KM v SM (357/2018) [2019] ZAFSHC 124 (22 July 2019)

KM v SM (357/2018) [2019] ZAFSHC 124 (22 July 2019)

The court found that the agreement of 9 February 1999 did not create a new cause of action but merely regulated the division of the joint estate as ordered in the divorce judgment. The plaintiff's claim for 50% of the defendant's pension interest is therefore based on the judgment, not the agreement. In terms of section 11(a) of the Prescription Act, a judgment debt prescribes after thirty years. As less than thirty years had elapsed since the divorce order, the plaintiff's claim had not prescribed. The special plea of prescription was accordingly dismissed.

Citation
[2019] ZAFSHC 124
Parties
Plaintiff: K M; Defendant: S M
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
22 July 2019
Case Number
357/2018
Procedural Posture
Civil Trial / Special Plea of Prescription Separated From Merits Under Rule 33(4); Adjudication on Special Plea Only
Outcome
Special plea of prescription dismissed; each party to pay his or her own costs.
Judges
P.E. Molitsoane
Legal Topics
Prescription Act, Judgment Debt, Division of Joint Estate, Pension Interest, Divorce Order
Civil Procedure Family and Children Prescription Act Judgment Debt Division of Joint Estate Pension Interest Divorce Order

Case Brief

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Parties

K M

Plaintiff

S M

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Separated From Merits Under Rule 33(4); Adjudication on Special Plea Only

Legal Issues

  1. 1 Whether the plaintiff's claim for 50% of the defendant's pension interest has prescribed.
  2. 2 Whether the claim is based on the written agreement or the divorce judgment.
  3. 3 What prescription period applies to the plaintiff's claim.

Ratio Decidendi

The court found that the agreement of 9 February 1999 did not create a new cause of action but merely regulated the division of the joint estate as ordered in the divorce judgment. The plaintiff's claim for 50% of the defendant's pension interest is therefore based on the judgment, not the agreement. In terms of section 11(a) of the Prescription Act, a judgment debt prescribes after thirty years. As less than thirty years had elapsed since the divorce order, the plaintiff's claim had not prescribed. The special plea of prescription was accordingly dismissed.

Court Disposition

Special plea of prescription dismissed; each party to pay his or her own costs.

Orders

  • The special plea is dismissed.
  • Each party to pay his or her costs.