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[2009] ZAGPPHC 95
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Voster v Voster and Others (36025/09) [2009] ZAGPPHC 95 (3 July 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
CASE
NO: 36025/09
ELAN
Ð
VOSTER
APPLICANT
(ID
NO: [EDITED])
And
STEPHANUS
ERASMUS ALBERTUS VOSTER
(ID:[EDITED])
FIRST
RESPONDENT
PHILIPUS
JOHANNES JACOBUS VOSTER
(ID:
[EDITED])
SECONDRESPONDENT
MADAKOR
BOEDERY
(Reg
No: 1992/015815/23)
THIRD
RESPONDENT
JUDGMENT
[1]
The applicant approaches this Court seeking an order that the
matter be heard by way of urgency and that she be granted,
inter
alia,
the
following relief:
"(2)
That, in terms of
section 16(1)
of the
Matrimonial Property Act 88
of 1984
leave be granted to the applicant to bring an application on
behalf of the communal estate;
(3)That
the transfer of member interest of the first respondent in Mandakor
Boerdery BK registration number 1992/015815/23 (Third
Respondent) to
the Second respondent, be set aside in terms of section 15(2)(c),
alternatively
section 15(3)(c)
of the
Matrimonial Property Act, 88
of 1984
;
â¢
r
(4)
That the first respondent's previous member interest in Boerdery BK
(Third Respondent) be transferred back to the in the name
of the
applicant and the first respondent..
(5)
That
the communal estate of the applicant and the first
respondent
immediately be divided, to the effect that, but not limited only
thereto, that half of the previous members interest
of the first
respondent in Boerdery BK (Third Respondent) be transferred to the
applicant.
(6)
That
the First and the Second Respondents pay the costs of
this
application."
[2]
The first issue I need to determine is whether the matter is
urgent. If I find that the matter is urgent I then need to
decide
whether applicant has made a case for the relief she seeks.
[3]
The facts of this matter are briefly that the applicant and the
first respondent got married to each other on 5 November
1994. The
marriage, according to the applicant started to deteriorate in June
2006 and as the result issued divorce summons against
the first
respondent under case number 46689/07 .
[4]
The First respondent had 30% members interest in the Third
Resppondent (Madakok Boerdery), which were as the result of the
marriage in community of property belonging to the joint estate of
both the applicant and the first respondent.
[5]
The Second Respondent is the son of the first respondent from a
previous marriage. Respondent is the owner of immovable
property
situated at Farm Riversbend (The Farm). The applicant attached a
copy of the Deeds report dated 23 February 2009, which
property was
registered in the name of the Third Respondent on 12 June 1992.
[6]
It is common cause that that the First Respondent held 30% members
interest in the Third Respondent, which members interest
were
transferred into the name of the Second Respondent on 26 October
2007.
[7]
According to the applicant, the first respondent sold to the second
respondent the whole 305 members interest in the Third
Respondent
for an am out of R1.1 million in terms of which there was a set off
in respect of the Second Respondent's immovable
property situated at
Erf 4184 Elllisras, X29 Town, situated at Waterlelies Street 68
Ellisras (The House) and that
this
immovable property will be transferred into the names of the
applicant and the first respondent at the second transfer costs,
as
part payment and that the balance of R6 000. 00 will be paid by the
Second Respondent a with 10% interest per annum.
[8]
The Second Respondent is the sole member of The Third Respondent.
The house referred to herein above is registered in the
name of the
Kranskop Elektries CC (Reg No. 2003/0605546/23). It is further
stated by the applicant that the Second Respondent
is the sole
member of Kranskop Elektries CC.
[9]
According to the applicant the aforesaid house was sold to both
the applicant and the first respondent, as they are married
in
community of property, for an amount of R500 000. 00 and in respect
of the payment of this amount a set off was done in respect
of the
30% members interest in Madakor Boerdery CC. According to the
Memorandum of Purcahse Agreement the purchaser has already
taken
possession and occupation of the house.
[10]
The applicant's case is that she did not sign any document
consenting
to all the above mentioned transactions. She says that only the
first respondent was involved in the negotiations and
the conclusion
of the agreements relating to the transfer of the 30% members
interest the joint estate of the property held in
the Third
Respondent, and also the Memorundum of Purchase Agreement.
[11]
She says that although she and the First Respondent moved into the
aforesaid house during October 2007 and the Second Respondent
relocated to the farm, it later transpired that the house is
burdened encumbered with a bond in the amount of R675 000. 00, while
its value is only R500 000. 00. She says that at all relevant times
she was brought under the impression that the house will
be
transferred to them unencumbered. With regard to this assertion she
conveyed to the Repsondents per her attorneys' letter
dated 15 May
2009.
