P v P (2033/2008) [2016] ZAECPEHC 1 (2 February 2016)

P v P (2033/2008) [2016] ZAECPEHC 1 (2 February 2016)

Both the application for leave to appeal and the application for leave to cross appeal are granted because there is a reasonable prospect that another court may reach a different conclusion regarding the variation and/or rescission of the agreement incorporated in the divorce order. The existence of conflicting judgments on the timing of accrual calculation under the Matrimonial Property Act further supports the appropriateness of referral to the Supreme Court of Appeal.

Citation
[2016] ZAECPEHC 1
Parties
Applicant: G. F. P.; Respondent: M. P. (born S.)
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
2 February 2016
Case Number
2033/2008
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Cross Appeal Following Variation of Order in Divorce Proceedings
Outcome
Leave to appeal and leave to cross appeal granted to the Supreme Court of Appeal.
Judges
S M Mbenenge
Legal Topics
Matrimonial Property Act, Accrual System, Variation of Order, Leave to Appeal
Family and Children Civil Procedure Matrimonial Property Act Accrual System Variation of Order Leave to Appeal

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Parties

G. F. P.

Applicant

M. P. (born S.)

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Cross Appeal Following Variation of Order in Divorce Proceedings

Legal Issues

  1. 1 Whether leave to appeal should be granted regarding the variation of the agreement incorporated in the divorce order.
  2. 2 Whether leave to cross appeal should be granted concerning the refusal to rescind the agreement in its entirety.
  3. 3 At what operative moment should accrual entitlement be calculated under the Matrimonial Property Act 88 of 1984.

Ratio Decidendi

Both the application for leave to appeal and the application for leave to cross appeal are granted because there is a reasonable prospect that another court may reach a different conclusion regarding the variation and/or rescission of the agreement incorporated in the divorce order. The existence of conflicting judgments on the timing of accrual calculation under the Matrimonial Property Act further supports the appropriateness of referral to the Supreme Court of Appeal.

Court Disposition

Leave to appeal and leave to cross appeal granted to the Supreme Court of Appeal.

Orders

  • The respondent is granted leave to appeal to the Supreme Court of Appeal against the part of the order and judgment varying the agreement incorporated in the divorce order and substituting the date for accrual entitlement determination.
  • The applicant is granted leave to cross appeal to the Supreme Court of Appeal against the order declining to rescind and/or set aside the agreement and varying the order.