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[2012] ZAWCHC 153
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J.C (Born P) v G.C (2400/2010) [2012] ZAWCHC 153 (24 July 2012)
IN
THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case no: 2400/2010
J C (Born
P)
…....................................................................................................................
Plaintiff
And
G C
…...............................................................................................................................
Defendant
Court
:
Acting Judge J I Cloete
Heard
:
23, 24, 28, 29, 30, 31 May 2012 and 12 June 2012
Delivered
:
24 July 2012
JUDGMENT
CLOETE AJ:
Introduction
[1] This is a
divorce action. The parties were married on 25 September 2004 out of
community of property by antenuptual contract
with the accrual
system. They have one minor child, a son born on 20 February 2006.
They separated permanently in December 2009
and are
ad
idem
that
their marriage has irretrievably broken down.
[2] As a result of agreement
reached on a number of issues during a pre-trial conference and the
trial itself (including detailed
arrangements relating to the
parties' minor child), the only matters which still require
determination are:
(a) the date upon which the
defendant shall commence payment of maintenance for the minor child;
(b) the declaratory relief
sought by the defendant in relation to the ownership of two farms, a
farming operation and certain cash;
(c) the
determination of the accrual and how it is to be paid in accordance
with s 10 of the Matrimonial Property Act No 88 of 1984
('the
Act);
and
(d) costs.
[3] During February 2012 the
plaintiff delivered an open tender in terms of rule 34(1) of the
uniform rules of court. In addition
to what was tendered in respect
of the minor child, she consented to an order directing her to pay to
the defendant an amount equal
to one half of the difference between
the accrual of the respective estates of the parties in accordance
with s 3 of the Act. She
also sought an order deferring satisfaction
of the defendant's accrual claim by way of payment to be made by a
date or dates determined
by the court in accordance with s 10 of the
Act. Finally she tendered payment of the defendant's costs up to that
date. The defendant
did not accept the plaintiff's tender.
[4] The terms
of the agreement ultimately reached regarding the minor child during
the pre-trial conference which I held in open
court (since the
defendant was by that stage unrepresented) were either substantially
similar or identical to those contained in
the plaintiff's tender.
These are incorporated in the annexed order. It is common cause that
the defendant is unemployed and without
any apparent source of
income. It was for this reason that the plaintiff in her tender
proposed that the defendant would
commence
payment of maintenance for the child as from the month following
payment to the defendant of his share of the accrual.
I did not
understand the defendant to seriously object to this proposal and he
did not place anything before me to suggest that
another arrangement
should apply. His
'objection',
such
as it was, appeared to centre rather on his version that he is
entitled to the bulk of the plaintiff's assets, which he alleged
she
holds on his behalf as nominee. I explained to him that irrespective
of which version I found to be correct, it was common
cause that he
would be paid a substantial capital sum from which he would be able
to fulfil his maintenance obligations. The defendant
appeared to
accept this and made no further submissions in this regard.
[5] The
defendant's claim as pleaded for rectification of the parties'
antenuptial contract was abandoned by him during the pre-trial
conference on the basis that the legal representatives who had
drafted the relevant pleading on his behalf had misunderstood
his
instructions. Instead he claimed that what the parties had in fact
agreed at the time of conclusion of the antenuptial contract
was
that the sum of R1 million which each declared as being the net
value of their respective estates at the commencement of
the
marriage would be
'excluded'
from
the accrual, as would his
'inheritance'
(which
is dealt with below), and that all other assets acquired by either
party during the marriage would be divided equally upon
termination
thereof.
[6] However,
by way of a separate additional claim, the defendant's case as
pleaded (and in his evidence in chief) was that he
is in fact the
'beneficial
owner"
of
substantial assets in the plaintiff's estate (namely two farms and a
farming operation) on the basis that he was solely responsible
for
funding the acquisition thereof apparently from assets which he
claims were excluded from the accrual, either by way
of his R1
million
'commencement
value'
in
the antenuptial contract, or his
'inheritance'.
[7] To
compound the confusion in his case the defendant also sought an
order declaring him to be the beneficial owner of the sum
of R200
000 cash which he alleged the plaintiff as nominee invested on his
behalf, prior to the marriage, despite it emerging
during the course
of his testimony that this amount was neither included in his
'commencement
value'
of
R1 million, nor did it form part of his
'inheritance'.
[8] The
plaintiff accepted for purposes of the divorce action that there had
been no accrual in the defendant's estate. The defendant
accepted
that the current value of the plaintiff's R1 million
'commencement
value'
in
the antenuptial contract is R1.6 million in accordance with the
provisions of s 4(1)(b)(iii) of the Act. The parties also eventually
reached agreement on the values of all of the assets and liabilities
in the plaintiff's estate, save for the values of certain
oat hay
bales and lucerne bales which form part of the farming operation and
the quantity of some of the farming implements which
had been
included by the plaintiff's expert in the valuation of that
operation. However the defendant subsequently failed to
challenge
the plaintiff's evidence in this regard and her version must
accordingly be accepted.
[9] The defendant also
challenged the existence of certain loans made by the plaintiff's
father to her (although as I have said
he accepted the values
thereof for purposes of limiting the issues). Again however the
defendant failed to cross-examine the
plaintiff's father on this
aspect and the latter's evidence relating to these loans, as well as
that of the plaintiff (which
was not challenged by the defendant in
any material respect) must similarly be accepted.
[10] It was also agreed during
the course of the trial that in the event of the plaintiff being
successful, the following would
be deducted from the amount which
she would be obliged to pay to the defendant in order to satisfy his
accrual claim, namely:
(a) furniture and household
effects valued by the defendant at R12 000 which were purchased for
him by the plaintiff and which
are still in his possession;
(b) the value of the Toyota
Fortuner vehicle of R220 000 (which is in the defendant's possession
and which he wishes to retain
- the plaintiff will settle the
balance due on the vehicle of R188 000); and
(c) the amount of R150 000
previously advanced by the plaintiff to the defendant on account of
his accrual claim in respect of
his legal costs.
[11] The defendant accepted
that he bore both the onus on the outstanding issues as well as the
duty to begin. The defendant testified
as did the plaintiff and her
father. In deaing with the evidence I will focus on that which is
relevant to the central dispute,
namely whether the defendant is
entitled to the bulk of the plaintiff's assets or whether - as
claimed by the plaintiff - the
provisions of the antenuptial
contract should simply be implemented.
