Badenhorst v Badenhorst (07/2005) [2005] ZASCA 116; [2006] 2 All SA 363 (SCA); 2006 (2) SA 255 (SCA) (29 November 2005)

Badenhorst v Badenhorst (07/2005) [2005] ZASCA 116; [2006] 2 All SA 363 (SCA); 2006 (2) SA 255 (SCA) (29 November 2005)

The Supreme Court of Appeal held that the assets of the Jubli Trust should have been included in the respondent's estate for the purposes of a redistribution order under section 7(3) of the Divorce Act. The respondent exercised de facto control over the trust, treating its assets as his own and using the trust as a vehicle for his business activities. The trial court's exclusion of the trust assets was a misdirection, as was its failure to consider the respondent's substantial contribution of a working farm at the inception of the marriage. The court re-evaluated the facts, taking into account the appellant's contributions, the origin and growth of the parties' estates, and the...

Citation
[2005] ZASCA 116
Parties
Appellant: L Badenhorst; Respondent: I Badenhorst
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2005
Case Number
07/2005
Procedural Posture
Civil Appeal / Appeal From Cape High Court; Judgment Delivered
Outcome
Appeal upheld; order of the trial court set aside and substituted.
Judges
MPATI, ZULMAN, NUGENT, LEWIS, COMBRINCK
Legal Topics
Redistribution Order, Divorce Act Section 7 3, Trust Assets in Divorce, Alter Ego Trust, Just and Equitable Distribution
Family and Children Civil Procedure Redistribution Order Divorce Act Section 7 3 Trust Assets in Divorce Alter Ego Trust Just and Equitable Distribution

Case Brief

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Parties

L Badenhorst

Appellant

I Badenhorst

Respondent

Procedural Posture

Civil Appeal / Appeal From Cape High Court; Judgment Delivered

Legal Issues

  1. 1 Whether assets of an inter vivos discretionary trust created during marriage must be taken into account for a redistribution order under section 7(3) of the Divorce Act.
  2. 2 Whether the respondent controlled the trust such that its assets should be considered part of his estate for redistribution.
  3. 3 What constitutes a just and equitable redistribution in light of the parties' respective contributions and assets.

Ratio Decidendi

The Supreme Court of Appeal held that the assets of the Jubli Trust should have been included in the respondent's estate for the purposes of a redistribution order under section 7(3) of the Divorce Act. The respondent exercised de facto control over the trust, treating its assets as his own and using the trust as a vehicle for his business activities. The trial court's exclusion of the trust assets was a misdirection, as was its failure to consider the respondent's substantial contribution of a working farm at the inception of the marriage. The court re-evaluated the facts, taking into account the appellant's contributions, the origin and growth of the parties' estates, and the...

Court Disposition

Appeal upheld; order of the trial court set aside and substituted.

Orders

  • The appeal succeeds with costs.
  • Paragraph 7 of the order of the court a quo is set aside and substituted: The plaintiff is ordered to pay an amount of R1,250,000 (one million two hundred and fifty thousand rand) to the defendant within six months of the grant of this order.