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

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

The court found that the interpretation of the divorce judgment by Murray, AJ suggested that the payment of 50% of the respondent's pension interest to the applicant was considered in calculating maintenance, not as an asset for accrual. Raikane, AJ's contrary finding was questioned, and the court held that there are reasonable prospects that another court may interpret the judgment differently. Therefore, leave to appeal was granted to allow the Full Court to reconsider whether the pension interest should be treated as an asset in the accrual calculation or as maintenance.

Citation
[2021] ZAFSHC 299
Parties
Applicant: A.C.K; Respondent: F.K
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 November 2021
Case Number
768/2018
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Full Court Following a Judgment Ordering Payment of Accrual.
Outcome
Leave to appeal granted to the Full Court of the Free State Division; costs to be costs in the appeal.
Judges
MOLITSOANE
Legal Topics
Matrimonial Property Act, Accrual System, Maintenance Award, Pension Interest, Divorce Order Interpretation
Family and Children Matrimonial Property Act Accrual System Maintenance Award Pension Interest Divorce Order Interpretation

Case Brief

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Parties

A.C.K

Applicant

F.K

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Full Court Following a Judgment Ordering Payment of Accrual.

Legal Issues

  1. 1 Whether 50% of the Eskom Pension Fund paid to the applicant should be considered an asset in the computation of the parties' estates for accrual purposes.
  2. 2 Whether the pension interest paid to the applicant forms part of maintenance or accrual.
  3. 3 Whether there are reasonable prospects that another court may reach a different conclusion regarding the interpretation of the divorce judgment.

Ratio Decidendi

The court found that the interpretation of the divorce judgment by Murray, AJ suggested that the payment of 50% of the respondent's pension interest to the applicant was considered in calculating maintenance, not as an asset for accrual. Raikane, AJ's contrary finding was questioned, and the court held that there are reasonable prospects that another court may interpret the judgment differently. Therefore, leave to appeal was granted to allow the Full Court to reconsider whether the pension interest should be treated as an asset in the accrual calculation or as maintenance.

Court Disposition

Leave to appeal granted to the Full Court of the Free State Division; costs to be costs in the appeal.

Orders

  • The applicant is granted condonation to supplement her notice for application of leave to appeal.
  • The application for leave to appeal is granted to the Full Court of this Division.