[12] The antenuptial contract
concluded by the parties on 23 September 2004 does not contain any
unusual provisions. It incorporates
all of the standard terms
applicable to the accrual system. The parties merely declared the
net value of their respective estates
at the commencement of their
marriage to be R1 million each. No assets were to be excluded, other
than inheritances, legacies
or donations accruing to either party
during the marriage (as provided in s 5 of the Act) and
non-patrimonial damages accruing
to either party during the
subsistence thereof (as provided in s 4(1 )(b)(i) of the Act).
[13]
Although the exact circumstances under which the parties attended on
the attorney and notary who prepared the antenuptial
contract were
in dispute, both parties testified that the different matrimonial
property regimes had been fully explained to
them, and that they had
ultimately agreed upon the application of the accrual system. During
the course of the trial however,
the defendant sought to rely on his
own interpretation thereof which - although he was not consistent in
his testimony on this
aspect - appeared to boil down to his
understanding that each party would inject R1 million into the
marriage and that the aforementioned
sums would revert to each party
should the marriage terminate. In the event of either party failing
to inject his or her capital
sum then the other would nonetheless,
on termination of the marriage, be repaid his or her capital
injection. All other assets
accrued during the marriage, apart from
'his'
inheritance,
would be shared equally upon dissolution.
[14] The defendant explained
that he felt aggrieved since the plaintiff had failed to inject her
full capital share (although
the parties differed on the detail, it
emerged that the defendant accepted that a substantial portion of
the capital owned by
the plaintiff at the time of the marriage was
lost due to a failed investment).
[15] To my mind however nothing
really turns on this since, even on the plaintiff's version - and as
will appear below - the defendant
is entitled to assets and cash of
just under R2,5 million in satisfaction of his accrual claim, which
more than compensates for
his initial capital injection. [16] I thus
turn to deal with the central dispute.
The Central Dispute
[17] The defendant is clearly
intelligent and despite being of Italian origin has a good command
of the English language.
[18] He testified that at the
time of the marriage he owned immovable property in StAgata, Italy,
which is situated in close proximity
to Sorrento. This immovable
property was comprised of two portions, namely a flat with a value
of €90 000 and a shop with
a value of €50 000. The amount
of €140 000 equated to roughly R1 million at the time, being
his commencement value
reflected in the antenuptial contract.
[19] It was
the defendant's dream to live in South Africa, to buy a farm here
and to farm while raising a family. About one year
into the marriage
(during the latter part of 2005) the defendant located a potential
farm, being Portion 61 of Rietvallei Farm
also known as Driefontein
Farm
{'Driefontein)
in
the Ceres district. The selling price of Driefontein was R1.7
million including certain machinery and livestock. The parties
viewed Driefontein together and were impressed by its beauty and
location. It was decided that an offer would be made to purchase
the
farm.
[20] The defendant said that at
the time his property in Italy, which had been substantially
upgraded, was ready to be sold as
two separate units. He expected to
fetch about R1 million from the sale of these units which he would
utilise on account of the
purchase price of Driefontein. The
plaintiff was to use her R1 million for the balance. It transpired
however that the plaintiff
was unable to access these funds (as I
have said, the investment had failed). It was then agreed that,
apart from a sum of R70
000 which the plaintiff borrowed from her
father to pay the deposit, the balance of the purchase price would
be funded entirely
by the defendant.
[21]
According to the defendant he was informed by both the plaintiff and
her father that he was not permitted to own immovable
property in
South Africa for so long as he was not a permanent resident in this
country. He had applied, or intended to apply,
for such residency.
It was thus agreed that Driefontein would be registered in the
plaintiff's name until such time as the defendant
secured his
permanent residence status, whereupon Driefontein would be
transferred into his name.
[22] The
defendant said that he accordingly transferred €250 000 from
Italy to South Africa on 14 October 2005. This equated
to roughly R2
million at the time and secured the purchase of Driefontein. Of this
amount, €50 000 comprised the net proceeds
of the sale of the
shop portion of his immovable property in Italy, and the balance
'inherited'
funds.
On 28 December 2005 he transferred a further €40 000 - which he
said were also inherited funds - since he wished to
buy the
plaintiff, who was pregnant at the time, a safe and reliable
vehicle.
[23] During
2006 a neighbouring farm, being Portion 76 of Rietvallei Farm, also
known as Rietvallei Farm
{'Rietvallei)
came
up for sale on auction. A decision was made to purchase this farm as
well. The price secured was R1 030 000 excluding auctioneer's
fees,
taxes and transfer costs, resulting in a total purchase cost of R1.2
million. The defendant testified that by that stage
the flat portion
of his immovable property in Italy had been sold for €90 000
and this amount, together with further funds
which he had inherited
of about €110 000, were transferred by him to South Africa on 4
April 2006. Of these funds the defendant
utilised a portion to
purchase Rietvallei which was then also registered in the
plaintiff's name for the same reason and on the
same terms as those
pertaining to Driefontein. The balance of the purchase cost was paid
from a portion of the proceeds of the
sale of another immovable
property, being Portion 135, Farm 811, Teslaarsdal, Theewaterskloof
{'Theewaterskloof).
[24] As
regards this latter property the defendant testified as follows.
During 2003, thus prior to the marriage, he had an amount
of R220
000 invested at what was then known as BOE Bank. He was receiving
interest on this investment at 12% per annum. The plaintiff
convinced him to withdraw R200 000 of this amount and to hand it
over to her to invest on his behalf, promising him a return
of 24%
per annum. Accordingly on 29 December 2003 he withdrew R200 000 from
this investment by way of a cheque -which his own
bank records show
was drawn in his favour and not the plaintiff's - and which she
then, according to him, deposited into her
own bank account in his
presence.
[25] Shortly after the parties'
marriage and during the latter part of 2004 the defendant - as part
of his lifelong dream to own
a farm - decided to purchase
Theewaterskloof which was on the market for sale at a price of R250
000. It was a piece of undeveloped
land comprising 12.8 hectares. He
informed the plaintiff that he required her to repay the sum of R200
000 plus interest accrued
thereon at 24% per annum to him. This
would have amounted to about R254 000. This the plaintiff was unable
to do since it had
been invested in the same failed venture as her
funds. She then borrowed R250 000 from her father to enable the
defendant to
purchase Theewaterskloof which was registered in her
name, again for the same reason and on the same terms as those
relating
to Driefontein and Rietvallei. Theewaterskloof was
subsequently sold for R650 000 net of estate agent's commission. The
plaintiff
repaid the loan from her father (the defendant complained
since he felt that these funds should have been paid to him) -
according
to the defendant with interest, although the unchallenged
evidence of the plaintiff and her father was that no interest was
paid
-and the balance of the proceeds were appropriated on account
of the purchase cost of Rietvallei.
