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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT

Reportable/Not Reportable
Case no: 20783/24

In the matter between:

T[...] S[...] Applicant

and

J[...] V[...] C[...] P[...] First Respondent

CLUVER MARKOTTER INC Second Respondent

Neutral citation: T[...] S[...] v J[...] V[...] C[...] P[...] and Another (Case no
20783/24) [2025] ZAWCHC (01 AUGUST 2025)
Coram: NJOKWENI AJ
Heard: 26 May 2025
Delivered: 01 August 2025
Summary: Interim anti-dissipatory interdict – sui generis interdict– additional
requirements – intention requirement – precedent trite – Knox D’Arcy followed –
legal principles in KSL v AL binding – condonation late filing replying affidavit –

warning on abuse of process – discretion of the court in costs - best interest of the
child considered.


JUDGMENT


Njokweni AJ

Introduction

[1] This is an application for an anti -dissipation interdict. The Applicant seeks an
interim anti-dissipation interdict to protect the Applicant's counter claims in pending
divorce proceedings instituted by the First Respondent in this division under case
number:- 18658/2024.

[2] The Applicant, T[...] S[...], seeks to prevent the First Respondent, J[...] V[...]
C[...] P[...], from dissipating funds obtained from the sale of their jointly owned
immovable property (“sale proceeds”). The Second Respondent, a law firm known as
Cluver Markotter Inc, currently holds the sale proceeds in trust and does not oppose
the application. The Applicant argues that without the interdict, her claims for
maintenance and other rights would be rendered ineffective. The application is
opposed by the First Respondent.

The relevant facts

[3] The Applicant and the First Respondent (“the parties”) married each other on
1 November 2015 at Bogota, Republic of Colombia, in accordance with the
Colombian laws , and which marriage still subsi sts. Accordingly, the proprietary
consequences of the marriage between the parties is governed by the Colombian
laws. There is one minor child born of the marriage between the parties, VH […], a 9
year-old boy born on 12 January 2016 (“the minor child”).

[4] At the age of 23 the First Respondent suffered a stroke, which left him
paralysed on one half side of his body. He was later diagnosed with Hemiparesis , a
condition that severely impacted his day -to-day functioning. He is med ically unfit to
work a normal job because his condition seriously impacts his short term memory
and motor skills.

[5] As a result, the First Respondent’s parents, (who own a fruit export business
in Colombia) have been generously supporting him financially for the past 20 years,
and later extended the financial support to the Applicant and the minor child. The
Applicant received a monthly allowance of R90 000 from the First Respondent’s
parents, which she used for her personal expenses and those of the minor child. The
Applicant alleges these funds came from the Respondent’s shareholding in his family
business in Colombia, while the Respondent claims they were ex gratia payments
from his mother.

[6] The mother of the First Respondent even assisted the parties financially for
the purchase of an immovable property in a n upmarket secured residential estate
located in Stellenbosch, Western Cape (“matrimonial home”) . The parties lived
together in the matrimonial home . In June 2023 , the marital relationship beg an to
deteriorate significantly, leading to the First Respondent leaving the matrimonial
home in May 2024 to live independently.

[7] The First Applicant’s family business in Colombia fell into hard economic time
due to COVID 19 pandemic and is currently in the process of liquidation in that
country. Following the departure from the matrimonial home, his parents paid for his
new rental accommodation and continued to pay the Applicant’s monthly allowance ,
albeit at a reduced amount compared to the R90,000 they had consistently provided
for over a decade..

[8] The parties decided to sell the ir matrimonial home and mutually agreed to
share pro ceeds of the sale thereof equal ly. On 26 August 2025 , whilst the

share pro ceeds of the sale thereof equal ly. On 26 August 2025 , whilst the
matrimonial home was in market for sale the First Respondent instituted divorce
proceedings in this division under case number: 18658/24. , Notably, the First
Respondent makes no offer of maintenance for the Applicant , but made an offer of

R5000 per month for the minor child.

