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
GAUTENG DIVISION, PRETORIA
CASE NO: 2023-114308
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED
SIGNATURE:
DATE: 8/8/24
In the application of:
G[…] J[…] W[…] Applicant
and
L[…] W[…] Respondent
JUDGMENT
LABUSCHAGNE AJ
[1] The applicant and the respondent are in the thro es of a divorce. They are
married out of community of property with inclusion of the ac crual system.
Both declared their assets to have a nil value at commencement of the
marriage. Despite this declaration, the respondent was the owner of a
property in Mooikloof, Pretoria, which became the matrimonial home.
[2] The applicant left the matrimonial home on 22 December 2022. I n October
2023 t he applicant heard that the property was being sold . He asked his
attorneys to find out the details, but three letters later, there was still no
response. On 2 November 2023 the applicant launched an urgent ex parte
anti-dissipation application seeking that the net proceeds of the sale of the
respondent’s immovable property at Mooikloof be held in Trust by JJR
Attorneys pending conclusion of the main divorce action between the parties.
[3] On 7 November 2023 the ex parte application was heard and a rule nisi was
granted by Kooverjee J, calling upon the respondent to show cause on 11
March 2024 why the order should not be confirmed and made final.
[4] The order of the court was served on the respondent and the application
became opposed. The rule nisi was extended on 11 March 2024 to 22 July
2024 for the final hearing. This is the judgment on the return day.
[5] Pursuant to the rule nisi that was granted, the applicant, on 23 February
2024, caused the net proceeds of the sale of the Mooikloof property to be
transferred to JJR Attorneys, being an amount of R2 824 777.65. Since 23
February 2024 the entire proceeds have been held by JJR Attorneys.
[6] Transfer of the property had taken place on 2 February 2024 based on an
offer to purchase dated 20 September 2023 for the amount of R4,2 million.
[7] The parties were married on 10 July 2004 and two children have been born
of the marriage. The eldest, a daughter, is registe red as a first year medical
student at the University of Pretoria for 2024. Their son is a Grade 11
scholar at G[…] High School.
[8] The marriage has irretrievably broken down . Divorce proceedings
commenced on 5 July 2023 under case number 65613/2023 and pleadings
have closed in that action.
[9] On 23 October 2023 the respondent launched a rule 43 application. The
applicant answered to the rule 43 proceedings on 6 November 2023, the day
before the ex parte urgent application was heard.The rule 43 application was
argued on 5 June 2024.
[10] In the period after launching of the urgent application and until 5 June 2024,
the applicant’s stated intention was to secure part of the net proceeds of the
aforesaid sale for purposes of payment of his claim against the respondent
for an accrual. The respondent intended securing the other part of the funds
for purposes of the tertiary education of the minor children. For this purpose,
she intended setting aside R1,5 million (R750 000.00 for each child) to pa y
for their tertiary education. The balance would be part of the accrual.
[11] At the hearing of the rule 43 application on 5 June 2024, the parties agreed
that they would seek the following order when the matter is argued on the
return date:
“4.1 R1,5 million (One and a Half Million Rand) of the proceeds held in
trust by JJR Attorneys be paid over to Weavind & Weavind
Attorneys’ Trust account (‘Weavind’) to be administered by the
director Niel Cloete of Weavind:
4.1.1 R750 000.00 (Seven Hundred and Fifty Thousand Rand) to
be allocated to the ma jor child in respect of her tertiary
educational needs comprising of:
4.1.1.1 University fees;
4.1.1.2 Hostel fees;
4.1.1.3 Textbooks, stationary, scrubs, educational
equipment and/or any educational related need as
reasonably required by the tertiary institution from
time to time;
4.1.2 R750 000.00 ( Seven Hundred and Fifty Thousand Rand)
be allocated to the minor child’s tertiary education (as
defined in 4.1.1 supra);
4.1.3 Weavind is to invest the money stipulated in paras 4.1.1
and 4.1.2 supra in separate interest bearing accounts.”
[12] Due to the aforesaid agreement R1,5 million of the funds that are subject to
the interim order will be transferred to Weavind & Weavind to pay for the
tertiary education of the children. The dispute before me therefore relates to
the balance of the restrain ed funds, being approximately R1,3 million. This
amount is held by JJR Attorneys pending the determination of this
application.
[13] At the hearing, counsel for the applican t indicated that he approaches the
court on two bases, namely:
13.1 Anti-dissipation; and/or
13.2 On the basis of his claim to a share of the net proceeds of the
property to secure his claim for an accrual, being quasi-vindicatory in
nature.
