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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

CASE NO: CA119/2018

Date heard: 06 May 2019

Date delivered: 14 May 2019

In the matter between:

L[…]-M[…] C[…]-O[…]                                                                   Appellant

(First Defendant a quo)

and

B[…] D[…] O[….]                                                                   First Respondent

(Plaintiff a quo)

B[….] D[…..] O[….] N.O.

(in his official capacity as trustee for the

time being of the O[….] Family Trust)                              Second Respondent

(Second Defendant a quo)

PSG TRUST (PTY) LTD N.O.

(in its representative capacity as trustee for

the time being of the O[….] Family Trust)                              Third Respondent

(Third Defendant a quo)

JUDGMENT

LOWE, J:

INTRODUCTION

[1]          This appeal, with the leave of the Court a quo, raises several crisp issues arising from the dissolution of the parties’ marriage out of community of property incorporating the accrual system.

[2]          The parties were married on 20 May 2011 and divorced on 3 August 2017, judgment on the proprietary consequences being reserved and delivered on 14 November 2017. 

[3]          The issues in the appeal essentially arise only in respect of two aspects of the application of the accrual regime dealt with by the Court a quo as well as the costs order made that each party bear their own costs.

[4]          It is relevant however to briefly set out the principal issues at trial as they unfolded; these being:  

[4.1]     The application of the accrual system;

[4.2]     The dissolution of the joint ownership of a property which I shall refer to as the Union Road Property. 

[5]          As to accrual First Respondent (the husband) claimed an order that Appellant (the wife) should forfeit any entitlement to accrual sharing, each having claimed an order that they share in the accrual in the others estate calculated as per the Matrimonial Property Act 88 of 1984 (“the Act”).

[6]          Appellant (Defendant a quo) in her counterclaim sought an order relating to the accounting in respect of her accrual claim and the appointment of a Liquidator to determine the accrual, claiming also implementation of the parties Antenuptial Contract (9 July 2011) and that certain assets held by her be excluded from her estate for the purposes of the accrual calculation. 

[7]          The parties agreed at the trial that:

“[24]     The parties were in agreement:

(a)        that the value of the assets of the O[…] Family Trust are to be included in the plaintiff’s estate for purposes of determining the accrual;

(b)        that the plaintiff’s Living Annuity with PSG Investments to the value of R1500000 is excluded from the accrual calculation;

(c)        that the sum of R600 000 paid to and retained by the first defendant is to be excluded from the plaintiff’s accrual being the proceeds of the sale of the Mount Road property which was excluded in terms of the antenuptial contract;

(d)        that the commencement values of the parties estates are:

            (i)         Plaintiff R1 500 000; and

            (ii)        First defendant R300 000;

(e)        that the present day values of the parties’ estates for purposes of determining the accrual are:

            (i)         Plaintiff R2 470 173.91; and

            (ii)        First defendant R409 434.00”[1]

[8]          It was necessary for the Judge a quo in order to decide the accrual issue to determine the value of each of the parties’ estates at dissolution.

[9]          In essence much of the evidence at trial went to the joint ownership issue (the Union Road Property) although the primary dispute was resolved in the course of the trial by agreement (fourth day: 30 March 2017).   That agreement made provision for the reference of the joint ownership issues to dissolution by a Liquidator.  The Judge a quo made an order accordingly.  The agreement terminated the joint ownership of Union Road, and provided for its sale and the detail to be attended to by the Liquidator in his liquidation and distribution thereof.  The ultimate proceeds were to be distributed as set out in the agreement minute, each party being equal joint owners. 

[10]       Whilst there was one substantial issue regarding First Respondent’s Estate this was resolved by the Court a quo and is not relevant to the issues on appeal. 