[9] The marital regime applicable to the parties’ marriage is in dispute, as well as
the First Respondent’s liability to pay spousal maintenance to the Applicant. That
precipitated the launch of this application for an interim interdict, on an urgent basis,
directing that the sale proceeds be held in Second Respondent’s trust account
pending the return date to show cause why the sale proceeds must not be kept in
the Second Respondent’s trust account pending finalisation of the divorce
proceedings. The application was struck from the urgent roll for want of urgency and
it was later allocated to me for hearing on semi-urgent roll.

[10] It is apparent from the papers (although the date is not mentioned) that the
matrimonial home was subsequently sold and the Second Respondent was
appointed as the transferring attorneys. Hence , the sale proceeds were paid to the
Second Respondent. Pending the adjudication of this application, and by agreement
between the pa rties, the sale proceeds are kept in the trust acco unt of the Second
Respondent. In the divorce action, t he Applicant has since filed a plea and counter
claim, in which she inter alia claims that their matrimonial regime is one in
community of property, spousal maintenance and an increased amount for the
maintenance of the minor child.

[11] The Applicant contends that she fears the First Respondent may dissipate
these funds, leaving her unable to enforce claims for maintenance or patrimonial
relief.

[12] The reasons for Applicant’s fears are summarised below.

Applicant’s contentions

[13] The Applicant contends that save for 50% share of the sale proceeds
currently held in Second Respondent’s trust, the First Respondent:

(a) has no other property or assets in South Africa, no South African bank
account, and no right to reside in South Africa.

(b) has stated his intention to leave South Africa for Colombia and claimed
the Applicant would never hear from him again.

Maintenance for Minor Child

[14] The Applicant claims the First Respondent owes maintenance for the minor
child, and the amount he tenders is insufficient to cover the expenses of the minor
child because t he minor child attends an expensive private school, and the
Applicant’s income is insufficient to cover the additional expenses.

Threats and Conduct

[15] The Applicant alleges that t he First Respondent pressured her to sell the
matrimonial home and threatened to leave for Colombia, raising concerns regarding
his alleged intention to avoid satisfying any of the Applicant’s counter claims against
him. These facts collectively form the basis for the Applicant’s request for an anti -
dissipation interdict, aimed at preventing the Respondent from utilising his portion of
the sale proceeds until the divorce is finali sed. However, she wants to access her
50% share of th e sale proceeds if she has not already accessed and/or utilised
them.

Issues for determination

[16] The crisp issue for determination is whether the Applicant has met the
minimum threshold requirements to justify granting an interim anti-dissipation
interdict to prevent the Respondent from utilizing the proceeds of the sale of the
matrimonial home until the divorce is finalised.

Legal Principles Governing Anti-Dissipation Interdicts

[17] The legal framework for granting anti -dissipation interdicts is established in
South African case law. An anti -dissipation interdict may be granted where a
respondent is believed to be deliberately arranging his affairs so as to ensure that by
the time the applicant is in a position to execute judgment, he will be without assets

or sufficient assets upon which the applicant expects to execute. Its purpose is to
preserve the a sset which is currently an issue between the parties. The onus is on
the applicant for such an interdict to establish the necessary requirements for the
grant of the interdict.1

[18] The requirements for an interim interdict are: (a) a prima facie right, even if it
is open to some doubt; (b) injury actually committed or reasonably apprehended; (c)
the balance of convenience; and (d) the absence of similar protection through any
other remedy.2 In KSL,3 the SCA cited with approval the principle en unciated by the
SCA in Knox D'Arcy Ltd and Others v Jamieson and Others 4 (“Knox D’Arcy”)
where the SCA asserted and held that an anti -dissipation interdict provides a
remedy where an applicant has demonstrated on the established basis of an interim
interdict; (a) a claim against a respondent and (b) that the respondent is
[intentionally] secreting or dissipating assets, or is likely to do so with the intention of
defeating the applicant’s claim5. These jurisdictional facts are necessary to justify the
granting of an anti -dissipatory relief were affirmed by the SCA recently in Bassani
Mining (Pty) Ltd v Sebosat (Pty) Ltd and Others.6

