IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No 8954/10

In the matter between:

and

			IN THE HIGH COURT OF SOUTH AFRICA 
			WESTERN CAPE HIGH COURT, CAPE TOWN								

In the matter between: 

A M								Plaintiff

And

J (J) M                                                                                                Defendant

JUDGMENT DELIVERED ON 10 DECEMBER 2010

CLOETE. AJ
[1] This is a divorce action in terms of which the plaintiff claims (a) a decree of divorce; (b) an order declaring that the asset of the J M Family Trust No IT1281/2005 ('the Trust') forms part of defendants personal estate for purposes of calculation of the accrual in accordance with the provisions of the Matrimonial Property Act. No 88 of 1984 ('the Act'): (c) an order directing defendant to pay to plaintiff an amount equal to 50% of the difference in the accruals of the nett estates of the parties; (d) costs; and (e) that any order which this court makes shall be binding upon the defendant's estate Although plaintiff initially claimed rehabilitative maintenance for a period of 24 months, this claim was abandoned at the commencement of the trial.

[2] In his counterclaim filed of record, the defendant admitted that the marriage between the parties has irretrievably broken down and counterclaimed against plaintiff for an order that (a) plaintiff is to forfeit her right to share in the accrual in defendant's estate, more particularly with regard to certain assets of defendant; (b) the values of the immovable properties situate at 16 Prins Street, Oranjezicht, Cape Town and 26 Prins Street, Oranjezicht. Cape Town and/or any assets acquired by defendant as a result of his possession or former possession of such assets, shall not be taken into account in the calculation of the accrual in defendant's estate; and (c) costs. During the course of the trial is became apparent that defendant also contends that other immovable properties (over and above 16 and 26 Prins Street) were also acquired by him as a consequence of assets which were excluded in terms of the parties' antenuptial contract and that accordingly these properties and/or the proceeds thereof must also not be taken into account in the calculation of the accrual in defendant's estate.

[3] Although this aspect was not specifically dealt with on the pleadings, the parties are in agreement that those assets and/or values reflected in clause 4 of the their antenuptial contract, being the commencement values of their respective estates as envisaged in terms of s 4{1){a) of the Act are the same assets as those which were excluded by the parties in clause 5 of the antenuptial contract as is envisaged in terms of s 4(1)(b)(ii) of the Act.

[4] Plaintiff argued that the provisions of the Act make it clear that assets which are excluded in accordance with s 4(1)(b)(ii) cannot be taken into account as forming part of the estate of a party at the date of commencement of the marriage by virtue of the provisions of s 4(1)(b)(ii) itself which read as follows:

•4. Accrual of Estate-(1)(a) ...

(b)    in the determination of the accrual of the estate of a spouse -

[7] Plaintiffs evidence was that she understood the antenuptial contract to mean that, in the event of termination of the marriage, the assets of each party reflected in the antenuptial contract would revert to them and the balance of assets accrued during the marriage would be divided between the parties.

[8] Defendant's evidence on this issue focused entirely on precisely which of his assets were excluded in terms of clause 5 of the antenuptial contract. He did not place any evidence before this court to indicate anything other than that his understanding of the antenuptial contract was that certain assets were excluded from the accrual, as opposed to forming part of the commencement value of his estate for purposes of calculation of the accrual upon termination of the marriage. Further, defendant's counsel did not deal at all with plaintiffs submissions in this regard in his closing argument.

ISSUES AGREED UPON

[10] At the commencement of the trial the parties informed the court that the following aspects had been agreed upon between them:

[10.1.] The division of their household furniture and effects as reflected on the schedule appearing at pp 41 and 42 of plaintiffs trial bundle (exhibit "A"), subject to defendant retaining the desk, chair, book case and single bed in the plaintiffs study at the former common home;

[10.2.] The assets, liabilities and attendant values thereof in the estates of plaintiff, defendant and the Trust, save and except that plaintiff disputes that the defendants investments in Hungary are limited to the amount of €142.300. (There was some debate about the amount of capital gains tax payable in respect of the sale of defendant's immovable property situated at 17 Scott Street, Gardens, Cape Town but in her closing argument plaintiffs counsel informed the court that the plaintiff would accept that the sum of R60.000 is payable in respect of capital gains tax on this sale, as claimed by defendant for purposes of calculating the accrual in defendant's estate);

[10.3.] The parties are further agreed that in the event of this court making an order in favour of plaintiff for payment to her by defendant of an amount in excess of R2.1m in respect of her accrual claim, then plaintiff shall receive the immovable property situated at 16 Prins Street with an agreed value of R2,1m as part payment of her claim, with the balance to be paid to her in cash (The parties also agreed that plaintiff shall pay the costs attendant upon the transfer of the aforesaid immovable property into her name).

