M.B.M v W.M.M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020) (2024)

IN THE HIGH COURT OFSOUTH AFRICA

(GAUTENG DIVISION,PRETORIA)

(1)REPORTABLE:YES/NO

(2)OFINTEREST TO OTHERS JUDGES: YES/NO

(3)REVISED

Case number: 10751/2000

20/3/2020

Inthe matter between:

MBM[....]APPLICANT

and

WMM[....]RESPONDENT

JUDGMENT

VAN STADEN, AJ:

INTRODUCTION

[1]Thismatter concerns an application in terms of the provisions of UniformRule 42(1) for the variation of a divorce decree orderingthedivision of the parties’ joint estate, almost 19 years after itwas granted. The applicant seeks a variation of the divorcedecree toprovide for the sale, and division of the proceeds of immovableproperty, as well as certain relief in respect of therespondent’spension benefit, assets of the joint estate.

[2]Theparties were married in community of property. The issues in disputeare whether the applicant waived his ownership rights inrespect ofthe assets of the joint estate and whether he is entitled to avariation of the divorce decree 19 years after it wasgranted.

FOUNDING AFFIDAVIT

[3]Theapplicant and respondent were married to each other in community ofproperty on 20 September 1995, and were divorced on 25 August2000.The applicant was the plaintiff in the divorce action, which was notdefended by the respondent. The divorce order simplyreads that themarriage be dissolved and that the joint estate be divided.

[4]Theapplicant lodged the current application on 6 May 2019. Therein heclaims:

That the decree of divorce issued on the 25 August 2000be hereby varied and include the following prayers:

1.1Thatthe immovable property of the joint estate at 1291 Ellisras Ext 16,Lephalale, which is bonded to Standard Bank, be herebyvaluated bythe professional valuator appointed by the Legal Practice Councilwithin 30 days of the order.

1.2Afterthe valuation, the said immovable property be sold either throughestate agent, alternative public auction, or private sale.

1.3Thecosts of the valuation shall be paid by both parties in equal share,within 30 days of submission of the invoice.

1.4Afterthe immovable property is sold, the outstanding amount due to theStandard Bank for bond including any municipal rates andtaxes firstbe settled.

1.5Beforeany profit could be shared between the parties, any amount in whichthe other party was liable to contribute towards bondrepayments asfrom September 2000, shall be deducted and reimbursed to the otherparty and the balance be shared accordingly.

1.6Therespondent/defendant is the member of the Government Employee PensionFund in terms of section 7 (7) of the Divorce Act 70 of1979 (asamended), respondent member interest in the said pension/or Providentfund forms part of the joint estate of the parties.

1.7Theapplicant/plaintiff is entitled to 50% share of therespondent/defendant interest in the said fund as at date of divorceandthe respondent/defendant pension fund/Provident fund is herebydirected to make such an endorsem*nt on behalf of theapplicant/plaintiffand pay the applicant/plaintiff within 60 days ofdecree of divorce.

[5]Thefounding affidavit consists of some six pages of content (other thanthe heading and the commissioning provisions). Accordingto theapplicant the parties could for many years not reach some sort ofa*greement on dividing the joint estate. They do not seeeye to eyeand there is no chance of their resolving the division of the jointestate.

[6]Theapplicant is not interested in any movable assets of the jointestate, and the respondent can keep them as her own assets. Theonlyassets he wants to divide are the immovable property and therespondent’s interest in the Government Employees PensionFund(GEPF).

[7]Theapplicant submits that it does not make financial sense to appointsomebody as liquidator of the joint estate, as the jointestateessentially consists of Erf 1291 Ellisras Ext 16, Lephalale (theimmovable property). He also submits that it is necessarythat thedivorce decree be varied, to incorporate a specific clause dealingwith the issue of the respondent’s interest inthe GEPF.

[8]Theapplicant does not state what steps he undertook to achieve divisionof the joint estate in the intervening 19 years.

ANSWERING AFFIDAVIT

[9]Inher answering affidavit the respondent, a teacher, states that shehas had no contact with the applicant since the granting ofthedivorce decree. She has not spoken to or seen the applicant sinceprior to the granting of the divorce decree.

[10]Approximatelytwo years prior to the granting of the divorce order, on 31 July1998, the respondent purchased the immovable propertywhich served astheir joint home. The purchase price was R137,500.

