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2024
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[2024] ZALMPPHC 128
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A.R.S v M.S.S (Leave to Appeal) (7305/2021) [2024] ZALMPPHC 128 (9 September 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
N
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 7305/2021
(1)
REPORTABLE:
YES
/
NO
(2)
OF INTEREST TO THE JUDGES:
YES
/
NO
(3)
REVISED.
DATE:09/09/2024
SIGNATURE:
A[...]
R[...] S[...]
PLAINTIFF
(BORN
K[...] T[...])
and
M[...]
S[...]
S[...]
DEFENDANT
JUDGMENT
[LEAVE TO APPEAL]
This
judgment is delivered electronically by way of dispatching
same to email addresses
of the parties' legal representatives and publishing same on SAFLII.
The date of delivery of this judgment
is deemed to be 9 September
2024.
SIKHWARI
AJ
[1]
This court has
previously granted an order in the main action in the following
terms:
1.
That
the divorce decree is granted for the dissolution of a marriage
between A[...] R[...] S[...], born K[...], of identity number
6[...]
and M[...] S[...] S[...] of identity number 6[...].
2.
That
the plaintiff's prayer for forfeiture of benefits arising from the
marriage in community of property in respect of the plaintiff's
pension benefits from the Government Employees Pension Fund (
"
GEPF'J
and in respect of the parties
'
immovable
properties is hereby dismissed.
3.
The plaintiff
and the defendant shall retain full parental responsibilities and
rights over the minor child, T[...] M[...] S[...]
,
a boy
born on 3 January 2011
,
inclusive
of acting as guardian
,
to care
for and to maintain contact with and contribute to the maintenance of
the minor child
.
4.
The
plaintiff shall have the following specific parental responsibilities
and rights in respect of the said minor child
,
to wit
guardianship
,
and
daily care and residence of the minor child.
5.
The
defendant shall have specific parental responsibilities and rights of
the minor child; such contact rights shall include having
the minor
child with him during alternative weekends and/or every alternative
short and long holiday.
6.
The
defendant is ordered to pay to the plaintiff
a
sum of R5
000
.
00
(five thousand five hundred rand) per month as maintenance for the
parties
'
aforesaid
minor child
,
T
[...]
M
[...]
S
[...]
,
with
the first payment due on or before the seventh day of February 2024
,
and
thereafter on or before the seventh day of each succeeding month
until the minor child is self supporting or this maintenance
order is duly varied or set aside by the competent maintenance court
with jur
i
sdi
c
tion
over the aforesaid min
o
r
child.
7.
That it is
ordered that the defendant is entitled to fifty percent (50%) of the
plaintiff's pension interests and/or benefits held
at the Government
Employees' Pension Fund (
"
GEPF'J,
the pension holder or administrator on behalf of the plaintiff
'
s
employer, which pension benefits must be calculated as at the date of
the divorce decree herein
,
being
30 January 2024.
8.
An
order directing the manager or administrator of the said pension
scheme/fund
,
the
GEPF
,
that:
8.1.
He/she
must endorse the records of the aforesaid Pension Fund to reflect the
defendant's aforesaid entitlement to the pension benefits
of the
plaintiff,
8.2.
He/she
must pay to the defendant
,
alternatively
,
to
a
preservation
fund nominated by the defendant an amount equal to fifty percent
(50%) of the defendant
'
s
pension interests in the said pension fund
,
calculated
as at the date of the divorce hereof, such payment to be made within
sixty (60) days of the defendant notifying them
in writing, which of
the two options she elects
.
8.3.
He/she
must furnish written proof of the endorsement referred to in (h)(1)
and (h)(2) above
to
the assistant registrar of this Honourable Court within one month of
receipt of the notification hereof.
9.
That
the remainde
r
of the parties
'
joint
estate, including their immovable property, be divided equally
between the parties.
10.
That
the plaintiff is ordered to pay the costs of this action on party and
party scale.
[2]
Aggrieved by
the order of this court
,
the applicant
filed an application for leave to appeal. It is trite law that
application for leave to appeal is regulated in terms
of Section
17
of the
Superior Courts Act 10 of 2013
,
which provides
that:
17.(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)
(i)
the appeal would have a reasonable prospect
of
success;
or
(ii)
there is some other compelling reason why the appeal should be heard
,
including
conflicting judgments on the matter under consideration;
(b)
the
decision sought on appeal does not fall within the ambit of
section
156(2)(a)
;
and
(c)
where
the decision sought to be appealed does not dispose of all the issues
in the case
,
the
appeal would lead to a just and prompt resolution of the real issues
between the parties
."
[3]
Courts have
interpreted the above new provisions of the Act in several decis
i
ons
and distinguished same from the previous test of
"
reasonable
prospects of success
"
on appeal. The
use of the word
"
would
"
in
section
17
(1) (a) of the Act above in the new test has risen the bar to a
very higher standard in that the test now is that the applicant
for
leave to appeal must demonstrate some level of
certainty that the appeal
may succeed, NOT that it may succeed, NOT that it is arguable, NOT
that another court may arrive at a
different decision.
[4]
The new test
in terms of
section 17
(1) (a) of the Act was first confirmed, and
explained thoroughly, in the case of
The
Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others 2014 JDR
2325 (LCC) at para 6,
where
Bertelsman J held that:
"It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new
Act. The former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different
conclusion
,
see
Van
Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343H
.
