P v P (A163/2015) [2016] ZAFSHC 13 (28 January 2016)

P v P (A163/2015) [2016] ZAFSHC 13 (28 January 2016)

The court held that the magistrate erred in requiring proof that the parties had made meaningful attempts to reach agreement before appointing a receiver. The relevant legal principle is that, in the absence of agreement, the court may appoint a receiver to divide the joint estate, regardless of the reasons for the lack of agreement. The parties had failed to reach agreement for nearly three years after the divorce, and neither made serious efforts to expedite the process. The continued delay justified judicial intervention. The costs of the application in the magistrate’s court should be paid out of the joint estate, as both parties contributed to the impasse. The appeal was upheld, the...

Citation
[2016] ZAFSHC 13
Parties
Appellant: M. H. P.; Respondent: N. W. P.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 January 2016
Case Number
A163/2015
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Decision on Application for Appointment of Receiver and Costs Order
Outcome
Appeal upheld; magistrate’s orders set aside; receiver appointed; costs order varied.
Judges
Ploos van Amstel, Hinxa
Legal Topics
Division of Joint Estate, Appointment of Receiver, Costs Order, Divorce Proceedings
Family and Children Civil Procedure Division of Joint Estate Appointment of Receiver Costs Order Divorce Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

M. H. P.

Appellant

N. W. P.

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Decision on Application for Appointment of Receiver and Costs Order

Legal Issues

  1. 1 Whether the magistrate erred in dismissing the application for appointment of a receiver to divide the joint estate.
  2. 2 Whether the magistrate was correct in ordering the appellant’s attorney to pay costs de bonis propriis.
  3. 3 Whether a receiver may be appointed in the absence of meaningful attempts by the parties to reach agreement on division of the joint estate.

Ratio Decidendi

The court held that the magistrate erred in requiring proof that the parties had made meaningful attempts to reach agreement before appointing a receiver. The relevant legal principle is that, in the absence of agreement, the court may appoint a receiver to divide the joint estate, regardless of the reasons for the lack of agreement. The parties had failed to reach agreement for nearly three years after the divorce, and neither made serious efforts to expedite the process. The continued delay justified judicial intervention. The costs of the application in the magistrate’s court should be paid out of the joint estate, as both parties contributed to the impasse. The appeal was upheld, the...

Court Disposition

Appeal upheld; magistrate’s orders set aside; receiver appointed; costs order varied.

Orders

  • The appeal succeeds.
  • The magistrate’s order dismissing the application and the costs order are set aside.