[11]Theapplicant, then employed by the South African National Defence Force,unsuccessfully applied for a home loan. After same hadbeen declined,the respondent managed to obtain a home loan from Standard Bank. Inaccordance with the terms of the loan agreementthe respondent wasrequired to pay an amount of R2,793.62 per month until 22 February2000, and thereafter pay a monthly amountof R 1,758.87. The totalloan term was 250 months.

[12]Everyone of the 250 payments made in respect of the home loan was made bythe respondent. The applicant never made any attemptto make anypayment, nor did he assist the respondent in making any payment. Therespondent accordingly denies that the applicantis entitled to anyvalue in respect of the immovable property.

[13]Therespondent states that at the time of the granting of the decree ofdivorce, the immovable property was a liability, and notan asset. At1 August 2000 the total amount owing in respect of the immovableproperty was an amount of R129,495.98. At date ofgranting of thedivorce order the respondent had only made payment of the amount ofR8,014.02 in respect of the home loan.

[14]Therespondent has over the course of the last 19 years made variousimprovements to the immovable property. For more than 19 yearstheapplicant did not once contribute to the upkeep, maintenance, orimprovements to the immovable property. This was all doneby therespondent.

[15]Forall these years the respondentstruggledto pay the bond, maintain the immovable property and pay the rates,taxes, water and electricity. Now 19 years later,when the bond iseventually repaid, the housing market in Lephalale is booming and theapplicant wants to share in the immovableproperty. The respondentaccuses the applicant of a lack of bona fides, of being “nothingmore than a gold-digger”.

[16]Therespondent submits that an order as proposed by the applicant isunfair, in that it doesn’t take into account the costsshe hasincurred over the years. More importantly, the respondent contends,is that the applicant cannot now, 19 years later, wishto share inthe value of the property. She contends that the joint estate nolonger exists. She contends that the applicant isnot entitled to aportion of the immovable property.

[17]Effectivelythe respondent contends that due the applicant’s delay, in theface of the burdensome obligations she had to endureover the years,the joint estate ceased to exist and the applicant has waived hisentitlement to share in the joint estate.

[18]Therespondent questions why the applicant specifically waited until shefinished payment of the covering mortgage bond, to launchtheapplication. She points out that the applicant fails to state why ithas taken him 19 years to launch the application. Shefinds it verystrange and coincidental that the applicant would wait until the“exactmoment when the mortgage bond registered over the immovable propertyhas been paid in full, to launch this application”.

[19]Therespondent denies that the applicant is entitled to claim 50% of herpension interest. At best, she says, the applicant is entitledtoclaim 50% of the respondent’s pension interest, calculated fromdate of marriage until date of divorce, in which instancetherespondent wishes to claim 50% of the applicant’s pensioninterest too.

[20]Therespondent avers that she is prejudiced as she has spent 20 yearswithout the applicant, building her life, and now the applicantwantsa share of it. For 20 years the applicant has not cared about thefinancial prejudice the respondent was suffering, payingforeverything on her own. Now that the mortgage bond has been paid infull, the applicant suddenly appears and claims 50% of thevalue ofthe immovable property.

REPLYING AFFIDAVIT

[21]Inreply the applicant concurs that the parties never communicated sinceprior to the granting of the decree of divorce.

[22]Theapplicant contends that where there is no forfeiture, the assets inthe joint estate must be equally divided and that it wasnever theagreement that upon divorce, whoever was not paying the bond, wouldnot be sharing in the immovable property. He contendsthat divisionof the joint estate is not dependent on the amount or level of hiscontribution and that the division of the jointestate does notexpire.

[23]Itis manifest that the applicant is alive to the respondent’sclaim of the applicant waiving his rights in respect of thejointestate.

[24]Accordingto the applicant the fact that it is now 19 years later, does not barhim from demanding his share of the joint estate.He proposes thatthe amount he was supposed to contribute can simply be deducted fromhis share of the immovable property. Theapplicant only wants a 50%share of the respondent’s pension interest until date ofdivorce and he agrees to similar reliefin respect of his pensioninterest.