[26] The
defendant's evidence in chief regarding the funds which he claimed
to have inherited was as follows. His late father
passed away during
1995 without leaving a will, and was survived by the defendant's
mother, the defendant himself and his three
siblings. After his
father's death the defendant's mother (who subsequently also passed
away) told him that his father had left
her and the four children
money, although she did not tell him how much she, he or any of his
siblings had inherited. He did
not claim his inheritance at that
stage since he was engaged at the time in a protracted divorce from
his first wife.
[27] When
the defendant wished to purchase Driefontein some ten years later
and it became apparent that the plaintiff would not
be able to
contribute to the purchase price, he approached his mother, and in
his words
'begged'
her
to pay over his inheritance to him. His share, so she apparently
told him, was to have been €380 000, but - and he was
unable to
explain why - she gave him €400 000. The money was paid to him
in cash which he then deposited into a bank account
in Italy which
he operated jointly with one of his sisters, and subsequently
transferred it in tranches to South Africa, namely
€200 00 on
14 October 2005 (together with the proceeds of the sale of the shop
portion of €50 000); €40 000 on
28 December 2005; and €110
000 (along with the proceeds of the sale of the flat portion of €90
000) on 4 April 2006.
Other transfers were also made to South Africa
totalling €30 000 for living expenses, thus an aggregate sum of
€380
000 (the defendant did not testify about the balance of
his inheritance of €20 000, nor was he able to provide any
proof
of the cash of €400 000 initially deposited into the bank
account in Italy).
[28] In his later evidence in
chief the defendant testified that in fact both Driefontein and
Rietvallei were registered in a
close corporation but that the
plaintiff had told him that both of them were members of that close
corporation, which it was
common cause was initially Tradelander 24
CC, the name of which was subsequently changed to Driefontein
Boerdery CC.
[29] The plaintiffs version
differed markedly from that of the defendant's in a number of
material respects.
[30] She
testified that during December 2003 the parties had, over dinner
with friends, been told by a Johan Jacobs about the
property
consortium investment scheme (which ultimately collapsed). She
referred to this scheme as the
'PPIC
investment'.
[31] At that time the parties,
who worked on the same cruise liner, were about to return to work to
complete their final contracts
before marrying and settling
permanently in South Africa. The defendant found the PPIC investment
an attractive option since
it would generate high returns and
suggested to the plaintiff that she should sell the two flats which
she owned and invest the
proceeds in the scheme. He also proposed
that any additional cash which either might have be similarly
invested so as to enable
the parties to comfortably cover their
future living expenses. The defendant was 47 years old at the time
and had worked on ships
and cruise liners since he was a teenager.
He was ready to settle down. The plaintiff, although 24 years of
age, also wished
to do so.
[32]
Following the defendant's suggestion the plaintiff placed both of
the flats that she owned on the market. They sold quickly
and the
full net proceeds, together with cash which she held in a bank
account, were paid directly by her into the PPIC investment,
namely
R417 324.79 on 6 June 2004 and R700 000 on 23 September 2004. The
plaintiff produced a PPIC investment statement reflecting
these
deposits. Also reflected on the statement was a payment directly
into the PPIC investment of R182 190 on 26 October 2004.
The
plaintiff testified that this payment had been made directly by the
defendant out of his own funds. She denied that the defendant
had
ever handed to her the cheque of R200 000 drawn in his favour (on
his own version) from his BOE Bank account to invest in
the PPIC
investment on his behalf, whether during December 2003 or otherwise.
She correctly pointed out that she would not have
been able to
deposit a cheque drawn in favour of the defendant into her own bank
account. She said that he had utilised a portion
of the R200 000 as
payment for her engagement ring and that he had paid the balance of
about R182 000 directly into PPIC investment
approximately a month
after the marriage.
[33] During his
cross-examination of the plaintiff the defendant confirmed that they
had attended a dinner at which Johan Jacobs
was present. He was
unable to shake the plaintiff's version regarding the PPIC
investment, nor was he successful in challenging
her evidence about
her contributions to that investment. He put to her that her
engagement ring had cost R33 000. This she denied,
stating that it
had cost R17 000 and pointed out that this tallied with her version
that R182 190 of the R200 000 which the defendant
had withdrawn had
been paid by him into the PPIC investment in October 2004. Certainly
her evidence was consistent with the entries
reflected on the PPIC
statement and the defendant was unable to adduce any evidence to
suggest the contrary, nor was he able
to refute the plaintiff's
testimony that the parties' PPIC investment did not even exist in
2003. The PPIC investment statement
itself reflects that the date of
commencement of the investment was 6 June 2004, being the same date
on which the plaintiff had
paid the sum of R417 324.79 into that
investment. Moreover the plaintiff was consistent and reliable in
her testimony and I accept
her version.
[34] The
plaintiff testified that immediately after their marriage the
parties resided for a period rent free at her father's
holiday home
at Onrus. During an outing to nearby Hermanus she saw a board
advertising properties for sale in the Theewaterskloof
area. It was
in fact always her dream, and not that of the defendant's who
preferred city life, to live in a rural setting. She
was interested
in the Theewaterskloof area which at the time was largely
undeveloped and in fairly close proximity to her family's
holiday
home. She confirmed that the purchase price of the property in which
she was interested (open land with a small dam)
was R250 000.
Neither party had any readily available cash since it had all been
placed in the PPIC investment and the defendant
still needed to
renovate his immovable property in Italy in order to place, it in a
marketable condition. (According to the plaintiff
at that stage the
defendant's property was barely habitable or fit for occupation).
The plaintiff was however able to scrape
together the deposit
required of R26 000 and approached her father for a loan for the
balance to which he agreed. The plaintiff
produced a copy of her
father's bank statement (confirmed by the latter in his evidence)
reflecting a payment of R224 200 on
24 January 2005, which was the
date upon which transfer of the property took place into the
plaintiff's name.
