Kirkland v Kirkland

• Jurisdiction: South Africa
• Judge: Blignault J, Veldhuizen J and Dlodlo J
• Judgment Date: 13 May 2005
• Citation: 2006 (6) SA 144 (C)
• Docket Number: A434/04
• Hearing Date: 08 April 2005
• Counsel: P B Hodes SC (with P S van Zyl) for the appellant. L Weinkove SC (with B D Gassner) for the respondent.
• Court: Cape Provincial Division

Blignault J:

Introduction C

[1] Appellant and respondent were formerly married to each other. Respondent (as plaintiff) instituted an action against appellant (as defendant) under case No 1669/00 for a decree of divorce and ancillary relief. The action was defended by appellant. He also brought a counter-claim. On 10 October 2002, after a hearing that was spread over a number of days during 2002, the Court below (Motala J) D granted a decree of divorce and made the following orders:

'Plaintiff is ordered to pay defendant the sum of R2 930 329 as follows: (i) R1 380 000 is to be paid on or before 30 November 2002 and (ii) R1 550 329 is to be paid on or before 31 January 2003. The costs of this matter shall stand over for later determination.' E

[2] On 29 November 2002, after hearing separate argument, the learned trial Judge gave a judgment on the question of costs. The orders made by him are set out later herein.

[3] Appellant brought an application for leave to appeal against the judgment on the merits and the judgment on costs. Respondent F opposed the application and raised a special defence that appellant had perempted the appeal. Appellant's application for leave to appeal was heard by the trial Judge on 22 September 2003. In a judgment delivered on the same date, he found that there had been a peremption of the appeal by appellant and that appellant, in any event, did not have a reasonable prospect of success on appeal. The application for G leave to appeal was accordingly refused with costs.

[4] Appellant thereupon submitted a petition to the Supreme Court of Appeal for leave to appeal. On 17 February 2004 the Supreme Court of Appeal granted leave to appellant to appeal to the Full Court of this Division against the finding that the appeal had H become perempted and against the judgments on the merits and on costs.

[5] The parties then agreed that the question of the peremption of the appeal would be argued first and separately from the appeal against the merits of the judgments on the merits and on costs. The question whether appellant had perempted the appeal was, accordingly, argued as a separate issue before the Full Court on 13 August I 2004. In a judgment delivered on 1 September 2004 appellant's appeal against the decision of the Court below that he had perempted the appeal, was upheld. That decision of the Court below was set aside and appellant was allowed to J

Blignault J

pursue his appeal against the judgments on the merits and on costs. Respondent was ordered to pay appellant's A costs of the appeal against the decision that he had perempted the appeal, but excluding the costs that relate to the application for leave to appeal and the petition to the Supreme Court of Appeal, which were ordered to stand over for later determination. B

[6] Appellant's appeal against the judgments of the Court below on the merits and on costs was heard by us on 8 April 2005 and 13 May 2005.

The claim and counter-claim

[7] The parties were married to each other, out of community of C property, on 3 December 1955. There are four children born of the marriage but, by the time of the parties' separation, they were all majors. Respondent alleged in her particulars of claim that the marriage had broken down irretrievably. Apart from a decree of divorce, she claimed registration of transfer into her name of a Mercedes-Benz motor vehicle but the latter claim was not pursued by her. D

[8] Appellant admitted that the marriage had broken down irretrievably. He claimed (i) an order that he is the owner of an equal and undivided half share in the immovable properties described as Bitou Vlei near Plettenberg Bay and Queens House, Sulgrave, Northamptonshire, E England; (ii) an order that respondent account for and pay the sum of \P75 000 to him; and (iii) a redistribution of assets in terms of the provisions of s 7(3) of the Divorce Act 70 of 1979 (the Act) in such a manner that appellant's estate would be increased so that it would represent two-thirds of the combined net worth of the parties' estates. F

[9] Appellant did not pursue his first and second claims, only the third. In final argument in the Court below, appellant's counsel did not claim the two-thirds of the parties' combined assets adverted to in the counter-claim. He argued that appellant's contribution to the combined assets by way of inheritances in the amount R1 738 000 G should be paid to him and that the residue of the combined estates should be divided equally between the parties.