DISCUSSION OF THE MATTER

Introductionto Discussion

[25]Therespondent’s representative was not present to argue thematter. As the respondent filed an answering affidavit, I takecognisance of its contents, in deciding the matter.[1]

[26]Therespondent claims that the joint estate no longer exists. Effectivelyshe claims the applicant has abandoned or waived his ownershiprightsin respect of the joint estate, including the immovable property. Imust accordingly consider such defence within the factualmatrix ofthe case.

[27]Duringoral argument I raised with Mr Mello for the applicant the questionwhether the applicant has waived his ownership rights.I alsorequested the parties to submit supplementary heads of argument onwhether the applicant has waived his ownership rightsin respect ofthe assets of the joint estate in possession of the respondent. Tothe extent the applicant may contend that he wasnot alerted to therespondent’s defence of waiver of ownership rights in respectof the immovable property, and that he isprejudiced by my decidingthe issue of waiver of the applicant’s ownership rights in thejoint estate as far as the assetsin the respondent’spossession are concerned, I am satisfied that there is no suchprejudice.[2]

[28]Inresponse to my invitation for supplementary heads, the applicantsubmitted that he never expressed any desire to abandon hisrights inrespect of the joint estate. He also submitted that because of thecourt ordering division of the joint estate, his rightswould in anyevent only be forfeited after 30 years, the period of prescription inrespect of court orders. He submits that as30 years have notexpired, he has not forfeited his ownership rights in the jointestate.

Which facts?

[29]Inapplication proceedings the affidavits take the place not only of thepleadings in an action, but also of the essential evidencewhichwould be led at a trial. Where there is absent from the foundingaffidavit such facts as would be necessary for determinationof anissue in the applicant's favour, an objection that it does notsupport the relief claimed is sound[3].As stated in the Swissboroughmatter[4]:

“An applicant must accordinglyraise the issues upon which it would seek to rely in the foundingaffidavit. It must do so by definingthe relevant issues and bysetting out the evidence upon which it relies to discharge the onusof proof resting on it in respectthereof.”

[30]Althoughthe applicant states that the parties could for many years not reachsome sort of agreement on dividing the joint estate,no particularityis furnished. The applicant furnishes no evidence of any interactionwith the respondent in failing to reach somesort of agreement ondividing the joint estate. I am accordingly unable to grant anyweight to his bald statement[5].

[31]Onthe basis of the PlasconEvans[6]rule, I am to accept the respondent’s version, that there wasno interaction between the parties in the 19 years’ timeperiod. Furthermore, in reply the applicant concedes that the partiesdid not communicate with each other.

JointOwnership

[32]Theeffect of a marriage in community of property is that the spousesbecome joint owners in the undivided half share of the assets(including immovable property) they possess at the time of enteringinto the marriage, as well as the assets acquired by them duringthesubsistence of the marriage[7].

Waiver

[33]Therespondent claims the joint estate has ceased to exist, and that theapplicant is thus not entitled to division thereof. Sheeffectivelyclaims that the applicant has abandoned or waived his ownershiprights in respect of the joint estate. Having alsospecificallyraised the issue of waiver with the applicant, I accordingly considersuch defence within the factual matrix of thecase.

[34]Theprinciples of waiver are described in the matter of Lawsv Rutherfurd[8]:

“I proceed to consider whether…they establish the waiver relied upon. The onus is strictly on theappellant. He must showthat the respondent, with full knowledge ofher right, decided to abandon it, whether expressly or by conductplainly inconsistentwith an intention to enforce it. Waiver is aquestion of fact, depending on the circ*mstances. It is alwaysdifficult, and in thiscase especially difficult to establish.”

[35]Thedecision to abandon may be either express or tacit. Tacit abandonmentis proved through the conduct of a party, with full knowledgeof theright in question, being plainly inconsistent with an intention toenforce the right relied upon[9].Whether or not conduct so proved is plainly inconsistent with thecontinuance of the right, would be a matter for inference bythecourt from the nature of the conduct proved[10].

[36]Delayin enforcing a right does not, in itself, amount to waiver[11].In deciding whether waiver has been proved, a court takes intoaccount that it is unusual for persons to give up rights or propertygratuitously, unless there is a reason for their conduct.[12]

[37]Ownershiprights in respect of immovable property, like other rights, arecapable of being waived or abandoned[13].In fact, it is even possible to thwart an owner’s vindicationof his immovable property, by way of estoppel[14].