[35] The plaintiff said that
Theewaterskloof was registered in her name for convenience sake only
since the defendant had no interest
in matters of an administrative
nature. The defendant himself confirmed that he left all
administrative tasks to the plaintiff
throughout the marriage. The
plaintiff was clear that she never regarded Theewaterskloof as hers
alone but, as with the other
properties which were subsequently
acquired, that of the parties jointly. She was adamant that there
had never been any discussion
about transferring the property into
the defendant's name, nor had either she or her father (again,
confirmed by the latter during
his testimony) ever informed the
plaintiff that he was not permitted to own immovable property in
South Africa without permanent
residency status. The plaintiff said
that if anything, she probably knew less about the rights of
foreigners owning property
in South Africa than the defendant, and
neither did her father. The plaintiff's father testified that he was
not acquainted with
the legal position relating to foreigners but
that he understood that foreigners could in fact own immovable
property in South
Africa without having permanent residency status.
The defendant did not challenge the evidence of the plaintiff's
father on this
issue.
[36] The plaintiff testified
that during May 2005 and when the parties were still living in Onrus
she came across the advertisement
for the sale of Driefontein in a
local newspaper. She confirmed that after the parties had viewed the
farm a decision was made
to purchase it. The seller had told them
that he had another potential buyer and the defendant thus felt that
they should not
delay in making an offer. At that stage the parties
were in the same financial position as they were when
Theewaterskloof was
purchased. The plaintiff thus again contacted
her father. She told him that she would sell Theewaterskloof and
utilise the proceeds
on account of the purchase price of
Driefontein. She asked him if he would loan the balance and he again
agreed. He suggested
however that she negotiate a reduction of the
deposit required of R150 000 to R70 000 and that the two transfers
be linked to
avoid cash flow difficulties, which the plaintiff
succeeded in doing, resulting also in a delayed transfer date of
December 2005.
This was confirmed by the plaintiff's father in his
evidence and that evidence was not challenged by the defendant.
[37] The parties also agreed
that they would travel to Italy in order to attend to renovation of
the defendant's immovable property
so that the two units could be
sold and the proceeds thereof also utilised towards the purchase
price of Driefontein and attendant
costs (which as I have said
amounted to a total of R1.7 million). They left South Africa within
two weeks of signing the deed
of sale and paying the deposit for
Driefontein.
[38] Prior to their departure
the plaintiff withdrew R50 000 from the PPIC investment
(the only
amount that she ever recovered from that investment) and her father
gave her €2000. Both of these amounts were
utilised by her on
renovations to the defendant's property and on living expenses while
the parties were in Italy. Her father
also paid for the parties'
return flights to Italy. This evidence was confirmed by the
plaintiff's father in his testimony. They
stayed in Italy for some
months attending to extensive, although largely cosmetic,
renovations. The plaintiff, who had by then
fallen pregnant,
returned to South Africa shortly before Christmas in 2005 and the
defendant followed not too long thereafter.
[39] The plaintiff's testimony
about her financial and physical contributions to the renovations of
the Italian property was hotly
contested by the defendant who in
essence claimed that she had made no meaningful contribution at all.
He did however concede
that extensive renovations had taken place
after Driefontein was purchased and that these had significantly
improved the value
of both units. To my mind who exactly contributed
what to these renovations is largely irrelevant since the parties
are married
according to the accrual system and neither made any
claim for forfeiture of the other's right to share in the accrual.
There
was thus no obligation on either party to prove the value of
their contributions to the estate of the other.
[40] The
parties also differed in their testimony on the size of each of the
flat and the shop portions. According to the plaintiff
the shop
portion was significantly smaller than the flat portion, which
comprised of a living area, two bedrooms, a kitchen and
bathroom, an
outside terrace and a large parking area. The photographs tendered
by the plaintiff in evidence bore this out. The
defendant claimed
that the two portions were of similar size. He initially testified
that the size of the shop portion was 40m
2
but later
conceded, when confronted with a copy of the relevant sale
agreement, that it was in fact 32m
2
.
The defendant belatedly sought to introduce an architect's drawing
reflecting the size of the flat but the plaintiff objected
on the
basis that the defendant was unable to prove the veracity of this
document. Strangely, although the defendant was able
to produce the
sale agreement relating to the shop portion which reflected both its
sale price and size, he was unable to produce
a sale agreement
relating to the flat portion which indicated not only its size but
also its alleged sale price. However he explained
to me that the
flat itself measured roughly 45m
2
,
the terrace about 12m
2
,
and the outside parking area about 30m
2
,
thus a total of some 87m
2
.
[41] The parties were in
agreement that the shop portion sold during 2005 for €50 000
and that the flat portion sold thereafter,
also during 2005. Where
they differed completely was on the sale price for the flat portion.
The defendant claimed that the flat
portion had sold for only €90
000. The plaintiff testified that the defendant told her that he was
placing the flat portion
on the market for €480 000. She also
personally saw the advertisement for the sale of the flat for this
amount at the premises
of the Italian estate agent concerned. The
defendant later told her that he had secured a purchaser but that
the latter was unable
to meet his asking price. The defendant had
thus decided to agree on a price of €450 000, with a large
deposit of €250
000 and the balance of €200 000 to be paid
on registration of transfer which would take place at a delayed
date.
[42] The sale agreement
relating to the shop portion reflected a registration date of 30
September 2005. According to the plaintiff
the full amount of the
purchase price was paid on registration of transfer. This was not
disputed by the defendant. The alleged
sale agreement relating to
the flat portion reflected a registration date of 13 March 2006. The
bank statements produced by the
defendant reflecting the transfers
of the various amounts by him to South Africa showed (as I said
earlier) €250 000 on
14 October 2005 (a few weeks after
registration of transfer of the shop portion) and €200 000 on 4
April 2006 (a few weeks
after registration of transfer of the flat
portion). These dates correspond with the plaintiff's version.
[43] The
defendant nonetheless remained adamant that the flat portion was
sold for only €90 000 and that the balance of the
funds not
emanating from the sale of the two portions comprised his
'inheritance'.
He
conceded however that he had never informed the plaintiff of the
inheritance, whether before or during the marriage, claiming
that he
did not consider this to have been necessary since, according to
him, the plaintiff's father is a
'multi-millionaire'.
[44] During his
cross-examination by the plaintiff's counsel the defendant testified
that his late father had retired at the age
of 65 after having spent
his entire working life employed as a cabin steward on various
cruise liners. After his retirement he
received a pension (his only
source of income) of €1 300 per month. The defendant's late
mother had never been employed
during her marriage. The family had
lived for many years in a rented, government subsidised flat in
Sorrento along with their
children and later with some of their
children, their spouses and their children.