[11]       At trial, in the determination of Appellant’s estate, a major issue was the question as to whether an amount of R850,000.00 being the proceeds of the sale of a property owned by Appellant, “Donnabel” should be excluded for the purposes of the accrual calculation.  A second issue was whether a sum of R600, 000.00 paid to Appellant by First Respondent, and clearly a liability (debit) in her Estate, should be given an “updated value”, having been paid in December 2012, but not as a donation it being effectively an interest free loan – “towards a previously anticipated purchase of the [Appellant’s] half share in the Union Road property” [2].   I should mention that whilst this sum, and whatever updated value it has, is a liability in Appellant’s Estate it is an excluded asset in First Respondent’s estate. 

[12]        As to the breakdown of the marriage, about which there was considerable evidence as to the parties mutually contradictory versions – the Judge a quo correctly found it unnecessary to determine such disputes – there being no substantial misconduct alleged – this being of little importance to the resolution of the patrimonial issues. 

[13]       On the issues relevant to this appeal as outlined above the Judge a quo  found:

[13.1]  That the question of an excluded R850.000.00, arising from the sale of Donnabel, should be decided against Appellant such sum not to be regarded as an exclusion from Appellant’s Estate.

[13.2]  That an updated value should be given to the R600,000.00 (not mora interest) based on a “reasonable return” which would have been earned had the funds been invested in First Respondent’s PSG Investment from October 2013 to date of valuation, giving a total sum of  R720.328.00.

[13.3]  That having regard to Appellant’s failure on the Donnabel issue (Appellant’s main exclusion argument), and First Respondent’s failure to establish a forfeiture order, both parties being “equally ... unsuccessful” each should bear their own costs.   

[14]       The First Respondent filed a Notice abiding the Court’s decision on Appeal.   This was by no means a capitulation and accordingly I have carefully and critically considered the Appeal issues after having heard extensive argument from Appellant.  I then formed my own critically considered decision on each issue as appears further below.   I will deal with each issue separately below.

DONNABE 

[15]       Appellant acquired ownership of Donnabel well prior to the parties’ relationship having commenced.  She acquired this prior to 2008 and the parties lived in Donnabel together until June 2012.

[16]       Donnabel was excluded from any accrual calculation in the parties’ Antenuptial Contract in Appellant’s favour. 

[17]       At trial it was not disputed that Appellant had sold Donnabel.  Appellant testified under cross-examination (but not in chief) that the sale price was “about ... R850.000.00” but was not completely sure of the exact amount.  Again in cross-examination she said she split the sale price of Donnabel using this to purchase a share in a Guesthouse (Stoneridge) and a Holland Street property (where her son lives), and thereafter a property known as Amsterdam (in 2017).  She said these assets were acquired having regard to her former possession of Donnabel but had some difficulty in the exact transactions and accounts relevant.  It suffices to say this was not covered in Appellant’s evidence in chief for reasons which escape me entirely and but for the cross-examination there is little to go on. 

[18]       The Judge a quo dealt with this unsurprisingly as follows:

“[83]     In regard to the proceeds of the sale of Donnabel Villas it was not in dispute that this asset was sold.  The plaintiff was uncertain whether the proceeds was R850 000 or R750 000.00.

[84]      In seeking to have this amount excluded from the accrual calculation Ms Veldsman relied on the terms of the antenuptial contract discussed above.  As I have already indicated the exclusion applies to the specified asset or the proceeds of such excluded asset.  If the proceeds have been applied to acquire a replacement asset then that asset falls to be excluded.  As I understood the first defendant’s case it was that the proceeds of the sale of Donnabel Villas, identifiable as such, falls to be excluded. 

[85]      The first defendant’s evidence was that the amount of the proceeds was applied to acquire the further assets she now holds namely her half share in The Amsterdam and the Holland Road property.   The evidence relating to her bank transactions however does not support the contention. 

[86]     While it is common cause that Donnabel Villas was sold, no evidence was adduced to establish the value of the proceeds of that sale.  The first defendant did not testify, in chief, to the sale of Donnabel Villas and what transpired with the proceeds.  No evidence was presented regarding the utilisation of the proceeds to purchase any other asset at all.   She was however cross-examined in relation to her schedule of assets and liabilities and in the process dealt with sale proceeds and the financial transactions which preceded and led to the purchase of Holland Street and the half share in The Amsterdam.