[38]TheRoman Dutch author Van der Keessel[15]describes waiver of ownership rights as follows:

“doorverlatinge. Dis uit die Romeinse reg oorbekend dat die eiendomsregverlore gaan deur derelictio (tw) die ligaamlike feit vanweggooigepaard met die bedoeling om daardie saak nie meer as deel van ʼnmens se goed te hê nie. En hierdie prysgewingkan hom voordoennie alleen by roerende sake nie maar ook by onroerende, tensy daarmiskien in die keure van besondere plekke ʼnbepaling aangetrefkan word om te verbied dat huise in die stad agv hulle vervallenheidprysgegee word.”

[39]InReckv Mills en 'n Ander[16]the Roman Dutch underpinnings of waiver of ownership rights are dealtwith as follows:

“Millsse bewering dat die skeepswraak van die Antipolis 'n res derelicta enderhalwe 'n res nullius was, was gemene saak. In hierdieverband isdit gewens om daarop te wys dat volgens ons gemene reg wordeiendomsreg oor 'n saak deur derelictio verloor wanneer'n eienaar sysaak prysgee of abandonneer met die bedoeling om nie meer eienaardaarvan te wees nie. Raadpleeg Inst 2.1.47; DeGroot 2.1.52, 2.32.3;Vinnius ad Inst 2.1.46 nr1; Van Leeuwen CF 1.2.1.18, 1.2.3.14; Voet41.1.10; Van der Keessel ad Gr 2.32.3.Sodanige saak is dan 'n resderelicta sonder 'n eienaar (res nullius).”

[40]Thequestion I must ask is whether the applicant’s conduct has beenplainly inconsistent with an intention to enforce hisrights[17].This is especially difficult to establish in the context of a waiverof ownership rights in respect of immovable property[18].

[41]Thequestion is not whether the applicant has forfeited his jointownership rights through prescription. Waiver and prescriptionaretwo different ways of forfeiting ownership rights in respect ofimmovable property[19].Waiver of ownership rights in respect of immovable property is notdependent on prescription first being established.

[42]Jointownership involves more than one interested party, like praedialservitudes. It is therefore not inappropriate to considerthe waiverof joint ownership rights in respect of immovable property in thecontext of authority on the waiver of praedial rightsof servitudes.Dodson AJ in Pickard v Stein[20]deals extensively with the requirements of waiver in the context ofpraedial rights of servitudes:

“[49]… InnesJ in a minority judgment considered the question whether theservitude had been abandoned. This aspect of his judgment isconsistent with the approach of the majority. He said-

'Theinquiry . . . is whether there has been on his part such acquiescencein the doings of things necessarily obstructive to theuse of hisservitude, as would justify the inference that he intended to abandonit. The reason why a servitude is destroyed bythe toleration ofmatters inconsistent with its user is that the owner is held to havegiven it up. The ground of destruction isa tacit remissio (Voet, 8,6,5; Vinnius, Inst. II. 3, p. 194). And the well-known principleapplies that an intention to waive rights of any kind is neverpresumed. There must therefore be clear evidence not only of theowner's knowledge, but of his inaction for a sufficient time andunder effective circ*mstances. In Edmeades v Scheepers . . . which isthe leading South African case on this question, the Courtrefused toenforce a servitude of grazing over land which to the knowledge ofthe plaintiff had been adversely enclosed for fifteenyears. Now I donot mean to say that anything like that time would as a rule benecessary to establish a plea of tacit remission.Every case mustdepend upon its own circ*mstances. The nature of the servitude andthe encroachment would of course be importantelements.'

[50] The most comprehensive survey of theold authorities on this point appears to be that conducted by FanninJ inhis majority judgment in Margate Estates Ltd v Urtel (Pty)Ltd.

[51] Based on his survey, heidentified two ways in which a servitude might be abandoned:

'In the first place . . . a servitude is lost by impliedor tacit agreement if the dominant owner grants to the servient owneraright which conflicts with the right conferred by the servitudewhich, to use Voet's phrase, is ''necessarily and naturally''obstructiveof the servitude. In such a situation the dominant ownerclearly abandons the obstructed right. . . . In this kind ofsituationthe permission will usually be express, though, of course,it may be implied, in the same way as any other right can be waivedby

"conduct by a person with full knowledge of hisrights plainly inconsistent with an intention to enforce the right''

(Laws v Rutherford, 1924AD 261 at p 263).