[45]
Initially the defendant claimed that the €400 000 which he
allegedly received as his
'share'
of
the inheritance had been left to him by his father. When questioned
on how his father would have been able to have accumulated,
on his
earnings and while supporting a family without owning any property,
a sum of that size (which only constituted the defendant's
share and
did not take into account the shares of his mother and three
siblings) the defendant suddenly remembered that about
five years
prior to his death his late father had won the Italian lottery. He
was unable to say how much his father had won,
claiming that
although it had been a wonderful day in their lives, the amount of
his late father's winnings had never been disclosed
to him. He
conceded that he had never informed the plaintiff of his late
father's winnings.
[46] The
defendant then again changed his version, testifying that his
'inheritance'
had
been left to him by both his father and his mother's family although
he had no idea how much had accrued to him from each
of these
sources and was unable to provide any detail whatsoever.
[47] The defendant was also
unable to provide a single shred of evidence as to how much each of
his siblings had received, claiming
that he had never discussed this
with any of them. He said that his mother had stored this
considerable sum of money in cash
in her government subsidised
rented flat and, as I have said, he was unable to produce a single
document reflecting the deposits
relating to his inheritance into
the joint bank account which he operated with one of his sisters.
[48] The defendant's evidence
as to when he became aware of his inheritance was wholly
inconsistent. He first said that his mother
had told him about his
inheritance after the marriage during 2005 when he wanted to
purchase Driefontein. This contradicted his
evidence in chief when
he had said that he had known about his inheritance since his late
father's death ten years earlier but
had not claimed it because of
his prior protracted divorce from his former wife. When this was
pointed out to him he then said
that he had first heard about his
inheritance after the marriage. Finally he said that he was unable
to recall precisely when
he had become aware of his inheritance.
[49] In my
view not only is the defendant's version utterly improbable, the
fact of the matter is that even if an inheritance
from his late
father existed, on his own version, it had accrued to him before the
parties' marriage, whether he only claimed
it after the marriage or
not. Accordingly his
'inheritance'
does
not fall to be excluded from the accrual since only inheritances
which accrue to a spouse during the subsistence of a marriage
are
excluded from the accrual in accordance with s 5 of the Act. Further
the defendant's late father died without leaving a will
(and there
would thus have been no provision in any testamentary instrument for
his inheritance to have been excluded from any
form of accrual
sharing); the defendant's case as pleaded made no mention of any
inheritance; there is no claim by the defendant
for rectification of
the antenuptial contract to exclude any pre-existing inheritance
(Olivier
v Olivier
1998(1)
SA
550 (DCLD) 555 D-F);
and
the defendant has never suggested that the funds allegedly given to
him by his mother during the marriage were donated by
her to him.
Finally the defendant was unable to explain why the two portions of
his immovable property in Italy had been sold
for exactly the same
amount as the value which he had placed upon them of €140 000
at the time of the marriage, prior to
the substantial renovations
which had been effected thereto and which, on the defendant's own
version, had greatly increased
their value. Simply put, the
defendant has completely failed to discharge the onus which rests
upon him in this regard and the
plaintiff's version is accepted.
[50] I return to the purchase
of Driefontein. The plaintiff agreed that a portion of the €250
000 remitted by the defendant
to South Africa in October 2005 was
appropriated towards the purchase price of that property. She
testified that her accountant
at the time recommended that for tax
reasons the farm should be registered in a close corporation. This
she discussed with the
defendant and he agreed. Again, for sake of
convenience, she was registered as the sole member of that close
corporation (which
as I have said was initially Tradelander 24 CC
and subsequent to a name change, Driefontein Boerdery CC).
[51] Here
again the defendant materially contradicted himself in his
testimony. He claimed that the plaintiff had told him that
he was a
member of the close corporation. He had only established a few weeks
prior to the trial that he was not a member. He
then changed his
evidence, saying that he had become aware of this a few months prior
to the trial. He then again changed his
evidence, testifying that he
had become aware of this during 2010 at the outset of the divorce
proceedings when the plaintiff's
erstwhile attorney had informed him
that she was the sole member thereof.
[52] The
defendant was then confronted with an affidavit deposed to by him on
9 February 2011 in support of an application to
set aside a
protection order which the plaintiff had obtained against him on the
ground of domestic violence. In that affidavit
he stated that 7
was
also advised that a close corporation should purchase the properties
in order to safeguard our interest. We registered the
close
corporation with the respondent
[i.e.
the plaintiff]
as
only member and accordingly the farms were purchased by the close
corporation...'.
[53] During
cross-examination the plaintiff's counsel raised with the defendant
the circumstances leading to his divorce from
his former wife, a
Columbian national. According to the defendant, during their
marriage they had lived in Columbia for 5
Vt.
years
during which period they had operated three businesses, namely a
restaurant and two discotheques. He had been told by her
and her
father that as a foreigner he could not register any of these
businesses in his name and they were thus registered in
his former
wife's name, with a written side agreement in which she acknowledged
that the defendant was in fact the owner thereof.
His former wife
then left him for someone else, taking the written side agreement
with her and leaving him without any record
thereof. In so doing she
succeeded in stripping him of his assets, a matter about which he
was still very aggrieved.
[54] The
defendant was asked if that was indeed the case why he had not taken
the trouble to verify the correctness of the misrepresentations
which he claimed had been made to him by the plaintiff and her
father relating to ownership of immovable property by foreigners
in
South Africa. In response the best that he could proffer was that he
had trusted the plaintiff (a highly unlikely explanation
in the
circumstances) and that in his mind there was a distinction to be
drawn between ownership of a business (which had been
the case in
Columbia) and ownership of immovable property.
[55]
However, the weight of the evidence - and in particular the contents
of the defendant's own affidavit in the domestic violence
proceedings - indicates the contrary. He sought to explain this away
by claiming that he thought that only the Driefontein farming
operation was to have been registered in the close corporation;
again this assertion was shown to be untruthful when he was forced
to concede that at the time the Driefontein farm was registered in
the close corporation the parties had not even commenced their
farming operation thereon. It seemed to me that the defendant's
allegations were nothing more than a fruitless attempt to bolster
his claim to
'beneficial
ownership'
of
the farms and farming operation. His assertions were entirely
unsubstantiated. His version is rejected and I accept the evidence
of both the plaintiff and her father in this regard.
