RILEY INC.

21/05/2024

21/05/2024

10/03/2022

Vacancies available.

16/04/2020

Navigating through the journey of co-parenting may be exhausting to say the very least.

Should you require the assistance of a mediator to try and find an amicable middle ground in these trying times or if mediation has failed and you wish to take the huge leap to litigate then call / e-mail or DM us.

Or even if you just want advice, we love to chat. 🤝

16/04/2020

Divorce and all the emotions that rush at the very mention of the word is appreciated and we at Riley Incorporated understand this all too well.

We promise to hold your hand through each and every step and even celebrate with you when you get that final order of divorce 🥂.

DM us to get the process started (now during lockdown) and once the lockdown has been lifted we can get the process going.

21/06/2016

Just making putting in some parking bays

23/10/2015

Do Trust assets in a discretionary family trust form part of the joint matrimonial estate of parties who are married in community of property?

An issue which commonly arises upon divorce is whether assets which are held in a trust also form part of the joint matrimonial estate. A trustee administers trust assets for the benefit of beneficiaries and does not become the owner of the property.

In the case of Badenhorst v Badenhorst the Supreme Court of Appeal held that if it is proven by a party that the trust is the “alter ego” of a party, the trust assets are to be included in the determination of the means of such party. It also has to be proved that there was de facto control of the trust assets. The court set two elements which are required to be proven by a spouse who alleges that a trust is being used as an “alter ego” :

1. That the spouse controlled the trust, irrespective of the terms of the trust deed, and to consider the evidence of how the affairs of the trust were steered during the marriage; and

2. That “without” the trust, such spouse would still have acquired and owned the assets in their name.

The court held that even though it appeared as though the assets were held in trust, Mr Badenhorst was essentially controlling the assets himself. The assets were deemed to be owned by Mr Badenhorst personally and had to therefore be shared with his wife upon their divorce, notwithstanding the existence of the trust.

The Supreme Court of Appeal case of WT and Others v KT is considered below:
{ 1.Badenhorst v Badenhorst (07/2005) (2005) ZASCA 116; (2006) 2 All SA (SCA) (29 November 2005)
2. WT and Others v KT 2015 (3) SA 574 (SCA)}

WT was the first appellant who had previously married KT the respondent in community of property on 6 October 2001. WT instituted divorce proceedings in the Gauteng Local Division of the High Court against KT in January 2010. Before their marriage WT created a trust which purchased an immovable property, which property was registered in the name of the trust .

WT and KT then took occupation of the property and lived together on the property for almost ten years. There was no formal agreement between themselves and the trust pertaining to their occupation of the property.

Upon the divorce proceedings being instituted KT claimed that the property belonging to the trust formed part of the joint estate and as a result thereof she was entitled to a 50% share.

The judgment of the court a quo:

Even though the trust was the registered owner of the property, there was an agreement between WT and KT that they would own the property equally as beneficial owners. The emotional and financial arrangement between the parties rendered KT’s nomination as a beneficiary of the trust in terms of the trust deed irrelevant and on this basis the court held that KT and WT were considered the beneficial owners of the property, even though they were not reflected as beneficiaries of the trust.

WT had structured his affairs through the trust with the view of accumulating wealth for no other person but himself. Despite the fact that the parties were married in community of property it had a discretion as to whether or not assets belonged to a particular party and whether it formed part of the assets of the joint estate. The assets of the trust were WT’s personal assets and on this basis formed part of the joint estate between WT and KT. An appeal against this decision was upheld with costs by the Supreme Court of Appeal.

Mayat AJA (Lewis, Bosielo, Pillay and Mbha JJA concurring) held:

{3.WT and Others v KT 2015 (3) SA 574 (SCA) }

WT and KT never owned the property in equal shares prior to the marriage, nor was it established on the probabilities that they ever concluded any agreement relating to the purchase of the property. It was common cause that WT had procured the establishment of the trust as well as the purchase of the property prior to his marriage to KT, without the participation of KT and without any significant financial contribution from KT.

Conclusion

The distinguishing factor between the case of Badenhorst v Badenhorst and WT and Others v KT, is that the former case concerned the determination of a redistribution of assets in terms of Section 7 (3) of the Divorce Act of 1979 (“The Act”) in relation to a marriage out of community of property. Although both cases related to discretionary family trusts, it is evident from the Badenhorst case that Section 7 (3) of the Act vests a discretion in courts in making a redistribution order in respect of marriages out of community of property.