[14] At the hearing of the matter, counsel for the respondent contended that
counsel for the applicant’s reliance on the alternative argument of the
applicant’s claim being quasi -vindicatory in nature was not foreshadowed
and that she sought an opportunity to provide supplementary heads of
argument. Both parties were offered an opportunity to file such heads and
have done so.
[15] In argument, counsel for the applicant contended that the causes of action
are not true alternatives. He contended that, if required to comply with the
anti-dissipation requirements as set out in Knox D’Arcy (see below) , the
onus would be higher than if t he matter were dealt with as quasi-vindicatory
in nature. The applicant contends the following:
15.1 That he has a substantial accrual claim against the respondent in the
divorce action, the accrual in her estate being far more than in his.
He contends that the respondent was guilty of violent, disingenuous,
erratic and insincere conduct and had a habit of incurring significant
expenses without prior approval, while requiring the applicant to
cover those costs. He contends that the respondent’s failure to
respond to three of the applicant’s attorneys’ emails (10 October, 13
October and 25 October 2023) and one telephone call (18 October
2023), requesting information regarding the status of the sale of the
Mooikloof property, was to be taken into account.
15.2 He co ntends that the respondent’s plea that was filed on 1
November 2023 indicating a change in tack as far as the net
proceeds were concerned , caused alarm. In that plea the
respondent seeks a forfeiture of the applicant’s claim to the accrual,
whereas previously she contended that the funds would be available
to meet his claim for an accrual.
[16] Based on the alarm caused by the respondent’s conduct, the applicant
contends that he had no other remedy available to him to secure the net
proceeds as a source for payment of his claim for accrual.
[17] These contentions are disputed by the respondent. She contends that she
was unaware of the applicant’s fear of dis sipation of the net proceeds at the
time when his attorneys wrote three letters enquiring about the status of the
sale of the Mooikloof property. She contends that she fully explained the
delay in responding to the letters (12 calendar days). She contends that the
claim for forfeiture in the plea does not constitute an intention to dissipate the
net proceeds of the sale and she denies that there was a change in tack or a
mutating case as contended for by the applicant.
[18] In the rule 43 application the respondent (as applicant in those proceedings)
contends in the founding affidavit that she intends dealing with the proceeds
of the sale of the property as follows:
18.1 R750 000.00 would be placed in a separate bank account by the
respondent for the benefit of the children’s tertiary education;
18.2 All expenses related to the mayor child ’s tertiary education shall be
paid from the separate account;
18.3 The respondent shall provide the applicant with a copy of the bank
statements of such account;
18.4 Should any tertiary education expenses of the mayor child not
exhaust the funds held and the mayor child reaches the age of 25,
then the funds held in the account should be transferred to the
mayor child;
18.5 There was a similar paragraph pertaining to the minor child for a
similar amount. She then contends that the balance of the proceeds
would form part of the accrual.
[19] The applicant’s contention that he has a substantial claim for an accrual is
based on the respondent’s financial disclosure form, indicating a net asset
value of R12 458 660.28. By contrast, the net asset value of the applicant’s
estate amounted to R555 583.57. Based on these figures, the applicant
contends that he has a claim for accrual, being half of the difference
between the aforesaid amounts, of R5 673 746.57.
[20] The three letters referred to above are foundational to the applicant’s fear of
dissipation. The applicant’s attorneys had requested an undertaking in a
letter of 13 October 2023 that the net proceeds of the property would be held
in Trust until the divorce proceedings were finalised so as to ensure that the
proceeds of the sale are preserved and are not squ andered, thereby
protecting the applicant’s right in the accrual claim. This first letter met with
no response.
[21] The applicant’s attorneys of record then contacted the respondent’s
attorneys of record on 18 October 2023 and enquired directly with Mr Venter
regarding the status of the sale. Mr Venter indicated that he did not have the
facts and that he would revert during the course of the next week. This
conversation was placed on record on 19 October 2023. A further letter was
sent on 25 October 2023, r equesting the detail relating to the status of the
immovable property. The respondent’s attorneys then advised that they
would revert in due course if so instructed. This was taken as an indication
that there may be no response unless instructions were r eceived to that
effect.