The second kind of situation . . . is one where theservient tenement does something in defiance of the rights conferredby theservitude and without any prior or contemporaneous permission,express or implied. In such a case a breach of the dominant owner'srights clearly takes place, and he will normally be entitled toenforce compliance with the servitude by way of interdict or otherappropriate relief. But if he does not, or delays to, take action,there arises the question as to what will be the result of hisinaction. . . . [I]f the dominant owner stands by while the servientowner, without his permission, does some work or constructssomeedifice or obstruction which, if completed, will ''necessarily andnaturally'' obstruct the exercise of the servitude, hewill not beallowed to enforce his rights by compelling the removal of theobstruction. . . . If the examples given by the authoritiesreferredto mean anything, then for the dominant owner to lose his right toenforce the servitude three things must be present:

(i)the doing of some work by the servient owner,

(ii)knowledge on the part of the dominant owner, and

(iii)inaction on his part until, it seems, the completion of the work, orof, at least,a significant part of it.'

[57]The requirement that waiver operates bilaterally excludes the notionof a unilateral abandonment or waiver of aservitude, as contendedfor on behalf of Pickard. However, abandonment or waiver satisfyingthat requirement may still be inferredas having tacitly come aboutthrough the conduct of the parties.”

[43]Putdifferently, the question is whether there has beensuchacquiescence in the respondent’s doings of things necessarilyobstructive to the applicant’s joint ownership rightsinrespect of the immovable property, as would justify the inferencethat the applicant intended to abandon his joint ownershiprights.

Waiver andthe facts in casu

[44]Iam of the view that there has indeed been such conduct plainlyinconsistent with an intention to enforce the applicant’sjointownership rights, or such acquiescence in the respondent’sdoings of thingsnecessarilyobstructive to the applicant’s joint ownership rights in theimmovable property, as would justify the inferencethat the applicantintended to abandon his joint ownership rights.

[45]Thecourt ordered the division of the joint estate on 25 August 2000. Therespondent was in possession of the immovable propertyat the time(and is still in possession thereof). If the applicant wished toeffect a division of the joint estate at the timeof the divorcedecree, failing agreement he had to take steps to appoint aliquidator. He was dominus litis in the divorce actionand it wouldnot have been unusual for him to effect the appointment of aliquidator. In fact, for the applicant to have gone tothe trouble ofobtaining a divorce order, but then not to persist with theliquidation of the joint estate in the time period afterthe decreehad been granted, is contradictory of an intention to enforce hisownership rights in respect of the joint estate.

[46]Bearingin mind the minimal value to be realised in the immovable property atthe stage of the divorce decree being granted, andthe concomitantexpenses to be incurred to divide such minimal value, it was notworth the applicant’s while to take stepsto enforce division.Failing agreement the value of the immovable property would have beenrealised by forced sale, which wouldhave made it even lessworthwhile to divide the joint estate. It can accordingly justifiablybe inferred that the applicant tooka conscious decision not toenforce division of the immovable property, and to waive his rightsin that regard.

[47]Notdoing anything for a period of 19 years after the divorce to effectdivision of the joint estate, accords with the applicant’sdecision not to enforce the liquidation of the immovable property atthe time of the divorce decree, because of the minimal valueto berealised. The applicant decided to waive his ownership rights in thejoint estate and not enforce division.

[48]Onewould have expected some communication by the applicant, especiallywithin the time period after the divorce decree, to seewhetherdivision is possible by agreement, if he had not waived his rights.The fact that the applicant chose not to communicateat all with therespondent in the time period after the divorce decree, and for aperiod of 19 years thereafter, underlines theapplicant’sdecision to walk away from the joint estate.

[49]For19 years the applicant expressed no interest in taking advantage ofthe benefits of the immovable property, by dividing thejoint estate.For 19 years the applicant expressed no interest in sharing orundertaking to share in the obligations relating tothe immovableproperty, such as paying or contributing to paying the mortgage bond,or maintaining the immovable property. For19 years the applicant didnothing to improve the immovable property. This accords with theapplicant’s decision not to enforcedivision of the jointestate, and to waive his joint ownership rights.

