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Maria v Brian (36245/2007) [2008] ZAGPHC 317 (28 August 2008)

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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)


Case No: 36245/2007

Date: 28 August 2008


UNREPORTABLE



In the matter between:


HEATHER CLARK MARIA Applicant


And


HEATHER CLARK PETER BRIAN Respondent


JUDGMENT


VILAKAZI AJ


1. This is an application for a declaratory order and other relieves. The Applicant seeks an order:


1.1 That Respondent be ordered to render a statement of account fully supported by necessary or relevant documentation to the Applicant in regard to:


1.1.1 His pension interest as at 7th September 2006

1.1.2 The amount received by him from the SADF Pension fund, the Transvaal Provincial Administrative Fund and/or any other pension received since the date of his marriage to the Applicant until the date of this order;

1.1.3 Documentary proof of amount received by the Respondent as a result of his membership or previous membership of any pension fund;

1.1.4 A debatement of such account.


1.2 Applicant also seeks an order that Respondent pay any amount which may be due to her in terms of Clause 4.3 of the settlement agreement made an order of a decree of divorce granted on 7th September 2006 in regard to his pension interest.


2. The Respondent opposes the relief sought by the Applicant and filed his answering affidavit.


BACKGROUND

3. The Applicant and the Respondent were married to each other out of community of property on the 6th October 1984. During 2006 the Applicant instituted divorce proceedings against the Respondent. The divorce was finalized on the 7th September 2006, the parties having concluded a settlement agreement which was incorporated into the decree of divorce in terms of which and in accordance with the redistribution agreement, the Applicant agreed to a payment of an amount equal to 30% of the Respondent's pensionable interests calculated as at the date of divorce. The Respondent attended to the registration of the endorsement of the 30% against his pension fund held by the SANDF. Pursuant to the endorsement an amount of R54828.35 was deducted from his pensionable interests and paid to the Applicant.


MAIN SUBMISSIONS

4. Mr. De Kock on behalf of the Applicant submits that since the settlement agreement makes no specific reference to a particular pension fund, the Applicant is entitled as per Clause 4.3 of the settlement agreement to a payment of an amount equal to 30% of the Respondent's pensionable interest. The percentage to which Applicant is entitled in terms of the settlement agreement would accordingly include or extend to the Respondent's monthly pension payable to him by the Transvaal Provincial Administration Pension Fund. It is submitted that Clause 4.3 of the settlement agreement is couched in such wide terms as to include all pensionable interests due to and receivable by the Applicant.


5. For the Applicant to determine what other amounts or pension interests are or were due to her at the time of the divorce, it is imperative that he be "forced" to disclose information pertaining to all his pensionable interests. Respondent must give full details as to what he has received from the pension schemes administered by both the SANDF and the Transvaal Provincial Administration Pension Fund, supported by necessary documentation. Once this had been done, a debatement of the said account must be ordered whereafter any amount found to be due to the Respondent from the aforementioned pension funds, he be ordered to pay 30% thereof to the Applicant.


6. It is further submitted that in terms of the settlement agreement the Applicant has a right to demand a proper statement of account from the Respondent to enable her to determine what other amounts, if any, are due and payable to her.


7. Mr. West, on behalf of the Respondent, submits that there is no obligation on the Respondent to submit any statement of account to the Applicant. Clause 4.3 of the settlement agreement does not impose any further obligation upon the Respondent than that stated in the said clause namely that he consents to the registration of an endorsement against the records of his pension funds and he undertakes to register such an endorsement within 90 days of the decree of the divorce and to deliver documentary proof of the registration of such endorsement to the Applicant. He submits that the Applicant has complied with the said obligation. Pursuant to his compliance therewith the 30% to which Applicant was entitled was paid into her account by the SADNF Pension Scheme. Respondent is consequently relieved of his obligations in terms of Clause 4.3 of the settlement agreement. Furthermore, in his view, Clause 4.3 does not extend to the Transvaal Provincial Administration Fund and that his pension interests in the said fund did not constitute an asset as envisaged in s7(3) of the Divorce Act, 70 of 1979 as defined in s1 thereof.


8. Before I turn to analyze and discuss the evidence and submissions, it is perhaps appropriate that one should quote the relevant Clause in the settlement agreement and any other relevant documentation.


"CLAUSE 4.3

The parties confirm that the Respondent is a of a fund scheme as fully provided for by the provisions of 70 of 1979. Applicant shall entitled to payment of amount equal to 30% of Respondent's pensionable interest, calculated as date of , but payable to the Applicant when same accrues to Respondent. The Respondent hereby irrevocably and in rem suamconsents to the registration of to the aforesaid effect against the records of Respondent's pension fund scheme and undertakes to register such an endorsement within 90 days of granting of a decree of and to deliver documentary proof of registration of endorsement to the Applicant within the aforesaid time periods.”


