South Africa: Free State High Court, Bloemfontein

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M.J.T v J.K.T (603/2009) [2021] ZAFSHC 344 (5 August 2021)

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IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case No: 603/2009

In the matter between:

M[....] J[....] T[....] APPLICANT / DEFENDANT

and

J[....] K[....] T[....] RESPONDENT / PLAINTIFF

CORAM: VOGES, A J

HEARD ON: 29 JULY 2021

DELIVERED ON: 05 AUGUST 2021

INTRODUCTION

[1] The Applicant and the Respondent were married to each other in community of property on 12 April 2001.

[2] This marriage was dissolved by a decree of divorce on 6 August 2013.

[3] It was ordered by Kruger, J:

1. That the bond of marriage subsisting between plaintiff and defendant be and are hereby dissolved.

2. That the joint estate between the parties is to be divided.

[4] The joint estate consisted of movable and immovable property.

[5] Both parties contributed to pension funds.

[6] The division of the joint estate was left to the attorneys, but did not materialize until applicant’s attorney stopped practicing as such.

[7] Applicant’s endeavours to resolve the issue of the division of the joint estate with the respondent/his attorneys were unsuccessful.

RELIEF SOUGHT

[8] Applicant now seeks an order that paragraph 2 of the order dated 6 August 2013 be amended/varied to include the following terms:

“2.1 PENSION FUNDS

2.1.1 In terms of section 7(8)(a)(i) of the Divorce Act, 70of 79, 50% of the Plaintiff’s pension interest in the GOVERNMENT EMPLOYEES PENSION FUND (GEPF), with identity number 610202 6348 084, due or assigned to the Plaintiff is to be paid to Defendant when any such pension benefits accrue to the Plaintiff.

2.1.2 In terms of sections 7(8)(a)(ii) of the Divorce Act 70 of 1979, an endorsement should be made on the records of the GEPF that 50% of the pension interest of the Plaintiff with the identity number 610202 6348 084 is payable to the Defendant within thirty (30) days from date of this order.

2.1.3 In terms of section 37D(4)(b)(ii) of the Pension Funds Act, 24 of 1956 the GEPF is ordered to pay an amount equal to 50% of the value of the Pension benefit as on the date of divorce directly to the Defendant in accordance with the rules and regulations of the GEPF.

2.1.4 In terms of section 7(8)(a)(i) of the Divorce Act 70 of 1979, 50% of the Defendants pension interest with BLUE CHIP FINANCE with identity number [….] due or assigned to the Defendant is to be paid to Plaintiff when any such pension benefits accrue to the Defendant.

2.1.5 In terms of section 7(8)(a)(ii) of the Divorce Act, 70 of 1979, an endorsement should be made on the records of the BLUE CHIP FINANCE that 50% of the pension interest of the Defendant with the identity number [….] is payable to the Plaintiff, within thirty (30) days from date of this order.

2.1.6 In terms of section 37D(4)(b)(ii) of the Pension Funds Act, 24 of 1956, the BLUE CHIP FINANCE is ordered to pay an amount equal to 50% of the value of the Pension benefit as on the date of divorce directly to the Plaintiff in accordance with the rule and regulations of the BLUE CHIP FINANCE.

2.2 IMMOVABLE PROPERTY situated at, and known as, [….]:

2.2.1 The parties shall obtain a valuation of the property within thirty (30) days from date of the order herein;

2.2.2 For a period of 90 days only, commencing on the date on which the parties received the Valuation Report, the parties may make any offer on the property which is higher than that stated in the valuation report;

2.2.3 The party with the highest offer at the end of the 90 day period is entitled to transfer the property into his/her name, subject to bond approval or payment of 50% of the purchase price to the other party;

2.2.4 Should the party with the highest offer fail to obtain a bond or to pay 50% of the amount tendered in the offer, the party with the next highest offer will be entitled to transfer of the property into his/her name, subject to bond approval or payment of 50% of the purchase price to the other party;

2.2.5 The party with the highest offer shall transfer 50% of the amount offered to the other party within 30 days of the lapsing of the period of 90 days.

2.2.6 Should neither of the parties submit an offer to purchase the property, or fail to obtain a bond or to pay 50% of the purchase price, then the property is to be sold at a public auction;

2.2.7 Both parties may bid upon the property at the public auction

2.2.8 Both parties shall share equally in the nett proceeds of the sale, irrespective of who purchases the property.

2.2.9 Both parties shall sign/provide any documents necessary for the transfer of the property to take place, alternatively, that the Registrar of this Honourable Court be authorised to sign any documents on behalf of the defaulting party.

