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 68
|
|
B.L.M v S.M.M (4516/2022) [2024] ZALMPPHC 68 (22 July 2024)
FLYNOTES:
FAMILY – Divorce –
Joint
estate
–
Adjustment
upon division – Investment of funds – Sale of property
donated by defendant’s father –
Alleged that
dissipated – Oral donation agreement – Proceeds of
sale formed part of joint estate – Defendant
made withdrawal
from fixed deposit forming part of joint estate without consent of
plaintiff – Withdrawal and dissipation
of fixed deposit
resulted in loss – Plaintiff succeeds in claim for
adjustment –
Matrimonial Property Act 88 of 1984
,
s
15(9)(b).
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: 4516/2022
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED
DATE:
22.07.2024
SIGNATURE:
In
the matter between:
B[…]
L[…] M[…]
PLAINTIFF
(BORN:
M[…])
IDENTITY
NUMBER 7[…]
-and-
S[…]
M[…] M[…]
DEFENDANT
IDENTITY
NUMBER: 6[…]
JUDGMENT
BRESLER
AJ:
Introduction:
[1]
The matter came before court as a divorce trial. The greater part of
the issues between the Plaintiff and the Defendant was
resolved by
agreement and the Court was presented with a proposed concept order
in this regard.
[2]
The parties are
inter alia
in agreement that:
2.1 The marital
relationship between the parties has broken down irretrievably and no
reasonable prospect exists of restoring a
normal relationship.
2.2 A decree of divorce
should be granted.
2.3 Mr Jacob de Klerk
(Snr) will be appointed as liquidator of the joint estate.
2.4 Both parties retain
parental responsibilities and rights with regards to the care of the
minor child.
2.5 Primary care and
residence of the minor child is awarded to the Defendant subject to
the Plaintiff’s right of reasonable
access to the minor child.
2.6 The Defendant shall
be responsible for the minor child’s reasonable expenses.
2.7 Both parties retain
their parental responsibilities and rights with regards to the
guardianship of the minor child.
2.8 The Defendant shall
pay an amount of R12,000.00 (twelve thousand rand) per month
rehabilitative maintenance for the Plaintiff
from the 1
st
day of the month following the granting of the decree of divorce and
thereafter on or before the first day of each successive month
for a
period of 18 (eighteen) months.
[3]
The parties agreed that the only remaining issue is the fixed deposit
that was held in the name of the Defendant and that was
allegedly
dissipated by him. The origin of the funds comprising the investment
is the sale of an immovable property allegedly donated
by the
Defendant’s father to him.
[4]
The parties were married in community of property. This court is
called upon to determine if the value of the investment should
be
included in determining the joint estate having regard to the
original of the funds.
The
Plaintiff’s case:
[5]
The Plaintiff testified that the relationship between herself and the
Defendant commenced during or about 1998. They were married
in 2003,
in community of property.
[6]
At that time, the Defendant was running a business with his father at
Mahwelereng Location. The Defendant’s father passed
away during
or about 1999 and the Defendant continued with the business. Prior to
his passing, the Defendant’s father gave
an immovable property
to the Defendant. She has no knowledge of the allegation that the
said property is excluded from the marriage
in community of property.
[7]
During or approximately 2016, the Defendant approached the Plaintiff
with several documents requiring her signature. These documents
related to the sale of the immovable property and the investment of
the proceeds at Standard Bank of South Africa. To the best
of her
knowledge the proceeds of the property remained invested at Standard
Bank in a short-term investment account.
[8]
After summons was issued in the current divorce proceedings before
court, it came to her knowledge that the Defendant withdrew
the full
investment amount. As a consequence of the withdrawal, the value of
the Plaintiff’s undivided share in the joint
estate was
diminished to the value of R2,525,235.00. The Plaintiff accordingly
requires an order that an adjustment be affected
in favour of the
Plaintiff upon division of the joint estate.
The
Defendant’s case:
[9]
The Defendant testified that was employed by his father. He
furthermore testified that his farther purchased a stand for him.
According to their culture, his father gave him the stand.
[10]
He confirmed that his father passed away during or about 1999. He
testified that he sold the stand during 2016 or 2017. He
then
invested the proceeds of the sale at First National Bank in his name
for a fixed period of five years.