Application of law to the facts

Applicant’s claims against the First Respondent

[19] The Applicant ’s claims against the First Respondent are contained in her
plea counter claim filed in the divorce proceedings. The y are straightforward:
spousal maintenance for the Applicant and maintenance for the minor child. The
basis of her entitlement to spousal maintenance is the alleged matrimonial regime
that governs the proprietary consequences of their marriage. She claims that the
parties are married in community of property. In support of her contention in this
regard, Applicant attached to her founding papers the Columbian Civil Code. The
First Respondent disputes this contention to the extent it purports to include assets

First Respondent disputes this contention to the extent it purports to include assets

1 KSL v AL 2024 (6) SA 410 (SCA) at 416C-E (“KSL”).
2 Setlogelo v Setlogelo 1914 AD 221 at 227; Webster v Mitchell 1948 (1) SA 1186 (W) at 1187.
3 Para [16].
4 Knox D’Arcy 1996 (4) SA 348 (A) at 372G-H.
5 Ibid at 372D-F and at 373F-H.
6 Bassani Mining (Pty) Ltd v Sebosat (Pty) Ltd and Others [2021] ZASCA 126 para [1].

which he owned prior to the conclusion of their marriage.

[20] It is common cause that there is no ante nuptial contract that was executed
by the parties. However, the legal consequence of the lack thereof apropos the
proprietary consequences of the marriage between the parties is in dispute. In his
answering affidavit , the First Respondent attached a letter from his attorney in
Bogota, Colombia. According to the latter mentioned letter, “…the personal property
acquired prior to the celebration of the marriage bond, are not part of the marital
assets, therefore they are excluded from the estate to be liquidated within the marital
partnership that originated on the occasion of the marriage celebrated in t he
Republic of Colombia between Mr. J[...] V[...] C[...] P[...] and Mrs T[...] S[...]…”.

[21] The significance and relevance of the matrimonial regime applicable to the
parties marriage in this application seems to be the shares or financial interest that
the First Respondent is said to possess in his family fruit exporting business in
Colombia. The First Respondent (although through funds from his family) paid
spousal maintenance to the Applicant and from the same funds catered for the
maintenance needs of the minor child. In the circumstances, i t would seem to me
that the Applicant has shown a prima facie right, although open to doubt, to spousal
maintenance from the First Respondent. In addition, it seems to be common cause
that once the divorce order is g ranted the primary residence and primary care giver
to the minor child would be the Applicant. In the result, there is a bona fide
counterclaim against the First Respondent for payment of maintenance for the minor
child. This prima facie right is to the cl aims of maintenance for the Applicant and the
minor child.

Intention requirement

[22] First and foremost, in determining the intention requirement in ant i-
dissipatory interdict , the following facts which I find to be relevant are common

dissipatory interdict , the following facts which I find to be relevant are common
cause. The First Respondent:

(a) at the age of 23 years suffered stroke which left him paralysed on one
side of his body.

(b) for the first 12 years of the marriage between the parties has never
worked or been gainfully employed.
(c) received funds in the amount of R90 000 per month from his family
business in Colombia to sustain himself, Applicant, and the minor child.
(d) vacated the matrimonial home due to breakdown of the marriage
relationship and after rented another property where he resided on his own.
alone.
(e) after he vacated the common matrimonial home, family funds were
reduced to between R10 000 and R15 000.
(f) after he vacated the matrimonial home, he and the Applicant mutually
agreed to sell the common matrimonial home and to share the sale of
proceeds equally.
(g) for the duration of the marriage did not have a South African Bank
account.
(h) continues to pay for the minor child school fees from funds he receives
from his family in Colombia.
(i) instituted divorce proceedings in which he has offered payment of
R5000 per month towards maintenance of the minor child in addition to
medical and educational expenses for the minor child.

