Roelofse N.O. v L and Another (2016/13170) [2021] ZAGPJHC 740 (26 November 2021)

Roelofse N.O. v L and Another (2016/13170) [2021] ZAGPJHC 740 (26 November 2021)

The court found that no valid compromise had been reached regarding Mrs L[....]'s share in the first respondent's pension, as the applicant and Mrs L[....] were misled about the true nature of the pension interest. The pension interest was not a living annuity and thus formed part of the joint estate at the date of divorce. The applicant was not functus officio, as no final division order had been issued or published, and his mandate continued. The applicant was entitled to demand payment of Mrs L[....]'s half share of the pension. The court held that, although the applicant did not disclose every step taken since his appointment, the material facts relevant to the relief sought were...

Citation
[2021] ZAGPJHC 740
Parties
Applicant: Hendrik Jacobus Roelofse N.O.; Respondent: M[....] W[....] L[....]; Respondent: First National Bank
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 November 2021
Case Number
2016/13170
Procedural Posture
Urgent Application / Return Date of Rule Nisi; Confirmation and Discharge of Interim Orders
Outcome
Paragraph 2.1 of the rule nisi is confirmed; paragraphs 2.2 and 2.3 are discharged; the first respondent is ordered to pay the applicant's costs on an attorney client scale.
Judges
F Karachi
Legal Topics
Division of Joint Estate, Pension Interest on Divorce, Ex Parte Interdict, Functus Officio, Costs Punitive Scale
Family and Children Civil Procedure Division of Joint Estate Pension Interest on Divorce Ex Parte Interdict Functus Officio Costs Punitive Scale

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 3 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Hendrik Jacobus Roelofse N.O.

Applicant

M[....] W[....] L[....]

Respondent

First National Bank

Respondent

Procedural Posture

Urgent Application / Return Date of Rule Nisi; Confirmation and Discharge of Interim Orders

Legal Issues

  1. 1 Whether the applicant is functus officio and precluded from claiming the first respondent's pension interest for the joint estate.
  2. 2 Whether a compromise was reached regarding Mrs L[....]'s share in the first respondent's pension.
  3. 3 Whether the applicant failed to disclose material facts in the ex parte application warranting rescission or adverse costs.

Ratio Decidendi

The court found that no valid compromise had been reached regarding Mrs L[....]'s share in the first respondent's pension, as the applicant and Mrs L[....] were misled about the true nature of the pension interest. The pension interest was not a living annuity and thus formed part of the joint estate at the date of divorce. The applicant was not functus officio, as no final division order had been issued or published, and his mandate continued. The applicant was entitled to demand payment of Mrs L[....]'s half share of the pension. The court held that, although the applicant did not disclose every step taken since his appointment, the material facts relevant to the relief sought were...

Court Disposition

Paragraph 2.1 of the rule nisi is confirmed; paragraphs 2.2 and 2.3 are discharged; the first respondent is ordered to pay the applicant's costs on an attorney client scale.

Orders

  • Paragraph 2.1 of the rule nisi is confirmed.
  • Paragraphs 2.2 and 2.3 of the rule nisi are discharged.