[87]      In response to a question concerning the source of the funds in the FNB money market account as at November 2016 the first respondent said that it was money she had saved.

It is money that you had saved? --- Ja, this is what...What is the date of this? I can’t see what my date is.

29 November 2016. ---2016? Well exactly.  I mean I sold my property and everything. Donnabel. I mean on my statements it will show where the money came from and also, the Momentum policy was withdrawn.  I think I got, I think it was a hundred and something.  A hundred and forty or something out of that as well and I invested that. 

So is this a mixture of money? --- It...It is, yes.

[88]      Later in cross-examination the first respondent confirms that she received an amount of R870 000.00 as the proceeds of the sale of another property in which she had invested, namely the Stoneridge property, on 1 August 2016.  These proceeds were paid into her money market account and then on 15 September a payment of R394 000.00 was paid in respect of the half share in The Amsterdam and a further payment of R448 092.00 in respect of the Holland Street property.

[89]      When asked when the first respondent sold Donnabel and for what amount she stated that she thought it was in April or May 2015 and that she received R850 000.00.  No evidence was however tendered in regard to the purchase of an interest in the Stoneridge property to which reference was made.  On evidence therefore the proceeds of the sale of the Donnabel property was not identified, nor was the nexus established between the proceeds from the asset and the further asset or assets acquired by the first respondent.

[90]      In these circumstances I am unable to find that a sum of R850 000 ought to be excluded from the calculation of the accrual in the first defendant’s estate.” 

[19]       Appellant contends that there is sufficient in the cross-examination to establish that R870,000.00 was received from the sale of Stoneridge Appellant having bought Stoneridge, after she sold Donnabel, using at least part of the Donnabel proceeds.    It is argued correctly that the above was not disputed in cross-examination nor was any contrary version put.  It is in addition pointed out that effectively the Appellant had a limited income and certainly not sufficient to buy meaningful assets – the original acquisition of Donnabel for the sum of R610,000.00 was from inheritance money and Donnabel was not bonded at the time of sale.  Looked at carefully the evidence is tortuous and difficult to follow nor surprisingly is there evidence in chief to back this up.

[20]       At the end of the day Appellant’s best argument in this regard is that on the overall evidence the probabilities would indicate the sale of Donnabel at approximately R850,000.00 (at a time when it was not bonded), and having regard to Appellants’ financial status and income, it could only have been this money and the “loan” of R600,000.00 that she could possibly have utilized to acquire the subsequent properties.  It is argued then that whilst the exact transfer of funding of assets acquired is not clearly established at least the R850,000.00 (on the probabilities sufficiently established in the evidence) should be excluded and not the subsequently acquired assets – this being justified as the subsequent assets now have a much higher value. 

[21]       The issue is whether at the end of the trial, and after all the evidence relied on has been called and tested, whether then and as a matter of inference or otherwise it can be concluded, on a balance of probabilities, that the proceeds of the sale of Donnabel (some R850,000.00) were fully realised and then utilized to purchase the other properties, its substance, at the very least, being preserved.   

[22]       It is more than understandable that the Judge a quo shied away from this having regard to the only evidence being that elicited in cross-examination.

[23]       I am persuaded however that after a careful analysis of the evidence, on full reflection and against the probabilities the issue posed above falls narrowly to be decided in Appellant’s favour. 

[24]       Of course the Judge a quo correctly concluded that both in terms of the Antenuptial Contract and Section 4(1)(b)(ii) of the Act, that which was envisaged as excluded is the excluded asset itself, its proceeds and the assets which replace the excluded asset or which were acquired from its proceeds. 

