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[2009] ZAGPPHC 185
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AB v JB (36892/08) [2009] ZAGPPHC 185 (21 April 2009)
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NOT REPORTABLE
IN THE HIGH COURT
OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
Case No.: 36892/08
DATE:21/04/2009
In the matter
between:
A W B
….......................................................................................
Applicant
And
J C B
,...........................................................................................
Respondent
JUDGMENT
VILAKAZI AJ:
1. Applicant and
respondent were married to each other in community of property on the
10th March 1990. Three (3) children were
born of the marriage
relationship between them two (2) of whom are still minors. Their
common home is situated at 160 Bonaero Avenue.
Bonaero Park, Kempton
Park. The parties were separated on the 3rd of March 2007; all the
children presently reside with the respondent
in the common home.
2. The join estate
of the parties consists of the immovable property situated on Erf 403
Rhodesfield and Erf 160 Bonaero Park, Kempton
Park. No Deed's search
was attached to the applicant's Founding Affidavit, a factor which
makes it difficult for the Court to determine
ownership of the
properties referred to. Besides motor vehicles and a business managed
and run by the respondent under the name
and style of CBS, no list of
other movables and certificates of registration in respect of the
vehicles have been attached to the
Founding Affidavit.
3. By all
indications, the marriage relationship between applicant and
respondent has reached such a state of disintegration that
applicant
eventually instituted divorce proceedings in 2007 under case number
23581/2007, which for some strange and inexplicable
reasons has been
pending since its inception. As a result of this unsatisfactory state
of affairs, the applicant decided to pre-empt
the logical conclusion
of the divorce case by instituting these proceedings.
Relief sought
4. The applicant
has brought an application in terms of
section 20
of the
Matrimonial
Property Act, 88 of 1984
, in terms of which she seeks the following
relief:
4.1 An order that
the joint estate subsisting between the parties by virtue of marriage
in community of property be effected forthwith;
4.2That a
liquidator be appointed to give effect to the order for the division
of the joint estate and he be granted all the powers;
4.3That the costs
of this application be cost in the division of the joint estate
except in the event where respondent opposes the
application, than in
that event respondent be ordered to pay the costs of this application
from his share of the joint estate.
5. The respondent
served his Notice of Intention to Oppose and filed his Answering
Affidavit in which he vehemently opposes the
granting of such an
order.
Legal principles -
Matrimonial Property Act, 88 of 1984
6. This application
is regulated by the provisions of
section 20
of the Act and is
totally independent of the divorce action and may be instituted at
any time whether or not a divorce is pending.
The purpose of this
section and other related sections of the Act which I shall referred
to later were intended to protect women
and bring about parity in the
status of women in particular vis-a-vis the management and
administration of their joint estate.
However, this Act brought cold
comfort to women married under customary law and other ethnic systems
/ marital regimes which the
government of the day did not recognise.
7.
The salient sections of the Act are:
"14. Subject
to the provisions of this Chapter,
a wife
in a marriage of community of property has the same powers with
regard to the disposal of the assets of the joint estate,
the
contracting of debts
which lie against the
joint estate, and
the management of joint
estate
as those which her husband in such a
marriage had immediately before the commencement of this Act.
(My
emphasis)
15 (1) Subject to
the provisions of subsections (2), (3) and (7) a spouse in a marriage
in community of property may perform any
juristic act with regard to
the joint estate without the consent of the other spouse.
(2) Such a spouse
shall not without the consent of the other spouse-
(a)
alienate, mortgage, burden with the
servitude or confer any other real right in any immovable property
forming part of the joint
estate;
(b)
enter into any contract for the alienation,
mortgaging, burdening with the servitude or confer any real right in
immovable property
forming part of the joint estate.
(c)
alienate, cede or pledge any shares,
stocks, debentures, debenture bonds, insurance policies, mortgage
bonds, fixed deposits or
any similar assets or any investments by or
on behalf of the other spouse in a financial institution forming part
of the joint
estate;
(d)
alienate or pledge any jewellery, coins,
stamps, paintings or any other assets forming part of the joint
estate and held mainly
as investments;
(e)
withdraw money held in the name of the
other in any account in a banking institution...
(f)
as a credit receiver entering into a credit
agreement as defined in the Credit Agreement Act, 1980 (Act No. 75 of
1980) [and to
its successors] and to which the provisions of that Act
apply...