[50]Thereis no explanation from the applicant why he acquiesced in theapplicant alone shouldering the responsibilities of the immovableproperty for 19 years. The only acceptable inference is that theapplicant decided not to enforce division of the joint estate,and towaive his joint ownership rights. His conduct was plainlyinconsistent with an intention to enforce his joint ownershiprights.

[51]Oncethe immovable property had been paid off, the applicant changed hisstance. Only then he exhibited an intention to divide thejointestate. There is no explanation from the applicant why he onlyattempted to lay claim to joint ownership rights once themortgagebond had been paid off. The inference is that the applicant only didso as he hoped to opportunistically benefit fromthe substantialincrease in value of the immovable property, created by therespondent.

[52]However,the applicant’s change in stance is incapable of undoing hisdecision taken, waiver of his joint ownership rights[21].I agree with the respondent’s contention that the applicant’sbona fides are questionable. The applicant’s stancethat he isnot barred from demanding his share of the joint estate does not takecognisance of the reality of his decision to waivehis jointownership rights.

[53]Otherthan the applicant’s decision at the time of the divorce not toenforce division of the joint estate, due to its minimalvalue, isthe important fact that the applicant stood by while the respondentpaid off the mortgage bond over the immovable propertyover anextended period of time. Upon the respondent doing so, in the contextof joint ownership, the horse had bolted. In thecontext ofapplicant’s history of delay, that in itself amounted to waiverof his joint ownership rights. In the words ofFannin J in the fullbench appeal of MargateEstates v Urtel[22],there was inactionon the applicant’s part until the completion of the work.

[54]Also,on this point, in the applicant’s heads of argument he concedeswaiver of his right to share in the movable assets,as the parties“livedapart for many years and… most assets are no longer inexistence”.In other words, the applicant concedes that delay caused him to waivehis rights in respect of the movable assets of thejoint estate.

[55]Theapplicant does not make the same concession in respect of theimmovable assets. Although waiver of ownership rights in respectofimmovable property is especially difficult to establish, there iscontradiction in the applicant’s stance as regards waiver.Heconcedes the impact of delay as far as the movable assets areconcerned, but not as far as the immovable assets are concerned.Itake cognisance of such contradiction in deciding the matter.

Transfer ofapplicant’s ownership rights to respondent

[56]Waiverof ownership rights is a unilateral act, whereby the owner abandonsor divests himself of his rights in the relevant object,with theresult that the object becomes a res nullius[23].Ownership rights are not transferred to another person by the mereact of waiver. For the abandoned ownership rights to transfertoanother person, something more than waiver is required. The new ownermust exercise occupatio, take physical control of theobject with theintention to become owner[24].

[57]Incasu it suited the respondent not to interact with the applicant inrespect of the division of the joint estate, so that shecould moveon with her life. She accepted the fact that the applicant didn’twish to enforce his joint ownership rights.

[58]Incasu it suited the respondent that the applicant thus waived hisrights in the immovable property, in return she enjoyed thesolebenefits of the immovable property. She lived in the immovableproperty and continued building her life without the applicant.Sheexercised sole control of the immovable property and enjoyed thefruits of her labour, the immovable property. She controlledtheimmovable property as her own, in the context of the joint estatehaving ceased to exist.

[59]Therewas waiver of the applicant’s ownership rights, andappropriation of such rights by the respondent. The respondent wasinpossession of the immovable property with the intention to exercisesole ownership rights, thereby exhibiting the requisiteoccupatio forthe abandoned ownership rights to be transferred to her.

Respondent’spension interest

[60]Therespondent’s pension benefit also forms part of the jointestate[25].The applicant’s 19 years’ delay in laying claim thereto,must of necessity mean that such claim suffers the same fateas hisclaim in respect of his ownership rights over the immovable property.It would be contradictory to accept a deliberate decisionnot tocommunicate, because of waiver of ownership rights in one asset, theimmovable property, but not because of waiver of ownershiprights inanother asset, the pension interest.