[25]       It seems to me that it would be far too narrow an approach to exclude the identified cash proceeds of the excluded asset on sale simply because the evidence did not fully follow the flow of funds when the probabilities established that this was used to acquire assets of increasing value by way of valuable further properties.   It is clear that Stoneridge was sold for some R870,000.00 and that the subsequently acquired properties had values together which far exceeded the original sum. 

[26]       In the result I am persuaded that the sum of R850,000.00 is to be excluded from the accrual calculation, put otherwise, that the R850,000.00 falls to be deducted from the calculation of Appellant’s nett estate.   I should mention that in giving leave to appeal the trial Judge referred to this specific issue and correctly so. 

INTEREST ON UPDATED ESCALATED VALUES OF THE R600,000.00

[27]       It is common cause that upon the sale by First Respondent of an excluded property belonging to him he paid R999,999.00 into Appellant’s FNB One Facility Bank account on 14 September 2012.   Exactly why this happened is disputed but it is clear that this was by no means a gift or donation and that the money was then owed to First Respondent and would have to be repaid or set-off.  There was no direct agreement nor interest agreement. 

[28]       In fact in October 2012 First Respondent requested that Appellant repay R400,000.00 of this money to his PSG Investment account, which she did.

[29]       She retained the balance and it is common cause that until an amendment of the pleadings no demand for payment was made.   In fact it seems clear that it was agreed, in December 2012, that she would retain the R600,000.00 as part payment (set-off) for her half share of Union Road.  First Respondent’s Particulars of Claim were amended to claim this sum as at 10 March 2017.  This constituted the first demand for payment.   It should be mentioned that originally it was envisaged that First Respondent would buy Appellant’s share in Union Road but no firm agreement was ever reached and First Respondent decided not to do so.

[30]       The learned Judge a quo regarded this as an inequitable retention of an asset which benefited her estate, at least as to interest, and that this made funds available to her and ought thus to be taken into account by the liquidator on realisation of the Union Road property calculated on a reasonable return.

[31]       I agree with the facts as stated in the judgment a quo but respectfully differ as to the proper conceptual and legal basis of such claim.

[32]       This seems to me to have been no more than effectively a loan to be held until set-off applied with no interest agreement.

[33]       The sum of R600,000.00 did not finally accrue to Appellant and although the initial agreement was that it would be used as an amount to set-off against her share of Union Road on realisation, this latter issue was not ever finally agreed and this falls to be treated, at best, as a loan without interest, repayable on demand.

[34]       In such circumstances interest is claimable on default on due demand (mora ex persona [not ex re]).

[35]       There is generally no obligation to pay interest until a debt becomes due and payable.  Interest begins to run on the amount of the debtor’s liability from the date of default (mora)[3].

[36]       In the absence of agreement to pay interest, a debtor is in default once a proper demand for payment has been made.  Interest runs from the date of the demand.  When reliance is placed on a demand this demand must be established.  Service of summons may serve as a demand in the absence of prior demand and interest will run from that date.[4] ^and [5]

[37]       In the result it seems to me that the correct sum to be added to the R600,000.00 liability which Appellant owes to First Respondent, is the interest accruing at the legal rate be calculated from 10 March 2017 to date of payment or set-off. 

THE ACCRUAL CALCULATION AS A RESULT OF THE COURT A QUO’S FINDINGS AND THE ABOVE:

[38]       PRESENT VALUE OF FIRST RESPONDENT’S ESTATE: [6]

