Lovell v Lovell (24583/09) [2022] ZAGPPHC 958 (7 December 2022)

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 >> 2022 >> [2022] ZAGPPHC 958 | Noteup | LawCite sino index ## Lovell v Lovell (24583/09) [2022] ZAGPPHC 958 (7 December 2022) Lovell v Lovell (24583/09) [2022] ZAGPPHC 958 (7 December 2022) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2022_958.html sino date 7 December 2022 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 24583/09 REPORTABLE: YES/NO OF INTEREST TO OTHER JUDGES: NO REVISED: NO Date:   7 December 2022 In the matter between: LOVELL, KEVIN STANHOPE                                         APPLICANT and LOVELL, ANGELA                                                          RESPONDENT In re: LOVELL, ANGELA                                                          APPLICANT and LOVELL, KEVIN STANHOPE                                         FIRST RESPONDENT FAIRBRIDGES WERTHEIM BECKER ATTORNEYS INCORPORATED                                     SECOND RESPONDENT APPLICATION FOR LEAVE TO APPEAL: JUDGMENT Van der Schyff J Introduction [1] Mr. Lovell, the first respondent in the anti-dissipation application launched by Ms. Lovell, and the applicant in this application, applies for leave to appeal against paragraphs  35 to 50 of the judgment, and paragraphs 5 and 6 of the order handed down by me on 22 September 2022. [2] Paragraphs 5 and 6 of the order embody the ant-dissipation order. I handed down a written judgment and set out the reasons for my ruling. I do not intend to revisit same. [3] The ant-dissipation order is, in its very essence, an interim order. The order does not have any final or definitive effect on the main action, and neither does it dispose of any issue between the parties. The question then arises as to whether the order, although of an interim nature, has an immediate and substantial effect, including whether the harm that flows from the order is serious, immediate and ongoing – as explained by the Constitutional Court in National Treasury and Others v Opposition to Urban Tolling Alliance and Others. [1] The effect of the order, in principle, would not have caused Mr. Lovell to suffer any serious, immediate and irreparable harm. In Tshwane City v Afriforum and Another, [2] the Constitutional Court held that leave to appeal interim orders must be granted if it is in the interest of justice. [4] Counsel for the applicant submitted that it is in the interest of justice to grant leave to appeal because I wrongly applied the legal test for anti-dissipatory relief. I disagree with the contention that the test was applied wrongly, and again refer to the reasoning underpinning the order as set out in the written judgment. In my opinion, there is no reasonable prospect that Mr. Lovell would succeed on appeal. [5] Mr. Lovell’s counsel submitted that it would be in the interest of justice for the issue of how anti-dissipatory relief should be considered where accrual claims underpin the litigation between parties, for the Supreme Court of Appeal to finaly decide the issue. In the absence of conflicting judgments, this submission does not hold water. [6] Mr. Lovell contends that it is impossible to adhere to the order granted on 22 September 2022 because the asset under consideration was already sold, and the money was paid out to him, and used by him to pay off some debts, before the anti-dissipation application was argued. I fail to see, how a respondent’s failure to make a frank and honest disclosure to the court when a matter is argued by informing the court that the relief sought by the applicant is moot because the asset sought to be protected has already been alienated, can favourably inform any application for leave to appeal. In fact, the non-disclosure by both the respondents in the anti-dissipation application is to be frowned upon. Mr. Lovell’s attorney of record knew well that his firm has already paid out the proceeds of the sale of the house to Mr. Lovell before the application was heard, and he failed to bring that fact to the court’s attention. It goes even further. Mr. Lovell’s attorneys of record were cited as the second respondent in the anti-dissipation application. They were fully aware of the relief sought by Ms. Lovell – and despite this, they did not reveal that the proceeds of the sale of the immovable property were already paid to Mr. Lovell. In these circumstances, I agree with the submission that Mr. Lovell does not stand with clean hands before this court. ORDER In the result, the following order is granted: 1. The application for leave to appeal is dismissed with costs. E van der Schyff Judge of the High Court Delivered:  This judgement is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email. For the applicant:                           Adv. A Bester SC With:                                               Adv. R Bosman Instructed by:                                  FAIRBRIDGES WERTHEIM BECKER For the respondent:                        Adv. G Kyriazis Instructed by:                                  SHABAN CLARK COETZEE ATTORNEYS Date of the hearing:                        17 November 2022 Date of judgment:                           7 December 2022 [1] 2012 (6) SA 223 (CC). [2] 2016 (6) SA 279 (CC). sino noindex make_database footer start