Maharaj v Maharaj and Others

• Jurisdiction: South Africa
• Court: Durban and Coast Local Division
• Judge: Magid J
• Judgment Date: 03 October 2001
• Citation: 2002 (2) SA 648 (D)
• Hearing Date: 21 September 2001
• Docket Number: 3446/2001
• Counsel: M F Moosa for the applicant. K Naidu for the respondents.

Magid J:

The applicant and the first respondent were formerly wife and husband married in community of property. They were divorced by order of this Court dated 19 December 1996. The order made provision for the customer of the parties' minor children and for maintenance for the applicant and the H children but said nothing about the joint estate. It follows, therefore, that the joint estate as it existed at the date of the divorce had to be divided equally between the applicant and the respondent. If authority were required for this virtually axiomatic statement it is to be found in Gates v Gates 1940 NPD 361 at 363 and Keyser v Keyser 1979 (4) SA 12 (T) at 15F. Indeed, in this province orders for division of the joint estate of parties I married in community of property are consistently refused when divorce orders are granted for the very reason that they are unnecessary.

Having ascertained that the respondent had retired from his employment as a member of the South African Police Services and that J

Magid J

whatever was due to him by the pension fund of which he was a member, A had been, or was about to be, paid into his bank account with the second respondent, the applicant instituted an urgent application for an interdict restraining the second respondent from allowing the first respondent to draw on the account in a manner which would prejudice her. The pension fund was joined in the application as third respondent. The relief claimed in the notice of motion was for an interim interdict 'pending the determination of a declaration of the B applicant's rights to be entitled to half the proceeds of such pension fund . . . '.

I myself granted a rule nisi with interim relief in substantially the form asked for by the applicant. The name of the first respondent's pension fund was incorrectly reflected in the founding papers. The applicant has lodged an interlocutory application C to amend the citation of the pension fund.

Mr Naidu, for the first respondent, has contended that, as the applicant did not obtain an order in terms of s 7(8)(a) of the Divorce Act 70 of 1979 (the Act) at the time the divorce was granted she is now barred from making any such D claim. As authority for this proposition Mr Naidu relied strongly on the judgment of Musi J in Sempapalele v Sempapalele and Another 2001 (2) SA 306 (O). Mr Naidu also pointed out, and it is now common cause, that no portion of the first respondent's pension interest has yet been paid over to the second respondent. A letter from the third respondent has been put up E which indicates that as at the date of the divorce the applicant's notional half-share thereof was the sum of R19 788,84.

Mr Moosa, for the applicant, submitted that Sempapalele (supra) was either wrongly decided or distinguishable. He also submitted that if I found in favour of the F applicant I should order that the sum of R19 788,84 be paid over to her. Mr Naidu agreed that that would be a proper order if I were to decide...