G.F.P v M.P (Born S) (2033/2008) [2015] ZAECPEHC 63 (10 November 2015)

G.F.P v M.P (Born S) (2033/2008) [2015] ZAECPEHC 63 (10 November 2015)

The court found that the clause in the settlement agreement fixing the accrual determination date as 4 August 2010 was inconsistent with the Matrimonial Property Act, which stipulates that accrual entitlement arises at the dissolution of the marriage. The error in the agreement vitiated the parties' true consent, rendering the order incorporating the agreement invalid in law. The court held that it was unnecessary to rescind the entire agreement; instead, the order should be varied to substitute the correct operative date. The respondent's arguments regarding delay and acquiescence were rejected, as the applicant had not been inactive and the delay was adequately explained. The court also...

Citation
[2015] ZAECPEHC 63
Parties
Applicant: G.F.P; Respondent: M.P (Born S)
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
10 November 2015
Case Number
2033/2008
Procedural Posture
Civil Application / Application to Rescind or Vary Prior Divorce Settlement Order
Outcome
Application granted in part; order varied to substitute the correct date for accrual determination and appointment of new Receiver; costs awarded to applicant.
Judges
Mbenenge
Legal Topics
Matrimonial Property Act, Accrual System, Divorce Settlement, Rescission of Order, Variation of Court Order
Family and Children Civil Procedure Matrimonial Property Act Accrual System Divorce Settlement Rescission of Order Variation of Court Order

Case Brief

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Parties

G.F.P

Applicant

M.P (Born S)

Respondent

Procedural Posture

Civil Application / Application to Rescind or Vary Prior Divorce Settlement Order

Legal Issues

  1. 1 Whether the date for determining accrual entitlement in the divorce settlement agreement is legally valid.
  2. 2 Whether the order incorporating the agreement should be rescinded or varied due to inconsistency with the Matrimonial Property Act.
  3. 3 Whether undue delay or acquiescence bars the applicant from seeking relief.

Ratio Decidendi

The court found that the clause in the settlement agreement fixing the accrual determination date as 4 August 2010 was inconsistent with the Matrimonial Property Act, which stipulates that accrual entitlement arises at the dissolution of the marriage. The error in the agreement vitiated the parties' true consent, rendering the order incorporating the agreement invalid in law. The court held that it was unnecessary to rescind the entire agreement; instead, the order should be varied to substitute the correct operative date. The respondent's arguments regarding delay and acquiescence were rejected, as the applicant had not been inactive and the delay was adequately explained. The court also...

Court Disposition

Application granted in part; order varied to substitute the correct date for accrual determination and appointment of new Receiver; costs awarded to applicant.

Orders

  • Clause 2 of the agreement incorporated in the order of 4 August 2010 is varied: (1) 'Wessel Greeff' is substituted with 'David Honeyball' as Receiver; (2) '4 August 2010' is substituted with 'the date of dissolution of the marriage' as the date for accrual determination.
  • The respondent shall pay the costs of this application.