[22] On 1 November 2023 the respondent filed her plea in the divorce action
claiming forfeiture of the applicant’s share in the accrual. This was the final
event that triggered the launching of the urgent application. The
respondent’s ostensible about-face caused alarm. Where the respondent
had previously indicated that such net proceeds would be available as part
of the accrual, she now claimed forfeiture of his claim to any benefits arising
from the accrual. The applicant contends that this change in tack, coupled
with a history of alleged violent and erratic behaviour, indicated to the
applicant that the respon dent would squander the proceeds in an attempt to
reduce or eliminate the disparity in their respective accruals.
[23] These facts were sufficient to p ersuade Kooverjee J to grant an interim
order. The application was however brought ex parte and without the
respondent’s version being before court.
GRANTING OF EX PARTE ANTI-DISSIPATORY RELIEF
[24] The granting of an ex parte anti-dissipatory relief pendente lite is an
extraordinary remedy that must be justified by facts.
[25] In Knox D’Arcy and Others v Jamieson and Others 1996 (4) SA 348 (AD)
Grosskopf JA stated the following regarding anti-dissipatory relief:
“The question which arises from this approach is whether an applicant need
show a particular state of mind on the part of the respondent, i.e. that he is
getting rid of the funds, or is likely to do so, with the intention of defeating the
claims of creditors. Having regard to the purpose of this type of interdict the
answer must be, I consider, yes, except possibly in exceptional cases. As I
have said, the effect of the interdict is to prevent the respondent from freely
dealing with his own property to wh ich the applicant lays no claim. Justice
may require this restriction in cases where the respondent is shown to be
acting mala fide with the intention of preventing execution in respect of the
applicant’s claim. However, there would not normally be any j ustification to
compel a respondent to regulate his bona fide expenditure so as to retain
funds in his patrimony for the payment of claims (particularly disputed ones)
against him. I am not, of course, at the moment dealing with special
situations which m ight arise, for instance, by contract or under the law of
insolvency.”
[26] In quasi-vindicatory claims, the requirement of showing an intention on the
part of a respondent to defeat the claim of creditors need not be established.
J Cane in an article “Prejudgment Mareva -type Interdicts in South African
Law”, SALJ (1997) Volume 11 4, page 77 describes a quasi-vindicatory or
quasi-proprietary claim as one in which the applicant claims delivery of
specific property under some legal right to possession. Such a claim would
be an exceptional case, in the context of the quote from Knox D’Arcy supra,
in which an applicant does not have to prove a risk that the respondent is
likely to remove or hide assets to ensure that when judgment is given, there
are no traceable assets against which a judgment can be executed (page
87).The impact of th e distinction in quasi -vindicatory claims is that an
apprehension of irreparable harm is presumed. It is however open to a
respondent to rebut this presumption (Cane, page 79).
[27] Cane states at page 79:
“In cases in which the applicant has a vindicatory or quasi-vindicatory claim,
he would not be required to prove a well -grounded apprehension of
irreparable harm, for there is a rebuttable presumption of irreparable injury if
the interdict is not granted. This does not mean however, that the question of
irreparable harm is completely irrelevant. First it is ‘open to the respondent to
defeat the claim for the interdict by rebutting the presumption’.”
[28] Counsel for the respondent contended that, where there is an identified
earmarked fund to which the respondent establishes a claim, then those
funds can be restrained by an interdict pendente lite to preserve execution of
his claim. In this instance, the claim would be a claim to share in the
difference in accrual between the estates of the parties to a divorce.
[29] In Fey N.O. v Van der Westhuizen and Others 2005 (2) SA 236 (C) Meer J
found, in a matter in which the trustee of an estate was seeking to secure
assets pending a claim in terms of the Insolvency Act to such assets, applied
the following dictum in Hawkins’ Trustees v Corio Saw & Planing Mills
Ltd and Others 1923 WLD 125 (per Tindal J):
“The principle seems to be that if the thing itself which forms the subject
matter of the disposition is in the hands of the creditor, on a prima facie case
being made out by the trustee that he is entitled to reclaim it for the estate,
the court will attach the thing until the trustees’ case can be finally decided,
even if mala fides or collusion is not established and the thing itself is
money, and even if the probability of irreparable loss has not been
established.” (Fey (supra) at 251 B – D).
[30] The question is whether a claim to share in an accrual in divorce
proceedings is quasi-vindicatory. It is in the end a claim sounding in money.
[31] Money that is in a bank account becom e comingled with other money in the
bank through commixtio. One consequence of the principle of commixtio is
that a creditor cannot interdict the dissipation of an amount of money from a
bank account on the basis of some vindicatory or ownership right to it.
(Carsten and Another v Kullmann and Others (case number 49174/2017)
– unreported – per WGH Van der Linde J at [19].