2.3 MOVABLE PROPERTY

2.3.1 Should the parties not be able to agree on how the movable property is to be divided within 30 days of this order, the movable property is to be sold at a public auction.”

RESPONDENT’S OPPOSITION

[9] In his answering affidavit the Respondent opposes the application on the following grounds:

9.1 Applicant’s failure to join the GEPF in initial and current proceedings;

9.2 Applicant did not comply with Rule 6(5)(b)(iii);

2.54cm; text-indent: -1.27cm; line-height: 150%"> 9.3 Applicant’s failure to provide the necessary facts on which she claims the relief in terms of the provisions of section 7(8)(a)(i) and (ii) of the Divorce Act, 70 of 1979;

9.4 The alleged application or Notice of Motion does not contain the relief or prayers sought, as required by law;

9.5 The Applicant did not provide an explanation for her conduct and failures at the time of the divorce order and thereafter;

9.6 The Applicant took all valuable assets and furniture that were in good condition and left those which were worthless;

9.7 The Applicant was fully and gainfully employed at the relevant time but does not say anything about her pension benefits, which should form part of the joint estate.

POINTS RAISED IN LIMINE

[10] The Respondent took the following points in limine (summarized and/or quoted verbally):

10.1 This application being a new application and not interlocatory (sic), it is defective in “both substance and form”, taking into account the provisions of Rule 6(5)(a) and (b);

2.54cm; text-indent: -1.27cm; line-height: 150%"> 10.2 Failure to setforth, in that the “Applicant failed to state the basis of her alleged entitlement and whether or not the conditions stated in both Section 8(a)(i) and 7 have been complied with as required by Rule 7”

“Further, in terms of the Divorce Act, applicant is not automatically entitled to the payment of 50%. She is required to justify the basis of the quantity of the amount claimed, which she failed to do. Besides, applicant would only be entitled to a share, if any, of the amount earned during the period of the marriage, which is about 3 years”

10.3 NON-JOINDER

“Applicant request an order in terms of which the GEPF and Blue Chip Finance are directed to make payment of 50% to the respective parties in terms of Section 37(1)(4)(b)(ii) of the Act but failed to join the relevant funds.”

10.4 “Applicant request in her Heads of Argument an amendment, not only in relation to the parties’ description or citation but also in relation to the actual relief sought, which amendment cannot be effected without complying with the Rules in relation thereto.”

10.5 SUPPLEMENTARY

“Applicant supplements her allegation or alleged basis of her claim in her Heads of Argument, instead of a formal application with the necessary Affidavit for the Leave of the Court to do so”

10.6 “7.1 The Applicant’s Application is not supported by any facts in relation thereto, for the Respondent to answer as allegations or most of them are not within his personal knowledge or are hearsay.

7.2 The only allegations that refer to the Respondent and to which he may answer are contained in paragraphs 6.2 to 6.6 of the Founding Affidavit.

7.3 However, these allegations are conflicting and can only be resolved or dealt with by oral evidence.”

CONSIDERATION OF POINTS IN LIMINE

[11] Ad 10.1:

This application was served on the Respondent by way of Notice of Motion, supported by a founding affidavit of the Applicant. Respondent filed a notice to oppose, followed by an answering affidavit. This led to the application being set down on the roll for opposed motions.

The objection raised in limine is that the application does not comply with the requirements of Rule 6(5)(b)(iii) in that the application did not set forth a day on or before which the respondent was required to notify the applicant whether he intends to oppose such application, nor did it state the day on which it would be set down for hearing, should no notice to oppose be filed.

It is so that the application did not comply with form 2(a) of the First Schedule to the Uniform Rules of Court. Respondent did not, however, apply for the setting aside thereof, but instead replied thereto as if the correct form had been used.

In similar circumstances it was found in Mynhardt v Mynhardt 1986 (1) SA 456 (T) at 461 F that

“Nòg foutiewe betekening, nòg die gebruikmaking van die verkeerde vorm sou die aansoek, myns insiens, egter ‘n nietigheid of nulliteit maak nie”

To my mind no prejudice was suffered by the Respondent because of the non-compliance with Rule 6(5)(b)(iii) and this point in limine is dismissed.

