Brookstein v Brookstein (20808/2014) [2016] ZASCA 40; 2016 (5) SA 210 (SCA) (24 March 2016)

Brookstein v Brookstein (20808/2014) [2016] ZASCA 40; 2016 (5) SA 210 (SCA) (24 March 2016)

The Supreme Court of Appeal held that the respondent’s delictual claim for damages, based on fraudulent or negligent misrepresentation and non-disclosure of the true value of the accrual, was not a matrimonial cause or a matter incidental to such cause as contemplated in s 2 of the Arbitration Act. The marriage and all proprietary consequences had been disposed of by the court order incorporating the settlement agreement, rendering the matrimonial cause res judicata. The delictual claim arose independently and was susceptible to arbitration. Regarding the date for determining the value of accrual, the court found that the correct date under the Matrimonial Property Act is the date of...

Citation
[2016] ZASCA 40
Parties
Appellant: Andrew Charles Brookstein; Respondent: Jeanette Brookstein
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 March 2016
Case Number
20808/2014
Procedural Posture
Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Maya, Swain, Tsoka, Baartman, Kathree-Setiloane
Legal Topics
Matrimonial Property Act, Accrual System, Delictual Claim, Arbitration Act, Non Disclosure, Misrepresentation
Family and Children Civil Procedure Delict Matrimonial Property Act Accrual System Delictual Claim Arbitration Act Non Disclosure +1 more

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Parties

Andrew Charles Brookstein

Appellant

Jeanette Brookstein

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether the respondent’s delictual claim for damages is a 'matrimonial cause or matter incidental to such cause' under s 2 of the Arbitration Act and thus incapable of referral to arbitration.
  2. 2 Whether the arbitrators erred in assessing the extent of accrual at the date of dissolution of the marriage rather than at litis contestatio, and if so, whether this constituted an error of law resulting in the award being set aside under s 33(1) of the Arbitration Act.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent’s delictual claim for damages, based on fraudulent or negligent misrepresentation and non-disclosure of the true value of the accrual, was not a matrimonial cause or a matter incidental to such cause as contemplated in s 2 of the Arbitration Act. The marriage and all proprietary consequences had been disposed of by the court order incorporating the settlement agreement, rendering the matrimonial cause res judicata. The delictual claim arose independently and was susceptible to arbitration. Regarding the date for determining the value of accrual, the court found that the correct date under the Matrimonial Property Act is the date of...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs consequent upon the employment of two counsel.
  • Paragraph 87 of the appeal tribunal award is to be referred back to the tribunal for correction as ordered by the court a quo.