[11]
He confirmed the withdrawal of the funds after the date of divorce.
According to him the funds were utilised
inter alia
in his
business as his business was not doing well. He persisted in his
testimony that the withdrawal and utilisation of the funds
does not
concern the Plaintiff as it was a gift from his father to him.
[12]
He conceded during cross examination that his father did not leave a
will, no executor was appointed, and no formal process
was followed.
It is thus apparent that the donation was merely done orally and not
reduced to writing. The relevance of this testimony
will appear from
what has been stated herein under.
Analysis
of the applicable law:
[13]
Section 5 of the
General
Law Amendment Act
[1]
reads:
‘
No donation
concluded after the commencement of the Act shall be invalid merely
by reason of the fact that it is not registered
or notarially
execute: Provided that no executory contract of donation entered into
after the commencement of this Act shall be
valid unless the terms
thereof are embodied in a written document signed by the donor or a
person acting on his written authority
granted by him in the presence
of two witnesses.’
[14]
An executory donation is
so called because it still requires to be affected or perfected, in
the sense that something is required
to be done before it can be
regarded as completely performed.
[2]
Delivery would take place at some future time, for instance upon the
death of the donor.
[15]
In casu
the Defendant alleges that his father donated the
property to him. According to the evidence at hand, the property was
simultaneously
transferred from the Limpopo Provincial Government to
the joint estate of the Plaintiff and Defendant and from the joint
estate
to Olympic Park Trading 171 (Pty) Ltd.
[16]
It is trite law that registration is only
prima facie
evidence
of ownership. As such, this Court is not concerned with the Deeds
Office records. It is apposite to ascertain the factual
position
rather than rely on the Deeds Office records.
[17]
The donation of the property from the Defendant’s father to him
was clearly executory in nature as his father in theory
first had to
take transfer of the property, before he could pass transfer to the
Defendant. Some action was therefore required
in order to validify
the donation.
[18]
The Defendant’s submission that the property (and the proceeds)
should be excluded from the joint estate, is solely premised
on the
argument that the property was donated subject to the
proviso
that is should not form part of the joint estate.
[19]
In
Scholtz
v Scholtz
[3]
the Supreme Court of Appeal remarked the following with regards to
the difference in applying the
General
Law Amendment Act
supra
,
as opposed to the
Alienation
of Land Act
[4]
:
‘
[8] In support
of the contention the appellant referred to the meaning of ‘alienate’
as defined in this Act, which includes
‘sell, exchange or
donate’. To my way of thinking an executory contract of
donation of immovable property – like
the one under
consideration – falls within the ambit of both these statutory
enactments. But since the General Law Amendment
Act appears to be the
more stringent one, I think the court a quo was right in its approach
that the validity of the donation at
issue depends on compliance with
this enactment.
[9] Having said that,
I do not believe that in this case it would make any difference if we
were to apply s (2) 1 of the Alienation
of Land Act instead. A
comparison of the two enactments reveals two additional requirements
in the General Law Amendment Act. First,
that the terms of the
agreement must be embodied in the document. Second, that the written
authority to sign on behalf of the donor
must be given in the
presence of two witnesses. The last-mentioned requirement clearly has
no bearing in this case. As to the first
requirement, s 2(1) of the
Alienation of Land Act has been understood to contain virtually the
same stipulation, albeit not expressly
stated. This much appears from
the following dictum by Maya JA in Stalwo (Pty) Ltd v Wary Holdings
(Pty) Ltd and another
2008 (1) SA 654
(SCA) para 7:
‘
That [ie s
2(1)] means that the essential terms of the agreement ... must be in
writing and defined with sufficient precision to
enable them to be
identified. And so must the other material terms of the agreement.’
[See Johnson v Leal
1980 (3) SA 927
(A) at 937G – H.]
[20]
Irrespective of the credibility of the Defendant’s evidence
that the property was donated to him subject to the condition
that it
would not form part of the joint estate, the said donation was void
for lack of statutory compliance.
[21]
It follows that the purported donation could therefore not be
excluded from the joint estate as the relevant terms, dealing
with
the said exclusion, was not reduced to writing. It stands to be noted
that the said condition is in any event disputed by
the Plaintiff to
the extent that she never had knowledge thereof.