Ad 10.2:

The parties were married in community of property. As stated in D v D (15402/2010) [2013] ZAGPJHC 194 (10 May 2013)

“Community of property entails the pooling of all assets and liabilities of the spouses immediately on marriage, automatically and by operation of law. The same regime applies to assets and liabilities which either spouse acquired or incurs after entering into marriage. The joint estate created by marriage is held by the spouses in co-ownership, equal, undivided shares.”

According to H R Hahlo, The South African Law of Husband and Wife, 5^th Edition at page 161 – 162:

“The joint estate consists of all the property and rights of the spouses which belonged to either of them at the time of the marriage or which were acquired by either of them during the marriage. Assets forming part of the joint estate are owned by the spouses in equal, undivided shares.”

In GN v JN 2017 (1) SA 342 (SCA) at par 33A - B it was said:

“Consequently, one of the invariable consequences of such a marriage (in community of property) is that, subject to a few exceptions not here relevant, the spouses became co-owners in undivided and indivisible half-shares of all the assets acquired during the subsistence of their marriage. And, absent a forfeiture of benefits under s 9 (1) of the Act or an express agreement between the parties to the contrary, each spouse is entitled to a half-share of the joint estate – whatever it entails.

The Applicant is by virtue of the marriage in community of property entitled to 50% of the joint estate as on date of divorce. She need not proof what she contributed to the joint estate for division thereof. (It must be pointed out that the marriage existed for 12 years, and not 3 as averred by the Respondent.)

This point in limine is dismissed.

AD 10.3 Non-joinder of Pension Funds

It was argued on behalf of the Respondent that the Pension Funds should have been joined because they have an interest in any order made by court in respect of payment of pension benefits to any of the parties.

In setting out the general principles upon which a plea of non-joinder will be upheld, Erasmus, Superior Court Practice, 2^nd Edition at D1 – 124 states:

“The test is whether or not a party has a ‘direct and substantial interest’ in the subject matter of the action that is, a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgment of the court. A mere financial interest is an indirect interest and my not require joinder of a person having such interest”

Section 7(7)(a) of the Divorce Act 70 of 1979 stipulates:

“In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be part of his assets.”

See also: Ndaba v Ndaba (600/2015) [2016] ZASCA 162 at par [26]

In Old Mutual Life Assurance Co (SA) Ltd and Another v Swemmer 2004(5) SA 373 (SCA) at par 26 Van Heerden, AJA states:

“This case cogently illustrates the importance of deeds of settlement and divorce orders relating to pension interests being formulated very carefully indeed in order to ensure that they fall within the ambit of ss 7(7) and 7(8) of the Act. If this is done, then all that would be required of the pension fund in question is to perform administrative functions to give effect to the order, without the rights of the fund or the relationship between the fund and the member spouse being affected in any way, and it would not be necessary to join the fund as a party to the divorce proceedings.”

The aim of the present application is to bring the divorce order within the ambit of ss 7(7) and 7(8) of the Divorce Act. The Pension Funds have no substantial and direct interest in the subject matter of the divorce action and it was not proved that they will be prejudiced should the application succeed.

AD 10.4

Under this heading the Respondent referred to the incorrect citation of the parties, in that their surname was spelt incorrectly. This does not merit a dismissal of the application and is dismissed.

AD 10.5

It is clear from the founding affidavit that this is an application for variation of the original order to rectify an omission in respect of how the joint estate should be divided, especially with reference to the division of pension benefits.

I find no merit in the argument in this regard and this point in limine is dismissed.

AD 10.6

The Applicant’s reasons for bringing the application are fully set out in her founding affidavit. It is common cause between the parties that the joint estate must be divided, as per court order and that it was not done yet. I cannot find any necessity for oral evidence. This point in limine can accordingly not succeed either.

MERITS

[12] The order sought by the Plaintiff is an attempt to give effect to the order of 6 August 2013 to divide the joint estate. This order was silent on the division of the pension benefits of the two parties.

Division of the immovable property has not taken place and the parties are not ad idem on the division of the movable property.

LEGAL PRINCIPLES

[13] Uniform Rule 42 stipulates:

(1) The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:

(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;

(b) an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

(c) an order or judgment granted as the result of a mistake common to the parties.

[14] Section 7(8) of the Divorce Act 70 of 1979 prescribes the nature of the order that may be made by the court granting the decree of divorce in respect of the payment of the pension interest of one party to another. Without such an order division of the pension interest of the parties will not be possible.

[15] For purposes of section 7(8) of the Divorce Act written submission of the court order is required in terms of section 37D(4)(a) of the Pension Funds Act 24 of 1956 in order to effect payment to the non-member spouse.

