L.D.M v D.P.M (AR 314/11) [2012] ZAKZDHC 17 (1 January 2012)

L.D.M v D.P.M (AR 314/11) [2012] ZAKZDHC 17 (1 January 2012)

Clause 4.5 of the settlement agreement created an obligation on the respondent to pay or cause to be paid to the appellant 50% of his pension interest as at the date of divorce when the benefit accrued. The respondent failed to discharge this obligation. The appellant's failure to have the pension fund note her entitlement did not extinguish her right. The respondent did not establish that the claim had prescribed, as he failed to prove when the appellant acquired knowledge of the payout or when prescription began to run. The court a quo erred in granting absolution from the instance, and the matter must proceed to completion.

Citation
[2012] ZAKZDHC 17
Parties
Appellant: L D M; Respondent: D P M
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
1 January 2012
Case Number
AR 314/11
Procedural Posture
Civil Appeal / Appeal Against Absolution From the Instance at Close of Plaintiff's Case
Outcome
Appeal upheld with costs. The decision of the court a quo is substituted: application for absolution from the instance is refused; matter referred back for proceedings to continue to completion.
Judges
K Pillay, Sishi
Legal Topics
Divorce Settlement, Pension Interest, Absolution From Instance, Prescription of Debt
Family and Children Civil Procedure Divorce Settlement Pension Interest Absolution From Instance Prescription of Debt

Case Brief

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Parties

L D M

Appellant

D P M

Respondent

Procedural Posture

Civil Appeal / Appeal Against Absolution From the Instance at Close of Plaintiff's Case

Legal Issues

  1. 1 Whether clause 4.5 of the divorce settlement agreement created an obligation on the respondent to pay 50% of his pension interest to the appellant.
  2. 2 Whether the appellant's claim had prescribed under the Prescription Act.

Ratio Decidendi

Clause 4.5 of the settlement agreement created an obligation on the respondent to pay or cause to be paid to the appellant 50% of his pension interest as at the date of divorce when the benefit accrued. The respondent failed to discharge this obligation. The appellant's failure to have the pension fund note her entitlement did not extinguish her right. The respondent did not establish that the claim had prescribed, as he failed to prove when the appellant acquired knowledge of the payout or when prescription began to run. The court a quo erred in granting absolution from the instance, and the matter must proceed to completion.

Court Disposition

Appeal upheld with costs. The decision of the court a quo is substituted: application for absolution from the instance is refused; matter referred back for proceedings to continue to completion.

Orders

  • The appeal is upheld with costs.
  • The application for absolution from the instance is refused.