[56] The plaintiff testified
that the parties moved to Driefontein in January 2006 and commenced
their farming operation about
four months later. Rietvallei, the
neighbouring farm, was purchased (and similarly registered in the
close corporation) with
funds provided by the defendant (a portion
of the €200 000 transferred to South Africa in April 2006) and
the net proceeds
of Theewaterskloof after repayment of the initial
loan of R224 200 to the plaintiff's father. She said that the
transfer of Theewaterskloof
was delayed beyond December 2005 which
is why she was unable to carry out her original intention to use the
proceeds thereof
on account of the purchase price of Driefontein.
This was not disputed by the defendant.
[57] The parties differed in
their testimony as to which of them was the driving force behind the
farming operation, with the
plaintiff claiming that it was her and
the defendant claiming that it was him. However in light of the
findings that I have already
made nothing much turns on this since
their respective contributions are not relevant to the accrual
system applicable to their
marriage, which system must clearly be
implemented on the proven facts of this matter.
Calculation of the
accrual and manner of payment
[58] The parties agreed that
the assets and liabilities of the close corporation would be
regarded as being plaintiff's for purposes
of the accrual. The
defendant's entitlement to his share of the accrual in the
plaintiff's estate, calculated on the basis of
the agreed and proven
values of the various assets and liabilities therein is as follows:
ASSETS
Driefontein
Farm
5
350 000.00
Rietvallei
Farm
2
400 000.00
Farming operation and
household contents
(Exhibit E
pp 80-81)
506
050.00
Absa Bank
account no. 4070251346
8
764.52
Absa Bank
account no. 9149387950
17
750.86
Toyota
Fortuner
220
000.00
8 502 565.38
LESS LIABILITIES
Owed to
Absa Bank in respect of Toyota Fortuner
188
356.61
Loans from plaintiff's father
(Exhibit E
pp 58, 60, 62, 64, 71,72, 97)
607
000.00
•
Further loan
from plaintiff's father
(Exhibit E p
99)
200
000.00
•
Absa
Bank loan
664
829.58
Various debts
(Exhibit
E pp 25, 26, 27, 28, 30, 32, 72, 73) 283 193.73
6 559 185.46
LESS
PLAINTIFF'S COMMENCEMENT VALUE &
CPIX
1
600 000.00
4 959 185.46
LESS
50%
2
479 592.73
Due to
defendant:
2
479 592.73
[59] From the amount of R2 479
592.73 must be deducted:
(a) The value of the Toyota
Fortuner which the defendant will retain of R220 000;
(b) The agreed amount of R12
000 in respect of movable items in his possession; and
(c) The advance already
received by him on account of his accrual claim of R150 000;
leaving a balance due to the
defendant of R2 097 592.73.
[60] The
plaintiff testified that she would be able to pay R50 000 to the
defendant within 48 hours of an order being made and
the balance by
not later than 60 days from the date of such order, since she needs
time to secure the facility from which the
balance will be paid. In
my view this is a fair and reasonable request and I exercise my
discretion accordingly in terms of s
10 of the Act.
[61] It should also be
mentioned that additional amounts might fall to be deducted from the
capital sum due by the plaintiff to
the defendant pursuant to the
agreement reached between the parties and incorporated at paragraph
3.8.15 of the attached order.
Costs
[62] Since the plaintiff has
been successful in the relief sought by her, which was also
contained in her rule 34(1) tender delivered
prior to the trial, it
is appropriate that costs should follow the result, such costs to
include the qualifying costs of the
plaintiff's experts Mr Marais
and Mr Smit (the plaintiff's counsel informed me that the other
experts whom she had intended to
call, and whose testimony would
have related to the minor child, had been appointed by the
facilitator Ms Brand and that no order
for costs was sought in
respect of such experts).
Conclusion
[63] In the result I make the
annexed order.
J I CLOETE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE NO: 2400/2010
Before the Honourable Ms
Acting Justice J I Cloete
CAPE
TOWN: 24 June 2012
In the matter between:
JEANNIE
CANELLI (born PIENAAR)
Plaintiff
and
GUISEPPE
CANELLI
Defendant
ORDER
Having heard Counsel for the
Plaintiff and Defendant in person, IT IS ORDERED THAT:
1. A decree of divorce is
granted;
2. Plaintiff
and Defendant shall act as co-guardians of the minor child born of
their marriage, namely LUCA CANELLI (born on 20
February 2006) as
contemplated in
sections 18(2)(c)
,
18
(3),
18
(4) and
18
(5) of the
Children's Act 38 of 2005
("
Children's
Act').
3. Plaintiff
and Defendant shall be co-holders of parental responsibilities and
rights in respect of the minor child, as referred to in
sections
18(2)(a)
and
18
(2)(b) of the
Children's Act, subject
thereto that:
3.1. The minor child shall
primarily reside with Plaintiff who shall be his primary carer.
Plaintiff will be primarily responsible
for his day-to-day care and
the decisions relevant to his daily wellbeing and development on the
basis as detailed hereunder;
3.2. Save as provided herein,
decisions that affect the minor child's everyday care and routine are
to be made by Plaintiff and
when he is in the care of his father,
Defendant shall make decisions with due regard to those decisions
regarding his care, routine,
structure, safety and stability as
established by Plaintiff. In the event of a dispute, such decisions
will be made by the facilitator;
3.3. Defendant shall have
contact with the minor child as stipulated below, having due regard
to his scholastic, social and extra-mural
commitments and, in
general, his best interests. Defendant shall partake in age
appropriate activities during contact with the
minor child which
activities shall include those which the minor child would want to do
with his father;
3.4.
The following
matters shall only be decided by means of a joint decision between
the parents, and failing agreement, the directions
of the
facilitator:
3.4.1. Major decisions regarding
the minor child's enrolment in any pre-school, school or tertiary
education institution and after-care;
3.4.2.
Elective medical treatment and serious medical procedures (not
including day to day medical care) except in emergency cases
where
the on-duty parent will decide provided that the other parent is
informed as soon as possible;
3.4.3. Changes to the contact
schedule;
3.4.4. The minor child's
residency outside the Western Cape Province only insofar as it would
affect contact arrangements.
3.5.
A case
manager, Marietjie van der Heever, was appointed by the facilitator.
3.6.
General
3.6.1. In the event of Plaintiff
spending holidays with the minor child away from their home, she will
provide Defendant or the
facilitator with full details as to the
address where the minor child will be as well as telephone numbers.