[38.1]	Assets:
	(a)	PSG Voluntary Investment	R1,868,012.67[7]
	(b)	Percy Owen Property	R1,200,000.00
	(c)	Half share in Union Road	To be calculated by liquidator appointed i.t.o Agreement dated 30 March 2017
	(d)	First Respondent’s ABSA Account	R23,295.00
	(e)	O[….] Family Trust FNB Account	R20,193.19
	(f)	Suzuki motor vehicle	R147,500.00
	(g)	Toyota Bakkie	R50,000.00
	(h)	Furniture and effects	R30,000.00
	(i)	Proceeds from sale of 49 Rochelle Drive held by Appellant	R600,000.00[8]
	(j)	Mora interest on amount of R600,000.00 from 10 March 2017 to date of appeal at 10,5% x 26 months (this will need to be Adjusted by the liquidator)	R151,200.00[9]
		TOTAL (To be adjusted by the  liquidator having regard to (c) above)	R4,090,200.86[10]
[38.2]	FIRST RESPONDENT’S LIABILITIES:[11]
	The first respondent did not list any liabilities in terms of his Section 7 reply, except for the provision of legal costs in the amount of R203,000.00.
[38.3]	FIRST RESPONDENT’S EXCLUDED ASSETS:
	(a)	Remainder of the proceeds from 49 Rochelle Drive	R600,000.00
	(b)	Interest a tempore mora on R600,000.00	R151,200.00
		TOTAL	R751,200.00

[39]       Present Value of Appellant’s Assets:

[39.1]	Assets:
	(a)	Appellant’s FNB cheque account	R6,753.71
	(b)	Appellant’s FNB money maximizer	R15,000.00
	(c)	Appellant’s FNB fixed investment	R426,799.44
	(d)	Hyundai Elantra 1.6	R200,687.00[12]
	(e)	42 Holland Street	R780,000.00
	(f)	50% share, The Amsterdam, Olivedale	R615,974.00
	(g)	Half share in Union Road	To be calculated by Liquidator Appointed i.t.o. agreement dated 30 March 2017
	(h)	Old Mutual Max Investments	R113,609.00
	(i)	Old Mutual Flexi Pension	R47,803.99
		TOTAL (To be adjusted by the Liquidator having regard to (g) above)	R2,206,627.14[13]
[39.2]	APPELLANT’S LIABILITIES:
	(a)     Loan of R600,000.00		R600,000.00[14]
	(b)     Interest a tempore mora on R600,000.00           at 10,5% x 26 months           (This sum to be adjusted by the           liquidator)		R151,200.00
		TOTAL (This amount to be adjusted by the Liquidator having regard to (b) above)	(R751,200.00)
[39.3]	EXCLUDED ASSETS IN APPELLANT’S ESTATE
	(a)	Proceeds from the sale of Donnabel Villas[15]	R850,000.00
	(b)	Hyundai Elantra 1.6[16]	R200,687.00
	(c)	Old Mutual Flexi Pension[17]	R47,803.99
	(d)	Old Mutual Max Investments[18]	R113,609.00
		TOTAL	R1,212,099.99

 

[40]       THE RESULT

[40.1]	(a)	Assets in First Respondent’s estate	R4,090,200.86
	(b)	Minus Excluded assets	(R751,200.00)
	(c)	Minus Liabilities	(R203,000.00)
	(d)	Minus Commencement value as agreed	(R2,470,173.91)
		Total value of accrual:  First Respondent (This amount to be Adjusted by the Liquidator as indicated Above)	R665,826.95
[40.2]	(a)	Assets in Appellant’s estate	R2,206,627.14
	(b)	Minus Excluded assets	(R1,212,099.99)
	(c)	Minus Liabilities	(R751,200.00)
	(d)	Minus Commencement value as agreed	(R409,434.00)
		Total value of accrual:  Appellant (Negative) (This amount to be adjusted By the Liquidator having regard to the above)	(R166,106.85)
[40.3]	(a)	The Appellant thus shares in the accrual in First Respondent’s estate as contemplated in Section 3(1) of the Act, 88 of 1984, calculated as follows on the above:
		(i)  First Respondent’s accrual minus Appellant’s accrual    divided by 2
		(ii)   R665,826.96 minus R nil = R665,826.95        divided by 2 to give:  R332,913.48 (This amount to be        adjusted by the Liquidator)

 

[41]       The above calculations will however require adjustment by the inclusion by the Liquidator of the result as calculated in respect of Union Road after realisation and as contemplated in the agreement of settlement in this regard, and by a careful recalculation of interest due on the R600,000.00 to date of repayment or set-off as set out above due by Appellant to First Respondent.

