Masondo v Masondo and Others (AR385/16) [2016] ZAKZPHC 117 (21 June 2016)

Masondo v Masondo and Others (AR385/16) [2016] ZAKZPHC 117 (21 June 2016)

The court found that the parties had agreed prior to divorce that their marriage was in community of property, as evidenced by the marriage certificate, register, and their conduct throughout the marriage. The amendment to the particulars of claim was supported by documentary evidence and did not constitute a change of matrimonial regime under the Matrimonial Property Act. The appellant's challenge was not justiciable on appeal as the issue was not canvassed at trial. The magistrate was correct in refusing to vary the order, as none of the circumstances under section 36(1) of the Magistrates Court Act applied. The appeal was dismissed with costs.

Citation
[2016] ZAKZPHC 117
Parties
Appellant: Zanyana Monica Masondo; Respondent: Msizi Joel Masondo; Respondent: Government Employees Pension Fund; Respondent: Themba Archibald Ngxingweni
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
21 June 2016
Case Number
AR385/16
Procedural Posture
Civil Appeal / Appeal From Durban Regional Magistrates' Court
Outcome
Appeal dismissed with costs.
Judges
Vahed, Poyo Dlwati
Legal Topics
Matrimonial Regime, Variation of Court Order, Division of Joint Estate, Pension Interest, Condonation for Late Filing
Family and Children Civil Procedure Matrimonial Regime Variation of Court Order Division of Joint Estate Pension Interest Condonation for Late Filing

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Zanyana Monica Masondo

Appellant

Msizi Joel Masondo

Respondent

Government Employees Pension Fund

Respondent

Themba Archibald Ngxingweni

Respondent

Procedural Posture

Civil Appeal / Appeal From Durban Regional Magistrates' Court

Legal Issues

  1. 1 Whether the marriage between the appellant and first respondent was in community of property or out of community of property.
  2. 2 Whether the magistrate erred in accepting the marriage as in community of property.
  3. 3 Whether the order of 30 October 2013 could be varied to reflect a marriage out of community of property.

Ratio Decidendi

The court found that the parties had agreed prior to divorce that their marriage was in community of property, as evidenced by the marriage certificate, register, and their conduct throughout the marriage. The amendment to the particulars of claim was supported by documentary evidence and did not constitute a change of matrimonial regime under the Matrimonial Property Act. The appellant's challenge was not justiciable on appeal as the issue was not canvassed at trial. The magistrate was correct in refusing to vary the order, as none of the circumstances under section 36(1) of the Magistrates Court Act applied. The appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.