[32] In Fedsure Life Assurance Co Ltd v Worldwide African Investment
Holdings (Pty) Ltd and Others 2003 (3) SA 268 (W) the following is stated
at par [29]:
“Money, like any species of property, may be interdicted pending a
vindicatory or quasi -vindicatory claim fo r that money. There is however a
problem in this regard.”
[33] As Schutz JA said in First National Bank of Southern Africa Ltd v Perry
NO and Others 2001 (3) SA 960 (SCA) at 967 H – I:
“It might seem a simple thing to recover stolen money from one found in
possession of it. But the matter is complicated by the rule in our law, and
inevitable rule it seems to me, flowing from physical reality, that once money
is mixed with other money without the owner’s consent, ownership in it
passes by operation of law.”
[34] However, what a creditor can do by means of a quasi -vindicatory action is to
lay claim to money in a bank account, if the money has deliberately been
kept apart from other money, and thus forms part of an identifiable fund
intended for a specific purpose. The creditor must have an underlying legal
right against a debtor to whose credit the money stands, to lay claim to the
money (Carsten (supra) at par [20]).
[35] What a creditor can also do, is to show that its debtor is threatening to
dissipate or secrete its as sets to avoid having to satisfy its creditor’s
judgment granted some day down the line, is to interdict such dissipation
pending the determination of liability and the obtaining of the judgment. The
object of such an interdict is to prevent the creditor b eing stuck with what
would otherwise be a hollow judgment (Carsten (supra) at par [21]).
[36] The respondent provided an explanation for her failure to timeously respond.
She contends that she was busy finalising her rule 43 sworn statement that
was dated 23 O ctober 2023. The applicant then served a notice of bar in
respect of her plea to his counterclaim, and she had to attend to filing that
plea. The children were in the midst of their final exams and the respondent,
and her children were preparing to move out of the Mooikloof property.
[37] The applicant summarises his grounds for the anti -dissipatory relief in
paragraph 40 of his founding affidavit, which reads:
“The fact that no response is forthcoming from the attorney and that the
respondent now all of a sudden has change of tact (sic) and a mutated case,
coupled with the history of the matter and the respondent’s disingenuous,
violent and erratic behaviour lea ve no doubt in my mind that, once
registration of transfer occurs, the respondent will squander the proceeds of
the sale in an attempt to reduce, alternatively eliminate, the disparity and
accrual between my estate and the respondent’s estate.”
[38] The respo ndent denies that the applicant has made out a case for anti -
dissipatory relief on the aforesaid grounds . She contends that, since 25
October 2023, the applicant has been aware of the respondent’s intentions
in respect of the Mooikloof proceeds as set out in the founding affidavit of the
rule 43 application.
[39] In Attorney Grove’s letter of 25 October 2023, the applicant’s attorney raised
no dispute on any aspect of the respondent’s intentions regarding the
proceeds. On 6 November 2023 the applicant, respond ing to the
respondent’s rule 43 application, raised no objection regarding her intentions
regarding the proceeds of the Mooikloof property. He contended as follows:
“36.2 I have taken note of how the applicant wishes to deal with the
proceeds of the said property, however, I do not believe that the
applicant has my best interests in mind especially with regard to the
asset that forms part of the joint estate and ultimately the accrual.
36.3 As a result thereof, the proceeds of the sale of the immovable
property should be placed in a Trust account pending the finalisation
of the divorce.”
[40] This response, signed a day before the ex parte application was brought,
expresses no concern about dissipation of the net proceeds of the sale. One
would e xpect the applicant, having already commenced with the ex parte
application on 2 November 2023, to have expressed his fear of dissipation in
answer to the rule 43 application. At least , since his fear of dissipation was
the driving force for the urgent ex pa rte application, he shou ld have
disclosed that his answering affidavit , signed a day before, does not express
his fear of dissipation. And he should have explained why not. In the rule 43
order granted on 5 June 202 4, the respondent contends that the applicant
conceded and agreed that R1,5 million of the net proceeds be held
separately for the children’s education. This had been a bone of contention
until then. She however contends that her intentions had been clear since
October 2023.
[41] In the applica nt’s replying affidavit he has contended that the following are
irrelevant for purposes of adjudicating this application:
41.1 The history of the sale of Mooikloof;
41.2 Contact with the children;
41.3 Consultation with the Family Advocate.
[42] In his founding affidavit ther e were three grounds for the fear of dissipation.
