 per month, in addition she pay
his reasonable
medical expenses and the like.
Though there is an order in this
instance for division of the joint estate,in my view a divorce order
where the parties are married
in community of property, even without
a concomitant order for division of the joint estate, has the
automatic effect of dividing
the joint estate.
See Keyser v
Keyser 1979(4) SA 12 (T) at 15 F and Maharaj v Maharaj 2002(2) SA
648 at 649I.
The applicant’s notice of
motion to amend the existing order was received by the respondent on
17 October 2008. On 6 September
2010she indicated to the applicant
that she had no objections to the appointment of a receiver to
attend to the division of the
joint estate. This is evident from
correspondence sent by the respondent’s representative to the
applicant’s representative
dated 6 September 2010 marked
annexure C
to the respondent’s opposing papers.
Both counsel argued that as both
parties were
ad idem
that a receiver was to be appointed,
this Court need only confine itself to setting out the directives
that the receiver would
have to follow in order that the division of
the joint estate takes place. I will address the seat the end of
this judgment.
Turning to deal with the
respondent’s opposition set out in her papers, the respondent
highlights the fact that the applicant
has failed to comply with the
divorce order, in that he has not maintained the minor child as he
was required.
In fact she submits that she has at
all times (even prior to the divorce) been responsible for the
maintenance of the minor child
and the household expenses. For this
reason the respondent contends that the applicant is thus not
entitled to claim maintenance
as well as his medical and allied
expenses, as he has claimed for in these proceedings.
The applicant’s claim of half
of the respondent’s pension interest is also met with
resistance. The respondent submits
that the applicant is not
entitled to same, as his pension payout from De Beers Pension Fund
that he received whilst they were
married needs to be taken into
account. She contends that shedid not benefit from this payout
neither did she receive her half
share.
Finally, the respondent requested
that the applicant forfeit his half share of her pension interest in
lieu of what he owed to
the respondent, that being her half share of
his pension interest and the maintenance that he ought to have paid
for the minor
child.
In terms of section 7(7)(a) of the
Divorce Act 70 of 1979 (the Act) the pension interest of a party is
an asset of that party
and as such forms part of the joint estate.
Section 7(7)(a) of the Act reads as follows:
“
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.”
Therefore the pension interest
received by the applicant prior to the divorce would be considered
as an asset received and should
be taken into account when a
determination of the patrimonial benefits due to each party is
calculated.
Thus both parties pension interest
has to be taken into account as forming part of the patrimonial
benefits as at the date of
the divorce.
It is thus prudent that when the
joint estate of parties married in community of property is to be
divided,one needs to take into
account the value of their respective
pension interest, as assets of the joint estate at the date of the
divorce.
See Maharaj supra
Turning to deal with the issue of
forfeiture, it is essential to set out the provisions of section
9(1) of the Act , which reads
as follows:
“
When a
decree of divorce is granted on the ground of the irretrievable
break-down of a marriage the Court may make an order that
the
patrimonial benefits of the marriage be forfeited by one party in
favour of the other, either wholly or in part, if the Court,
having
regard to
the
duration of the marriage, the circumstances which gave rise to the
breakdown thereof and any substantial misconduct on the part
of
either of the parties
,
is satisfied that, if the order for forfeiture is not made, the one
party will in relation to the other be unduly benefited.”(My
emphasis).
From a careful reading of the
aforesaid section, a Court when considering forfeiture is therefore
confined to the parameters of
section 9(1) of the Act.
Thus it is evident that forfeiture
can only be considered and granted if claimed in the divorce action.
Forfeiture then is claim
able at the time of the divorce and not
thereafter.
See Joseph v Joseph 1951(3) SA776(N)
In the case of
Joseph
, the
parties having been married in community of property, a decree of
divorce was granted and axiomatically division of the
joint estate.
See Gates v Gates
1940 N.P.D 361
. After the decree, the wife,
sought to bring an action against her husband for forfeiture of
benefits of the community of property.
The court in
Joseph’s
case, relied on the
dicta
of
Nortje v Nortje 6 S.C.9 at
page 11
, where in the earlier proceedings an order for equal
division of the joint estate had been granted, it was held that one
could
not now obtain a judgment for forfeiture as the latter would
be in direct conflict with the previous judgment.
I am of the judgment that the
present case is akin to that of
Nortje
and
Joseph.