[42]       This will all be reflected in the order below.

[43]       Finally I am persuaded that it would be equitable to appoint the Liquidator appointed to liquidate the joint ownership to also finalise the accrual calculation on the basis set out in this Judgment. 

COSTS

[44]       The result of above particularly as to the exclusion of the Donnabel money (R850,000.00) inevitably disturbs the rationale then correctly used by the Judge a quo as to equal lack of success, or what I would prefer to refer to as equal degrees of success.

[45]       Appellant argues on appeal for substantial success in the litigation a quo entitling her, so it goes, to a consequent costs order in her favour in the trial. 

[46]       It is certainly so that Appellant (having regard to this Appeal) succeeded not only in the main arena in defeating the forfeiture claim but also now such as to protect her excluded asset status – thus reducing First Respondent’s level of success and increasing his degree of failure.   Both parties saddled the dissolution of the Union Road joint ownership dispute and eventually (during the trial) reaching agreement hereon – which I would regard as an equal success on that issue. 

[47]       However that Appellant was successful in the Donnabel issue was hardly due to the presentation of her evidence in this regard which had to be culled from the cross-examination.  This however produced a just result nevertheless in the end.

[48]       The fact of the matter is that in this divorce litigation both parties contributed to a lengthy trial of some seven days traversing considerable evidence on issues which could and should have been reduced by a sensible approach of the litigants to the crucial issues. 

[49]       On balance Appellant was however somewhat more successful than First Respondent in the end result on appeal.

[50]       The Court has a wide discretion as to costs to be exercised judicially upon the consideration of the facts of each case which is in essence what is fair to both parties.   This is especially so in Matrimonial litigation.  A court may even apportion the costs as between the parties[19].

[51]       There can be no criticism of the Court a quo’s costs order on the basis as enunciated.  However the balance of success shifted having regard to the extent of success on Appeal, and its impact on the final order applicable.

[52]       It seems to me that as a matter of justice and fairness between the parties, and having regard to the factors referred to above, it would be fair, just and appropriate to vary the Court a quo’s cost order and to award Appellant two thirds of her costs in the trial.  It would not be equitable having regard to the above to award Appellant all her trial costs.

[53]       The Appeal has been successful and the fact that First Respondent simply abided this Court’s decision can make no difference, Appellant nevertheless having to argue the matter.  The appeal must thus carry with it a cost order in Appellant’s favour.

THE ORDER

[54]       In the premises I order as follows:

1.         The Appeal succeeds to the extent set out below, with costs.

2.         The order of the Court a quo is replaced with the following (the parties below are referred to as they were in the Court a quo):

“2.1     A Liquidator is to be appointed in accordance with the terms of the Minute of Agreement concluded between the parties on 30 March 2017 (a copy of which is annexed hereto for convenience);

2.2       The said Liquidator is directed, pursuant to clause 1.4.4.1 of the said minute, to take into account that First Respondent has in effect received payment of the sum of R751,200.00 in relation to her half share of the property situate at 11 Union Road, Walmer, Port Elizabeth.

2.3       The said Liquidator is also appointed to determine and calculate the accrual in Plaintiff’s and First Defendant’s estates in accordance with Chapter 1 of the Matrimonial Property Act, 88 of 1984 and in accordance with the contents of this order, and to make payment to the Appellant of the accrued benefit so calculated.

