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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: B957/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 17 February 2025
Signature:
In the matter between:
K[...] G[...] First Applicant
And
D[...] G[...] First Respondent
VAN ZYLS ATTORNEYS INC Second Respondent
LEOVAS INVESTMENTS (PTY) LTD Third Respondent
JUDGMENT
NYATHI J
A. INTRODUCTION
[1] The applicant is seeking on an urgent basis , an order interdicting the First
Respondent from alienating, transferring, or encumbering property situated at
5[...] M[...] Street, Moreletapark , Pretoria , Gauteng , pending finali zation of the
divorce action between the parties.
[2] The parties are embroiled in an acrimonious div orce action against one
another . It is no surprise that the husband, who is the respondent in the
application, opposes t his application as well .
B. BACKGROUND
[3] The parties attended counselling sessions in an attempt to save their marriage
and concluded a settlement agreement before the institution of the divorce
action by the first respondent.
[4] In terms of the settlement agreement the applicant is entitled to receive transfer
of the M[...] property.
[5] The catalyst for the application was that the first respondent apparently
concluded a sale agreement in respect of the property , in order to dispose
thereof before the divorce action is adjudicated upon. This will have the effect
of defeating the applicant’s claim even before the divorce court makes its
decision, rendering hollow any judgment granted in favour of the applicant in
this regard.
[6] Various applications have been brought pending the divorce, notably a Rule 43
application, contempt of court proceedings against the first respondent , and an
application to authorize the issuance of a warrant for incarceration of the first
respondent for contempt of court .
[7] The first respondent’s entrenched stance is that he is unable to afford the
obligations imposed upon him by the Rule 43 Court Order despite findings to
the contrary by the Court that heard the contempt application.
[8] In the current application, the first respondent main tains his plea of pover ty and
insisted that he must sell the M[...] property in order to afford compliance with
the Rule 43 order.
[9] It is wo rth noting that the first respondent currently lives and works in the
United States of America . His net monthly salary (after deductions) am ounts to
more than R180 000.00 per month.
C. URGENCY
[10] The applicant was informed of the sale agreement between the first and th ird
respondents on 6 December 2024.
[11] In correspondence through h is attorneys, the first respondent repeatedly
assured the applicant that he would approach the court for leave to sell the
M[...] property.
[12] It is an undeniable fact that he conclude d the sale agreement without
approaching any court.
[13] On 11 December 2024 , the applicant’s attorneys addressed a letter to the third
respondent, informing it of the applicant's claim. No response was received.
The applicant’s attorneys closed their office on 12 December 2024 for the
December recess.
[14] When the applicant's attorneys reopened on 8 January 2025, they addressed a
letter to the first respondent's attorneys, requesting an undertaking that the
transfer of the property to the third respondent be held over, pending the
divorce action. The first respondent’s attorneys respond ed on 13 January 2025 ,
refusing to give such an undertakin g.
[15] This application was launched thereafter on 16 January 2025.
[16] The respondent assailed this application on the grounds that it was unjustifiably
launched on an urgent basis in circumstances where the said urgency was self -
created.
[17] The applicant’s contention is that she first sought compliance with the
provisions of the settlement agreement from the respondents and only
launched this application when compliance was not forthcoming.
[18] From Nelson Mandela Metropolitan Municipality v Greyvenouw CC ,1 it is seen
that a party who seeks consensus prior to lodging the application cannot be
accused of being dilatory or that urgency was self -created.
[19] The relief sought in this application is an anti -dissipation interdict. The purpose
of this type of interdict is to pre vent the disposal of an asset, pending the
adjudication of the applic ant’s claim.
[20] The respondent’s view is that this application should be dismissed with costs ,
conten ding that:
1 2004 (2) SA 81 (SE) at 94C -D; See also Kumah v Minister of Home Affairs 2018 (2) SA 510 (GJ) at
511D -E.
20.1 the applicant had repudiated the settlement agreement by
refusing to return to mediation when they disagreed ;
20.2 she had turned her back on what was agreed2;
20.3 further more , there is a dispute of fact as to why the parties
entere d into the settlement agreement. According to the
respondent, he did so in an attempt to salvage the marriage ;
20.4 the applicant has no real right as the respondent is the owner
of the property, at best the applicant has a right only to the
accrual when it is calculated at the dissolution of the marriage.
[21] Adv Coertze submitted on behalf of the applicant that the matter of Knox
D’Arcy Ltd v Jamieson and Others3 relied upon by the respondent is
distinguishable from the current case. In Knox D’Arcy the applicant sought to
preserve the property as security for a claim she had against her spouse for
payment of monies . Here the applicant is claiming the property itself
consequent to the provisions of the signed settlement agreement which has
been made an order of Court. In Knox D’Arcy Grosskopf JA specifically held
that “…"I am not, of course, at the moment dealing with special situations
which might arise, for instance, by contract or under the law of insolvency."4
[emphasis added].
[22] In Knox D’Arcy , the court referred to the earlier decision in Mcitiki and Another
v Maweni5 where Hopley J stated as follows:
" ... (T)hey all proceed upon the wish of the Court that the plaintiff should not
have an injustice done to him by reason of leaving his debtor possessed of
funds sufficient to satisfy the claim, when circumstances show that such debtor
2 Respondent’s answering affidavit para 17.6 and 17.7 .
3 1996 ( 4) SA 348 (SCA) .