Only one remained. The applicant’s case regarding his fear of dissipation
has therefore shrunk substantially since granting of the interim order on 7
November 2023.
[43] The applicant’s reliance on the responden t’s alleged violent, ingenious and
insincere conduct are closely related to the applicant’s lack of contact with
his children since February 2023.
43.1 The respondent contends that the children do not wish to have
contact with their father, being angry with h im for being in a
relationship with a third party. The applicant ostensibly attributes
damage to his property on 25 September 2023 to the respondent,
where she contends that her son destroyed the applicant’s property
because he was angry with his father.
43.2 The respondent apparently damage d a wedding photo of the parties
on 25 December 2022. That is two days after the applicant left the
common home. How this is linked to the risk of dissipation of assets
in November 2023 is not fully explained.
43.3 The applicant’s son is 16 and attends a High School at which the
mother of one of the other scholars is the third party with whom the
applicant has a relationship. He is angry about this. There is no
ostensible basis for attributing the damage to the applicant ’s
property to the respondent in these circumstances.
[44] The applicant’s Rule 43 affidavit indicates that the applicant is concerned
over the respondent’s control over the funds as he does not believe that she
has his best interests at heart.
[45] It is apparent from the applicant’s version that by 2 November 2023 he had
decided to commence with the ex parte application. This was expedited by
the respondent’s plea to the counterclaim in which she sought forfeiture of
his claim to an accrual. However, when the ap plicant answered to the
respondent’s rule 43 application, he made no allegation that the respondent
is dissipating assets, denuding her estate or in some way defeating his
claim. He also makes no reference to his intention to launch an urgent
application for failing to respond to the aforesaid three letters with alacrity.
[46] The applicant contends that the plea of forfeiture of his claim that was
delivered in response to his counterclaim on 6 November 2023 represents a
change of heart on the part of the respondent. He made the conclusion that
she intends squandering the net proceeds of the sale of the property.
[47] Counsel for the respondent however points out that, in the pleadings as at
that stage the applicant in his counterclaim claimed an accrual amount of
R284 000.00 together with unquantified division of movables. There was no
substantial accrual claim at that stage.
[48] In her particulars of claim dated 5 July 2023 the respondent (as plaintiff)
pleaded that each party retain their own assets and be responsible for their
own debts, and that each party remains sole owner of pens ion funds,
annuities and policies and that neither has a claim against the other in
respect thereof. The respondent therefore pleaded that there would be no
sharing of any accrual by the applicant. She therefore denies the contention
that there was a ch ange in tack in her plea to the counterclaim dated 1
November 2023 . The respondent was consequently consistent in her
particulars of claim and in the plea to the counterclaim that there was no
sharing of any accrual by the applicant.
[49] In these circumstance s, the applicant’s inference that the respondent was
about to squander the net proceeds of the immovable property because of
change in tack as far as forfeiture of the accrual is concerned, is a leap in
logic not justified by the underlying facts. A forfe iture claim in divorce
proceedings does not equate to an intention to dissipate assets. Forfeiture is
in this case raised as a defence to the counterclaim.
[50] Counsel for the respondent contended that the limited ambit of the
applicant’s accrual claim on the pleadings was not pointed out to the Judge
hearing the ex parte application on 7 November 2023. Anti-dissipatory relief,
based on the principles in Knox D’Arcy, had to be confined to such assets
as would be sufficient to satisfy the applicant’s claim in respect of the accrual
and no more (see Knox D’Arcy Ltd and Others v Jamieson and Others
1994 (3) SA 700 (WLD) at 701 H – I).
[51] On the applicant’s version, the respondent’s net asset worth was
R12 458 660.28. This was more than enough to meet the limited ac crual
claim of R284 000.00 plus unidentified, unquantified movable assets
consisting of vehicles. These vehicles were in the applicant’s possession at
that time. There was therefore no need to interdict the Mooikloof proceeds to
satisfy the limited accrual claim.
[52] The applicant (as plaintiff in the counterclaim ) filed a notice of intention to
amend his accrual claim in March 2024. His right to do so is not at issue at
present. The respondent accepts, as evidenced by the heads of argument
filed by the res pondent’s counsel, that the applicant prima facie has
established a claim to an accrual, but at the time of the granting of the order
on 7 November 2023, it was minimal as set out above. The relief granted
was therefore overbroad as the limited nature of the claim to accrual was not
set out in the papers that served before the Judge on 7 November 2023. The
applicant has established a prima facie accrual claim , forfeiture aside, but
not to the extent covering the net proceeds of the sale in an amount of
approximately R2,8 million.