However as in the case of WT and Others v KT, a court concerned with a marriage in community of property has no comparable discretion as envisaged in Section 7 (3) of the Act to include the assets of a third party in the joint estate. Section 12 of the Trust Property Control Act recognizes that trust assets which is administered by a trustee in trust, does not form part of the personal property of such trustee.

by
Meegan Henkeman LLB UWC
(Candidate Attorney)

23/10/2015

Scrutinising Section 63 of the Magistrates Court Act 32 of 1944

The process for executing a judgment obtained in respect of monies owed, delivery of property (moveable or immovable), or for ejectment shall be by way of a warrant of ex*****on. To give effect to the said warrant of ex*****on, same has to be issued and signed by the clerk of the court and addressed to the sheriff to effect service upon the debtor .

Section 63 of the Magistrate Court Act 32 of 1944 (“The Act”) states the following:

“Execution against property may not be issued upon a judgment after three years from the day on which it was pronounced or on which the last payment in respect thereof was made, except upon an order of the court in which judgment was pronounced or of any court having jurisdiction in respect of the judgment debtor on the application and at the expense of the judgment creditor, after due notice to the judgment debtor to show cause why the ex*****on should not be issued”.

The aforementioned section was considered in the case of ABSA Bank Ltd v Snyman which is discussed below:

The Appellant in this matter is ABSA Bank Ltd and the Respondent is Mr J F Snyman (Snyman). During 2005 Snyman caused a bond to be registered over his property in favour of ABSA Bank. In terms of the bond, Snyman acknowledged his indebtedness of R 82 000,00 towards capital owing to ABSA Bank and R 20 000,00 in respect of costs.

Snyman fell into arrears with his bond instalments and as a result thereof ABSA Bank issued summons against him out of the Robertson Magistrates Court for an amount of R 89 690.46, together with interest and costs, as well as for an order declaring his property executable. Default judgment was granted on 18 December 2007 and on the same day a warrant of ex*****on was issued against the property. The aforementioned warrant remained dormant until sometime in 2010 when it was subsequently reissued by the clerk of the Robertson Magistrates Court.

The reissued warrant of ex*****on was served on Snyman personally on 1 February 2011.The property was then sold in ex*****on. At the auction sale the property was purchased by Mr E J van Tonder. On 15 December 2011 Van Tonder served a notice to vacate the property upon Snyman. Snyman failed to do so and Van Tonder then brought an application for his eviction in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

An eviction order was granted in terms whereof Snyman was to vacate the property by 11 May 2012, failing which the sheriff was authorised to evict him on 14 May 2012. On 14 May 2012 Snyman brought an application in the Western Cape Division of the High Court in Cape Town for the review and setting aside of one or more of the decisions of the Magistrate, inter alia, (a) Default judgment granted on 18 December 2007, (b) Sale in ex*****on of the property on 6 December 2011 and (c) The eviction order granted on 16 February 2012.

On appeal to the Western Cape High Court, Davis AJ with Blignaut J concurring held:

Default judgment was granted on 18 December 2007 and a warrant of ex*****on against immovable property was issued on the same day. On 18 December 2010, the clerk of the court reissued the warrant of ex*****on against immovable property, and the property was attached and sold in ex*****on on the strength of the reissued warrant. The question before the court was therefore whether or not it was competent for the clerk of the court to reissue the warrant of ex*****on without sanction of the court.

Given the fact that judgment was granted on 18 December 2007 it superannuated at midnight on 17 December 2010 with the result that the reissue of the warrant on 18 December 2010 was invalid and as a result thereof could not bring a valid sale in ex*****on.

Brandt JA (Cachalia, Shongwe, Wallis and Petse JJA concurring) held

The date of reissue of the warrant of ex*****on would not avoid ex*****on once the three year period from the date of judgment elapsed. Extension of the superannuated period could only occur by an order of court, which was not obtained by the appellant in this instance. The date of the sale of ex*****on was 6 December 2011 which was more than three years after the date of judgment on 18 December 2007.

It further became apparent that payments were made in settlement of the bond debt after the date of judgment and that the amount in terms whereof the warrant was reissued in 2010 remained the same as the amount of the original judgment debt in December 2007.

Conclusion

A valid warrant of ex*****on is an essential formality for a valid sale in ex*****on. In instances wherein the warrant of ex*****on is invalid, the sale in ex*****on would be a nullity. It is therefore pertinent to note that Section 63 of the Act provides that a judgment sounding in money becomes superannuated, unless the ex*****on of the sale occurred within three years of that judgment. As such the date on which the warrant of ex*****on is issued is of no consequence.

The aforementioned case was referred back to the court a quo in order to determine whether the sale in ex*****on took place contrary to the provisions of Section 63 of the Act.

by
Meegan Henkeman LLB UWC
(Candidate Attorney)