M.C.M and Others v J.C.M (9758/2011) [2014] ZAKZPHC 15; 2014 (4) SA 384 (KZP) (13 February 2014)

M.C.M and Others v J.C.M (9758/2011) [2014] ZAKZPHC 15; 2014 (4) SA 384 (KZP) (13 February 2014)

The court held that assets held in a family trust cannot be included in the accrual calculation of a spouse's estate under the Matrimonial Property Act unless it is specifically pleaded and proved that such assets are in truth the property of the spouse and not the trust. The defendant did not allege that the trust assets were her husband's property or that the trust was a sham, but merely that the trust was his alter ego and he exercised exclusive control. The court found this insufficient to sustain a cause of action for accrual purposes. The court distinguished between the discretionary nature of redistribution orders under the Divorce Act and the factual enquiry required for accrual...

Citation
[2014] ZAKZPHC 15
Parties
Plaintiff: M C M[...]; Defendant: J C M[...]; Respondent: J C M[...] N.O.; Respondent: M C M[...] N.O.; Respondent: D A Turner N.O.; Respondent: H R Blake; Respondent: JDG Trading (Pty) Ltd; Respondent: Blake & Associates Holdings (Pty) Ltd
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
13 February 2014
Case Number
9758/2011
Procedural Posture
Civil Procedure / Exception to Claim in Reconvention
Outcome
Exception to claim in reconvention upheld in relation to claim F; defendant granted leave to amend; all other exceptions dismissed; costs awarded to defendant except for hearing on 2 December 2013.
Judges
Ploos van Amstel
Legal Topics
Matrimonial Property Act, Accrual System, Trust Assets in Divorce, Exceptions to Pleadings, Fiduciary Duties
Family and Children Civil Procedure Matrimonial Property Act Accrual System Trust Assets in Divorce Exceptions to Pleadings Fiduciary Duties

Case Brief

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Parties

M C M[...]

Plaintiff

J C M[...]

Defendant

J C M[...] N.O.

Respondent

M C M[...] N.O.

Respondent

D A Turner N.O.

Respondent

H R Blake

Respondent

JDG Trading (Pty) Ltd

Respondent

Blake & Associates Holdings (Pty) Ltd

Respondent

Procedural Posture

Civil Procedure / Exception to Claim in Reconvention

Legal Issues

  1. 1 Whether assets held in a family trust can be included in the accrual calculation of a spouse's estate under the Matrimonial Property Act.
  2. 2 Whether the defendant's pleadings sustain a cause of action for including trust assets in the accrual calculation.
  3. 3 Whether the defendant, as trustee and beneficiary, can simultaneously allege the trust is her husband's alter ego.

Ratio Decidendi

The court held that assets held in a family trust cannot be included in the accrual calculation of a spouse's estate under the Matrimonial Property Act unless it is specifically pleaded and proved that such assets are in truth the property of the spouse and not the trust. The defendant did not allege that the trust assets were her husband's property or that the trust was a sham, but merely that the trust was his alter ego and he exercised exclusive control. The court found this insufficient to sustain a cause of action for accrual purposes. The court distinguished between the discretionary nature of redistribution orders under the Divorce Act and the factual enquiry required for accrual...

Court Disposition

Exception to claim in reconvention upheld in relation to claim F; defendant granted leave to amend; all other exceptions dismissed; costs awarded to defendant except for hearing on 2 December 2013.

Orders

  • The exception against the defendant’s claim in reconvention is upheld in relation to claim F; paragraph 25 of the claim and prayer F are struck out.
  • The defendant is granted leave to amend her claim in reconvention within twenty days from the date of judgment.