[23] From the above common cause facts and the papers filed of record, it can be
gleaned that:

(a) the First Respondent does not intend to abdicate his maintenance
responsibilities as the father of the minor child.
(b) the First Respondent’s family either can no longer afford monthly
payments of R90 000 towards maintenance for the First Respondent,
Applicant and the minor child , or simply refuse to pay the said amount to
subsidise the Applicant’s lifestyle after the First Respondent vacated the
matrimonial home at the instance of the Applicant.
(c) The Applicant earns R36 000 per month but seem not to be willing to
contribute towards the maintenance of the minor child when in fact and in law
is obliged to do so.
(d) The First Respondent has since the age of 23 years when he su ffered

a stroke, been reliant on his family for his livelihood and maintenance of both
Applicant and the minor child.
(e) The funds from the First Respondent’s family were always paid into
Applicant’s personal account and managed by her.
(f) The First Respondent family continues to pay educational expenses of
the minor child.

[24] The First Respondent did not voluntarily vacate the matrimonial home prior to
the transfer of the matrimonial home to its current registered owners. He was barred
from entry by the Applicant and threatened with a fire arm by Applicant’s father, who
warned him never to return to that property. He was subsequently compelled to rent
alternative accommodation, resulting in an additional cost for the First Respondent.

[25] The First Respondent's family provided substantial funds for the purchase of
the matrimonial home by the parties . In addition, the First Respondent’s family
purchased a Mercedes Benz motor vehicle that was registered in Applicant’s name.
Despite Applicant’s contention that the parties are married in community of property,
she has sold the Mercedes Benz for R218 000 and used the proceeds of the sale
thereof without sharing them with the First Respondent.

[26] The Applicant attempted to convince this Court that the First Respondent has
made threats to depart from South Africa and not to return.. This contention is not
supported by objective facts and evidence on the papers.

[27] The reasons proffered by the Applicant as grounds for granting of anti -
dissipation interdict appeared to be premised on “protection” of a disputed claim for
spousal maintenance. From the Applicant’s belated replying affidavit, it is apparent
that the First Respondent has left the Republic of South Africa and is currently
residing in Colombia. The Applicant married a Columbian and has not assisted him
to obtain a visa in South Africa necessitating his departure from South Africa. This

to obtain a visa in South Africa necessitating his departure from South Africa. This
too is not a circumstance that would allow the Applicant to hold on to the proceeds of
the sale pending a divorce. Not all d ivorces instituted in South African Courts are
exclusively between parties who both live in South Africa.

[28] The principle reinforced in Knox D’Arcy was stated as follows:

“The question which arises . . . 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 re gard 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 which the applicant lays no claim. Justice may require this
restriction in cases where the respondent is shown to be acting mala fide with
the intent of preventing execution in respect of the applicant’s claim . However,
there would not normally be any justification to comp el 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 might arise, for
instance, by contract or under the law of insolvency.” [My emphasis]

prima facie right apropos anti-dissipatory interdict

[29] In casu, the objective facts neither support the proposition that the First
Respondent is intentionally secreting or dissipating assets, nor that he is likely to do
so with the intention of defeating the Applicant’s claim. These jurisdictional facts
necessary to justify an anti -dissipatory interdict were not established . If the said
jurisdictional factors were established, even though subject to some doubt, then a
prima facie right to an anti -dissipatory interdict would have been established. In the
result, I f ind that the Applicant has not established a prima facie right to justify
granting of an anti-dissipatory interdict.

Reasonable apprehension of harm

[30] I also find that the Applicant has not demonstrated any injury committed or

[30] I also find that the Applicant has not demonstrated any injury committed or
reasonably apprehended. The Applicant is abusing the Court process by utilising the
anti-dissipatory interdictory relief to renege on a mutual agreement to sell the
matrimonial home and to share the sale proceeds equally with the First Respondent.

It is the Applicant who has actually inflicted injury to the First Respondent by selling a
joint asset (Mercedes Benz) and disposing of the sale proceeds thereof for own
personal benefit and needs. Notably, she does this after commencement of divorce
action.

Balance of convenience

[31] Notwithstanding Applicant’s alleged apprehension of harm and First
Respondent’s absence from the Republic of South Africa, the First Respondent is
opposing these proceedings and has provided this Court with objective facts and
evidence indicating that he i s unlikely to abandon the minor child and abdicate his
maintenance obligations towards the minor child.

[32] Accordingly, the balance of convenience tips on First Respondent’s favour.

