- Court finds no evidence that husband intends to hide or dissipate funds.
- Application labelled a strategic abuse of process amid disputed spousal maintenance.
- Sale proceeds to be shared equally as initially agreed by divorcing parties.
The Western Cape High Court has rejected a woman’s urgent bid to prevent her estranged husband from accessing his share of proceeds from the sale of their former home, in a divorce case entangled with maintenance disputes, international legal complexities, and emotional allegations.
The judge described the application as “mala fide and [an] abuse of court process to which this court does not take kindly,” highlighting the serious view taken by the court.
The applicant, brought the matter under extreme urgency, asking the court to grant an interim anti-dissipation interdict that would have kept her husband from receiving his half of the property sale proceeds currently held in trust by Cluver Markotter Inc. The funds were generated from the sale of their jointly owned home in Stellenbosch following their separation.
The marriage and financial support context
The parties were married in Colombia in 2015 and have one son, aged 9. Although both previously lived in South Africa, the man has since returned to Colombia. The applicant argued that her husband had threatened to disappear permanently, leaving her unable to claim spousal or child maintenance. But the judge rejected that argument, finding no credible evidence that the husband had such intentions or was attempting to hide assets.
The court outlined that anti-dissipation interdicts are a serious form of relief, only to be granted when there is a clear intention to defeat a creditor’s claim by secreting or disposing of assets. Relying on longstanding legal precedent, including the Knox D’Arcy judgment, the court held that such jurisdictional facts were absent in this case.
Financial conduct and maintenance claims
Far from absconding, had continued to cover their child’s private school fees and offered monthly maintenance, though the applicant found the offer of R5 000 inadequate. The judge noted that for much of their marriage, the couple had been financially supported by the husband’s family in Colombia, including a R90 000 monthly allowance and the purchase of both their home and a Mercedes-Benz vehicle.
Crucially, the court was troubled by the applicant’s conduct. She had sold the jointly acquired vehicle and kept the R218 000 proceeds without sharing them. Her attempt to block the husband’s access to the property funds, according to the judgment, appeared less about genuine legal risk and more about coercing a financial outcome in her favour. “This application is mala fide and is abuse of court process to which this court does not take kindly,” the judgment read.
Court’s findings on urgency and abuse of process
The court also criticised the urgency of the application, noting that the circumstances were self-created and disrupted an orderly legal process. Although the applicant was granted condonation for her late filing of a replying affidavit, the judge took issue with her use of that affidavit to introduce new arguments, another procedural irregularity.
Costs and final orders
In dismissing the application, the court declined to issue a punitive costs order out of concern that financial penalties could impact the child’s welfare. Still, it ordered the applicant to pay standard costs on a party and party scale, including those resulting from a prior postponement.
While the court recognised the applicant’s concerns about securing her and the child’s future, it reaffirmed that such matters must be pursued through the divorce process, not via urgent interdicts unsupported by fact or law.
Conviction.co.za
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
