A.L.N v G.N.N N.O and Another (2024-148137) [2024] ZAGPPHC 1364 (21 December 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 1364 | Noteup | LawCite sino index ## A.L.N v G.N.N N.O and Another (2024-148137) [2024] ZAGPPHC 1364 (21 December 2024) A.L.N v G.N.N N.O and Another (2024-148137) [2024] ZAGPPHC 1364 (21 December 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1364.html sino date 21 December 2024 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 2024-148137 (1)      REPORTABLE:  NO (2)      OF INTEREST TO OTHER JUDGES: NO (3)      REVISED. DATE 21-12-2024 SIGNATURE In the matter between: A[...] L[...] N[...] Plaintiff /Applicant and G[...] N[...] N[...] N O, MBI Defendant/Respondent FIDUCIARY SERVICES PTY LTD N.O JUDGEMENT PIENAAR AJ INTRODUCTION [1]  This is an urgent application in terms of Rule 6(12) of the Uniform Rules of Court, wherein the Applicant seeks an interim relief. [2]  The applicant seeks the following orders as per the notice of motion: 2.1  The applicant’s non-compliance with the rules of this honourable Court be condoned in terms of Rule 6(12) and this matter is head on one of urgency. 2.2  The service be effected on the Respondent’s via electronic means at the following email addresses: 2.2.1  1st Respondent: i[...] 2.2.2  2nd Respondent: c[...] [3]  Interdicting and restraining the first respondent from: 3.1  Directly or indirectly interfering with the applicant’s right to occupation of the matrimonial home until such time that the divorce action is finalised; 3.2  Dissipating any of the assists belonging to the joint estate without the express agreement, of both parties, or by way of a Court appointed liquidator [4]  That the first respondent be ordered to pay the costs of the application on an attorney and client scale. [5]  In the event that the applicant is forcefully evicted from the matrimonial home before the hearing of this matter then the applicant moves for an order: 5.1 That the first respondent be ordered to forthwith restore to the applicant the full possession and access to the premises situated at 9[...] L[...], 1[...] L[...] Avenue, Equestria, Pretoria; 5.2  That the applicant be permitted to file a consequential supplementary affidavit. 5.3  That the first respondent be ordered to pay the costs of the application on an attorney and client scale. [6]  When the matter was called, I heard arguments from the parties on the issue of urgency, and I have considered caselaw and have ordered that this matter be heard on an urgent basis as it involves the rights of children and the right to housing, and the law is settled on interim orders pending divorce matter. Thereafter, I heard arguments from both parties with regards to merits. I reserved judgment with regards to the merits. BACKGROUND [7]  The Applicant approaches the urgent court on the basis that the Respondent is her husband and father of two minor children. They are currently involved in divorce proceedings on an application for interim care and maintenance are ongoing as it stands. However, a notice of conditional withdrawal of relief sought in Rule 58 application with Case no: GP/PTA/RC0749/2023 was served on the Respondent on Thursday, 19 December 2024. [1] [ 8]   The relationship between the Applicant and Respondent is incredibly acrimonious. They have reciprocal domestic violence orders against each other. [ 9]  The parties have been married to one another since the 15th April 2015 in community of property. The first respondent has issued divorce proceedings which is currently pending in the Magistrate Court, Regional Division of Gauteng, held at Pretoria under case number: GP/PTA/RC0749/2023. [2] [ 10]  The first respondent is G[...] N[...] N[...] N.O a major male businessman, cited in this application as the first respondent in his representative capacity as trustee of the A[...] Family Trust as well as his personal capacity, who is currently residing at 9[...] L[...] Manor, 1[...] L[...] Avenue, Equestria, Pretoria. [11] The second Respondent is MBI Fiduciary Services (Pty) Ltd (Registration number: 2017/094066/07), a private company with limited liability duly incorporated and registered with the company laws of the Republic of South Africa, represented by Heinrich Casper Badenhorst, cited second respondent in his representative capacity as trustee. [12] The matrimonial home is currently owned by the A[...] Family Trust (IT218/2018). [3] [ 13]  The Respondent has made it clear that the course of the move the Applicant is not allowed to take the furniture that is currently in their home. Issues for determination [13] Dissipating any of the assists belonging to the joint estate without the express agreement, of both parties. And the Applicant is forcefully evicted from the matrimonial home. Analysis [14]  On the 7th December 2024 the first Respondent informed her that she and the children had to vacate the matrimonial home by the end of 17th December 2024, as he had decided to let the property and they have to find alternative living arrangements. [15]  The Counsel for the Respondent, Mr Maake, argued that it was always their agreement with the applicant that the property will be rented and get a cheaper place and the difference will be used to maintain the children since he is struggling financially. [16] The property has already been rented out, the tenant paid the rent plus the deposit, [4] the tenant has to move in together with his family. [17] The Counsel for the Applicant, Mr Denton argued, that there was no agreement between the parties that she and the children will move out of their home at Equestria. [18] Deed of Trust A[...] Family Trust - Registration number IT: 218/2018 (T) Proceedings of Trustees - paragraph 8.1 reads as follows: 18.1 “The Trustees shall jointly have the power to make any decision on behalf of the trust and may use their sole discretion when acting on behalf of the trust. Any question arising at any meeting of the Trustees shall be decided by the Trustees acting together, who shall at all times, strive to reach unanimity in making any decision regarding trust assets and/or trust matters, including decisions regarding asset acquisitions and disposals. 18.2 All decisions as to the distribution of the trust income and capital, whether it be on dissolution of the trust, or not, shall be agreed to by a unanimous resolution of the trustees as to the amount and nature of such distribution”. [19]  Counsel for the Applicant argued that there is no resolution or proof of an unanimous decision taken by the trust as required by the trust documentation. There was also no agreement between the parties that she and the children will move out of the property or that the property can be rented out. [20]  The Respondent failed to adduced evidence to support his submissions with regards to his financial struggling. This should include providing concrete financial information and related documentation to substantiate such aspects. [21] In Buck, 1974 (1) SA 609 (R), cited with approval in Oosthuizen v Oosthuizen 1986 (4) SA 984 (T) at 9921 , and Silverstone, (1953) 1 ALL ER 556 it was held, inter alia as follows: “ In my view she (the wife) has a right to be in the matrimonial home while a petition is pending before this court and this court is entitled to protect that right and ensure that pressure is not put on a wife to abandon her petition by evicting her from the home” In Buck supra, it was, in addition, held that: “ The question which spouse (if either) owns the property may have some weight in the case of a wife seeking the remedy, but as a rule very little weight”. [22] There are no minutes between the parties as per the trust requirements that the property can be rented out. Therefore, the contract is void. Order 1. I find in favour of granting the Applicant with costs. 2. I therefore order that the amended draft order is made an order of court. 3. The First Respondent is ordered to pay the costs of the application on a party and party scale - Scale B. PIENAAR M ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION This judgment was handed down electronically by circulation to the parties' and/or the parties' representatives by email and by being uploaded to Case Lines. The date and time for hand-down is deemed to be 21 DECEMBER 2024. APPEARANCES Counsel for the Applicant        : Adv B Denton Instructed by                           : Chris De Jager Attorneys Counsel for the Respondent   : Adv L Maake Instructed by                           : Malale Nthapeleng Attorneys Date of hearing                       : 19 December 2024 Date of Judgement                 : 21 December  2024 ______________________________________________________________________ [1]  04 Formal notices, item 5 [2]  02 Pleadings, item 3, pg 02-169 [3]  02 Pleadings, item 3, pg 02-137 [4]  02 Pleadings, item 1, pg 02-70 (Notice of payment) sino noindex make_database footer start