B v B (18251/2015) [2016] ZAGPJHC 49 (4 March 2016)

B v B (18251/2015) [2016] ZAGPJHC 49 (4 March 2016)

The applicant is entitled to the return of the movable property listed in annexure A, except for the coffee machine, LG microwave, ice machine, and coffee table under the chandelier, which are subject to genuine disputes of fact and must be determined in the divorce action. The respondent's defence based on an alleged agreement to retain the goods until sale of the matrimonial home is rejected, as no binding agreement was established, and any such arrangement was cancelled by written notice or by service of this application. The argument that removal of the goods would nullify the respondent's right to occupation is unsupported by the facts, as sufficient furniture and household effects...

Citation
[2016] ZAGPJHC 49
Parties
Applicant: B, G; Respondent: B, J (formerly M)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 March 2016
Case Number
18251/2015
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application granted in part; applicant authorised to collect specified movable property, with disputed items excluded and costs awarded against respondent.
Judges
Opperman
Legal Topics
Rei Vindicatio, Division of Movable Property, Matrimonial Home Occupation, Antenuptial Contract Rectification, Maintenance Claim, Motion Proceedings Disputes
Family and Children Civil Procedure Rei Vindicatio Division of Movable Property Matrimonial Home Occupation Antenuptial Contract Rectification Maintenance Claim Motion Proceedings Disputes

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Parties

B, G

Applicant

B, J (formerly M)

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to immediate possession of movable property listed in annexure A.
  2. 2 Whether any agreement exists preventing removal of the goods until sale of the matrimonial home.
  3. 3 Whether disputed items (coffee machine, LG microwave, ice machine, coffee table) should be determined in divorce proceedings.

Ratio Decidendi

The applicant is entitled to the return of the movable property listed in annexure A, except for the coffee machine, LG microwave, ice machine, and coffee table under the chandelier, which are subject to genuine disputes of fact and must be determined in the divorce action. The respondent's defence based on an alleged agreement to retain the goods until sale of the matrimonial home is rejected, as no binding agreement was established, and any such arrangement was cancelled by written notice or by service of this application. The argument that removal of the goods would nullify the respondent's right to occupation is unsupported by the facts, as sufficient furniture and household effects...

Court Disposition

Application granted in part; applicant authorised to collect specified movable property, with disputed items excluded and costs awarded against respondent.

Orders

  • Save for the coffee machine, ice machine, LG microwave and coffee table under the chandelier, the applicant is authorised to collect the movable property itemised in annexure 'GB17 – A' from the property at 63A Fifth Street, Houghton Estate, Gauteng, at a time and date to be agreed upon between the parties but no...
  • The applicant will be responsible for the reasonable cost of repair to any walls requiring repair as a consequence of paintings being removed.