(j) as a purchaser
enter into a contract as defined in the Alienation of Land Act, 1981
(Act 68 of 1981), and to which the provisions
of that Act apply.
(h) bind himself as
surety.
20 (1) A court may,
on application of a spouse, if it is satisfied that the interest of
that spouse in the joint estate is being
or will probably be
seriously prejudiced by the conduct or proposed conduct of the other
spouse, and that the other person will
not be prejudiced thereby,
order the immediate division of the joint estate in equal shares or
on such other
basis as the court
may deem fit." (My emphasis)
8. Section 14 of
the Act abolishes the marital power which her husband exclusively had
with regard to the disposal of the joint
estate and generally the
administration of the joint estate. Husband and wife now have the
same power with regard to the administration
and management of the
joint estate. While s15 of the Act enumerates acts which may not be
performed by the one spouse without the
consent of the other. The
section protects the one party against the other against disposal of
the assets of the joint estate in
carrying debts against the joint
estate. It is therefore clear that any conduct of a spouse carried
out without the consent of
the other may be set aside by the court if
it offends against the provisions of subsection 2 of s15. In a way
subsection 2 provides
protection to a spouse against the conduct of
the other which is calculated to prejudice the joint estate or the
undivided share
of the other spouse. In my view, s15 provides an
alternative to the prejudicial consequences which may be attendant
upon the granting
of a division of joint estate prematurely in terms
of s20 of the Act.
9. It is trite that
a division of the joint estate in a marriage in community of property
follows naturally upon the dissolution
of the marriage. However, s20
of the Act overrides this natural consequence of a divorce and indeed
sometimes lead to unwarranted
consequences which may have a negative
or prejudicial effect on the joint estate, especially in cases such
as this where the sole
of source of income for the joint estate is a
business closely bound to the one party.
10.
The section authorises the Court to order
an immediate division of the joint estate at the instance of the
other spouse where circumstances
justify the granting of such an
order. It is clear from the wording of the section that before the
court may issue such an order,
it must be satisfied that:
(i) The
interests of the applicant in the joint estate are being or will
probably be seriously prejudiced by the conduct or
intended
conduct of the
respondent;
(ii)
The guilty/delinquent spouse will not be
prejudiced thereby;
(iii)
There are proper and substantive grounds
for such an application;
(iv)
Applicant must set out the nature and
extent of the prejudice being or about to be caused by the
respondent, in other words material
evidence of the actual disposal
of the assets or diminution of the undivided half share of the joint
estate must be set out in
full to enable the court to assess whether
the urgency to grant the relief is real, potential or imminent and
capable of being
carried out by the delinquent spouse:
(v)
The applicant must set out fully the nature
and extent of the assets and liabilities of the joint estate and
indicate their value
or obtain a valuation thereof. This need not be
done with mathematical precision but it will be enough to give the
court an idea
of the size of the value of the assets for it is
obvious that any tempering of the assets of the joint estate will
invariably have
an impact on the liabilities that is on the interest
of the creditors.
(vi)
Applicant must indicate practical and
workable solutions and set out the nature of the relief sought
concisely and to furnish full
and proper facts to enable the court to
exercise its discretion judicially.
See A Practical
Guide to Patrimonial Litigation in Divorce Actions, Adv. PA van
Niekerk SC. LexisNexis 4-3 — 4-6
11. The granting of
the order is within the discretion of the court. For that matter, it
is important that an applicant who approaches
the court in terms of
this section needs to take the court in confidence and disclose all
facts relevant to enable the court to
assess the situation. If the
information is inadequate or particularities of the prejudice to the
applicant are sketchy, the court
will most certainly be reluctant to
make such an order.
12. I now turn to
evaluate the factors placed before this court by the applicant in
support of the relief sought conjunctively with
the evidence placed
by the respondent in his resistance to the granting of the relief. In
her Founding Affidavit, the applicant
glibly lists those assets which
according to her knowledge form part of the joint estate, namely two
immovable properties and motor
vehicles without any supporting
documents from the Registrar of Deeds or the Registering Authority.
She alleges that she left the
common home due to physical and
emotional abuse at the hands of the respondent, repeated death
threats and actual physical violence.
