Pelser N.O. and Another v Lessing N.O. and Others (5034/2013) [2014] ZAGPPHC 521 (25 July 2014)

Pelser N.O. and Another v Lessing N.O. and Others (5034/2013) [2014] ZAGPPHC 521 (25 July 2014)

The court held that where delictual liability was incurred by one spouse during the marriage in community of property, and not paid during the marriage, such liability must be borne after dissolution by the guilty spouse alone. Section 19 of the Matrimonial Property Act does not provide for recovery from the joint estate after divorce. The division of the joint estate was finalised by agreement between the parties, and the second respondent is entitled to her half-share of the proceeds of the Valhalla property. The applicants' claims for the lost investment and misappropriated executor's fees are enforceable only against Loubser's half-share, now administered by the trustees of his...

Citation
[2014] ZAGPPHC 521
Parties
Applicant: Christo Johan Pelser N.O.; Applicant: Annemarie Bashir N.O.; Respondent: Philippus Christoffel Lessing N.O.; Respondent: Soria Marais N.O.; Respondent: Sandra Elizabeth Loubser; Respondent: The Master of the High Court, Pretoria; Respondent: MC van den Berg Attorneys; Appellant: Violet May Visagie
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 July 2014
Case Number
5034/2013
Procedural Posture
Civil Application / Final Judgment After Opposed Application
Outcome
Application dismissed against the second respondent; declaratory and distribution orders granted regarding the proceeds of the Valhalla property; costs awarded against the applicants.
Judges
Prinsloo
Legal Topics
Matrimonial Property Act, Division of Joint Estate, Delictual Liability, Executor Misconduct, Insolvent Estate Distribution
Family and Children Civil Procedure Delict Matrimonial Property Act Division of Joint Estate Delictual Liability Executor Misconduct Insolvent Estate Distribution

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Parties

Christo Johan Pelser N.O.

Applicant

Annemarie Bashir N.O.

Applicant

Philippus Christoffel Lessing N.O.

Respondent

Soria Marais N.O.

Respondent

Sandra Elizabeth Loubser

Respondent

The Master of the High Court, Pretoria

Respondent

MC van den Berg Attorneys

Respondent

Violet May Visagie

Appellant

Procedural Posture

Civil Application / Final Judgment After Opposed Application

Legal Issues

  1. 1 Whether delictual damages incurred by a spouse during marriage in community of property can be recovered from the joint estate after divorce.
  2. 2 Whether the second respondent is liable for the delictual debt incurred by her former spouse prior to the dissolution of the marriage.
  3. 3 Whether the division of the joint estate has been finalised and how proceeds of the sale of the Valhalla property should be distributed.

Ratio Decidendi

The court held that where delictual liability was incurred by one spouse during the marriage in community of property, and not paid during the marriage, such liability must be borne after dissolution by the guilty spouse alone. Section 19 of the Matrimonial Property Act does not provide for recovery from the joint estate after divorce. The division of the joint estate was finalised by agreement between the parties, and the second respondent is entitled to her half-share of the proceeds of the Valhalla property. The applicants' claims for the lost investment and misappropriated executor's fees are enforceable only against Loubser's half-share, now administered by the trustees of his...

Court Disposition

Application dismissed against the second respondent; declaratory and distribution orders granted regarding the proceeds of the Valhalla property; costs awarded against the applicants.

Orders

  • It is declared that the division of the joint estate has been finalised.
  • It is declared that the second respondent is entitled to payment of her half share of the proceeds of the sale of Erf 1272 Valhalla.