4 Knox D’Arcy supra para [62].
5 1913 CPD 684 at 687.
is wasting or getting rid of such funds to defeat his creditors, or is likely to do
so."
[23] In Webster v Mitchell6the test for an interim interdict, such as the one sought
herein, was laid down as follows:
“In an application for a temporary interdict, applicant’s right need not be shown
by a balance of probabilities; it is sufficient if such right is prima facie
established, though open to some doubt. The proper manner of approach is to
take the facts as set out by the applicant together with any facts set out by the
respondent which applicant cannot dispute and to consider whether, having
regard to the inherent probabilities, the applicant could on those facts obtain
final relief at the trial. The facts set up in contradiction by the respondent should
then be considered, and if serious doubt is thrown upon the case of applicant,
he could not succeed. In considering the harm involved in the grant or refusal
of a temporary interdict, where a clear right to relief is not shown, the Court
acts on the balance of convenience. If, though there is prejudice to the
respondent, that prejudice is less than that of the applicant, the interdict will be
granted. Subject, if possible, to conditions which will protect the respondent .”
Prima facie right :
[24] The applicant must show that she has a prima facie right, though open to some
doubt.
[25] The applicant relies primarily on the settlement agreement concluded between
the parties, in terms of which the property is awarded to her, as the basis of the
right relied upon.
[26] This is amplified by the Court Order in the Rule 43 application, which requires
the first respondent to pay the bond instalments in respect of the M[...] street
6 1948 (1) SA 1186 (WLD)
property specifically, and the applicant's right to have her claim adjudicated
upon in terms of Section 34 of the Constitution, without the judgment being
rendered hollow due to the first respondent's disposal of the property.
[27] The first respondent has given an incoherent explanation of the purpose of the
settlement agreement . One such version7 is that the agreement was to serve
as security to the applicant if the emigration to the USA did not work out. This
contradicts the preamble of the settlement agreement and clause 15 of the
agreement. These provides that the agreement is for the purposes of the
divorce and should be inc orporated into the final decree of divorce.
Reasonable apprehension of irreparable harm :
[28] It is common cause that the first respondent is in the process of selling the
M[...] property contrary to his undertaking in the agreement. This sale,
regardless of the first respondent's avowed reason, will clearly render the
eventual incorporation of the settlement agreement in a final divorce
meaningless.
No suitabl e alternative remedy:
[29] The applicant’s only viable remedy is to claim transfer of the M[...] property.
The divorce action is nowhere near conclusion. The first respondent’s
insistence that the applicant should await her share of the accrual is not
relevant as a remedy for a blatant breach of the settlement agreement.
Balance of convenience :
[30] The applicant and the minor children will be deprived of their home if the sale
is permitted to proceed, in addition to the applicant's claim in the divorce action
being rendered hollow.
7 Respondent’s answering affidavit
[31] On the other hand, the first respondent contends that he must sell the property
in order to meet the dictates of the Rule 43 court order, which he has already
been found guilty of being in contempt of by a court on 29 October 2024 .
[32] In its judgment, the court was scathing in its findings regarding the first
respondent’s honesty regarding his financial position , his attempts at
misleading the court and worse.
[33] It is trite that the court in exercising its discretion must balance or weigh the
prejudice which the applicant will suffer if the interim interdict is not granted
against the prejudice the first respondent will suffer if it is granted .8
D. CONCLUSION:
[34] The first respondent’s pleas of poverty and his contention that he must sell the
M[...] property for financial reasons ring hollow, especially having regard to his
record in this litigation and cannot be sustained.
[35] In so far as costs are concerned, the normal rule as established over time is
that costs follow the cause. It was submitted on behalf of the applicant that
respondent’s mala fides as foreshadowed in the contempt of court application,
are the sole cause of the applicant having to incur legal costs and that she
should not be l eft out of pocket as a result thereof.
[36] Upon a consideration of all the evidence before me, the following order is
made:
8 Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) 383 C -D and 383 E -F.
1. The applicant’s non -compliance with the rules in respect of filing and
service is hereby condoned and the present application was heard as
an urgent application in terms of the provisions of Uniform Rule 6(12) ;
2. The first respondent is interdicted and restrained from alienating,
transf erring or encumbering the property situated at 5[...] M[...] Street ,
Moreletapark, Pretoria, Gauteng, pending final ization of the divorce
action under the above case number .
3. The first respondent is ordered to pay the costs of this application on
an attorney and client scale.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 30/01/2025
Date of Judgment: 17 February 2025
On behalf of the Applicant : Adv A. Coe rtze
Duly instructed by: WF Bouwer Incorporated; Pretoria
e-mail: rinette@wfbattorneys.co.za
On behalf of the Responde nt: Adv Alexia Vosloo -De Witt
Duly instructed by: Van Zyl’s Incorporated ; Pretoria
e-mail: sonja@ vzylinc.co.za
Delivery : This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand -down is deemed to be 17 February 2025.