[22]
Having regard to the legal position, this Court need not determine if
the Defendant’s version on the exclusionary terms
is credible.
It is common cause that the Deed of Donation, allegedly containing
this critical term, was not reduced to writing
and as such is
rendered void.
[23]
It is trite law that an
agreement prohibited by common law or by statute is illegal. An
illegal contract is unenforceable (
ex
turpi causa non oritur action).
This
rule is absolute and has not exceptions, even when there has been
part performance.
[5]
A court is
moreover
mero
motu
entitled
to raise the issue if illegality if it appears
ex
facie
the
transaction or the surrounding circumstances, provided the court is
satisfied that all the evidence relating to the illegality
was
lead.
[6]
[24]
In casu
neither party raised the issue of the enforceability
of the alleged Donation Agreement. Evidence was however led to the
extent that
it was an oral donation from the Defendant’s father
resulting in the transfer of the immovable property.
[25]
Having concluded the aforesaid, it follows that the proceeds of the
sale formed part of the joint estate. But this does not
automatically
entitle the Plaintiff to the relief prayed for.
[26]
Section 15(9)(b)
of the
Matrimonial Property Act
>, Act 88 of
1984 (the ‘MPA’) dictates:
(9) When a spouse
enters into a transaction with a person contrary to the provisions of
subsection (2) or (3) of this section, or
an order under section
16(2), and –
(a) ...
(b) that spouse knows
or ought reasonably to know that he will probably not obtain the
consent required in terms of subsection (2)
or (3), or that the power
concerned has been suspended, as the case may be, and the joint
estate suffers a loss as a result of
that transaction, an adjustment
shall be effected in favour of the other spouse upon the division of
the joint estate.’
[27]
Sections 15(2) and 15(3)
of the MPA contain codified acts which are
per
se
regarded
as unlawful for the reason that they are, in essence, made at the
expense of the other spouse.
[7]
It is trite law that an adjustment as contemplated in Section
15(9)(b) can only be granted by the court after being properly
ventilated
in the pleadings and in evidence.
[8]
[28]
The Plaintiff pleaded the following in her particulars of claim:
‘
The Defendant
called up a fixed deposit at First National Bank with account number:
7[…] in the amount of R4 504 470.00
and inter alia
withdrew an amount of R3 800 000.00 in cash during the
period 4 November 2022 until 1 December 2022, without
the permission
or consent of the Plaintiff and as a result of which the Plaintiff’s
undivided half share in the joint estate
was diminished to the value
of R 2 252 235.00.’
[29]
The Defendant admitted the withdrawal but denied that any loss was
suffered as the fixed deposit did not form part of the joint
estate.
[30]
During argument Mrs de
Klerk, on behalf of the Plaintiff, submitted that Section 15(2)(c)
applies to the facts
in
casu
in
as far as the Defendant made the withdrawal from a fixed deposit
forming part of the joint estate without the consent of the
Plaintiff
.
She
referred the Court to the unreported matter of
Mogola
v Mogola
[9]
being
a full court decision delivered in this division.
[31]
The following was stated in
Mogola
supra
at
[14]:
‘
I must mention,
as a point of departure, that many of the past case law, did not
authoritatively pronounce specifically on the proper
interpretation
of this provision, in particular, on the power of any of a spouse to
alienate or otherwise encumber those investments
or perform any
juristic act specified in section 15(2)(c),
“
by
or on behalf of the spouse”
in a
financial institution, which investments
forming
part of the joint estate”.
It is the words “any
investment by or on behalf of the other spouse”, in a financial
institution “forming part
of the joint estate”, that
require closer scrutiny as the notion present not only judicial
interpretational difficulty, but
also raise a legal novelty on this
aspect of the law.’
[32]
Of particular importance
is the fact that the learned Judge referred to ‘investment’
and ‘invested fixed deposit’
interchangeably.
[10]
In paragraph 20.1 of the judgment, he concludes that Section 15(7) of
the Act does not permit alienation of fixed deposits but
alienation
of ‘deposits’ held in his / her name that can be
alienated without the consent of the other spouse. It is
specifically
stated that:
‘
... There is
therefore a marked difference between alienation of a fixed deposit
without written spousal consent and an ordinary
deposit which
requires no spousal consent, the legal consequences of which should
be differentiated for the purposes of proper
interpretation of
Section 15(2)(c)’.
