Gibson v Gibson and Another (1293/2012) [2013] ZAWCHC 170 (8 November 2013)

Gibson v Gibson and Another (1293/2012) [2013] ZAWCHC 170 (8 November 2013)

The court found that the consent paper provisions regarding the first respondent's pension interest in the Sanlam Preservation Pension Fund were drafted under a mistaken assumption that section 7(8) of the Divorce Act applied to such funds at the time of divorce. The definition of 'pension interest' in the Divorce Act did not cover pension preservation funds where the member's entitlement did not arise from resignation from office. Neither party's proposed solution—payment of a capital sum or a share of annuity payments—was supported by the wording of the consent paper or the applicable law. The court held that the consent paper could not sensibly be applied to the facts as they existed,...

Citation
[2013] ZAWCHC 170
Parties
Applicant: Sanette Gibson; Respondent: Rory Gibson; Respondent: Glacier Financial Solutions (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
8 November 2013
Case Number
1293/2012
Procedural Posture
Civil Application / Application for Enforcement of Consent Paper Provisions Post Divorce
Outcome
Application dismissed with no order as to costs, except that the applicant must pay the first respondent's wasted costs from the postponement of 7 June 2012. Applicant granted leave to re-apply on supplemented papers for enforcement or variation of the consent paper.
Judges
Rogers
Legal Topics
Divorce Settlement, Pension Interest, Consent Paper Enforcement, Variation of Order, Common Mistake, Rule 42 Application
Family and Children Civil Procedure Divorce Settlement Pension Interest Consent Paper Enforcement Variation of Order Common Mistake Rule 42 Application

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Parties

Sanette Gibson

Applicant

Rory Gibson

Respondent

Glacier Financial Solutions (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Application for Enforcement of Consent Paper Provisions Post Divorce

Legal Issues

  1. 1 Whether the applicant is entitled to enforce the consent paper provisions regarding the first respondent's pension interest in the Sanlam Preservation Pension Fund.
  2. 2 Whether the first respondent's interest in the pension preservation fund constituted a 'pension interest' as defined in section 1(1) of the Divorce Act at the time of divorce.
  3. 3 Whether the consent paper imposed a personal obligation on the first respondent to pay the applicant a capital sum or a share of annuity payments.

Ratio Decidendi

The court found that the consent paper provisions regarding the first respondent's pension interest in the Sanlam Preservation Pension Fund were drafted under a mistaken assumption that section 7(8) of the Divorce Act applied to such funds at the time of divorce. The definition of 'pension interest' in the Divorce Act did not cover pension preservation funds where the member's entitlement did not arise from resignation from office. Neither party's proposed solution—payment of a capital sum or a share of annuity payments—was supported by the wording of the consent paper or the applicable law. The court held that the consent paper could not sensibly be applied to the facts as they existed,...

Court Disposition

Application dismissed with no order as to costs, except that the applicant must pay the first respondent's wasted costs from the postponement of 7 June 2012. Applicant granted leave to re-apply on supplemented papers for enforcement or variation of the consent paper.

Orders

  • The application is dismissed with no order as to costs, save that the applicant shall pay the first respondent's wasted costs arising from the postponement of 7 June 2012.
  • The applicant is granted leave to re-apply on the same papers, supplemented as needs be, for the enforcement or variation of the consent paper incorporated into the decree of divorce granted on 27 May 2003.