She states that since she left
the common home she has no access to the management and
administration of the assets of the joint
estate. The respondent is
running a business under a close corporation which business also
forms part of the joint estate. There
is a balance of R700 000.00
outstanding on the bond in respect of the immovable property and
estimates the value of the property
to be between R900 000.00 to
R1000 000.00. Shortly before she left the common home the respondent
had approached her several times
requesting her to sign certain
documents relating to the sale of one of the immovable properties but
she refused.
13. The following
allegations in her Founding Affidavit need to be scrutinised to
ascertain whether they satisfy the yardstick against
which the
application must be assessed:
"15.1 Alhoewel
ek en die respondent steeds gelyke eienaars is van die
gemeenskapiieke boedel,
word die geheel van
die gemeenskpiike boedel tans deur die respondent beheer
,
en word ek eenvoudig geheel en a I uitgesluit.
15.2 Dit dien
vermeld te word dat die
respondent ook
toeaesien het dat alleriei roerende bates soos voertuie van wesenlike
waarde en ander bates geregistreer word deur
sv besigheid
,
ek kan slegs vermoed vir belastingdoeieindes.
Die
waarde van die
aeheel
van
sv besiqheid val eater die
respondent in sv persoonlike hoedanigheid
toe aangesien die ledebelang 'n persoonlike boedelbate is, so word ek
geadviseer.
15.3 Daar bestaan
aeen moontiikheid dat die gemeenskaplike boedel in aile gevalle nie
op 'n latere stadium verdeel sal moet word
nie, ten tye die
finalisering van die egskeidingsaksie."(My emphasis)
14. The applicant
does not furnish the court with full and proper information
indicating the nature and size of the joint estate
at the time when
she left the common home; the extent to which the joint estate, or
she alleges, her half share in the joint estate
has been diminished
since her departure from the common home. Most of the averments she
relies on for the relief sought are based
on conjuncture, speculation
and suspicion that the respondent is or intends to diminish her share
in the joint estate or that the
respondent's administration of the
joint estate is counterproductive or prejudicial to the joint estate
as a whole. It must be
borne in mind that the parties are married in
community of property, whatever negative effect the respondent has on
the applicant's
undivided half-share of joint estate negatively
impacts on the joint estate as a whole. For the respondent to
interfere or try
diminish the applicant's half-share in the joint
estate, he must do in such a way that his half-share is not
jeopardise and that
the respondent can only achieve this by
manipulating the cash in the estate or disposal of some other assets
of which the applicant
is unaware.
15. On the evidence
placed before it the Court may grant an order for a division of the
joint estate. This is indeed a drastic step
and a departure from the
normal divorce proceedings which in a way terminates the subsistence
of the joint estate between the parties
without the dissolution of
the marriage. This being the case, the section imposes an onus or
obligation on the applicant to satisfy
the court of the existence of
certain factual allegations which will enable the Court to exercise
its discretion properly.
16. In assessing
the application, the Court must balance the interests of the
applicant, those of the respondent and take into account
the
interests of the creditors. The Court does not look only at the
applicant's averments but assesses all factual allegations
conjunctively to arrive at the most appropriate decision. It is
accordingly important that applicant should indicate the extent
to
which, if ever, the granting of an order for the division of the
joint estate may prejudice the respondent for if the order
also
prejudices the respondent's interests in the joint estate then the
granting of the order would have a negative effect on the
joint
estate as a whole and this will militate against granting the
applicant the relief sought. The nature and extent of the creditors
of the joint estate is an important factor which the Court must take
into account in the exercise of its discretion whether or
not to
grant the order. In my view, when an applicant brings this type of an
application, it is important to furnish the court
with the names, the
nature and extent of the creditors' exposure in the joint estate.
Furthermore, it is preferable under such
circumstances that the
applicant should also notify the creditors of the application in
order to give them an opportunity to decide
whether to oppose or
concede the granting of the order if their interests will adequately
be protected.
17. In this matter,
the respondent is the sole contributor to the joint estate; he is
presently conducting a business from the common
home which in a way
saves the joint estate from paying any rentals to a third party. From
the proceeds of the business, he services
the bond, maintains the
children and generally maintains the household and the joint estate.
An order for immediate division of
the joint estate will most
certainly have a negative impact on the respondent's ability to
generate income and maintain the joint
estate.
