CSL2601 LATEST
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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
[REPORTABLE]
Case No:4366/2016
Before the Hon. Ms Justice Slingers
Hearing: 3 June 2020
Judgment Delivered: 24 June 2020
In the matter between:
AJ Applicant
and
JJ First Respondent
J J N.O.
in his capacity as Trustee for the time being of the
Tafika Trust Second Respondent
CHRISTEL SADLER N.O. in her capacity as
Trustee for the time being of the Tafika Trust Third Respondent
THE MASTER OF THE HIGH COURT,
WESTERN CAPE DIVISION Fourth Respondent
L C ABELHEIM LIMITED
(in his capacity as the Mauritian Trustee of the
Tafika Trust, Mauritius) Fifth Respondent
[1] On 6 December 1980 the applicant and the first respondent were married to each
other, out of community of property and the marriage still subsists. On 14 March
2016 the applicant instituted divorce proceedings wherein she pleaded inter alia
that the assets of The Tafika Trust registered with the Master of the High Court
under IT number 5317/2007 (“the Tafika trust”) and the Tafika Trust Mauritius,
(herein after collectively referred to as “the trusts”) are beneficially owned and
controlled by the first respondent, do not constitute assets owned by the trusts
and form part of the first respondent’s estate. Furthermore, the applicant pleads
that the trusts are the alter ego of the first respondent who abused the trust’s
form by utilising the trusts as vehicles to accumulate personal wealth.
[2] In pleading to the particulars of claim, the first respondent admits that he
financed the acquisition of certain assets of the trusts, caused the growth in value
of certain of the assets of the trusts and assisted in the maintenance and running
costs of certain of the assets of the trusts. The first respondent denies that the
trusts were beneficially owned and controlled by him or that they form part of his
estate. Furthermore, the first respondent denies that he was utilising the trusts
as vehicles to accumulate personal wealth.
[3] It is evident from the pleadings in the divorce action that the disputed issues
include whether or not it would be just and equitable for the first respondent to be
directed, in terms of section 7(3) of the Divorce Act 70 of 1979, as amended
(“the Divorce Act”), to transfer to and in favour of the applicant an amount
, 3
equal to fifty percent of the difference between the net value of the assets of the
parties respective estates. Related hereto is the disputed issue of whether or not
the net value of the trusts’ assets held by the trustees at the time of the
dissolution of the parties’ marriage should be added to the net value of the first
respondent’s personal estate for the purposes of determining the applicant’s
claim in terms of section 7(3) of the Divorce Act read with subsections 7(5)(a)
and (d) thereof.
[4] To this end the applicant seeks the following relief in the divorce action:
i) an order declaring that the assets of the trusts are held and controlled by
the first respondent in his personal capacity and for his personal benefit;
ii) an order in terms of section 7(3) of the Divorce Act directing the first
respondent to pay to the applicant an amount equal to fifty percent of the
difference between the net value of the assets (including those of the
trusts) in the parties respective estates;
iii) as against the second to fourth respondents and, subject to the
recognition of any order granted by the court against the fifth respondent
in Mauritius, and in the event that the first respondent holds insufficient
assets in his personal capacity to satisfy the applicant’s claim in terms of
section 7(3) of the Divorce Act an order:
a) directing the second to the fourth respondents and the fifth respondent
within 60 days of the granting of the relief sought to transfer to the first
respondent, in his personal capacity and at their costs, the assets held
by them in their names; and
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