DRS v VGS

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Hendricks DJP
• Judgment Date: 12 March 2020
• Court: North West High Court, Mafikeng
• Hearing Date: 27 February 2020
• Docket Number: M 283/2018

Hendricks DJP:

[1]

Mr. D[…] R[…] S[…] (applicant) was married to K[…] M[…] (KM) S[…]. Their marriage was dissolved by a decree of divorce granted by the then Central Divorce Court, Johannesburg on 24th November 1995. It was inter alia ordered that their joint estate be divided. Six (6) years later, during 2001, the applicant got married to V[…] G[…] S[…] (respondent), in community of property. This marriage lasted until 08th December 2016, when it too was dissolved by a decree of divorce granted by the Regional Court, Mogwase. It was also ordered inter alia that the joint estate of the parties, be divided.

[2]

The joint estate of the parties consists of movable as well as an immovable property to wit House 1394, Molope Drive, Unit 4, Mogwase, where the parties resided before their separation and divorce. The respondent has in the meantime relocated but they are still in the process of giving effect to the divorce order. There is a body of correspondence between the respective sets of attorneys acting on behalf of the parties. No amicable settlement of the division of the assets of the joint estate could however be reached.

[3]

The respondent decided, in the absence of an amicable settlement, to instruct her attorneys to lodge an application for the appointment of a receiver/liquidator of the joint estate. The application was issued on the 25th July 2018. After a

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serious of postponements, the receiver/liquidator, Jacques Parsons, was appointed as per a court order. The Court Order is dated 27th September 2018 and reads thus:

"IT IS ORDERED

THAT 1: JACQUES PARSONS be and is hereby appointed as receiver of the joint estate of the parties with the following powers:-

(a)

The liquidator or its sworn valuator/agent to gain access to the immovable property described as HOUSE 1394, Unit 4, Mogwase for the purpose pf valuation and marketing of the property;

(b)

To sell the immovable property of the joint estate by public auction or private treaty;

(c)

To pay any debts of the joint estate, including his own fees, and to divide the balance between the parties;

(d)

To sign any documents on behalf of the parties which are required for the dale and transfer of immovable property of the joint estate;

(e)

To prepare a detailed account of what he had done when the division is complete and furnish this to both parties.

THAT 2: The parties are directed to co-operate with the receiver in the carrying out of his functions.

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THAT 3: The Respondent pay the costs of the application on Attorney client scale."

[4]

The applicant, although aware of the lodging of this application for the appointment of a receiver/liquidator by the respondent, did not opposed it timeously. Therefore, the requisite order was granted. When the applicant learned about the granting of this order, he instructed his attorneys to lodge an application for rescission of the order. Needless to say, this application is opposed by the respondent. The application ultimately served before this Court on 27th February 2020. After listening to the submissions by counsel, judgment was reserved.

[5]

Initially the applicant raised in limine the point that the Notice of Intention to Oppose as well as the answering affidavit of the respondent was filed out of time. The application for condonation in respect thereof was initially opposed but such was abandoned during oral argument by Adv. Montshiwa, who appeared on behalf of the applicant. The merits of the application was argued. The contention was whether an order for the appointment of a receiver/liquidator was warranted as well as a punitive costs order.

[6]

It is quite apparent from the plethora of correspondence between the two sets of attorneys that a solution with regard to the division of the assets of the joint estate could not be reached. Apart from the movable assets, the immovable property is a bone of serious contention. The respondent allege that she is ex lege entitled to 50% of the assets of the joint estate which include her half-share of the immovable property.

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[7]

The applicant on the other hand contend that the house forms part of the joint estate between him and his former wife KM. That estate remains undivided since 24th November 1995. Therefore, so it was further contended, is the respondent only entitled to 25% (that is half of his half-share) of the house. The applicant also raised the point of non-joinder of KM, because she has a vested interest in this matter. This need closer examination.

[8]

The applicant and KM got divorced on 25th November 1995. In terms of the "Windeed" point-out that the applicant attached to his founding affidavit, the property (house) is registered in his name only and not in the joint names of him and KM. The date of registration of the house in the applicant's name is 07th April 1997, more than 1 year and 4 months AFTER his divorce with KM.

[9]

To this, the applicant contended that the said house was acquired by him and KM during the subsistence of their marriage but only registered subsequently. This contention does not hold any water. No confirmatory affidavit of KM was obtained in this regard. This contention is therefore unconfirmed and is gainsaid by the "Windeed" point-out of the registration in the name of the applicant on 07th April 1997. The acquisition of this house was before the applicant and the respondent's marriage during 2001. Therefore, it forms part of their joint estate since they were married in community of property.

[10]

The applicant and KM divorced on 24th November 1995 which is more than 24 years ago. It defies all logic that their estate is not yet finally divided after a passage of more than 24 years. This is to say the least unacceptable. Without any stretch of the imagination, any possible claim that KM might have had in the house, expired due to the effluxion of time. It therefore makes perfectly sense that KM sent a message with her son when she was invited to a meeting with respondent's attorney, that she is not interested. Perhaps because she knows

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that the acquisition of the house happened subsequent to their divorce and/or that due to the passage of time she is not interested and therefore does not want to have anything to do with this house. I am of the view that KM does not have a vested interest in this matter and should not have been joint. The argument about the non –joinder of KM is therefore unmeritorious.

[11]

The applicant does not say that the respondent does not have any right or title to the house. Infact he states that's she is entitled to half of his half-share of the house. That in itself is indicative of the fact that the respondent is entitled to share in the proceeds of the house. The question is just how much is she entitled to.

[12]

It is quite obvious that the parties cannot agree on the division of the joint estate. The appointment of the receiver/ liquidator of the assets of the joint estate is therefore necessary. The applicant contended that the respondent's application for the appointment of a receiver/ liquidator was premature as the parties could reach a settlement with regard to the division of the assets of the joint estate. This is not a feasible option since the parties could not between 08th December 2016...