[33]
Contrary hereto, in the
minority judgment, Muller J stated the following:
[11]
‘
Section
15(2)(c) is directed at a spouse who wishes to alienate, cede or
pledge a current fixed deposit in the name of the other
spouse
without his / her consent. The deceased, on the evidence, never on
any occasion alienated, ceded or pledged to the first
respondent, a
fixed deposit held in the name of the appellant.
[34]
Muller J then concluded that the provisions of Section 15(3)(c)
cannot be overlooked in as far as:
‘
...it was
contended that the deceased donated a large sum of money to the first
respondent which by all accounts belonged to the
joint estate and by
doing so expressed his intention to exclude the amount from the joint
estate. The court a quo took a narrow
view of the facts which, as a
consequence, brought about the failure to apply the provisions of
section 15(3)(c) to determine whether
the deceased made a valid
donation or alienation, or whether requirements of section 15(8) were
met.’
[35]
I respectfully agree with the reasoning of the Honourable Justice
Muller in as far as it is evident that the critical difference
between Sections 15(2) and 15(7) does not lie between the idea of a
‘deposit’ or a ‘fixed deposit’. Had
this been
so, care would have been taken by the legislature to provide a
definition to distinguish between these concepts. The
difference lies
between assets of these nature being in the name of the other spouse
as opposed to the spouse wishing to deal with
these issues.
[36]
I am furthermore in agreement with the Honourable Justice Muller’s
reasoning that one can however not avoid the consequences
of Section
15(3)(c) in as far as the consent of a spouse must be obtained to
alienate an asset of the joint estate without value.
[37]
It has repeatedly been
stated in the past that, in accordance with the principle of
stare
decisis
(to
stand by previous decisions taken), or the doctrine of precedent, a
lower court is bound by the
ratio
decidendi
(rationale
or basis of deciding) of a higher court and courts of final
jurisdiction are bound to their own decisions.
[12]
This Court is therefore bound by the majority decision of the Full
Court pertaining to Section 15(3)(c).
[38]
In as far as the majority in
Mogola
supra
is
concerned, the alienation of a fixed deposit requires the consent of
the other spouse. In the absence thereof, the Plaintiff
is entitled
to the relief as contemplated in Section 15(9)(b) of the Act provided
it can be shown that the joint estate suffered
a loss as a
consequence thereof.
[39]
In his closing argument, Mr Grobler argued on behalf of the Defendant
that the funds never formed part of the joint estate
and the joint
estate could therefore not suffer any loss. I have already stated
herein before that, due to the invalidity of the
alleged donation
agreement, this asset indeed formed part of the joint estate and the
proceeds of the sale is thus not excluded.
[40]
Having regard to the
testimony by the Plaintiff, the value of the fixed deposit on 10
November 2022 amounted to R4 504 470.84.
[13]
[41]
An early redemption penalty of R199 579.59 was charged and the
remaining balance was utilised by the Defendant for various
purposes.
Of particular importance is the fact that the Defendant testified
that he did not want the Plaintiff to share in this
amount. No
evidence was led to the effect that the proceeds was utilised to
increase the value of the joint estate in any way.
It can only be
surmised that the withdrawal and dissipation of the fixed deposit
resulted in a loss as contemplated in Section
15(9)(b) of the Act.
[42]
Even if this Court follows the reasoning of the minority judgment in
Mogola
supra,
then the same result will be
achieved. In terms of the provisions of Section 15(3)(c), a spouse
shall not without the consent of
another spouse, donate to another
person any asset of the joint estate or alienate such asset without
value. On the Defendant’s
own version, he utilised the funds
inter alia
in respect of his business. Very little documentary
evidence was made available as to these allegations. In my view, this
contravenes
the provisions of Section 15(3)(c) entitling the
Plaintiff to the relief in Section 15(9)(b).
[43]
The Plaintiff must therefore succeed in her claim for adjustment of
her portion of the undivided joint estate.