Neither parent will
be allowed to remove the minor child outside the
borders of South Africa, without the facilitator's written consent;
3.6.2. If a party foregoes any
number of contact days in order to accommodate work, personal or
other arrangements, then such days
will not fall into the contact
period of the other parent as 'repayable', unless the parents
agree or the facilitator determines
otherwise;
3.6.3. The parties will respect
the differences in the home routines of each parent whilst the minor
child is in the care of the
other parent, but this will not
compromise his interests in respect of established routines or
commitments;
3.6.4. The
non-contact parent will not be entitled to visit the minor child at
the home of the other parent, unless the facilitator
determines
otherwise;
3.6.5. The parents will ensure
that their alcohol consumption is kept to a minimum when the minor
child is with them and that the
minor child is not exposed to any age
inappropriate visual or written media;
3.6.6. The parents shall refrain
at all times from referring to the other party in negative terms in
front of the minor child;
3.6.7. Having
regard
inter
alia
to
the minor child's age and stages of development, his views will be
taken into account in decisions regarding contact and his
general
wellbeing;
3.6.8. Plaintiff will take the
minor child to school, activities or social commitments and collect
him thereafter, until otherwise
directed by the facilitator.
3.7.
Communication
3.7.1. The parents will
communicate by sms and e-mail. This shall not affect either party's
right to have telephonic contact with
the minor child as stipulated
below;
3.7.2. If the parents are
unable to communicate with each other, they shall correspond with
each via the appointed case manager
or facilitator;
3.7.3. Plaintiff will keep
Defendant updated with the minor child's progress and activities by
sending him copies of all relevant
correspondence and school reports
or communication, by e-mail. Plaintiff will also respect Defendant's
presence during school
activities or functions;
3.7.4. Neither party will
approach the minor child's schoolteachers or meet with them without
prior written confirmation to the
other parent of such intended
meeting in which case the other parent may elect to be present as
well.
3.8. The Defendant's contact
shall, for a period of at least 8 weeks as from 28 May 2012, be as
detailed below and thereafter
as determined by the facilitator in
consultation with both parents, the minor child and relevant
professionals:
3.8.1. Both parents will have
telephonic contact with the minor child at all reasonable times and
have contact with him on their
birthdays, the minor child's birthday
and on Mother's Day, Father's Day and every alternative Christmas
Day;
3.8.2. Defendant will have
contact with the minor child every Wednesday from 14h00 until 16h00,
which contact will be supervised
by the supervisor so appointed;
3.8.3. Mid-week contact shall
be supervised by the case manager or any person nominated by the
case manager;
3.8.4. The case manager has the
discretion to direct the venue at which contact shall take place on
Wednesdays;
3.8.5. Plaintiff will collect
the minor child from school and drop him off for contact at the
contact venue or at Defendant's
residence, whereafter the minor
child will again be collected by Plaintiff;
3.8.6. Defendant will have
contact with the minor child during every alternative weekend on the
Saturday from 09h00 until 12h00
which contact will be supervised as
above, the first Saturday contact having taken place on Saturday 26
May 2012;
3.8.7. Plaintiff will take the
minor child to the contact venue or Defendant's residence,
whereafter the minor child will again
be collected by Plaintiff;
3.8.8. The supervisor will
report after each contact session to the facilitator regarding such
contact;
3.8.9. Plaintiff shall attend
therapy to assist her to cope with the trauma of the divorce;
3.8.10. The minor child shall
immediately, and at least once per week, attend therapy with a
qualified and experienced child therapist
to be agreed upon by the
parties and failing agreement, to be nominated by the facilitator;
3.8.11. Defendant shall
immediately and regularly, on a weekly basis, attend parental
guidance sessions with Mrs Karien Schoeman,
in Wellington who will
report to the case manager and facilitator after eight weeks
regarding Defendant's ability to show insight
into the needs and
wellbeing of the minor child;
3.8.12. The contact regime
shall be revised after eight weeks considering the input of Mrs
Karien Schoeman, the minor child's
therapist, the case manager and
both parents;
3.8.13. Defendant shall pay for
half of the costs of the case manager and for all costs related to
parental guidance sessions
with Mrs Karien Schoeman;
3.8.14. Defendant shall make a
contribution towards the costs related to the issue of the directive
in an amount of R2 500.00.
A copy of the full account related to the
costs of this directive shall be provided by the facilitator to both
parties. It is
recorded that the facilitator is willing to accept
payment of R2 500.00 in two equal instalments;
3.8.15. Plaintiff has agreed
that pending judgment herein to pay the costs referred to in
paragraphs 3.8.13 and 3.8.14 above,
and 4.2.19 below, on Defendant's
behalf, as an advance on Defendant's accrual claim.
3.9. It is recorded that the
parties have jointly appointed Adri Brand, an attorney of this
Honourable Court, as facilitator in
this matter, and agree that she
continues to act in this capacity until she resigns, or both parties
agree in writing that her
appointment shall be terminated,
alternatively until her mandate is terminated by an order of the
High Court.
4. If the facilitator's
appointment is terminated, she shall be substituted by another
facilitator appointed by agreement, alternatively
by FAMAC, and the
provisions in regard to his/her appointment shall apply mutatis
mutandis as set out herein:
4.1. Neither party may initiate
court proceedings for the removal of a facilitator or bring to the
court's attention any grievances
regarding the performance or
actions of a facilitator without first meeting and conferring with
the facilitator in an effort
to resolve the grievance;
4.2. The facilitator shall be
authorised to:
4.2.1. Facilitate joint
decisions in respect of the minor child;
4.2.2. Regulate, facilitate and
review the contact arrangements in respect of the minor child;
4.2.3. Make recommendations in
respect of any issue concerning the welfare and/or affecting the
best interests of the minor child,
other than issues relating to
maintenance;
4.2.4. Issue directives binding
on the parties on any issue referred to above subject to a court of
competent jurisdiction overriding
such directives;
4.2.5. Require the parties
and/or the minor child to participate in psychological evaluations
or assessments;
4.2.6. Insofar as the
facilitator has the power to make decisions in respect of the minor
child, the power shall be exercised
in the best interests of the
minor child and shall be binding on the parties, unless the High
Court, who is upper guardian of
minor children, orders otherwise;
4.2.7. The
facilitator's services involve elements of mediation, expert opinion
and counselling, but do not purely fall into any
of these
categories. The facilitator is not appointed as psychotherapist,
a counsellor or attorney for the child or the
parties. No
psychotherapist / patient or attorney / client relationship as
created by this appointment or otherwise exists between
the
facilitator and any of the parties or the minor child;
4.2.8. If the parties are
unable to reach agreement on any issue concerning contact and/or any
joint issue where a joint decision
is required in respect of the
minor child, the dispute shall be referred to the facilitator (in
writing, if so requested by the
facilitator) who shall attempt to
assist the parties to resolve the dispute as speedily as possible
and without recourse to litigation;
4.2.9. If the facilitator, in
the exercise of his/her sole discretion, regards the particular
issue raised by one of the parties
as trivial or unfounded, he/she
is authorised to decline the referral of such issue;
4.2.10. If the facilitator is
unable to resolve a dispute by way of facilitation, he/she may
resolve the dispute by issuing a
directive which shall be binding on
the parties in the absence of any court order overriding such
directive;
4.2.11. Each party and the
minor child (if necessary) shall participate in the dispute
resolution process as requested by the
facilitator;
4.2.12. The facilitator shall
conduct proceedings which are informal in nature and is entitled to
receive information by means
of telephone, correspondence,
electronic mail, etc. The facilitator will use his/her discretion in
considering the weight and
sufficiency of the information provided
and may expand the enquiry as he/she deems necessary;
4.2.13. The
facilitator shall determine the protocol of all communications,
interviews and sessions, including who shall or may
attend meetings.