DISCUSSION
[53] Based on the notice of amendment that the applicant served in March 2024
providing for an increased claim for an accrual, the c laim for accrual that
serves on the papers before me is different to that that served before the
court that granted the ex parte order.
[54] If the claim to an accrual is quasi -vindicatory, then, as far as an interim
interdict is concerned, evidence that there is an earmarked fund in the face
of a competent claim to share in the accrual would be sufficient to establish a
prima facie right to the relief. Further, irreparable harm is presumed. Thirdly,
the applicant need not show that he does not have an alternative remedy.
[55] Applying the principles of quasi -vindicatory relief pendente lite , counsel for
the applicant contends that the applicant need only show that the proceeds
of the sale of the Mooikloof property is in an earmarked fund to which he has
a strong claim by virtue of his claim to share in the accrual. It is then
presumed that he would suffer irreparable harm. In addition, the applicant
need not establish the absence of an alternative remedy ( Fedsure Life
Assurance Co Ltd v Worldwide African Investment Holdings (Pty) Ltd
and Others 2003 (3) SA 268 (W) at par [28]).
[56] The nature of an accrual claim has been referred to in a number of cases. In
RS v MS 2014 (2) SA 511 GSJ the Court (per Bester AJ) stated the following
at par [17]:
“[17] However, it is trite that even a contingent right to claim half of the
accrual in the Estate of the other spouse could be protectable by
interdict pendente lite, but then an applicant for such relief must
show:
(a) That the respondent has assets within the jurisdiction of the
court;
(b) That the respondent, prima facie, has no bona fide defence
against the applicant’s alleged contingent rights;
(c) That t he respondent ha s the intention to defeat the
applicant’s claim or to render it hollow by dissipating or
secreting assets.
[18] But, even if these jurisdictional requirements are present, then an
applicant must still show a well -grounded apprehension of
irreparable loss, should the interdict pendente lite not be granted. It
is perhaps apposite here to point out that, because of the dra conian
nature, invasiveness and conceivably inequitable consequences of
such anti-dissipation relief, the courts have been reluctant to grant it,
except in the clearest of cases. ” (See generally: Knox D’Arcy L td
and Others v Jamieson and Others 1996 (4) SA 348 (A) … at 372
C; Mngadi v Beacon Sweets and Chocolates Provident Fund
and Others 2004 (5) SA 388 (D) … at 396 E; Reeder v Softline Ltd
and Another 2001 (2) SA 844 (W) at 849 to 851.
[57] In BM v BNG (unreported case number 2008/25274) (South Gauteng High
Court, Johannesburg – as it them was) Brassey AJ describes a party’s
interest in an accrual in divorce proceedings as “purely equitable for ,
questions of dissipation aside, it becomes exigible only ‘ at the dissolution of
the marriage … by death or divorce’ in terms of s 4 (1) of the Act.”
[58] The right to share is not a vested right but a contingent right to participate in
the benefits of the accrual upon dissolution of the marriage (Cloete J in
Reeder v Softline Ltd and Another (supra) 2001 (2) SA 844 (W) at 848 I to
849 B.
[59] Where there is a risk of dissipation of assets against which a right to share in
an accrual takes place, then no doubt interim relief pendente lite can be
obtained.
[60] In RS (supra) the claim to share in an accrual, in an anti dissipation context,
was not dealt with as a quasi-vindicatory claim. It is apparent from that case
that the applicant still needs to establish the risk of dissipation with the
intention to prejudice the applicant’s accrual claim . However, that judgment
does not expressly deal with the issue of quasi vindicatory relief. The jury is
apparently still out on this issue as far as an accrual claim is concerned. The
argument that such a claim is quasi vindicatory is well supported by
authorities in a different context. As will be apparent from what follows, I
need not make a finding on this topic.
[61] In this instance, I intend dealing with the matter on both assumptions. Firstly
on the basis that the claim is not quasi -vindicatory and the applicant has to
comply with the aforesaid Knox D’Arcy principles, including showing a state
of mind aimed at undermining execution of a valid claim to share in the
proceeds of the accrual. Secondly, I will assume the claim is quasi
vindicatory, and deal with it on the basis that irreparable harm is presumed
because there is an identified earmarked fund and a strong claim to share in
the proceeds in that fund.
[62] On my assessment of the facts of the matter, the respondent has been
consistent in her intentions regarding use of the net proceeds of the sale of
the Mooikloof property. Her primary concern was for that of their children and
their education. The balance would be available if a claim to share in the
accrual is established on the part of the applicant. The respondent however
has raised a defence against such claim based on forfeiture.