The urgent application

[10] On 30 October 2000 appellant launched an urgent application H to prevent respondent from dissipating certain assets pending the finalisation of the divorce and to compel her to account to appellant in respect of various sums of money that had been in her possession. Respondent opposed the application and filed an answering affidavit in which she explained that the funds in question were used by her to assist the children, to maintain herself and to maintain and improve I the immovable properties registered in her name.

[11] The urgent application was determined by way of a settlement agreement that was made an order of Court on 17 November 2000. I propose to quote the terms of this agreement in full: J

Blignault J

'1.

By agreement between the parties, this draft order is to be incorporated as an order of the above Honourable Court. A

2.

Each party waives his or her right to claim maintenance pendente lite or on divorce from the other.

3.

Respondent is hereby authorised to sign the "offer to purchase" attached to the papers marked JK9 - 1.

4.

All moneys paid by the purchaser in respect of the property described in annexure JK9 - 1 shall be paid direct to respondent's B attorney of record, Abe Swersky & Associates, to be kept by them in an interest bearing trust account pending the finalisation of the divorce action between the parties under case No 1669/2000.

5.

The remaining portion of the farm known as "Bitouvlei" shall not be sold, encumbered and/or alienated in any way whatsoever, save with the consent of applicant, which consent will not be C unreasonably withheld. In the event of such consent being sought and granted, the proceeds of the sale shall also be dealt with in accordance with para 4 above.

6.

Respondent is interdicted from selling, encumbering or alienating the property known as "Queens House" pending the finalisation of the divorce action, save that respondent shall be at liberty to let same at her discretion. D

7.

For purposes of applicant's claim in terms of the provisions of s 7(3) of the Divorce Act 70 of 1979, as amended, the parties agree that the following assets shall have the following values:

(a) Queens House	R3 762 500
(b) Respondent's moneys invested in HSBC Bank, England	862 150
(c) The proceeds of the sale of the Simonstown property	760 000
(d) The farm known as "Bitouvlei"	2 850 000
(e) Applicant's share portfolio	123 000
(f) Applicant's loan account in Barlow Financing	1 250 000
(g) Applicant's share portfolio in England	537 500
(h) Respondent's two Mercedes Benzes - South Africa	100 000
- England	150 000
Total	10 395 150

8.

Insofar as either of the parties may be in possession of F assets not included in the list aforesaid, each party shall have the right to prove the existence of such assets and the value thereof, and the parties' rights in this regard are reserved. G

9.

Neither party shall sell, encumber and/or alienate any furniture presently in his/her possession pending the finalisation of the divorce action.

10.

Respondent shall, on a date to be arranged with applicant, permit applicant access to the property in England known as "Queens House" in order to compile an inventory. For purposes of such access, respondent shall be entitled to be present, alternatively, such access to be supervised by a person of respondent's choice. H

11.

The limitation placed on respondent's ability to deal with the net proceeds of the sale of the Simonstown property, as recorded in the separation agreement of 17 May 1999, is hereby uplifted.

12.

The costs of the application are reserved for determination by the trial Court. I

13.

It is recorded that this order is incorporated as an order of the above Honourable Court without either of the parties making any concessions with regard to the merits of the application.'

[12] The hearing commenced on 25 March 2002. Apart from appellant himself, Mr Stephanus Smith, a forensic accountant, gave evidence on his behalf. Respondent testified and called Messrs Andrew Duncan, Reg J

Blignault J

Munro (an actuary) and Trevor Foster (a financial investigation consultant) to give evidence. Appellant was then allowed A to re-open his case to call Messrs Ronald Franklin and Johan de Wet. The matter was argued on 20 June 2002 and judgment on the merits of appellant's claim was given on 10 October 2002.

The judgment of the Court below B

[13] In his judgment the trial Judge summarised the growth of the parties' estates over the years. At the time of their marriage they had virtually no assets but over the years they had acquired various immovable properties: (i) A house in Daventry Road, Bryanston for \P5 050; (ii) a vacant erf in Mandable Road for \P1 000; (iii) C 'Windlestone Farm' for R15 500; (iv) a vacant plot in Sedgefield for between R6 000 and R8 000; (v) 'Gideonshoop', a farm in the Karoo for R80 000; (vi) 'Bitouvlei', a farm in Plettenberg Bay; (vii) 'The Old Farmhouse' in Plettenberg Bay; (viii) a house in Beverley Estate, Johannesburg; (ix) a flat in London for \P80 000; (x) a holiday home in Simonstown; (xi) a...