N C O v D O
| Jurisdiction | South Africa |
| Judge | J Cloete J, L Nuku J and E D Wille J |
| Judgment Date | 13 May 2020 |
| Citation | 2020 JDR 0950 (WCC) |
| Docket Number | A244/2019; 11045/2013; 21628/2014; 21629/2014 |
| Court | Western Cape Division, Cape Town |
Cloete J (Nuku J et Wille J concurring):
Introduction:
This appeal and cross-appeal are before us with leave granted by the trial court on 28 June 2018. Mrs N C O (as plaintiff) issued summons against Mr D O (as defendant) on 12 July 2013 for a decree of divorce and further relief. After protracted and acrimonious litigation, including two opposed applications by Mr D O to evict Mrs N C O from her residence ('the Digteby property') and her guesthouse business (Apple Tree Guest House CC) from another property ('the Paul Kruger Street property') [1] , the trial court handed down judgment, including the following order, on 15 May 2018:
a decree of divorce is granted;
a property partnership existed between the parties in respect of the Digteby property.
the property partnership in respect of the Digteby property be liquidated, and that the partnership estate be divided between the parties equally.
A practicing chartered accountant to be nominated by the chairperson of the South African Institute of Chartered Accountants (which person is hereinafter referred to as "the liquidator") is hereby appointed to liquidate the partnership and who shall:
Determine the net value of all the partnership assets as at date of dissolution; and
To sell or distribute the assets of the partnership between the parties or pay to either party such money as may be necessary
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so that each party is possessed of assets and/or money equal in value to his/her 50% share of the partnership estate.
For the purposes of giving effect to paragraph (iii) above, the liquidator shall have the powers and duties as set out in Annexure "A" hereto. [2]
The defendant is ordered to pay the plaintiff R15 000.00 per month as maintenance until her death, remarriage or until she commences living with a romantic partner. [3]
The amount of R15 000.00 shall increase on each anniversary date of the final order of divorce in accordance with such increase as may have occurred in the consumer price index in respect of the Republic of South Africa, as notified by the Director of Statistics or his equivalent for the persons in the middle income group.
Until such time as the partnership assets have been wound up by the liquidator, the plaintiff shall be entitled to remain in occupation of the Digteby property provided that the plaintiff shall make payment of the mortgage bond instalments over the properties [sic] but which will be credited to the plaintiff's account and taken into account when the partnership is liquidated.
The eviction application brought under WCHC C/No. 21629/2014 [the Digteby property] is dismissed with costs.
The eviction application in terms of WCHC C/No. 21628/2014 [the Paul Kruger Street property] is postponed sine die. The defendant may reissue the guest house with a fresh notice of termination of authority to occupy the Paul Kruger street property and afford it a reasonable period, not less than 6 calendar months, to vacate the property.
Should the guest house fail to vacate the Paul Kruger street property after receiving the notice of termination of authority then the defendant may approach this court for an eviction order on the same papers, duly supplemented, if needs be.
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Costs of this divorce action shall be payable by the defendant on a party-party scale.'
On 5 June 2018 the parties delivered their respective notices for leave to appeal. On the same date Mrs N C O brought an application in terms of uniform rule 42, in which she contended that there were various patent omissions in the order of 15 May 2018 and thus sought additional relief. In essence, she asked for the costs of two opposed interlocutory applications in the eviction matters (which the parties agreed in an order granted by Koen AJ on 23 March 2016 would stand over for determination at trial) [4] ; declaratory orders that she owns the contents of the Digteby property and that Apple Tree Guest House CC owns those at the Paul Kruger Street property; and costs of the main action to include those of two counsel as well as the qualifying fees of the three experts appointed by her, namely Ms Hofmeyr (clinical and industrial psychologist), Professor Terblanche (registered professional valuer) and Mr Charl Du Plessis of Munro Actuaries. [5]
This application was opposed by Mr D O and on 28 June 2018 the trial court handed down a further judgment in which it varied its earlier order to include the costs of two counsel and the qualifying fees of Ms Hofmeyr and Munro Actuaries. It held that the declaratory orders sought in respect of the contents of the two immovable properties '…is an issue best dealt with in an appeal process, given the decision which the Court has made in respect of its finding
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of property partnerships and the eviction applications'. The balance of the relief was refused and each party ordered to pay their own costs of the application.
