A.C v D.C (61/2018) [2018] ZAECGHC 56 (19 June 2018)

A.C v D.C (61/2018) [2018] ZAECGHC 56 (19 June 2018)

Clause 7 of the deed of settlement is clear and unambiguous: it places an obligation on the respondent, in consultation with the applicant, to purchase a house in Grahamstown within one year of the divorce decree, for a maximum price of R3 million, in the name of a trust to be formed. The respondent has failed to comply with any of these obligations. Clause 7.1 allows the respondent to finance the purchase via a mortgage bond but requires him to pay all repayments, ensuring security of tenure for the applicant and children. The respondent's interpretation is rejected. The non-joinder point is without merit, as the trustees are not parties to the deed and have no rights or interests...

Citation
[2018] ZAECGHC 56
Parties
Applicant: A C; Respondent: D C
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
19 June 2018
Case Number
61/2018
Procedural Posture
Urgent Application / Application for Declaratory and Mandatory Relief Post Divorce
Outcome
Application granted. Respondent declared in breach and ordered to sign the offer to purchase and pay costs.
Judges
Plasket
Legal Topics
Divorce Settlement Enforcement, Specific Performance, Non Joinder, Trust Property Acquisition
Family and Children Civil Procedure Divorce Settlement Enforcement Specific Performance Non Joinder Trust Property Acquisition

Case Brief

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Parties

A C

Applicant

D C

Respondent

Procedural Posture

Urgent Application / Application for Declaratory and Mandatory Relief Post Divorce

Legal Issues

  1. 1 Whether the respondent is in breach of clause 7 of the divorce settlement agreement by failing to purchase a residence for the trust within the stipulated period.
  2. 2 Whether the trustees of the A C Family Trust are necessary parties to the proceedings (non-joinder).

Ratio Decidendi

Clause 7 of the deed of settlement is clear and unambiguous: it places an obligation on the respondent, in consultation with the applicant, to purchase a house in Grahamstown within one year of the divorce decree, for a maximum price of R3 million, in the name of a trust to be formed. The respondent has failed to comply with any of these obligations. Clause 7.1 allows the respondent to finance the purchase via a mortgage bond but requires him to pay all repayments, ensuring security of tenure for the applicant and children. The respondent's interpretation is rejected. The non-joinder point is without merit, as the trustees are not parties to the deed and have no rights or interests...

Court Disposition

Application granted. Respondent declared in breach and ordered to sign the offer to purchase and pay costs.

Orders

  • It is declared that the respondent is in breach of his obligations in terms of paragraph 7 of the deed of settlement concluded on 12 April 2016 and made an order of court of the Northern Cape Division of the High Court on 22 April 2016 for his failure to have purchased, on behalf of the A C Family Trust, a residence...
  • The respondent is directed to sign the offer to purchase, Annexure 'L' to the founding papers, within three days of service of a copy of this order on him, and to comply with the terms thereof.