S.A.N (born C) v J.E.N (CA&R EL 157/03, 356/0) [2009] ZAECGHC 82 (26 November 2009)

FORM A

FILING SHEET FOR SOUTH EASTERN

CAPE LOCAL DIVISION JUDGMENT

PARTIES: S A N (born C) v J E N

Case Number: CA&R EL 157/03 ECD 356/03

High Court: Eastern Cape – East London

Date Heard: 24 November 2009

Date Delivered: 26 November 2009

JUDGE(S): Revelas J

LEGAL REPRESENTATIVES –

Appearances:

for the Applicant(s): Adv Brooks

for the Respondent(s): Adv Crisp

Instructing attorneys:

Applicant(s): Abdo & Abdo Attorneys

Respondent(s): Wylde & Runcman Incorporated

CASE INFORMATION –

Nature of proceedings:

Key Words:

Not Reportable

IN THE HIGH COURT OF SOUTH AFRICA

(EAST LONDON CIRCUIT LOCAL DIVISION)

Case No: EL 157/03

ECD 356/03

Date Heard: 24/11/09

Date Delivered: 26/11/09

In the matter between

S A N (born C) Applicant

and

J E N Respondent

JUDGMENT

Revelas J,

[1] The parties hereto were married to each other, in community of property on 23 June 2000, which marriage subsisted only until 1 July 2003, when they were divorced from each other in terms of a decree of divorce issued from this court. In terms of the aforesaid decree, the joint estate of the parties was to be divided, which never occurred. Hence this application where the applicant seeks the appointment of a receiver for the purpose of taking the necessary steps give effect to the division of the joint estate, and who is vested and charged with certain powers rights and obligations as set out in the applicant’s notice of motion. Mr Donovan Emslie has been approached and has agreed to accept such an appointment. Ancillary relief relating to the Receiver’s final account, and the posting of notices are also provided for in the notice of motion and in addition, the applicant seeks costs on a scale as between attorney and own client.

[2] The joint estate consists of a house and the respondent’s pension with its benefits for the applicant, of which she was apparently not aware until relatively recently.

[3] The respondent opposes the relief sought on the basis that in 2007, and in terms of a written agreement (consisting of two separate document drafted in circumstances which I will discuss below), the applicant agreed to the respondent retaining both the matrimonial home, (a house) and their motorvehicle. In other words, she agreed to simply hand over the two major assets of the joint estate. The applicant was permitted to keep other movable property.

[4] In his answering affidavit, the respondent proposes that in the event of a receiver being appointed, the order made should make provision for the accounting of and deduction from the value of the house, the bond repayments or instalments he had made thus far in respect of the house and the value of the improvements he had effected to the house over the past years following their divorce. The respondent does not dispute the applicant’s entitlement to half of the pension fund proceeds.

The Facts

[5] It is common cause in this matter, that approximately one year after the divorce, the applicant moved back to the common home (the former matrimonial home) where the respondent was living with their daughters. The circumstances under which this was done is in dispute. According to the applicant the return was an attempt at reconciliation and she and the respondent lived together as husband and wife, as before, sharing a bed. According to the respondent, who disputes that they attempted to reconcile, he merely provided the applicant with accommodation because she could not afford her own. Considering that she only finally left the common home in July 2007, after three years of cohabitation, I have some difficulty in accepting that the respondent was only the good Samaritan, so to speak, providing his ex-wife with free accommodation for three years.

[6] It is further common cause that the applicant signed a document attached to the respondent’s papers as “JEN 1”. This document records that the applicant and the respondent agreed that the respondent would receive the house in question, as well as the Honda Ballade motorvehicle and that the applicant would receive “all household goods”. The document was purportedly signed before a commissioner of oaths in the presence of a witness who also signed. The applicant disputes this. She says there was no commissioner and no witness. The applicant alleges that annexure “JEN 1” was signed shortly after the divorce, but when

she moved back to the common home in 2004, the parties regarded the agreement as cancelled.

[7] According to the respondent, he had mislaid this document temporarily, and before its retrieval, the agreement reached was recorded and reduced to writing again. This document is somewhat differently worded than “JEN 1”, and dated 23 July 2007. The relevant portion thereof reads as follows:

“Mrs AS "N" hereby take possession of all household goods leaving Mr JE "N" with the house and vehicle (sic) BFX 926 EC (Honda) in which all household goods was (sic) paid for in full by me Mr JE "N"”.

This document was attached to the respondent’s answering affidavit as annexure “JEN 2” and was signed by the applicant just before she finally moved out of the common home.

[8] The respondent argued that the aforesaid two documents (the annexures “JEN 1” and “JEN 2”) constitute a valid agreement in respect of the transfer of the immovable property for purposes of lawfully dividing the joint estate between the parties. The applicant’s version was that she signed the documents under duress, in that she was threatened and coerced by the respondent to sign them. This is disputed by the respondent.

[9] In May 2008, the applicant became aware that the respondent was in the process of selling the house. She states in her founding affidavit that her attorney, Mr Wylde of Wylde and Runchman, wrote to the respondent’s attorneys of record, Drake Flemmer and Orsmond, on 23 May 2008, requesting them to forward all documents requiring the applicant’s signature and further advised them that she was not prepared to sign any documents “without a guarantee for half of the nett proceeds”.