9. The Applicant and Respondent were married before 1st November 1984 out of community of property in terms of antenuptial contract which excluded community of property, profit and loss as well as accrual. As the marriage between Applicant and Respondent was concluded prior to August 1, 1989, the Court could not take into account the Respondent's pension benefit when determining patrimonial benefits to which Respondent could have been entitled. However, after 1st August 1989, the Applicant could be entitled to a share of the Respondent's pension interest in terms of a redistribution order in accordance with s7(3) of the Divorce Act.

10. The salient features of the Act are as follows:


Section 1 "defines pension interests" in relation to a party to a divorce action who is a member of a pension fund (excluding a retirement annuity fund), as the benefit to which that party could have been entitled in terms of the rules of the fund if his/her membership of the fund would have been terminated on the date of the divorce on account of his/her resignation from his/her employment.


11. 7 provides that


"(7)(a) the determination of patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a shall, subject to paras (b) and (c), be deemed to be part of assets.

(b) The amount so to be part of a 's assets, shall be reduced by any amount of pension interest which, by virtue of (a), a divorces –

(i) was paid over or awarded to another party; or

(ii) for the purpose of agreement contemplated in ss(1), was accounted in favour of party.


(c) Paragraph (a) shall not apply to a action in respect of a out of of entered into on or after 1 1984 terms of antenuptial contract by which community of , community of and loss and the accrual system are excluded."


(8) the provisions of other law or of rules of pension fund­

(a) court granting a of in respect of a of a , may make an order that –

(i) any part of pension interest of member which, by virtue of (7), is due or assigned to the other party to the divorce action concerned, shall be paid by that fund to that other party when any pension benefits accrue in respect of member;

(ii) an endorsement be made in the records of fund that that part of pension interest concerned is so to that other party;

(b) any law which applies in relation to the reduction, assignment, transfer, cession, pledge, hypothecation or attachment of pension benefits, or any right in respect thereof, in that fund, shall apply mutatis mutandis with regard to the right of that other patty in respect of that part of the pension interest concerned."


12. In terms of the marital regime of the Applicant and Respondent, the only in which she could become entitled to a portion or a share of the Respondent's pension interest was through an order made by the court in terms of a redistribution order in accordance with the provisions of section 7(3) of the Act. (3) provides thus:


"A court granting a of divorce in respect of a out of community of property­ –

(a) entered into before the commencement of the Matrimonial Property Act, 1984, terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded.

(b) …

may subject to the provisions of subsections (4), (5) (6) application by one of the patties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such asset, or such part of the asset of the other patty as court may deem just be transferred to the first mentioned party."


13. Pursuant to the redistribution order 30% of the Respondent's pension interest in the SANDF Pension Fund was assigned to the Applicant in terms of Clause 4.3 of the settlement agreement. At the time of the divorce it was common cause between the parties that the pension fund to which the Applicant was assigned 30% of the Respondent pension interest was the SANDF Pension Fund. This is clear from the wording of the first sentence in Clause 4.3 of the settlement agreement which reads:


"... is a of a fund."


There could be no confusion or doubt that only one pension fund was in the mind of both parties and that the percentage of the Respondent's interest assigned to the Applicant referred to that particular pension fund.


14. The Applicant avers that as she did not receive any account from the Respondent, it is possible that she was entitled to much more than she had received from the Government Employees Pension Fund and the Respondent ostensibly had an obligation in terms of the settlement agreement to make "full disclosure" and to deliver an account to her in respect of pension amounts received by him.


15. The Court must determine firstly; whether the Respondent has an obligation to deliver or render an account to the Applicant in terms of Clause 4.3 of the settlement agreement or any obligation whatsoever; secondly whether the monthly pension paid to the Respondent by the Transvaal Provincial Administration Pension Fund (TPA) falls within the meaning or is covered by 30% assigned to the Applicant in terms of the settlement agreement. From the wording of the relevant Clause the Applicant proceeds to make certain assumption namely that Respondent apparently did not attend to the endorsement against his pension fund; he ostensibly had an obligation in terms of the settlement agreement to make what he refers to as a "full disclosure and to deliver an account" to the Applicant in regard to any pension amount received by him.


16. In her founding affidavit, Applicant further avers that ''if had nothing to hide", Respondent would have to provide her with a full statement of account supported by relevant documentation. The right conferred by Clause 4.3 of the settlement agreement entitles her to the proper statement of account "so that she can determine what amount is owing to her and whether she receives that which she is entitled to." She avers further that it was a tacit or an implied term of the settlement agreement (Clause 4.3) that the Respondent would render a full statement of account to her and his failure to render an account with the necessary supporting documentation leads her to suspect that she has not received that which she was entitled and due to her in terms of the settlement agreement. It is clear that the Applicant is skirting around Clause 4.3 of the settlement agreement in a desperate attempt to establish a basis for a claim to a rendering and debatement of a statement by the Respondent. Her suspicions and reservations as to whether she has received what was due to her constitute no basis in terms of which the Court can order the Respondent to render an account, simply in order to enable her to determine whether over and above what was paid to her by the SANDF was what she was entitled to.