The use of
the word
"
would
"
in the new
statute indicates a measure of certainty that another court will
differ from the court whose judgment is sought to be
appealed
against
.
"
[5]
The
Mont Chevaux Trust
test
on leave to appeal was later followed by the court as good current
law in the case of
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance In Re: Democratic Alliance v Acting National Director
of
Public Prosecutions and Others, (19577/09) [2016] ZAGPPHC 489 (24
June 2016) at para 25,
the
full court of the Gauteng Division in Pretoria
,
per
Ledwaba DJP, Pretorius J and Mothle J (as he then was) held that:
"
The
Superior Courts Act has
raised the bar for granting leave to appeal
.
.."
[6]
In
the case of
Fair-Trade
Independent Tobacco Association v President of the Republic of South
Africa and Another (21688/2020) [2020] ZAGPPHC 246
(24 July 2020) at
para 6
,
the full court of the Gauteng Division in Pretoria per Mlambo JP
,
Molefe
J and Sasson J considered the above-stated decisions on interpreting
section 17 (1) (a) of the Act
,
and
correctly held that:
"As
such,
in considering the application for leave to appeal
,
it is
crucial for this court to remain cognizant of the higher threshold
that needs to be met before leave to appeal may be granted.
There
must exist more than just a mere possibility that another court
,
the SCA
in this instance, will
,
not
might, find differently on both facts and law. It is against this
background that we consider the most pivotal grounds of appeal."
[7]
The aforesaid
new test was further confirmed as good current law by the Supreme
Court of Appeal (SCA) in respect of
section 17
(1) (a) of the Act in
the case of
Smith
v
S
2012
(1) SACR 567
(SCA) at para 7,
where
Plasket AJA held that:
"What
the test of
reasonable prospects of success postulates is a dispassionate
decision
,
based on the
facts and the law that a court of appeal could reasonably arrive at a
conclusion different to that of the trial court.
In order succeed
,
therefore, the
appellant must convince this court on proper grounds that he has
prospects of success on appeal
and
that those
prospects are not remote but have
a
realistic
chance of succeeding. More
is
required to be established than that there is a mere possibility of
success, that the case is arguable on appeal or that the
case cannot
be categorized as hopeless. There must, in other words
,
be
·
a sound,
rational basis for the conclusion that there are prospects of success
on appeal."
[8]
In another
case of
MEC
of Health, Eastern Cape v Mkhitha and Another (1221/2015)
[2016]
ZASCA 176
(25 November 2016, at paragraphs 16 and 17,
Schippers
AJA reaffirmed the SCA's disapproval to the granting of leave to
appeal where the new threshold of a higher test was not
met when the
unanimous judgment of the SCA held that:
"[16]
Once again it
is necessary to say that leave to appeal, especially to this court
,
must not be
granted unless there truly is a reasonable prospect of success.
Section 17
(1) (a) of the
Superior Courts Act 10 of 2013
makes it
clear that leave to appeal may only be given where the judge
concerned
is
of the
opinion
that the
appeal
would
have
a
reasonable
prospect of
success;
or there is some other compelling reason why it should be heard.
"
[17]
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic
chance of
success on appeal
.
A mere
possibility of success
,
an arguable
case or one that is not hopeless
,
is not enough.
There must be a sound
,
rational basis
to conclude that there is a prospect of success on appeal
."
[9]
The facts of
the case are fresh in the parties
'
mind and same
have been fully captured in the main judgment and the parties
'
heads of
argument in this application for leave to appeal. I need not repeat
same
.
The
power of the court to order forfeiture is derived from
section 9
(1)
of the
Divorce Act 70 of 1979
, as amended.
[10]
Th
i
s
court has correctly interpreted and applied the above-stated statute
,
particularly
the three requirements for forfeiture
.
Allegations of
misconduct against the respondent are unfounded and
I
or
unsubstantiated by the evidence placed before the court
.
The
contribution of the
respondent
was
lower to that of the applicant in financial terms, but fairly
proportional to his income which is lower to that of the applicant.
From the date of marriage up to the date of divorce, the
-
applicant
was fully aware that the respondent earns lower income than hers.
Therefore, that fact cannot be used as a ground for
forfeiture. The
respondent did contribute to the pension fund of the applicant by way
of being her husband
,
assisting in
handy work at home as well taking the kids to school. The fact that
he was not conversational, in view of the of the
kids
,
it not a
material factor to consider on forfeiture.
[11]
It is the view
of this court tha
t
the respondent
will not benefit unfairly if forfeiture is not granted
.
There will be
no undue benefit to the respondent in the circumstances of this case.
The vehicles purchased by the applicant are
part of the joint estate
.
They were
purchased out of proceeds of the joint estate
.
There was no
substantial misconduct on the part of respondent which will arise to
undue benefit.
[12]
In the
circumstances, the application for leave to appeal must fail, with
costs on party and party scale, on Scale C.
[13]
Accordingly,
the following order is made:
1.
That the application for leave to appeal is dismissed with costs on
scale C.
MS
SIKHWARI
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
For
Applicant
Ms MC De Klerk
Instructed
by
DDKK Attorneys Inc
For
Respondent
Adv
TD
Sibiya
Instructed
by
Makgoba Kgomo Makgaleng Inc
Date
of hearing
03 May 2024
Date
of Judgment
09 September 2024