[12]
The applicant further avers that the Second Respondent and the
entity Krasnkop Elekties CC, of which the Second Respondent
is the
sole member, are in financial straits and are not in a position to
settle the bond registered over the house for cancellation
thereof
and consequently the house has not as yet been transferred into the
names of the applicant and the respondent.
[13]
The applicant contends that the transfer of the 30% members interest
is invalid by virtue of the fact that the members interest
belonged
to the joint estate and she never gave any consent for the
disposition thereof. She contends in the alternative that,
in the
event I were to find that the agreements were valid, then because
the Second Respondent failed to perform in terms of
the agreements I
should then find that the joint estate is entitled to cancel the
agreements and claim restitution. She says
that she has been unable
to get the consent of the First Respondent to litigate on behalf of
the joint estate
[14]
The applicant alleges further in her papers that the value of the
30% members interest is worth R3 800 000. 00. She says
further that
the First Respondent has to the prejudice of the joint estate sold
the aforesaid 305 members interest for a mere
R1 100 000. 00. She
avers that in terms of
section 20
of the
Matrimonial Property Act
just
and equitable that she be allowed to litigate on behalf of the
joint estate and that division of the joint estate be ordered.
[15]
With regard to urgency, the applicant contends that since she became
aware of the futility of the agreements between the
First and the
Second Respondent, she has made several endeavours, for the
protection of the joint estate' interest, to retrieve
the members
interest in vein. It has since come to her attention that the Second
Respondent and the closed corporation in which
he is a sole member,
which is the owner of the property used as counter performance for
the members interest in Madakor Boerdery,
are in a critical
financial straights. She further says that there are judgments
obtained
against
Kranskop Elektries CC in the amount of R330 078. 00 and R152 146. 00
respectively on 15 January 2009 and 25 February 2009.
[16]
The applicant further avers that she has also personally
determined
that the Second Respondent owes large amounts of money which is now
due and payable in the amounts of RR250 000. 00,
R25 000.00 and R50
000.00. I must immediately point out that there are no supporting
documents attached in regard to these averments.
[16]
The first salvo made by X on behalf of the respondents, is that the
copy of the founding affidavit served on the respondents
only bears
the signature of the applicant, without it having been commissioned.
The founding affidavit in the Court file bears
the same signature of
the applicant, and it has been commissioned on 15 June 2009. The
inference to be made is that the commissioner
must have commissioned
the affidavit in the absence of the applicant, and that is not in
accordance with
[17]
Rule 6(2) of the Uniform Rules of this Court require that every
application shall be brought on notice of motion supported
by an
affidavit as to the facts upon which the applicant relies." The
court has a discretion to condone noncompliance
with the rules.
In the matter of Mynhardt v Maynhardt 1986
(1
)
SA 456 (T). The exercise of the Court's secretion will depend on the
circumstances of a particular case, having regard,
inter
alia
what
prejudice would be suffered by the party who fills offended by the
non-compliance.
[18]
In motion proceedings, the notice of motion together with the
affidavit constitutes, the pleadings and the evidence in such
proceedings. Such pleadings must be served on the opposite side, so
as to enable him or her or it to know what case to meet.
The
respondents were made aware of the case they are called to meet,
although the copy of the affidavit served on them was not
commissioned. There is no prejudice they have suffered as the result
of the fact that the copy of the affidavit served on them
was not
commissioned.
[19]
The affidavit that has been filed in the Court file was
commissioned.
The submission on behalf of the respondents that I must infer that
the applicant was absent when the commission
attached his signature
on the affidavit and that therefore the applicant did not take an
oath. With regard to this submission,
I take note of the fact that
the commissioner is an attorney of this Court. I further take note
of the fact that the matter was
regarded as an urgent application.
Generally in matters that are regarded as urgent, during the
commissioning of the papers,
it does happen that the commissioner
would sign only the original document without attesting the reset of
the copies. I do not
for a single moment believe that an officer of
this Court would simply commission a document of a stranger, without
that deponent
being present and risk prejudicing his profession for
no good reason.
[20]
Further the fact that the copy was not commissioned, that does not
make the affidavit placed before me irregular thus warranting
me do
declare the entire proceedings a nullity, as was contended on behalf
of the respondents. In the result, this point raised
on behalf of
the respondents is not upheld.
[21]
In considering whether the application is urgent, I must bear in
mind that:" Urgency does not relate to only to some
threat to
life or liberty; urgency of commercial interest may justify the
invocation of the sub rule no less than any other interest
1
.
