Nongauza v Nongauza

• Jurisdiction: South Africa
• Judge: Nhlangulela J
• Judgment Date: 29 January 2009
• Docket Number: 805/2008
• Court: Transkei Division
• Hearing Date: 29 January 2209
• Citation: 2009 JDR 0067 (Tk)

Nhlangulela J:

[1] This is a Return Day of the Rule Nisi, dated 27 June 2008, which was issued with interim orders that, inter alia, pending a further directive of this Court, the second respondent pay a sum of R100 000,00 into the Trust Account of the applicant's attorneys Mgweshe Ngqeleni Attorneys.

[2] The facts of the application appear from the affidavits together with annexures thereto which were filed on behalf of the parties.

2009 JDR 0067 p2

Nhlangulela J

[3] In my understanding of the application the main issues to be decided are whether :

(a)

The sum of R100 000,00 in question is the asset of the joint estate between the applicant and first respondent; and

(b)

If so, whether the applicant is entitled to a half share of such estate.

[4] The following summary of the facts is either common cause or at least not disputed.

On 05 July 1996 the applicant and first respondent were married to each other in community of property. They declared that they will both share in the profits as well as losses incurred during the subsistence of the marriage. Most unfortunately, the marriage was to be short lived as it was dissolved by a decree of divorce on 23 November 2006. This happened at a time when they had four children born between them and having amassed some wealth of which a fuel and oil business called Siyakhula Truck Inn is a part.

2009 JDR 0067 p3

Nhlangulela J

[5] On 30 May 2008, after the divorce but before a formal division of the joint estate had taken place, the first respondent sold Siyakhula Truck Inn (Siyakhula) to the second respondent at R300 000,00. This business was sold as a going concern. At the time that these proceedings were launched the second respondent had already paid a cash sum of R200 000,00 directly to the first respondent. Pursuant to the order of this court the balance of R100 000,00 was paid in the Trust Account of Mgweshe Ngqeleni Attorneys. The money is still being kept there.

[6] The second respondent has not opposed the relief sought. The first respondent is resisting the relief sought on a number of factual and legal grounds such as that :

(a)

Siyakhula is not the asset of the joint estate because the applicant was never involved in its management and operations.

(b)

Siyakhula is the business of Elegant Square Trading C.C., a legal persona which has a separate existence from the parties in the joint estate.

2009 JDR 0067 p4

Nhlangulela J

(c)

Therefore, the purchase...