CM v PM (22725/2008) [2012] ZAGPJHC 269 (15 November 2012)

CM v PM (22725/2008) [2012] ZAGPJHC 269 (15 November 2012)

The court found that it is not generally open to vary orders made by other judges in the division except in cases of patent error. In this matter, it was common cause that the plaintiff did not own shares in Behati Solutions (Pty) Limited, and their inclusion in the accrual was a patent error. The court therefore varied paragraph 3 of the previous order to delete the reference to these shares and replace it with the word 'is', clarifying that only the fixed property at 1406 Deneysville forms part of the accrual as specified. The court further clarified that other assets may still form part of the accrual if not specifically excluded. No order was made regarding the remaining relief...

Citation
[2012] ZAGPJHC 269
Parties
Applicant: C M; Respondent: P M (nee G)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 November 2012
Case Number
22725/2008
Procedural Posture
Variation Application / Application for Variation of Previous Divorce Order
Outcome
Application partially granted: the previous order is varied to correct a patent error; no order on remaining relief; costs to be included in the accrual.
Judges
Willis
Legal Topics
Divorce Order Variation, Accrual System, Receiver and Liquidator, Pension Interest, Costs in Divorce
Family and Children Civil Procedure Divorce Order Variation Accrual System Receiver and Liquidator Pension Interest Costs in Divorce

Case Brief

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Parties

C M

Applicant

P M (nee G)

Respondent

Procedural Posture

Variation Application / Application for Variation of Previous Divorce Order

Legal Issues

  1. 1 Whether the court may vary a previous divorce order made by another judge in the same division.
  2. 2 Whether the inclusion of the plaintiff's shares in Behati Solutions (Pty) Limited in the accrual was a patent error.
  3. 3 Clarification of which assets form part of the accrual between the parties.

Ratio Decidendi

The court found that it is not generally open to vary orders made by other judges in the division except in cases of patent error. In this matter, it was common cause that the plaintiff did not own shares in Behati Solutions (Pty) Limited, and their inclusion in the accrual was a patent error. The court therefore varied paragraph 3 of the previous order to delete the reference to these shares and replace it with the word 'is', clarifying that only the fixed property at 1406 Deneysville forms part of the accrual as specified. The court further clarified that other assets may still form part of the accrual if not specifically excluded. No order was made regarding the remaining relief...

Court Disposition

Application partially granted: the previous order is varied to correct a patent error; no order on remaining relief; costs to be included in the accrual.

Orders

  • Paragraph 3 of the order of Tshabalala AJ on 31 August 2010 is varied to delete the words 'and the plaintiff’s shares in Behati Solutions (Pty) Limited are' after '1406 Deneysville' and replace with 'is'.
  • No order is made in respect of the remaining relief sought by the applicant in the notice of motion dated 28 February 2012.