About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2024
>>
[2024] ZALMPPHC 5
|
|
M.G.S v M.A.P - Appeal (HCA23/2023) [2024] ZALMPPHC 5 (17 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: HCA23/2023
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED
DATE:
17/01/2024
In
the matter between:
M[…]
G[…] S[…]
APPELLANT
And
M[…]
A[…] P[…]
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant and the respondent were married to each other by
customary union. The appellant had instituted
an action for the
dissolution of the customary union between the parties. The appellant
in his action was seeking orders for (a)
decree of divorce; (b)
division of the estate: (i) that each party to retain such property
in that party’s current possession
as that party’s sole
property, (ii) that the appellant be entitled to be paid 50% of the
respondent’s pension benefits/interest
held at Government
Employees Pension Fund (GEPF) within 60 days of finalising the
divorce, (iii) that an endorsement be made by
the administrators or
registrars in the records of GEPF that the appellant is entitled to
be paid 50% of the respondent’s
pension benefits/interest held
at GEPF; (c) that it will be in the best interest of the minor
children if their parental responsibilities,
care, maintenance and
guardianship are awarded to both parties, however the primary
residence and day to day care of KP be awarded
to the appellant,
subject to the respondent’s right to reasonable contact and
visitation rights, and primary residence and
day to day care of NP be
awarded to the respondent subject to the appellant’s right of
reasonable contact and visitation
rights; (d) that the issue of
maintenance be referred to the maintenance court.
[2]
The respondent had defended the appellant’s action. On the date
on which the divorce action was
set down for hearing, the respondent
and her counsel were in default and the appellant proceeded with the
divorce action in the
absence of the respondent. Counsel for the
appellant in addressing the regional court on the issue of the
respondent’s pension
interest submitted that there was still a
contention on the issue of the division of the joint estate, and that
the appellant’s
pension interest should therefore at that stage
not be paid to the appellant. Further that the issue of the
respondent’s
pension interest will be dealt with by the
appointed liquidator of the parties’ joint estate.
[3]
The regional court proceeded to grant orders that (i) the bonds of
marriage subsisting between the parties
is dissolved; (ii) division
of the joint estate that each party shall retain the movable property
already in his/her possession
as his/her sole property; (iii) the
parties shall retain full parental responsibilities and rights over
the minor children, inclusive
of the right to maintain contact with
and contribute to the maintenance of the minor children; (iv) the
respondent shall have the
following specific parental
responsibilities and rights in respect of the minor children:
guardianship, daily care and permanent
residence of the minor
children; (v) the matter of maintenance of the minor child must be
referred to the maintenance court; and
(vi) a liquidator be
appointed, should the parties not reach agreement within 60 days
concerning any other assets and liabilities
in the joint estate.
[4]
The respondent brought an application for rescission of the judgment
and order that was granted in her
absentia.
The appellant had
opposed the respondent’s rescission application. In his
answering affidavit the appellant had stated that
the respondent’s
rescission application was premature as the respondent did not engage
him for further division of their
joint estate and also that a
liquidator has not been appointed to assist them in the division of
their joint estate. The respondent
agreed to the appointment of a
liquidator and withdrew her rescission application. After the
withdrawal of the rescission application,
the parties could not agree
on the division of their joint estate. The respondent suggested that
Phillip Jordaan be appointed as
the liquidator and receiver of their
joint estate. The appellant did not indicate whether he was amenable
to Phillip Jordaan being
appointed as a liquidator and receiver of
their joint estate, but in turn brought an application for the
variation of the divorce
order that he had obtained by default.
[5]
In the variation application the appellant was seeking orders that
paragraph 6 of the decree of divorce
granted on 12
th
May
2021 be varied to read (i) that the appellant be paid an amount equal
to fifty percent (50%) of the respondent’s pension
interest
held by GEPF and/or its administrator such amount having accumulated
and accrued until or up to 12
th
May 2021, within 60 days
after receipt of an order in the matter; and (ii) that the
administrator was ordered to endorse into its
or their records that
the appellant is entitled to be paid an amount equal to fifty percent
(50%) of the respondent’s pension
interest held by GEPF and or
its administrator such amount having accumulated and accrued until
and/or up to 12
th
May 2021, within 60 days after receipt
of the order.
[5]
In the alternative the appellant in his variation application was
seeking an order that paragraph 6
of the decree of divorce granted on
12
th
May 2021 be varied to read (i) that the parties’
joint estate be fully and equally divided in terms of paragraph 2 of
the
decree of divorce, every party shall be solely responsible for
and absolve the other party from the debts incurred in his or her
names, such debts having being incurred up to 12
th
May
2021 and the respondent shall retain one hundred percent (100%) of
her pension interest held in or by GEPF as her sole property.
[6]
The grounds for the appellant bringing a variation application are
that (i) the orders as they stand
in the decree of divorce creates a
perpetual possibility of the parties finalising the division of their
joint estate with implied
engagement of the liquidator following
appointment by the court with such powers as it would deem fit; (ii)
the parties have unsuccessfully
attempted to agree on what constitute
the remainder of the joint estate, which according to the appellant
is the respondent’s
pension interest held by GEPF; (iii) he is
aware that the respondent’s attorneys have addressed a letter
requesting that
he agree to the appointment of a liquidator, which he
reasonably believe that it will be waste of time and limited
resources; (iv)
he was present in court when the order of 12
th
May 2021 was granted and he deliberately instructed his attorney not
to entertain the pension interest issue at that stage as he
was
advised same could be entertained by the liquidator in future, if
there was a need; and (vi) that a period of 60 days as ordered
had
expired without the parties agreeing to what constitute the remainder
of the joint estate, and he can reasonably state that
it is highly
unlikely that he will agree with the respondent on anything.
