A.C.K v F.K (768/2018) [2021] ZAFSHC 299 (9 November 2021)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 768/2018

In the matter between:

A[….] C[….] K[….] Applicant/ Defendant

and

F[….] K[….] Respondent/Plaintiff

JUDGMENT BY: MOLITSOANE,

J

HEARD ON:

5 NOVEMBER 2021

DELIVERED ON: 9 NOVEMBER 2021

[1] The applicant seeks leave to appeal to the Full Court of this Division the whole of the judgment of Raikane, AJ delivered on 10 December 2020, in terms of which the applicant was ordered to pay the amount of R417 000.00 to the respondent together with interest and costs. For convenience I shall refer to the parties as applicant and respondent even where I make reference to them in the initial action before Murray, AJ.

[2] As a preliminary issue the applicant seeks condonation to supplement her notice of application for leave to appeal by expanding the grounds of appeal as more fully set out in the Amended Notice of Application of leave to Appeal. The condonation application is not opposed. I granted this application.

[3] The test for granting of an application for leave to appeal is settled. The parties were married out of community of property with accrual. On 23 July 2015 Murray, AJ dissolved their marriage and further granted, inter alia, the following orders:

a) That the respondent pays rehabilitative maintenance in the amount of R7 500 to the applicant for 5 years;

b) That the applicant is entitled to share in the accrual in accordance with the provisions of the Matrimonial Property Act, 88 of 1984, the amount to be determined as on the date of the divorce by agreement between the parties within the stipulated time failing which the parties were granted leave to approach the court further for the appointment of a receiver with the necessary powers to determine the accrual;

c) That the applicant is entitled to 50% of the respondent’s pension interest as on the date of divorce.

[4] Subsequent to this order of divorce, the respondent instituted an action (Case 768/2018) in this court against the applicant alleging that her estate showed bigger accrual than the one of his, thus entitling him to sharing therein. The matter was heard by Raikane AJ. The only issue the court was obliged to adjudicate and pronounce on, as agreed between the parties was:

a) Whether or not 50% of the Eskom Pension Fund, in the amount of R1 944 036.36 ought to be considered as an asset of the applicant in the computation of the parties’ estates;

b) If the answer to the above question was in the positive, then in that case the parties agreed that the respondent’s claim must succeed and he is entitled to an amount of R417 000.00 plus interest thereon a tempore morae as from the date of judgment and costs of suite;

c) Conversely, and if the answer in (a) above is in the negative, then in that event the parties are agreed that the applicant’s claim must be dismissed with costs.

[5] The essence of the applicant’s case is that the amount of R1 944 036.36 was paid by the Eskom Pension Fund as part of the maintenance and should therefore not be taken into account as part of the respondent’s claim for accrual. For this contention the applicant relied heavily on paragraph 14 of the judgment of Murray, AJ in which the court stated that it considers thus the applicant’s maintenance claim on the basis of the factors listed in s7(2), taking into account her right to share in the net accrual in the estate of the respondent.

[6] On the other hand the respondent contends that the said amount of R1 944 036.36, being 50% of the Eskom Pension Fund interest, paid by the said Fund to the applicant in terms of clause 9 of the judgment of Murray AJ should be taken into account in calculating his accrual claim. Simply put I understand this contention to mean that the above-mentioned pension interest is an asset in the estate of the applicant and ought to be taken into account in the calculation of the accrual.

[7] Raikane, AJ as indicated above found in favour of the respondent and held as follows:

‘[12] I find nothing in the interpretation of the judgment [of Murray AJ] that could be read to say that the anticipated amount was meant to be utilised by the Defendant for her maintenance other than as an asset that was transferred to her estate and stand to be utilised in the mathematical calculation of the accrual.’ (my emphasis)

[8] The adjudication of the dispute between the parties in the matter before Raikane, AJ was largely dependent on the interpretation of the judgment of Murray AJ to which no appeal lies. At the onset it is necessary to note that in terms of sections 3(1) and (2) of the Matrimonial Property Act, it is only upon the dissolution of the marriage subject to accrual that a spouse acquires a claim against the other spouse or the estate. A claim thus only arises at the dissolution of the marriage. Maintenance is usually awarded separately and it is thus difficult to see how it can form part of a claim for accrual.

[9] The accrual and maintenance are separate legal concepts and ought to be treated differently. The court in Shawn Marx v Cornelia Marx said:[1]

‘Accrual is a claim between spouses upon dissolution of the marriage, subject to the accrual system and maintenance is either a by agreement between the parties or otherwise determinable within the court’s discretion. If the maintenance payable by the plaintiff to the defendant formed a liability in the estate of the plaintiff for purposes of calculating and computing the accrual in his estate, it will lead to an unjust result. This could not have been the intention of the legislature. If the maintenance payable is an asset in the estate of the defendant, for purposes of calculating and computing any accrual in her estate, this leads to an even worse result.’

[10] In my view, critical reading of the judgment of Murray, AJ appears to lead one to infer that she was of the view that the payment of the 50% of the respondent’s pension interest to the applicant was a factor to be taken into account in calculating the maintenance payable to the applicant. The applicant initially applied for life-long maintenance in the divorce action but the court, however, awarded her maintenance as alluded to above. It appears that she did not take the said pension interest as an asset of the applicant in the calculation of the accrual. This is contrary to the finding by Raikane, AJ. For this reason, I am of the view that there are reasonable prospects that another court might come to a different conclusion in the interpretation of the judgment of Murray, AJ. In the premises I make the following order:

ORDER

1. The applicant is granted condonation to supplement her notice for application of leave to appeal;

2. The application for leave to appeal is granted to the Full Court of this Division;

3. The costs of this application shall be costs in the appeal.

P.E. MOLITSOANE, J

On behalf of the Applicant: Adv. SJ Reinders

Adv. WJ Groenewald

Instructed by: Symington and De Kok

BLOEMFONTEIN

On behalf of the Respondent: Adv. S Tsangarakis

Instructed by: Hill Mc Hardy and Herbst

[1] Case No: 83074/2014 Gauteng Division, Pretoria delivered on 18 December 2019.