[61]Theimplementation of a claim to another person’s pension benefitgoes hand in hand with certain procedures. A pension fund'sright tomake deductions from a pension benefit is highly circ*mscribed andmay be exercised only as expressly provided by section37D andsection 37A of the Pension Funds Act 24 of 1956 (PFA)[26].

[62]Ihave not had the benefit of the views of the GEPF in respect of therelief requested by the applicant. However, it is difficultenvisaging the GEPF being able to effectively implement what theapplicant seeks, 20 years after the divorce. This is aside fromitbeing impossible to, as the applicant claims, “makesuch an endorsem*nt on behalf of the applicant and pay the applicantwithin 60 days of decree of divorce”.

[63]Theapplicant was dominus litis with the divorce. If he wanted toimplement the division of the joint estate in respect of therespondent’s pension benefits, he would have taken steps to doso in the time period following on the divorce decree. Thefact thathe did not do so, coupled to the extended period of not doing so,leads to the inference that he deliberately decidednot to implementthe division of the joint estate in respect of the respondent’spension benefits. It justifies the inferencethat he also intended towaive his rights to his share of the respondent’s pensioninterest. The applicant’s conductis plainly inconsistent withan intention to enforce his ownership rights in respect of therespondent’s pension interest.

COURT’SDISCRETION IN TERMS OF RULE 42(1)

[64]IfI am wrong in finding that the applicant has waived his ownershiprights in the immovable property and the respondent’spensioninterest, I am still not persuaded that the relief prayed for, begranted. Although rule 42(1) does not specify a timelimit, it is adiscretionary remedy[27].Like all discretionary remedies, it must be sought within areasonable period of time[28].

[65]The applicant hasafforded no explanation for the delay in bringing the variationapplication. Before I can consider entertainingthe variation soughtby the applicant, I must be satisfied that the delay has beenexplained.

[66]No reasoning orsubstantiation is furnished by the applicant why he waited almost twodecades to approach the court in an attemptto claim his share of thejoint estate. Without proper explanation, it is difficult to concludethat the applicant’s delayin approaching the court should beconsidered “reasonable”.Granting such relief after an extended period of inactivity withoutexplanation would run counter to the appropriate applicationof theRule 42.

[67]I am accordinglynot prepared to exercise my discretion in favour of the applicant.

ORDER

[68]AccordinglyI order as follows:

1.Theapplication is dismissed with costs.

M VAN STADEN

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE OFHEARING: 10 FEBRUARY 2020

DATE OFJUDGMENT: 20 MARCH 2020

ATTORNEY FOR APPLICANT: SHAPIRO & LEDWABA INCORPORATED

ADVOCATE FORAPPLICANT: ADV MELLO

ATTORNEY FORRESPONDENT: NOAPPEARANCE

ADVOCATE FORRESPONDENT: NO APPEARANCE

[1]Fischerand Another v Ramahlele and Others 2014(4) SA 614 (SCA) at para 13.

[3]SwissboroughDiamond Mines (Pty) Ltd and Others v Government of the Republic ofSouth Africa and Others 1999(2) SA 279 (T) 323 E to F.

[4]At 323I to 324A.

[5]KingWilliam’s Town Transitional Local Council v Border AllianceTaxi Association (BATA) 2002(4) SA 152 (E) at 156 I – J.

[7]Estate Sayle vCommissioner for Inland Revenue 1945 AD 388.

[10]Hepnerv Roodepoort-Maraisburg Town Council 1962(4) SA 772 (A) at 779A.

[12]Xenopoulosand Another v Standard Bank of SA Ltd and Another 2001(3) SA 498 (W) at 512E.

[15]Seethe Afrikaans translation of Van der Keessel in Ministervan Landbou v Sonnendeckerat 946H to 947A.

[17]Laws v Rutherfurdat 263.

[18]Ministervan Landbou v Sonnendecker.

[21]JC Sonnekus op cit note 13 in “Vermoënsregtelikeimplikasies van gevonde sake”.

[23]JCSonnekus op cit note 13 in “Abandonneringvan eiendomsreg op grond en aanspreeklikheid vir grondbelasting:Aantekeninge”and “Vermoënsregtelikeimplikasies van gevonde sake”.

[24]JCSonnekus op cit note 13 in “Vermoënsregtelikeimplikasies van gevonde sake”and CG van der Merwe in Sakereg,second edition, page 217.