[16] In Firestone South Africa (Pty)Ltd v Genticuro A.G 1977(4)298(AD) at 307A it is stated:

“The Court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter ‘the sense and substance’ of the judgment or order”

See also: Mostert NO v Old Mutual Life Assurance Co (SA)Ltd 2002(1) SA 82 at 86D

[17] In Eke v Parson 2016 (3) SA 37 (CC) at 61D it is stated:

“It is a fundamental principle of our law that a court order must be effective and enforceable, and it must be formulated in language that leaves no doubt as to what the order requires to be done.

[18] In GN v JN, supra at par [31] it was found:

“In the result those decisions which held that, if there is no reference in the divorce order of parties married in community of property to a member spouse’s pension interest, the non-member spouse is precluded in perpetuity from benefitting from such pension interest as part of his or her share of the joint estate, were wrongly decided. It follows that the liquidator will be justified in regarding the pension interest of either party as part of the assets of their joint estate which has yet to be divided between them”;

and at par [34]:

“The joint estate in this case must necessarily include the pension interest of either party as contemplated in s 7(7) of the Act.”

LAW APPLIED TO THE FACTS

[19] There is no doubt that the order issued on 6 August 2013 was for the division of the joint estate.

Because of the omission of orders in respect of the pension interests of the parties and the immovable property the matter cannot be brought to finality. Only the court granting the decree of divorce can make such orders.

[20] It seems that the parties omitted to inform the court granting the divorce of the pension interests in the joint estate. At this stage the parties are in agreement that both their pension interests must be taken into account for division of the joint estate. This can only be done once a proper court order has been issued, in terms of section 7(8) of the Divorce Act.

[21] No regime was set out for the division of the immovable property and the division of the joint estate is being thwarted by the Respondent.

The relief claimed by the Applicant will ensure that effect will be given to the order of division of the joint estate.

Therefor it is necessary and justified to grant the relief sought in terms of Rule 42 in this regard.

COSTS

[22] The Respondent did not only delay the division of the joint estate for years, but also opposed this application and shall pay the costs of the application.

ORDER

[23] The following order is made:

1. The application is upheld with costs.

2. Order 2 of the order granted on 6 August 2013 is amended as follows:

2.1 That the joint estate between the parties is to be divided on the following terms:

2.1.1 In terms of section 7(8)(a)(i) of the Divorce Act, 70 of 79, 50% of the Plaintiff’s pension interest in the GOVERNMENT EMPLOYEES PENSION FUND (GEPF), with identity number 610202 6348 084, due or assigned to the Plaintiff is to be paid to Defendant when any such pension benefits accrue to the Plaintiff.

2.1.2 In terms of sections 7(8)(a)(ii) of the Divorce Act 70 of 1979, an endorsement should be made on the records of the GEPF that 50% of the pension interest of the Plaintiff with the identity number [….] is payable to the Defendant within thirty (30) days from date of this order.

2.1.4 In terms of section 7(8)(a)(i) of the Divorce Act 70 of 1979, 50% of the Defendant’s pension interest with BLUE CHIP FINANCE with identity number [….] due or assigned to the Defendant is to be paid to Plaintiff when any such pension benefits accrue to the Defendant.

2.2 IMMOVABLE PROPERTY situated at, and known as, [….]:

2.2.1 The parties shall obtain a valuation of the property within thirty (30) days from date of the order herein;

2.2.3 The party with the highest offer at the end of the period of 90 days is entitled to transfer the property into his/her name, subject to bond approval or payment of 50% of the purchase price to the other party;

2.2.5 The party with the highest offer shall transfer 50% of the amount offered to the other party within 30 days of the lapsing of the period of 90 days.

2.2.6 Should neither of the parties submit an offer to purchase the property, or fail to obtain a bond or to pay 50% of the purchase price, then the property is to be sold at a public auction.

2.2.7 Both parties may bid upon the property at the public auction.

2.2.8 Both parties shall share equally in the nett proceeds of the sale, irrespective of who purchases the property.

2.3 MOVABLE PROPERTY

2.3.1 Should the parties not be able to agree on how the movable property is to be divided within 30 days of this order, the movable property is to be sold at a public auction.”

3. The Respondent is to pay the costs of this application.

M. VOGES, A J

On behalf of the Applicant Adv PR Thomson

Instructed by:

Mhlokonya Attorneys

BLOEMFONTEIN

On behalf of the Respondent: Adv.Khang

Instructed by:

Mphafi Khang Attorneys

BLOEMFONTEIN