2.4       The said Liquidator is to calculate the accrual in accordance with the following directions:

            2.4.1   PLAINTIFF’S ASSETS:

PSG Voluntary Investment                            R1,868,012.67

Percy Owen property                                      R1,200,000.00

Half share in Union Road                           To be calculated

by Liquidator

appointed i.t.o.

agreement dated 30  March 2017     

                                                Plaintiff’s ABSA account                                    R23,295.00

                                                Oosthuizen Family Trust FNB account            R20,193.19

                                                Suzuki motor vehicle                                         R147,500.00

                                                Toyota Bakkie                                                      R50,000.00

                                                Furniture and effects                                           R30,000.00

                                                Proceeds from sale of 49 Rochelle

Drive held by Appellant                                    R600,000.00

                                                Mora interest on amount of

                                                R600,000.00 from 10 March 2017 to

date of appeal at 10,5% x 26 months

(To be adjusted to date of payment

or set-off)                                                            R151,200.00

                                                TOTAL (To be adjusted see above)           R4,090,200.86

2.4.2   PLAINTIFF’S LIABILITIES:

Legal costs                                                       (R203,000.00)

2.4.3   FIRST DEFENDANT’S ASSETS:

First Defendant’s FNB cheque account             R6 753,71

First Defendant’s FNB money maximizer        R15,000.00

First Defendant’s  FNB fixed

investment                                                          R426,799.44

Hyundai Elantra 1.6                                           R200,687.00

42 Holland Street                                               R780,000.00

50% share, The Amsterdam, Olivedale       R615, 974.00

Half share in Union Road                           to be calculated

by Liquidator

appointed i.t.o.

agreement dated 30  March 2017     

                                                Old Mutual Max Investments                           R113,609.00

                                                Old Mutual Flexi Pension                                   R47,803.99

                                                TOTAL (To be adjusted see above)           R2,206,627.14

2.4.4   FIRST DEFENDANT’S LIABILITIES:

Loan of R600,000.00                                         R600,000.00

                        Interest a tempore mora on       R600,000.00 at 10,5% x 26 months

                        (To be adjusted to date of payment

or set-off)                                                            R151,200.00

TOTAL                                                             (R751,200.00

2.4.5   EXCLUDED ASSETS IN PLAINTIFF’S ESTATE:

Remainder of the proceeds

from 49 Rochelle Drive                                     R600,000.00

                                                Interest a tempore mora on

R600,000.00                                                       R151,200.00

                                                TOTAL                       R751,200.00

2.4.6   EXCLUDED ASSETS IN FIRST DEFENDANT’S ESTATE:

Proceeds from the sale

of Donnabel                                                       R850,000.00

Hyundai Elantra 1.6                                           R200,687.00

Old Mutual Flexi Pension                                   R47,803.99

Old Mutual Max Investments                           R113,609.00

                        TOTAL                                                             R1,212,099.99

                                    2.4.7   THE RESULT:

2.4.7.1	(a)	Assets in Plaintiff’s estate	R4,090,200.86
	(b)	Minus Excluded assets	(R751,200.00)
	(c)	Minus Liabilities	(R203,000.00)
	(d)	Minus Commencement value as agreed	(R2,470,173.91)
		Total value of accrual:  Plaintiff (This amount to be adjusted by the Liquidator as indicated above)	R665,826.95
2.4.7.2	(a)	Assets in First Defendant’s estate	R2,206,627.14
	(b)	Minus Excluded assets	(R1,212,099.99)
	(c)	Minus Liabilities	(R751,200.00)
	(d)	Minus Commencement value as agreed	(R409,434.00)
		Total value of accrual:  First Defendant (Negative) (This amount to be adjusted by the Liquidator having regard to the above)	(R166,106.85)

2.5       Plaintiff is ordered to pay to First Defendant two thirds of her costs in the trial.

2.6       Each party is to pay their own costs that were reserved on 21 February 2017.”.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

REVELAS, J:

I agree.

__________________________

E REVELAS

JUDGE OF THE HIGH COURT

RUGUNANAN, AJ:

I agree.

__________________________

S RUGUNANAN

JUDGE OF THE HIGH COURT (ACTING)

Obo the Appellant:              Adv M Veldsman

Instructed by:                        Anthony Gooden Inc., Port Elizabeth

c/o Dold & Stone Inc., Grahamstown

Obo the Respondent:         In person abiding the Court’s decision

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