Costs:
[44]
Mr Grobler raised the issue of the reserved costs pertaining to the
appearance on 2 April 2024. Mrs de Klerk conceded that
she appeared
before this Court on the same day with another matter. Mr Grobler
essentially argued that the postponement was occasioned
by the fact
that she had another commitment and she should therefore be deprived
of her costs.
[45]
It is common cause that the parties intended for further evidence to
be lead in the matter. Further documents in this regard
were
discovered and exchanged shortly before the hearing. In this court’s
view, neither party would have been in a position
to continue.
[46]
This court has a discretion to grant a cost order that is reasonable
and fair to both parties. As the postponement could not
be placed at
the feet of any specific party, it is this Court’s view that
each party should pay his / her own costs pertaining
to the
appearance on the 2
nd
of April 2024.
[47]
As to the remaining costs, the Plaintiff is substantially successful
in her case. There is no reason for the cost order not
to follow the
result.
Order:
[48]
In the result the following order is made:
44.1 The marriage
between the Plaintiff and the Defendant is hereby dissolved.
44.2 The division of
the joint estate.
44.3 An order that an
adjustment be affected in favour of the Plaintiff on division of the
joint estate in an amount of R2 252 235.42.
44.4 That JACOB DE
KLERK (SNR) Identity number: 4[…], an attorney duly admitted
in the High Court of South Africa (North
Gauteng High Court,
Pretoria) practicing as such at the firm DE KLERK’S ATTORNEYS,
21 MARKET STREET, POLOKWANE, is appointed
as liquidator of the joint
estate which subsisted between the Plaintiff and the Defendant during
their marriage with the powers
and / or functions set out in Annexure
‘A’ hereto.
44.5 Both parties
retain full parental responsibilities and rights with regard to the
care of the minor child.
44.6 Primary care and
residence of the minor child is awarded to the Defendant subject to
the Plaintiff’s right of reasonable
access to the minor child.
44.7 The Defendant
shall be responsible for the minor child’s reasonable expenses.
This does not affect the Plaintiff’s
liability to contribute
towards the maintenance of the minor child in accordance with her
means.
44.8 Both parties
retain their parental responsibilities and rights with regard to the
guardianship of the minor child.
44.9 The Defendant
shall pay an amount of R12 000.00 (twelve thousand rand) per
month rehabilitative maintenance for the Plaintiff
from the 1
st
day of the month following the granting of the decree of divorce and
thereafter on or before the first day of each successive month
for a
period of 18 months.
44.10 The Defendant
shall pay the Plaintiff’s costs, excluding the costs pertaining
to the postponement of the trial on the
2
nd
of April 2024,
on a scale as between party and party, inclusive of costs to counsel
on Scale B.
44.11 Each party shall
be responsible for his / her own costs pertaining to the postponement
of the trial on the 2
nd
of April 2024.
M
BRESLER
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
FOR
THE PLAINTIFF
:
Mrs. MC de Klerk
INSTRUCTED
BY
:
DDKK Attorneys Inc
mdk@ddkk.co.za
FOR
THE DEFENDANT
Mr.
JT Grobler
INSTRUCTED
BY
:
Thomas Grobler Attorneys
litigation1@tgprok.co.za
DATE
OF HEARING
:
24 April 2024
DATE
OF JUDGMENT
:
22 July 2024
[1]
Act 50 of 1956
[2]
See
Savvides
v Savvides and Others
1986
(2) SA 325
(T) at 332
[3]
2012 (5) SA 230
(SCA) at [8] to [9]
[4]
Act 68 of 1981
[5]
Jabhay
v Cassim
1939
AD 537
[6]
See Harms,
Amler’s
Precedents of Pleadings
,
Seventh Edition, Lexis Nexis on page 219
[7]
See
Malebana
v Jordaan NO and Another
2024
(3) SA 124
(GP) at [9]
[8]
See
KM
v TM
2018
(3) SA 225
(GP)
[9]
(HCA30/2017) [2018] ZALMPPHC 57 (19 October 2018)
[10]
See in particular paragraph [17] and [18]
[11]
At [40]
[12]
See
Camps
Bay Ratepayers’ and Resident’s Association and Another v
Harrison and Another
2011
(4) SA 42
(CC) at [28] – [30]
[13]
See page 63 of the Plaintiff’s trial bundle