Tshamela v Tshamela and Others (31663/2015) [2017] ZAGPJHC 398 (8 November 2017)

Tshamela v Tshamela and Others (31663/2015) [2017] ZAGPJHC 398 (8 November 2017)

The court found that the applicant, as a spouse married in community of property, is entitled to half of the pension fund pay-out received by the first respondent. The first respondent failed to provide credible evidence or receipts for the alleged expenditures from the pension funds and did not adequately account for the withdrawn amount of R270,000. The court concluded that the first respondent dissipated joint estate assets by transferring funds and purchasing property in the name of the second respondent, who had no independent means. The denial of facts by the first respondent was found to be insufficient to raise a genuine dispute of fact. Accordingly, the applicant was entitled to...

Citation
[2017] ZAGPJHC 398
Parties
Applicant: Makaziwe Tshamela (nee Mbangata); Respondent: Jacob Ndumiso Tshamela; Respondent: Stella Owethus Tshamela; Respondent: Registrar of Deeds, Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 November 2017
Case Number
31663/2015
Procedural Posture
Civil Application / Judgment
Outcome
Application granted. The first respondent is ordered to pay the applicant her share of the pension monies, failing which the property is to be sold to recover the amount.
Judges
S C Mia
Legal Topics
Matrimonial Property Act, Division of Joint Estate, Dissipation of Assets, Spousal Consent, Interdict, Sale of Property
Family and Children Civil Procedure Matrimonial Property Act Division of Joint Estate Dissipation of Assets Spousal Consent Interdict Sale of Property

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Parties

Makaziwe Tshamela (nee Mbangata)

Applicant

Jacob Ndumiso Tshamela

Respondent

Stella Owethus Tshamela

Respondent

Registrar of Deeds, Johannesburg

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to half of the pension fund pay-out received by the first respondent during the marriage.
  2. 2 Whether the first respondent unlawfully dissipated joint estate assets by transferring pension funds and purchasing property in the name of the second respondent.
  3. 3 Whether the applicant is entitled to an order for repayment or sale of the property to recover her share of the pension monies.

Ratio Decidendi

The court found that the applicant, as a spouse married in community of property, is entitled to half of the pension fund pay-out received by the first respondent. The first respondent failed to provide credible evidence or receipts for the alleged expenditures from the pension funds and did not adequately account for the withdrawn amount of R270,000. The court concluded that the first respondent dissipated joint estate assets by transferring funds and purchasing property in the name of the second respondent, who had no independent means. The denial of facts by the first respondent was found to be insufficient to raise a genuine dispute of fact. Accordingly, the applicant was entitled to...

Court Disposition

Application granted. The first respondent is ordered to pay the applicant her share of the pension monies, failing which the property is to be sold to recover the amount.

Orders

  • The first respondent is ordered to pay the amount of R151,532.70 to the applicant as her share of the pension monies accrued from his pension fund pay-out.
  • Failing payment within 3 months, the property at Erf […], Welgedacht, registered in the name of the second respondent, is to be sold.