[63] As her intentions have not changed since October 2023, the basis upon
which the applicant approached the court ex parte in November 2023 does
not hold good. The fact that the applicant has agreed to the setting up of an
educational fund for their children, as the respondent has intended
throughout, confirms that the extent of the rule nisi exceeds the amount
required to achieve its purpose. Whether the applicant had control of that
fund or not, it cannot be said that setting up a fund for the education of his
children amounts to dissipation of the respondent’s assets with the intention
of thwarting his accrual claim. The facts placed before the court by the
respondent cast serious doubt over the subjectively perceived risk of
dissipation of the net proceeds of the sale. The applicant’s fear of dissipation
turned out to be unf ounded. T hose facts also cast serious doubt over the
ambit of the rule nisi. Further, even if the proceeds of the sale were placed
beyond the reach of the applicant, there were sufficient assets to meet his
claim to the accrual. He would not be harmed by utlilsation of the net
proceeds for the purpose for which the respondent wished to use it. This is
so regardless whether one utilises the accrual claim as formulated in the
pleadings in November 2023( the limited accrual) or the acc rual based on
the amendment filed in March 2024.
[64] On the basis of Knox d’Arcy, I find that the applicant has not established
the required intention on the part of the respondent of secreting assets in
order to prejudice the applicant’s accrual claim. As th e respondent has
sufficient assets to meet the applicant’s accrual claim, forfeiture aside, there
was no risk of irreparable harm in respect of the applicant’s accrual claim.
His claim, if established, would not be rendered hollow. The applicant’s
prima f acie right to a contingent claim for accrual , at dissolution of the
marriage, was not placed in jeopardy by the respondent. Further, even if he
could establish a right to interdictory relief , pendent lite, it would not be for
the full amount of the proc eeds of the sale. His accrual claim was for
R284 000 and vehicles ( which were already in his possession at that
time).The order granted ex parte was for the full proceeds of the sale, which
is in excess of his accrual claim at that time. Even assuming th at the claim
will increase due to the amendment of March 2024, the execution of a
successful accrual claim was not placed at risk.the respondent has sufficient
assets, even for the increased claim.
[65] The second element of an interim interdict is whether th e applicant has
established a reasonably apprehended risk of injury or harm to the aforesaid
prima facie right. The applicant has agreed to R1,5 million of the net
proceeds being earmarked for the children’s education and being paid and
administered by Weavind & Weavind Attorneys.
[66] The respondent has shown fiscal responsibility as far as tertiary education
of their children is concerned. The liability to provide for the education of the
children is not that of the respondent alone, but also of the applica nt. The
securing of funds for their education as agreed has ostensibly fallen on the
respondent alone. Part of the amount of R1,5 million so set aside must of
necessity be made up of the applicant’s duty of maintenance to his
dependent children. This is shared obligation between the parties and setting
up an educational fund does not amount to squandering the proceeds of the
sale.
[67] I do not have cogent facts before me indicating that the respondent would
recklessly squander the net proceeds after deduction of the educational
fund, with the intention of defeating the plaintiff’s claim to share in the
accrual. She has denied such intention and the facts do not suggest that she
will act differently.
67.1 At the time when the interim order was granted on 7 November
2023, the applicant’s claim to an accrual was limited. The vehicles
which he claimed were already in his possession. The remaining
claim amounted to approximately R284 000.00. The applicant
claimed an accrual based on the respondent’s assets, only on e of
which consists of the balance of the proceeds of the sale of the
Mooikloof property.
67.2 In the absence of clear evidence of an intention to dissipate, there is
no real risk of the respondent dissipating the balance of the
proceeds of the sale. If she were to, despite denying any intention to
dissipate, nevertheless proceed and dissipate the assets, the
applicant would be entitled to appropriate redress in the divorce
action. There are many other assets that add up to an amount far in
excess of the amount under restraint.
67.3 Depriving the respondent from utilising the balance of the proceeds
to be economically active would prejudice the respondent.
67.4 Although an order giving effect to an accrual claim only takes effect
upon the decree of divorce being grante d, for decision the moment
with respect to which the respective values of the estates is to be
assessed is not date of divorce, but date of litis contestatio.