Absence of appropriate redress in due course

[33] The Applicant concedes that, but for the movable assets of the joint estate (in
her version) in her possession within the Republic of South Africa and the s ale
proceeds of the matrimonial home currently held in trust by Second Respondent, the
First Respondent has no other assets in the Republic of South Africa.

[34] If Applicant is successful on proving her counterclaims at trial, the order s
sought in the counterclaim (if granted) would have to be executed in the Republic of
Colombia. The First Respondent consents to a mirror order being issued by the
divorce Court. Notwithstanding, Applicant has made it clear in her papers that she
has no confidence that the Colombian Courts would give effect to such orders. The
question is: why does she proceed with such a coun ter claim? The objective and
logical conclusion is that the Applicant launched this application to coerce First
Applicant into submission to relinquish his 50% share of sale proceeds of the
matrimonial home . This application is mala fide and is abuse of Co urt process to
which this Court does not take kindly.

Conclusion

[35] The Applicant brought this application under extremely truncated time frame,
leaving the First Respondent with minimal opportunity to address the allegations and
necessitating a postponement of the matter at great cost. The urgency was ,
moreover self -created and the necessity of bringing this application so urgently is
also questionable . The matter was scheduled for 27 January 2025 and , by mutual
agreement postponed to the semi-urgent roll for hearing on 26 May 2025. Despite the
timelines ordered by the Judge President of this division for filing of the replying
affidavit, the Applicant’s replying affidavit was filed late.

[36] An application was submitted for condonation of the late filing of the replying
affidavit. Although the First Respondent’s counsel sought to oppose the condonation
application in the heads of argument , no formal opposition was filed. Similarly, a
complaint was raised in the written s ubmission filed for the First Respondent ,
asserting that it is not permissible for the Applicant to make out a new case in the
replying affidavit, and that established practice is to strike out averments purporting to
do so in the replying affidavit, I agree. However, no formal application to strike out was
moved before me. I considered the replying affidavit so as to have a complete set of
facts and evidence to arrive at a just and equitable decision.

[37] For reasons discussed above, the Applicant has failed to satisfy the legal
requirements for an anti-dissipatory interdict, especially to demonstrate that the First
Respondent had an intention to dissipate assets or engage in conduct that suggests
a clear intention to dissipate assets.

[38] This application is not concerned with the best interest of the minor child ,
rather it serves as a tool to spite and force the First Respondent into submission to
relinquish his legitimate 50% share of the sale proceeds of the matrimonial home.

relinquish his legitimate 50% share of the sale proceeds of the matrimonial home.
Accordingly, I could not and did not find exceptional circumstances that would justify
relaxing the intention requirement for the type of relief sought in this application.

Costs

[39] Generally, costs f ollow the result. The basic rule is that costs are in the

discretion of the court. In exercising that discretion, this Court, must consider
whether the conduct of the Applicant warrants a punitive costs order against her.

[40] An attorney and client costs award is made where the court wishes to
strongly express its displeasure about the conduct of the losing party and, by making
such an award, it ensures that the successful party is indemnified in respect of all the
reasonable costs of the litigation. 7 In the circumstances, and for the reasons set out
above, I was inclined to express this Court’s displeasure on abuse of its process by
mulcting the Applicant with a punitive costs order on an attorney and client scale.

[41] However, h aving due regard to the financial difficulties expressed by both
parties in this application and in so far as such difficulties are likely to negatively
impact the parties’ affordability to pay maintenance towards the minor child, I have
decided not to do so.

[42] The First Respondent is successful in this application and as such there is no
reason why costs should not follow the result.

Accordingly, I make the following order.

1. The late filing of the replying affidavit is hereby condoned.
2. The application is dismissed.
3. The Applicant shall pay First Respondent’s party and party costs on the
High Court Scale includ ing the costs of counsel as taxed on scale B
plus the costs occasioned by the postponement of 27 September 2024.


_______________________________
NJOKWENI AJ
ACTING JUDGE OF THE HIGH COURT



7 Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (A) at 22B-C.

Appearances:

For the plaintiff: Adv Fehr
Instructed by: Kropman Attorneys

For the defendant: Adv de Wet
Instructed by: Brand Roberts Attorneys