E.M v W.S.M (51743/16) [2018] ZAGPPHC 313 (25 January 2018)

E.M v W.S.M (51743/16) [2018] ZAGPPHC 313 (25 January 2018)

The court found that the settlement agreement, incorporated into the divorce order, provided a detailed mechanism for dividing the joint estate, including the immovable property. However, the respondent unilaterally varied the agreement by offering a cash sum for the applicant's share of the property, which was not in accordance with the non-variation clause requiring written and signed amendments. The payment of R1,350,000 did not comply with the agreed procedure for valuation and sale of the property. The applicant's claim was not prescribed, as the settlement agreement constitutes a judgment debt with a 30-year prescription period. Given the parties' failure to comply with the...

Citation
[2018] ZAGPPHC 313
Parties
Applicant: E.M; Respondent: W.S.M
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 January 2018
Case Number
51743/16
Procedural Posture
Urgent Application / Application for Appointment of Receiver/liquidator Post Divorce
Outcome
Application granted; counterclaim dismissed. Receiver and liquidator appointed to divide the joint estate.
Judges
Nair
Legal Topics
Division of Joint Estate, Settlement Agreement Enforcement, Appointment of Receiver, Prescription of Judgment Debt, Variation of Court Order
Family and Children Civil Procedure Division of Joint Estate Settlement Agreement Enforcement Appointment of Receiver Prescription of Judgment Debt Variation of Court Order

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Parties

E.M

Applicant

W.S.M

Respondent

Procedural Posture

Urgent Application / Application for Appointment of Receiver/liquidator Post Divorce

Legal Issues

  1. 1 Has the joint estate of the parties been divided in accordance with the settlement agreement incorporated into the divorce order?
  2. 2 Is the applicant's claim for division of the joint estate prescribed?
  3. 3 Is the appointment of a receiver/liquidator appropriate given the terms of the settlement agreement and the conduct of the parties?

Ratio Decidendi

The court found that the settlement agreement, incorporated into the divorce order, provided a detailed mechanism for dividing the joint estate, including the immovable property. However, the respondent unilaterally varied the agreement by offering a cash sum for the applicant's share of the property, which was not in accordance with the non-variation clause requiring written and signed amendments. The payment of R1,350,000 did not comply with the agreed procedure for valuation and sale of the property. The applicant's claim was not prescribed, as the settlement agreement constitutes a judgment debt with a 30-year prescription period. Given the parties' failure to comply with the...

Court Disposition

Application granted; counterclaim dismissed. Receiver and liquidator appointed to divide the joint estate.

Orders

  • The counterclaim is dismissed with costs.
  • Adv Vernon Strauss is appointed as receiver and liquidator in the erstwhile common estate of the applicant and respondent, with powers as set out in Annexure XYZ01 to the Notice of Motion.