67.5 In B,M v B, NG case number 2008/2274(unreported South Gauteng
judgment , per Van der Linde J) the following is stated in respect of a
contingent monetary claim in based on accrual at par [40]:
“…[40 On this matter the established principle is that the operative
moment is litis contestatio ,for that is the moment at which the dispute
crystallises and can be presented to court …
[41] Since litis contestatio is the lodestar for the applicable decision,
transactions after this moment are irrelevant and should be left out of
account. By saying this,I do not mean to suggest, of course, that the
pleadings are fixed in stone; if they erroneously reflect the true state of
affairs , they can(subject to the normal exceptions) be corrected so that
they accurately state the facts. What cannot be done , however, is to
make amendments or otherwise tender evidence in order to bring
transactions into account that occurred only after close of pleadings.”
When the ex parte order was granted , litis contestio had been reached
as the pleadings had closed. The transfer of the net proceeds after
transfer in Feb 2024 was therefore a transaction after litis contestatio
that was not relevant in establishing the respective accruals in the
estates of the parties. It could not diminish the accrual in the
respondent’s estate.The risk of dissipation could therefor only relate to
the recoverability of the accrual claim asserted by the applicant based
on the respective accruals as at litis contestatio. The applicant has not
established a reasonably apprehended risk of irreparable harm.
[68] If the matter were considered in the context of quasi vindicatory relief,
pendent lite, the result is the same. The respondent has rebutted the
presumption of irreparable harm.
[69] Considering the balance of co nvenience, it favours the respondent. As the
respondent has sufficient assets available to meet the applicant’s claim,
there is no risk that the applicant would suffer more than if the relief were
refused. The respondent is economically more successful th an the applicant
and depriving her of using the balance of the proceeds of the sale, could
jeopardise her ability to be economically active. The balance of convenience
consequently does not favour the applicant, but the respondent.
[70] In the premises, whether the applicant’s claim is found to be quasi -
vindicatory or not, the applicant has not established a case for confirmation
of the interim order.
[71] As a final consideration, I regard the non-disclosure by the applicant to the
judge on 7 Novemb er 2023 as relevant to the Court’s overall discretion to
grant or refuse interdictory relief. As ex parte applicant the applicant had a
duty to disclose material facts that might have influenced the Court. This
relates to the non disclosure of the limited ambit of his accrual claim at the
time. The order sought and obtained was for an amount far in excess of his
then accrual claim. His amendment was not filed at that time and an
increased accrual claim was not being asserted in November 2023. I would
also discharge the rule nisi in the exercise of my overall discretion due to the
non-disclosure of material facts.
[72] Therefore, it is ordered that:
1. R1 500 000.00 (one and a half million Rand) of the proceeds held in
trust by JJR Attorneys be paid over to Weavind & Weavind
Attorneys’ Trust account (“Weavind”) to be administered by the
Director Niel Cloete of Weavind & Weavind Attorneys:
1.1 R750 000.00 (seven hundred and fifty thousand Rand) be
allocated to the major child in respect of her tertiary
educational needs comprising of:
1.1.1 University Fees;
1.1.2 Hostel Fees;
1.1.3 Textbooks, stationary, scrubs, educational
equipment and/or any educational related needs as
reasonably required by the tertiary institution from
time to time;
1.2 R750 000.00 (seven hundred and fifty thousand Rand) be
allocated to the minor child’s tertiary education (as defined in
paragraph 1.1.1 supra);
1.3 Weavind is to invest the monies stipulated in paragraph
1.1.1 and 1.1.2 supra in separate interest-bearing accounts;
1.4 The parties are to jointly instruct Weavind to pay, or
reimburse a party, for the major and/or minor child’s tertiary
expenses, alternatively, release monies to either Party to
directly pay the tertiary expenses;
1.5 The parties are to provide Weavind with invoices and proof
of payment as and when received;
1.6 In the event that the parties disagree on payment of a
particular tertiary expense, Weavind is to mediate the
dispute between the parties and is authorised to determine,
subject to judicial review, whether the said expense q ualifies
as a reasonable tertiary educational expense (as defined in
paragraph 1.1.1 supra) payable form the proceeds held in
trust having due regard to the best interests of the particular
child;
1.7 The applicant shall be liable for Weavind’s fees and
disbursements;
2. The remainder of the net proceeds of the sale of the Mooikloof
property which is held by JJR Attorneys shall be released by JJR
Attorneys to the applicant .
3. The applicant I ordered to pay the costs of the application on Scale
C, including the costs of two counsel, one of which is a senior.
_________________________________
LABUSCHAGNE AJ
ACTING JUDGE OF THE HIGH COURT