[7]
The respondent had opposed the appellant’s variation
application. In her answering affidavit the
respondent had stated
that the appellant’s application is a rescission of judgment
disguised as a variation application.
The respondent had further
stated that the issue of the liquidator is necessary and that it is
not correct that the liquidator
will be dealing with the pension
interest. It is the respondent’s contention that the regional
court had already dealt with
the issue of the pension interest, and
that if the appellant wishes to revisit that he must bring a proper
application for rescission
or an appeal. That the real reason the
applicant is bringing this application is that he wants to prevent
her from accessing her
half share in the companies registered in the
names of the appellant.
[8]
The regional court had dismissed the appellant’s variation
application, and the appellant is appealing
against the whole
judgment and order of the regional court. This court must determine
whether the regional court had erred in dismissing
the appellant’s
variation application.
[9]
The general rule is that a judgment once given is final, but a court
in certain circumstances either
under common law or under the rules
of court may correct, alter or supplement its judgment or order. In
Firestone
South Africa v Genticuro
A.G
[1]
it was held that the exceptions to the general rule prompting for a
correction, alteration or supplementing of a judgment are (i)
the
principal judgment or order may be supplemented in respect of
accessory or consequential matters, for example, costs or interest
on
the judgment debt, which the court overlooked or inadvertently
omitted to grant; (ii) the court may clarify its judgment or
order,
if, on a proper interpretation, the meaning thereof remains obscure,
ambiguous or otherwise uncertain, so as to give effect
to its true
intention, provided it does not thereby alter “the sense and
substance” of the judgment or order; (iii)
the court may
correct a clerical, arithmetical or other error in its judgment or
order so as to give effect to its true intention;
and (iv) where
counsel had argued the merits and not costs of the case, but the
court, in granting judgment, also makes an order
concerning costs, it
may thereafter correct, alter or supplement that order.
[10]
In terms of Rule 49 (7) of the
Magistrates’
Courts Rules of Court
(Rules) all applications for rescission or variation of judgment
other than default judgment must be brought on notice to all the
parties, supported by an affidavit setting out the grounds on which
the applicant seeks rescission or variation, and the court
may
rescind or vary such judgment if it is satisfied that there is
good
reason
to do so. The applicant in a variation application must therefore set
out the grounds for variation of the order in a clear manner
in
his/her founding affidavit which will enable the court hearing the
application to properly exercise its discretion after it
is satisfied
that there is good reason to do so. Good reason will entail the
applicant giving a reasonable explanation for the
application and
also showing that his/her application is
bona
fide
.
(See
Colyn
v Tiger Food Industries LTD v Meadow Feed Mills (Cape)
[2]
).
[11]
In my view, the appellant’s explanation for bringing the
variation application is not satisfactory
and also lacks
bona
fides.
The appellant’s variation application is centered
around the respondent’s pension interest which had not been
inserted
in the order of 12
th
May 2021. The appellant in
his founding affidavit to the variation application has stated that
he had deliberately instructed his
attorney not to entertain the
pension interest at that stage as he was advised that same could
still be entertained by the liquidator
in future, if there was a
need. The appellant was therefore consciously aware of the
instructions he was giving to his attorney,
and he gave those
instructions on purpose. As he gave those instructions deliberately,
there was no question of mistake, his instructions
were intentional.
[12]
From the transcribed record of the proceedings of 12
th
May
2021 it shows that the court
a quo
wanted to include 50% of
the respondent’s pension interest in the court order, but it
was the appellant’s attorney
who told the regional magistrate
not to do that as that will be dealt with by the liquidator. For the
court order of 12
th
May 2021 not to include the 50%
percent of the respondent’s pension interest was not by
mistake, but was at the request of
the appellant. The alternative
relief which the appellant is seeking in his variation application
shows that the appellant is using
the variation application in order
to effect division of their joint estate and avoid the appointment of
a liquidator.
[13]
When the matter was argued in the court
a quo
, counsel for the
appellant had submitted to the regional magistrate that if the order
of the 12
th
May 2021 was amended to include both the
pension funds and the appellant’s shares, he believes that they
will have a much
clearer way forward. This is a clear indication that
the appellant’s application is not a variation application in
the true
sense, but wanted to avoid the appointed of a liquidator.
That is also confirmed by the appellant’s submission that he
reasonably
believes that it is highly unlikely that he will agree
with the respondent on anything. If they are unable to agree on
anything,
the proper person to come to their rescue is the
liquidator. The appellant has failed to show good reason why the
order of 12
th
May 2021 should be varied, and it follows
that the appeal stands to be dismissed.
[14]
In the result the following order is made:
14.1 The appeal is
dismissed with costs
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
I
AGREE
NAUDE-ODENDAAL
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the appellant
:
Mashile ME
Instructed
by
:
Malope D Mahlaela Inc
Counsel
for the respondent
:
Leso JT
Instructed
by
:
JT Leso Attorneys Inc
Date
heard
:
10
th
November 2023
Electronically
circulated on
:
17
th
January 2024
[1]
1977
(4) SA 298
(A) at 306G – 307H
[2]
2003
(6) SA 1
(SCA) at 9E-F