As
there has already been an order for division of the joint estate the
granting of a forfeiture order would be in conflict with
that
initial order granted on 29 August 2008.
The respondent in these
proceedings, would have by right, been entitled to an order of
forfeiture had she pursued same during
the divorce proceedings. I
say so as in her initial divorce papers she set out grounds for
forfeiture.
In this matter however, the grounds
that the respondent provides, at this stage, for forfeiture, in my
view do not fall within
the realm of section 9(1) of the Act.
To my mind the respondent has not
shown that
having regard to the duration of the marriage, the
circumstances which gave rise to the breakdown of the marriage and
any substantial
misconduct on the part of the, applicant in this
case,
the applicant would be unduly benefiting if forfeiture was
not granted.
One need always bear in mind that
forfeiture is not awarded to a party in divorce proceedings
ipso
iure
as it is regulated by statute.
Lastly, as regards the applicant’s
claims for maintenance and payment of medical and allied expenses
from the respondent,
the applicant in my view has not set out, at
all, grounds that I might consider to substantiate these claims.
In any event these are now academic
as Mr. Janse van Vuuren for the applicant concedes that he would not
be entitled same, as
if one sought a variation of the previous order
to include these claims, one would have to show that 1. the previous
order is
ambiguous;or2.through some mistake the true intention of
the court was not expressed and/or 3. where through an oversight by
the court it omitted to include it in the previous order. None of
the aforesaid is applicable in this case.
Therefore there is no basis for
this Court to entertain the applicant’s claim for maintenance
and his claim for medical
expenses. The aforesaid claims are
therefore dismissed.
In the result,a degree of divorce
and division of the joint estate having been granted on 29 August
2008, I duly grant the following
order to be insertedfollow
paragraph 7:
A
. “7.1 In the premises
it is appropriate to appoint a receiver to assess the value of the
joint estate, with the powers set
out below, to ensure a division of
the joint estate take place;
That a receiver within two weeks of
the date of this order is hereby appointed to determine the value of
the joint estate taking
into account the liabilities and the assets
as at the date of the divorce.
7.2 That the receiver shall have the
following power:
to demand from the parties a true
and proper account of each of their assets and liabilities;
to value or have valued all assets,
movable and immovable, belonging to the parties (other than the
personal clothing of the parties),
if necessary by taking possession
of such assets;
to determine the liabilities of the
parties;
to obtain appraisals for the
purposes of determining the value of any assets;
to interrogate the parties or
either of them as he may, in his discretion, deem necessary;
to apply to this Court for further
directions in the event that he is not satisfied with the
information furnished to him by either
of the parties or in the case
of any difficulty arising;
to compel the parties or either of
them to attend on his offices on reasonable notice, in writing, in
order to submit to interrogation;
to rule on any objection and either
allow or disallow such objection, either in whole or in part, in
which event his decision
shall be sent to the parties and will
become final and binding upon them should they not approach the
Court for relief within
fourteen days of the receiver’s final
decision;
to hear representations of the
parties, if he deems it necessary to do so;
to prepare a final account of the
joint estate and to determine the quantum of payment to each party.
7.3 directing the parties to allow
the receiver and/or any person appointed thereto by him, entry to
premises for the purpose of
carrying out a valuation/appraisal of any
movable or immovable.
7.4 directing the receiver, when he
prepares the final account, to send a copy to both parties who shall
thereafter have the right
to object to the account within fourteen
days of the date of receiving it, in which event the receiver shall
forthwith upon receipt
of the objection send a copy to the other
party, who may send to the receiver representations thereon within a
further period of
fourteen days;
7.5 an Order directing that in the
event of no objection being made to the receiver’s final
account within the aforesaid time
limits, the account will become
final and binding on the parties;
7.6 that the pension interest of
both parties be assessed as an assets of the joint estate as at the
date of the divorce;
7.7 that the costs of the receiver
be borne by the joint estate.”
B
.Further, that the
applicant’s claim for maintenance and payment of medical and
allied expenses is dismissed.
C
. Finally, each party is
ordered to pay their own cost in respect of this application
_____________________________
W
HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPE HIGH COURT, KIMBERLEY
osts of such procee
Obo Applicant:
Mr. D H
Janse Van Vuurenof the Legal Aid Board
Obo Respondent:
Mr. M.
Fletcher of Fletcher’s Attorneys