Legal representatives are not ordinarily entitled to attend such
meetings, but a party shall be permitted to
caucus with his/her
legal representatives, either in person or by telephone during such
meetings. The parties and their attorneys
shall have the right to
initiate or receive overall communication with the facilitator. Any
party or counsellor may communicate
in writing with the facilitator
provided that copies are provided to the other party and if
applicable, their legal representatives;
4.2.14. The facilitator may
confer individually with the parties and with others, including but
not limited to step parents, step
siblings, extended family members
and friends, permanent life partners, household members, school and
educational personnel,
care providers and health care providers for
the minor child and therapists for the minor child, and the parties
authorise such
persons to provide information to the facilitator;
4.2.15. The parties shall not
be entitled to insist that any meeting or session is tape recorded,
videoed or recorded in any manner
whatsoever;
4.2.16. No record need be kept
by the facilitator, except the findings, decisions and directives of
the facilitator;
4.2.17. The facilitator shall
be entitled to engage the services of professionals to assist
him/her in coming to a considered
decision with the proviso that any
substantial costs which are likely to be incurred in co-opting of
professionals, shall be
done with the consent of both parties;
4.2.18. In
the event of the parties failing to participate in any
facilitation/mediation process, despite having been requested
to do
so by the facilitator, then and in such an event the facilitator
shall be entitled to make a decision without the input
of that party
and his/her decision shall be binding on both parties as if they had
both participated in such mediation/facilitation
in the absence of
any court order overriding such decision(s);
4.2.19. The costs of the
sessions with the facilitator shall be borne by the parties on a
50/50 basis unless otherwise directed
by the facilitator. The costs
of the facilitator in respect of dealing with e-mails, faxes or
telephone calls from a party shall
be borne by the party concerned
or as otherwise directed by the facilitator.
5. The
Defendant shall maintain the minor child as from the 1
st
day of the
month following payment to the defendant of his share of the accrual
(as set out in para 6 below) until such time as
the child becomes
self-supporting by:
5.1. Paying to the Plaintiff
the sum of R 2 000, 00 per month, on or before the first day of
every month into such banking account
as the Plaintiff may nominate
in writing from time to time, by way of debit order, free of
deduction or set-off;
5.2. Increasing the maintenance
as aforestated, annually on the first day of the month succeeding
the anniversary of the granting
of the final order of divorce and
every 12 months thereafter, in accordance with such rise as has
occurred in the Consumer Price
Index as notified by the Director of
Statistics, or its equivalent, in respect of the Republic of South
Africa based on the 12
urban areas for a period of one year expiring
on the first day of the month preceding the date on which the Final
Order of Divorce
was granted;
5.3. Bearing 50% of the costs
of all reasonable medical, dental, surgical, hospital, orthodontic,
ophthalmic and therapeutic treatment
or costs reasonably required by
the minor child, including the cost of prescribed medication and the
provision, where necessary,
of spectacles and/or contact lenses;
5.4. Paying 50% of the cost of
reasonable school fees (including private school fees) in respect of
the minor child. This includes,
inter alia, the cost of school
outings, camps and school lunches, the cost of extra-curricular
school and sport activities and
the cost of extramural activities in
which the minor child participates, including the cost of club fees
and sport tours (including
travel and accommodation expenses
relating thereto), as well as the cost of school books, stationery,
school uniforms, equipment
and attire (including computers) relating
to the minor child's education and the sporting and/or extramural
activities (including
music fees and equipment, tuition and exam
fees) engaged in by him;
5.5. The parties shall bear a
pro rata share of the cost of the minor child's tertiary education
in accordance with their means,
provided that he exhibits an
aptitude or desire therefore and for as long as he applies himself
with due diligence and continues
to make satisfactory progress at
such tertiary institution. The costs shall include, inter alia, the
cost of all university fees
and/or fees due to any tertiary
institution and the costs of all books and equipment required for
the courses undertaken by the
child and his accommodation costs.
6. The plaintiff shall pay to
the defendant the sum of R2 097 592.73 in respect of his accrual
claim into such bank account as
defendant may nominate in writing as
follows:
6.1. R50 000 within 48 hours of
this order being granted;
6.2. The balance of R2 047
592.73 not later than 60 days from date of granting of this order.
7.
The plaintiff shall effect payment of the balance owing to Absa Bank
in respect of the Toyota Fortuner vehicle currently in
the
defendant's possession and shall thereupon sign all documentation as
may be required in order to effect transfer of the vehicle
into the
name of the defendant at his costs. Such transfer shall take place
within 30 days of this order. The defendant shall
upon request sign
all documentation necessary and effect payment of all amounts as may
be required in order to effect such transfer.
In the event of either
party failing to sign all documentation necessary in order to give
effect hereto, the Sheriff of the High
Court Cape Town is hereby
authorised to sign such documents on his/her behalf.
8. The defendant shall effect
payment of the plaintiff's costs on the scale as between party and
party, including the qualifying
costs of her experts Mr Marais and
Mr Smit as taxed or agreed.
BY ORDER OF COURT
COURT REGISTRAR