[22]
In the matter of Bopape and Another v Moloto
2000 (1) SA 383
at 386
the Maritz J. said:
"There
is no reason to limit the remedies of an aggrieved spouse to the
four corners of s15(9)(b) of the Act. There is no
sound reason why
an aggrieved spouse should suffer pending the possible eventual
division of the joint estate, which may or may
not come about. It
may also be prejudicial to an aggrieved spouse to seek division of
the joint estate in terms of s 20 of the
Act. To accomplish a lawful
donation or an alienation without value, the consent of both spouses
is required. When it is i
clear
that such const is absent, the alienation cannot be lawful. In my
view such alienating is void.
[23]
It has been contended on behalf of the respondents that the matter
is not urgent because the applicant moved to the house
in October
2007. In my view, the important consideration is that she only
became aware of the essential facts in May 2009, when
her attorneys
directed a letter to the respondents' attorneys
2
.
She further says that it has since come to her attention that the
first respondent and the third respondent are in dire financial
sleights. In urgent application the court can accept hear say
evidence. She says that were the second respondent and the third
respondent to be declared insolvent there is a risk of great
prejudice because the joint estate would not recover what has been
disposed illegally by the first respondent.
[24]
Having regard to the potential financial prejudice that might be
suffered by the joint estate and more in particular the
applicant, I
am of the view that the matter is sufficiently urgent that this
Court should come to the rescue of the applicant.
I also bear in
mind the fact that the second respondent is the son of the first
respondent, who is presently the sole member
of the third
respondent. He cannot be regarded as a complete outsider who was not
aware of what was going on when the putative
agreements were entered
into between himself and the first respondent. It cannot be assumed
that the applicant had given consent,
especially in the light of the
fact that there is no written document which has been produced by
the respondents whereby the
applicant granted her consent.
[25]
I also bear in mind the fact that the house referred to herein
above,
belonged to Kranskop Elektries CC, which is not a party these
proceedings. However, the second respondent had no authority
to have
entered into a set off between the first respondent in respect of
the transaction relating to the second respondent and
the third
respondent. The fact that Kranskop Elektries CC has not been cited
in these proceedings is of no
"
Vie annexure 'EV9' cited at paginated 14 para 24.
moment
because the house has not been transferred into the names of the
first respondent and the applicant. In my view it was
not necessary
to have Kranskop Elektries CC cited in these proceedings.
[26]
Because of the heavy urgent roll of this Court, it is not possible
to prepare within the available time a judgment that deals
with all
the issues contained in the papers and the submissions that have
been made. The fact that I have not chronicled what
is contained in
the answering affidavits of the respondents, does not mean that I
have not considered these, but in fact I kept
these in my mind as I
considered this matter.
[27]
In the result I find that the matter is urgent and that the
applicant has made a case for the relief she seeks. In the result
I
make the following order:
(1)
That
the application is urgent and that any deviation or non
compliance
with the prescribed rules of this Court in regard to form and time
frames is condoned.
(2)
That,
in terms of
section 16(1)
of the
Matrimonial
Property Act 88 of
1984
leave be granted to the applicant
to bring an application
on behalf of the communal estate;
(3)
That the transfer of member interest of the first
respondent
in Mandakor Boerdery BK registration number 1992/015815/23 (Third
Respondent) to the Second respondent, be set aside
in terms of
section 15(2)(c)
, and
section 15(3)(c)
of the
Matrimonial Property
Act, 88 of 1984
;
(4)
That
the first respondent's previous member interest in
Boerdery BK
(Third Respondent) be transferred back to
in
the name of the applicant and the first respondent.,
(5)
That
the communal estate of the applicant and the first
respondent
immediately be divided, to the effect that, but
not limited only
thereto, that half of the previous members
interest of the first
respondent in Boerdery BK (Third
Respondent) be transferred to
the applicant.
(6)
That the First and the Second Respondents are ordered, jointly or
severally the one paying and the other to be absolved
to pay the
costs of this application.
N.M.MAVUNDLA
JUDGE
OF THE HIGH COURT
HEARD
ON THE : 30 / 06/2009
DATE
OF JUDGMENT: 03/07/2009
APPLICANT'S
ATTORNEY : Jacques Roets Attorneys
APPLICANT'S
ADV :
Mr.
RESPONDENT'S
ATTORNEY : Louw Attorneys
RESPONDENT'S
ADV :
Mr.
1
Vide Superior Court Practice of Erasmus [Service
31.
2008]
Ð
1-55.