For convenience, and unless otherwise indicated, I will refer to Mrs N C O as 'the plaintiff', Mr D O as 'the defendant' and Apple Tree Guest House CC as 'the guest house'. The Stellenbosch Municipality, which was cited as second respondent in the eviction applications, elected not to participate in any of the proceedings and no further reference will be made to it given the conclusion reached hereunder.
The order granting leave to appeal and cross-appeal purported to limit the grounds of appeal to those contained in the parties' respective notices. [6] No reasons were provided, but in any event the remarks of Theron JA (as she then was) in Quartermark Investments (Pty) Ltd v Mkhwanazi and Another [7] are apposite:
At the hearing of this appeal, the court raised a 'new issue' with counsel, namely, whether Ms Mkhwanazi's claim ought to have been based on the rei vindicatio. It does not appear that this issue was dealt with by the parties in the high court. It certainly was not addressed in the judgment of the high court. After the hearing of the matter, the parties were invited to make further submissions on whether the claim was vindicatory in nature and whether this 'new issue' could be raised at this stage of the proceedings.
In considering the role of the court, it is appropriate to have regard to the well-known dictum of Curlewis JA in R v Hepworth to the effect that a
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criminal trial is not a game and a judge's position is not merely that of an umpire to ensure that the rules of the game are observed by both sides. The learned judge added that a 'judge is an administrator of justice' who has to see that justice is done. While these remarks were made in the context of a criminal trial they are equally applicable in civil proceedings and in my view, accord with the principle of legality. The essential function of an appeal court is to determine whether the court below came to a correct conclusion. For this reason the raising of a new point of law on appeal is not precluded, provided the point is covered by the pleadings and its consideration on appeal involves no unfairness to the party against whom it is directed. In fact, in such a situation the appeal court is bound to deal with it as to ignore it may 'amount to the confirmation by it of a decision clearly wrong', and not performing its essential function. This in turn would infringe upon the principle of legality…'
The 'new' issue which reared its head during the appeal pertains to the entitlement or otherwise of the defendant to enforce an accrual claim against the plaintiff, if the result on appeal means that the plaintiff's estate has shown a greater accrual than his estate. Although the trial court found that '…the defendant has not pursued an accrual claim against the plaintiff's estate', [8] it made no order to this effect. In any event, given the legal position, such an order would not have addressed the salient issue, namely whether the defendant renounced such a claim as pleaded by the plaintiff. This is what led to an invitation to counsel to deliver supplementary notes, which they duly did. I will return to this later.
Apart from that issue, those central to the appeal and cross-appeal relate to the trial court's findings in respect of the existence or otherwise of a property
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partnership; the plaintiff's personal maintenance entitlement as well as the dum casta proviso; the declarators in respect of the contents of the two immovable properties; the eviction applications; and aspects pertaining to costs.
Relevant Background:
The parties were married to each other on 8 December 2001 at Midrand, Gauteng, out of community of property by antenuptial contract incorporating the accrual system specified in Chapter 1 of the Matrimonial Property Act 88 of 1984. At the time the plaintiff, who has years of experience in the hospitality industry, was 50 years old and already financially dependent on the defendant who had set her up in a small tourism business. [9] The defendant was 49 years old and a successful attorney and businessman. No children were born of the marriage.
In the antenuptial contract the plaintiff declared the commencement value of her estate to be R200 000 and the defendant declared his to be R7.5 million although during his testimony he was unable to explain in a cogent manner how he arrived at this figure. [10] In addition each party declared various assets to be excluded from the accrual. Relevant for present purposes is the defendant's exclusion of his immovable property at 6 Paul Kruger...
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