[10] It is not clear what the response was to this letter, but on 14 October 2008, the applicant received a letter signed by Mr L Dekeda of the firm Abdo and Abdo Attorneys, requesting her signature on a copy of a “Variation and Settlement Agreement” attached to the letter, which was clearly drafted with the intention to vary the extant court order for division of the joint estate. The applicant, in the same letter, is warned by the respondent’s attorneys, that if she does not sign, the respondent has instructed them “to proceed with an application to compel you to sign over your undivided half-share in the property” to the respondent, as well as a costs order which “could easily run up to thousands of rands”. Quite plainly, the respondent was employing strong arm tactics to retain the major asset of the joint estate for himself, since he could not rely in law, on the agreement of 23 July 2007.

[11] The “Variation and Settlement Agreement” makes provision for the immovable property in question to be awarded to the respondent and for the transfer of the applicant’s equal and undivided share of the same property, to be transferred to the respondent. In terms of this agreement the respondent is substituted for the applicant as the sole debtor in relation to the mortgage bond over the property, and he is to bear the costs of the transfer and substitution. Significantly, nothing is mentioned in this document of the pension fund being an additional asset of the joint estate. With the benefit of proper legal advice, the applicant refused to sign this variation and brought the application for the appointment of a receiver.

[12] The two documents marked “JEN 1” and “JEN 2” are hardly binding legal documents which could precede a lawful transfer of immovable property, nor is any one of them capable of being made an order of court. Even though I am unable to positively find on these papers, that the applicant was coerced by aggression or intimidation to sign these documents, as alleged by her, they were nonetheless signed by her when she was still in the matrimonial home with the respondent, and before she received proper legal advice. It is hardly likely that the applicant, with full knowledge of all her rights, being financially vulnerable (on the respondent’s version that is why she returned to the house), she would voluntarily sign away all her rights to the immovable property. In any event, both documents fall foul of the provisions of the Alienation of Land Act, No 68 of 1981, as amended, more particularly in that they do not provide for material terms or a price or particulars of an “exchange”.

[13] In my view, there is no agreement binding the applicant to sign over her half share of the immovable asset in the yet undivided joint estate. It is standard practice that a receiver is appointed to deal with matters such as this where one of the parties no longer trusts the other. I do not agree with Mr Crisp that this was a matter where a court would be in just as a good position to divide the joint estate as a receiver. It would be most impractical, as there is scant information on the papers before me to deal with matters in a manner which is fair to both parties. For instance, one does not know what the value of the house was in 2003, when the parties were divorced.

[14] Mr Crisp was however prepared to concede to the relief sought by the applicant to appoint a receiver, but made the concession subject to the condition that each party pays its own costs. However, Mr Brooks, counsel for the applicant, persisted with the adverse costs sought in the notice of motion. He argued that the respondent should be visited with such an order because he, from the onset, asserted an illegal perspective, namely that agreement had been reached in terms of the two annexures.

[15] In the absence of a positive finding that the applicant was coerced to sign these documents, I am disinclined to make a punititive costs order against the respondent. The applicant did not mention anything about these agreements in her founding affidavit and the respondent was entitled, on the face of them, to maintain that the applicant had agreed, in principle, to sign over the immovable property to him. His resistance to the application is not necessarily indicative of a mala fides approach which would warrant such a costs order. An order for costs on a scale as between party and party would suffice in this matter as it is one where costs should follow the result.

[16] Accordingly, the following order is made:

Mr Donovan Emslie of 32 Tecoma Street, Berea, East London is hereby appointed as Receiver for the purpose of taking all steps necessary to give effect to the division of the immovable property and pension of the joint estate.

The said Receiver and Liquidator is hereby vested and charged with the following powers, rights and obligations respectively;

to obtain appraisals for the purpose of determining the value of the immovable property and to determine the value of respondent’s pension fund interest at the date of divorce;

to compel either of the parties to attend his office in East London on 7 days notice in writing;

to interrogate the parties, or either of them, as in his discretion may be necessary;

to apply to this Court for further directions in the event of him not being satisfied with the information furnished to him by either party, or in the event of any other difficulty arising;

to prepare a final account and to divide the proceeds from the sale of the immovable property between the parties in accordance with the law and divorce, order for the division of the joint estate, taking into account the value of respondent’s pension interest as at the date of divorce as well as improvements to the immovable property by the respondent and bond instalments paid by him subsequent to the divorce.

When the Receiver has prepared a final account in terms of paragraph (e) supra, he shall send a copy thereof to each of the parties. Thereafter, either party may object to the said account within 14 days of date of posting, and the Receiver shall upon receipt of any objection, send a copy of the objection received to the other party, who may send to the Receiver representations thereon within a further period of 14 days.

Receiver shall be empowered to rule on any objection and either allow or disallow it, either in whole or in part, and his decision in this regard shall be sent to the parties and will become final and binding upon them, should they not approach this Honourable Court for relief within 14 days of the date of that decision.

In the event of no objection being made to the Receiver’s final account within the time limit provided for, it will become final and binding on the parties.

Any notice sent by either party to the Receiver, or by him to either party, shall be posted by prepaid registered post in the Magisterial District of East London. Any time stipulated above shall run from the date of posting in terms thereof.

That respondent is to pay the costs hereof as between party and party.

_______

E REVELAS

JUDGE OF THE HIGH COURT