STATEMENT AND DEBATEMENT OF ACCOUNT

17. In order to succeed a party claiming delivery and debatement of an account must allege and prove and/or satisfy the following requirements:


(a) The basis of his/her right to receive of or a delivery of an account. In other words, the Applicant must establish the existence of a fiduciary or other relationship between herself and the respondent to justify a claim for the rendering of an account; or


(b) The existence of a contractual obligation to deliver/render an account. If the right is not contractual, circumstances bearing on the right to the account sought must be fully set out to enable the court to determine whether such a right may be implied or inferred from the existence of the said circumstances; or


(c) The existence of a statutory duty obliging the Respondent to deliver and debate such account.


18. In and Communications Systems v Harrison (2) 283 at 287h-288a the court stated that:


“… there is no general principle of that when one party does not know how much he is owed by another he can call upon the latter to render an account. (Cr v Thos Cook and Son (SA) Ltd (4) SA 761 (C); Zabow v Mauerburger Ltd 205; Victor Products SA (Pty) Ltd v Lateulere Manufacturing Ltd (supra) at 963)."


19. In Bank bpk v Janse Van Resburg 2002 (3) 701 (SCA) these requirements were set out as follows at p708 para 15:


"In order to succeed, in such a the Respondent would have to prove either (a) the existence of a relationship between him and the appellant; or (b) that the appellant had contractually bound himself thereto; or (c) the existence of a ory duty obliging the appellant to deliver and debate an account."


20. A leading case dealing with the type of the relief sought by the Applicant is and Another v Fleet Motors P.E (Pty) Ltd (3) 760 (A) 762 where the court after referring to the procedure laid down for obtaining such relief in England remarked that as no such procedure had been prescribed in South Africa, the practice to be adopted was:


"What then should be the practice, for example, as what either side must prove, what degree of is required, and whether the debate of ordered account must in the first instance take place between the parties? In the absence of the following general observation must be helpful:


The Plaintiff should aver­-


(a) his right to receive an account, and the basis of right, whether by contract or by fiduciary relationship or otherwise;

(b) any contractual terms or circumstances having a on the amount sought;

(c) the defendant's failure to render an account."


21. In casuthere is no fiduciary relationship between the Applicant and the Respondent nor is there any allegation of any contractual relationship or any statutory duty to account to her. The Applicant has failed to satisfy/prove any of the aforesaid requirements. On that go-alone the Court is entitled to dismiss her application as there is no basis therefore.


SANDF PENSION FUND

22. It is common cause that at the time of the divorce the Respondent was a member of the SANDF Pension Fund. In terms of the settlement agreement pursuant to the redistribution of assets, the Applicant agreed to accept 30% of the Respondent's pensionable interests in such fund. The Respondent's pensionable interests in the SANDF Pension Scheme in terms of which 30% thereof was awarded to the Applicant was limited to the benefits of which the Respondent as a member would have been entitled in terms of the rules of the scheme if his membership thereof would have been terminated on the date of the divorce. In terms of s7 of the Divorce Act, a party's pension interest as at the date of the divorce does not include future monthly pension payments due to a member and/or any other future right or interest which has not yet accrued. Such pension interest constitutes an asset in the estate of such a member.


23. ln Mutual Life Assurance co. (SA) Ltd and Another v Swemmer 2004 (5) (SCA) at p383-384 para [18] and [19] the court stated that:


"As indicated above, s7(7)(a) of Divorce Act 'deems' a spouse's 'pension interest' to be an asset in his or her estate for purposes of determination of patrimonial benefits to which the parties to a action may be entitled. Pension interest' is narrowly defined and simply establishes a of ascertaining the value of 'interest' of the member of pension or retirement annuity fund concerned as up to the date of . In the words of South African Law Commission:

‘A pension interest is not a asset that is open to division. It is the value that, on the date of , is placed on the interest that a to those proceedings has a benefits that will accrue to him or her as a of a fund or retirement annuity fund at a future date or event in accordance with the rules of particular fund. The value of interest is calculated according to a formula and the amount determined in this manner is deemed to be an asset of party concerned. What we are dealing with here is a asset that is added to all other assets of party concerned in order to determine the extent of other party's claim to a of first-mentioned party's assets.'

