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S v K [2022] ZAGPJHC 801

GILBERT AJ

11 October 2022

Appeal: Against the decision of the magistrate to decline to make the order on the reasoning that the parties should agree to appoint a suitably qualified person to undertake what was an accounting exercise.

Discussion: Whether a liquidator and receiver can be appointed by the court to determine the value of the estates for purposes of accrual under section 3 of the Matrimonial Property Act 88 of 1984 and then realise the assets of the spouse whose estate has shown the greater accrual in satisfaction of the other spouse’s claim for half that accrual; and absent agreement between the parties where the source of power would be for the court to so order.

Findings: That nothing in sections 2 or 3 or anywhere else in the Act envisages the appointment of a liquidator or empowers the court to appoint a person with the specified powers. Neither of the spouses is sequestrated so the Insolvency Act 24 of 1936 could not be the source. The court cannot, absent agreement between the parties, devolve its duty to resolve that dispute to a third party, such as a liquidator or receiver. To do so would infringe the parties’ constitutional rights to have their dispute resolved by the court in terms of section 34 of the Constitution. The appellant must approach the regional court to determine, as a second stage, the outstanding issues relating to the accrual and obtain an order pursuant to section 3 of the Act.

Order: The appeal is dismissed.

GILBERT AJ (MANOIM J concurring.)

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