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[2008] ZAWCHC 226
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Silva v Silva (33/2007) [2008] ZAWCHC 226 (29 July 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
[CAPE
OF GOOD HOPE PROVINCIAL DIVISION]
Case
No: 33/2007
In
the matter between:
ANTONIO
MANUEL DA COSTA SILVA Applicant/Plaintiff
and
CHARLISE
SILVA (born NAUDE)
Respondent/Defendant
JUDGMENT
DELIVERED: 29 JULY 2008
FOURIE,
J:
1. The
applicant, plaintiff in the action, applies for leave to appeal
against the whole of my judgment delivered on 13 March 2008.
The
application is opposed by respondent (defendant).
2. It
is trite that in an application of this nature an applicant has to
show that there is a reasonable prospect of success on
appeal.
3. As
appears from my written judgment, I was required to interpret two
clauses in the antenuptual contract concluded by the parties
prior to
their marriage.
4. Firstly,
in regard to clause 3.4.6, I had to decide whether applicant's shares
and member's interest in a private company and
two close corporations
should be taken into account for the determination of the accrual of
his estate. At the trial it was applicant's
case that his interest in
the aforesaid legal entities should, in terms of clause 3.4.6, be
excluded from the accrual of his estate,
by virtue of the fact that
he is employed by these legal entities. Respondent, on the other
hand, maintained that applicant was
not employed by the legal
entities and his interest should accordingly be included in the
accrual of his estate. I found that applicant
was not employed by
these legal entities and that his said interest is to be taken into
account for the determination of the accrual
of his estate.
5. I
am
satisfied that on the evidence before me, the only reasonable
conclusion to be drawn
is
that
applicant was not employed by the said legal entities and, in my
view, there
is
no
reasonable prospect of another court coming to a different conclusion
in this regard.
6. It
is, however, now submitted on behalf of applicant that clause 3.4.6
may be interpreted in a manner which could result
in
the
exclusion of applicant's interest in these entities from the accrual
of his estate, without applicant having to show that he
is employed
by the entities. In short
r
applicant maintains that the reference to employment in clause 3.4.6
should be interpreted as only relating to
"other
business"
and
not to a company or close corporation in which a party may hold
shares or a member's interest. If construed in this manner,
applicant
submits that his shares in the company and Interest in the close
corporations should have been declared not to be part
of the accrual
of his estate.
7. I
am not persuaded that clause 3.4.6 should be interpreted in the
manner now suggested by applicant, but cannot rule out the
possibility that another court may come to a different conclusion in
this regard. As the interpretation now suggested by applicant
had not
been debated at the trial it appears to be practical to allow same to
be argued on appeal.
8. In
regard to the interpretation and application of clause 3.4.8 of the
antenuptual contract, applicant maintains that the right
conferred in
terms thereof should be construed as part of applicant's maintenance
obligations and can, as such, be replaced by
a proper maintenance
order. In my view respondent is, for the reasons furnished rn my
judgment, entitled to enforce the right
conferred in clause 3.4.8. I
am doubtful whether applicant has shown that he has a reasonable
prospect of success on appeal on
this issue, but as I am inclined to
grant leave in regard to the interpretation of clause 3.4.6, I
believe that it would be convenient
to also grant leave in respect of
the issue regarding clause 3.4.8.
9.
In the result, applicant is granted leave to appeal to the Full Court
of this Division, against the whole of my judgment delivered
and
orders made on 13 March 2008. The costs of this application are to
stand over for determination by the court of appeal.
P B FOURIE