To my , the necessary implication of 'deeming provision' in s7(7)(a) of Divorce Act, read together with the relatively narrow definition of 'pension interest' in s1(1), is that any other 'right' or 'interest' which the member spouse may have in respect of benefits which have not yet accrued is - least after 1 1989­ – to be regarded as asset in the estate of member spouse in determining the patrimonial benefits to which the parties to the divorce action may be entitled."


24. It is clear that in terms of the redistribution agreement in terms of s7(3) of the Act, only 30% of the Respondent pension interest was awarded and assigned to the Applicant and such distribution did not extend to any other pension interest which had already accrued and had formed part of the estate of the Respondent. In terms of the settlement, the Applicant was entitled to only those benefits which Respondent would have been entitled to in terms of the rules of the pension fund if his membership of such fund would have terminated on the date of the divorce. The monthly payment payable to the Respondent as at the date of divorce did not fall within the meaning of "pension interest' and could therefore not form part of the settlement.


25. "Pension interest" is defined in s1 (1) of the Divorce Act as follows:


"'pension interest', in relation to a to a action who­ –

(a) a of a fund (excluding a annuity fund), means the benefits to which that party as a would have been entitled in terms of rules of fund if his membership of fund would have been terminated on the date of divorce on account of resignation from his office."


TRANSVAAL PROVINCIAL ADMINISTRATION PENSION FUND

26. The Respondent was a member of the TPA pension fund from which he retired on 30 December 1992 whereupon his pension interest was converted into a right to a monthly pension payment which in turn constituted an asset in his estate. In Cock v Jacobson and Another (4) (W) 349 the court stated that the right to the pension accrued before the divorce which had become converted into a monthly pension after retirement of a member from the pension scheme becomes a right in the estate of the member and s7(7) of the Divorce Act does not apply as the pension interest has become a right.


27. As such the monthly pension payment did not fall within the ambit of the 30% redistribution assigned to the Applicant. Hence the Applicant cannot claim any right to such monthly pension payment nor does Clause 4.3 of the settlement agreement embrace such monthly pension payment from the TPA Pension Fund to the Respondent. See Employees Pension Fund v Naidoo (2006) SA (SCA) at 334e-h. The Respondent contends rightly so that when the parties concluded the settlement agreement, they reached a compromise the purpose of which was to put an end to the litigation. In this regard the acceptance by the Applicant of the redistribution, in particular her claim to the Respondent's pension interest was intended to prevent or avoid any further claims to any other pension interest to which the Respondent might have been entitled to.


28. Roper J in v Mathole (1) 785T cited the following:

"The effect of transactioin destroying the law suit may of course be avoided by an express reservation of the rights of the plaintiff to proceed upon the original cause of action... the terms of the agreement may also be such that such a is to be implied.


The conclusion of the learner judge was endorsed by the Appellate Division in the judgment of Botha JA in Zyl v Snyman (4) (A) at 669-670 where he said, in judgment with which the majority concurred:


"It is clear that an agreement of compromise has the same effect as res judicataand consequently exclude an action on the original cause of action except where the compromise agreement expressly or by clear implication provides that in the event of non-compliance with the provisions thereof a may fall back upon his original right of action."


See also and Gomperts (1967) (Pty) Ltd v Universal Meals and Produces Co. (Pty) Ltd 1978 (1) 914 (A).


29. The Applicant's submission that she had, at all material times, accepted that the Respondent's pension interest would encompass the monthly pension payable to him from the TPA Pension Fund is inconsistent with the facts and is not supported by Clause 4.3 of the settlement agreement. It is clear that in her desperate bid to squeeze any ounce of blood and to extract as much as she could by way of assets she invents all sorts of excuses, rights and strategies to lay her hands on the Respondent's pension interest. Clause 4.3 states in no ambiguous terms that the Respondent was a member of a pension fund and not pension fund(s). This is also confirmed by the Applicant's Particulars of Claim paragraph 10.1 thereof. The Applicant's claim to the Respondent monthly pension payment from the TPA Pension Scheme can therefore not be upheld.

  1. Having analyzed all the relevant facts and consider all the legal principles applicable to the claim, the Court arrived at the conclusion that the Applicant had failed to make a proper case in terms of which she is entitled to the relief sought. Applicant has not satisfied any of the requirements for a right to a delivery/rendering of an account and debatement of the statement. Clause 4.3 of the settlement agreement does not confer or create any fiduciary relationship between Applicant and Respondent beyond matters relating to the Respondent's pension interest in the SANDF Pension Fund, nor does it create any contractual obligations between the parties either expressly or by implication and there was also no obligation on the Respondent to render an account. See v Fleet Motors PA (Pty) Ltd (supra); v Nucsa 1995 (4) 813.


Consequently the Court makes the following order:


The Application is dismissed with costs.


JUDGE OF THE HIGH COURT