18. The applicant
alleges that the respondent is registering motor vehicles in the name
of the business probably as a way of saving
on tax which is not an
indication that the respondent is diminishing her share in the joint
estate or that there is some irregularities
which the respondent is
committing. She alleges further that the respondent told her that he
intended to dispose off the property
in Rosevilie which property was
or is currently registered in their names. There is no basis upon
which the respondent can dispose
of this property without the
applicant's knowledge and consent or involvement in the process.
Consequently, this cannot be a conduct
intended to prejudice the
applicant.
19. In resisting
the relief sought by the applicant the respondent contends that:
(a)
If an order for the division of the joint
estate is ordered, the children who are presently living with and
being cared for by him
will have no roof over their heads;
(b)
He has always been responsible for payment
of the bond to safeguard this precious asset of the joint estate;
(c)
If the common home is sold at this stage,
the joint estate will suffer losses; the property is presently
situated in the vicinity
or in the corridor between Kempton Park and
the OR Thambo Airport; there is a lot of development taking place
around the area and
there is also uncertainty as to what the future
holds for the residents or owners of properties in the area as the
Airport continues
to develop and expand towards their area. He
contends that it would be prudent to hold on to the property until
there is clarity
and certainty about the development being earmarked
for the area. Placing the property on the market at this stage might
be prejudicial
as the future might hold better prospects.
(d)
At present, he is running the business a
close corporation and it is the only source of income for the family
and generation of
wealth for the joint estate. The proceeds of the
business are used to pay all expenses of the family and the joint
estate. Besides,
there are also a number of employees who are
dependent on the business.
(e) The respondent
contends that an order for the division of the joint estate will
necessarily result in the sale of the business
known as CBS and by
virtue of its one-man business closely associated with him
personally, it is unlikely to attract any buyers.
The business is
inextricably linked to him and cannot survive without him. Although
the respondent alleges that there are other
remedies available to the
applicant, he does not state what those remedies are to enable the
Court in the exercise of its discretion
to consider what order, if
any, to make in this regard. It seems that both parties are very
frugal with material information to
assist the court in arriving at
an appropriate decision. The onus rests on the respondent to set out
fully what other alternative
remedies are available. In the final
analysis the onus rests on the applicant to satisfy the Court that
she is entitled to the
relief sought.
20. In Geanay v
Portion 117 Kalk Heuwel Properties cc and Others
1998 (1) SA 622
(T)
at 623b, although this was a matter involving members of a cc, the
same principles applied. It was held that "A liquidation
order
would not be granted if the applicant acted unreasonably and there
was some other remedy available."
And at page 631 the
court referred to and quoted from Wackrill v Santon International
Removals (Pty)Ltd and Others
1984 (1) SA 282
(W) at 292d-f where the
court held:
"The onus of
establishing that some other remedies are available, and that the
applicant is acting unreasonably in not pursuing
it, rests on the
persons opposing the winding up application."
21. Above all the
respondent contends that
s14
of the
Matrimonial Property Act gives
the applicant equal powers in the disposal of assets of the joint
estate, contracting of debts against the joint estate and generally
in the management of the joint estate. Hence he cannot conclude any
transaction without the applicant's knowledge. Furthermore,
s15 of
the Act sets out instances in respect of which the applicant may not
perform any juristic action without the respondent
consent. It is
clear therefore that the applicant has adequate protection against
the prejudicial mismanagement of the joint estate
by the respondent.
22. I have read the
Founding Affidavit of the applicant and the respondent's Opposing
Affidavit and I have taken into account arguments
presented to me by
counsel. I have also considered other remedies provided by the
Matrimonial Property Act; the
extent of the protection afforded to a
wife by the Act, but I could find nothing in the applicant's Founding
Affidavit which inclines
me to grant her the relief sought. I am
therefore not persuaded that the applicant has proved that she is
entitled to the relief
sought; the averment pertaining to the nature
and extent of the joint estate, the allegation of the diminution of
her undivided
share in the joint estate by the respondent are
inadequate to enable me to exercise my discretion in her favour. In
short, the
applicant has not made out a proper case for the relief
sought.
In the
circumstances I make the following order: The application is
dismissed with costs.
T.J. VILAKAZJ
Acting Judge of the
High Court