[11] At the commencement of the trial defendant made an open tender to pay to plaintiff an amount of R3m by way of the transfer of the 16 Prins Street property to her (at the agreed value of R2,1m), and the balance in cash. During the course of the trial and in light of defendant's open offer, the parties agreed that defendant would pay to plaintiff the sum of R250.000 as an advance on her accrual claim. This amount was duly paid to plaintiff by defendant.

FACTS NOT IN DISPUTE

[12] In addition to the aspects agreed upon and referred to above, the following facts are not in dispute:

[12.2.] There are two children, both daughters, who were born of the marriage, Margit who was born in 1985 and Lisa who was born in 1988. Both children have thus attained the age of majority. Towards the end of her secondary schooling, Lisa was diagnosed as suffering from bipolar disorder. Both parties feel that in all likelihood, Lisa will continue to require their support from time to time, including financial support;

[12.3.] The marriage has irretrievably broken down;

[12.4.] The assets inherited by plaintiff during the course of the marriage do not form part of the accrual in her estate. These assets are plaintiffs Marriott Property Income Fund of R241,463.81, Old Mutual Portfolio (Investors Fund) of R28.201.82 and Citroen motor vehicle with a value of R50,000. The motor vehicle is currently registered in defendant's name and he has agreed that it will be transferred by him into plaintiffs name;

[12.5.] The amount of R310,000 inherited by defendant during the course of the marriage shall similarly not form part of his estate for purposes of calculation of the accrual therein.

ISSUES IN DISPUTE
[13]     The issues which remain in dispute and which must thus be determined by me are the following:

[13.1.] The extent of plaintiffs accrual claim, taking into account my findings in respect of the Trust's asset, the defendant s investments in Hungary and any assets which should be excluded from defendant's estate;

[13.2.] Whether the Trust asset (being an immovable property situate at 11 Elise Way, Hout Bay) forms part of defendant's assets and should be taken into account in the calculation of the accrual in defendant's estate alternatively, what amount should be taken into account as constituting a loan by defendant to the Trust arising out of the funding of the purchase price thereof for purposes of the accrual calculation;

[13.3.] The value of defendant's investments in Hungary for purposes of the accrual calculation;

[13.4.] Whether defendant is entitled to a forfeiture order:

[13.5.] Whether any assets (other than the inherited sum of R310.000 which has already been agreed between the parties) should be excluded from defendant's estate for purposes of the accrual calculation, on the basis that such assets were acquired by assets excluded by defendant in terms of clause 5 of the antenuptial contract;

[13.6.] Costs.

WHETHER THE TRUST ASSET FORMS PART OF DEFENDANT'S ESTATE

[14]     The unchallenged evidence of the plaintiff was as follows;

[14.1.] The Trust was registered when the immovable property situate at 11 Elise Way, Hout Bay {'the Hout Bay property') was purchased in 2005. Plaintiff confirmed that the Trust bears no: IT1281/2005. which would of course have been the year in which the Trust was registered;

[14.2.] She, together with defendant and a third party were appointed as the initial trustees of the Trust and that, as far as she can recall, the purpose of the Trust was to limit estate duty payable by defendant in the event of his death;

[14.3.] The Hout Bay property was immediately registered in the name of the Trust upon registration of transfer of the Hout Bay property and the Trust has no ether assets;

[14.4.] She is no longer a trustee of the Trust since defendant, shortly after plaintiff believed that the parties had reached an agreement pertaining to the divorce, had her sign a document in which she resigned as trustee:

[14.5.] She does not have any real knowledge as to what a trustee is. or of what the functions of a trustee are. that trustees meetings were never held and that the Trust, as far as she is aware, does not have a bank account (although there is a mortgage bond registered over the Hout Bay property);

[14.6.] The Trust has no financial statements and no resolutions were taken by the trustees, not even in respect of the purchase of the Hout Bay property;

[14.7.] The Hout Bay property is comprised of three separate dwellings/living units The parties and their family lived in the main dwelling and rooms were rented in the other dwetlings/iiving units. There were various different tenants during the period in which she resided in the Hout Bay property;

[14.8] A number of lease agreements were entered into with the tenants, which lease agreements were typed by her. She testified that the document appearing at page 24 of exhibit 'A' was an example of such a lease agreement. The heading of this lease agreement bears the defendant's name and reflects that the tenant concerned would be contracting with the defendant personally,

[14.9.] She referred to a pro forma lease agreement at pages 47 to 51 of exhibit 'A' and testified that the latter differed from the lease agreement typed by her in that the heading of the pro forma lease agreement now refers to the J M Family Trust and the defendant as a trustee of the Trust, which was not the case previously;

[14.10.] When the family moved to the Hout Bay property they did not enter into a lease agreement with the Trust in respect of their occupation of the Hout Bay property and that she was never approached in her capacity as a trustee in respect of any lease agreement for the family;

[14.11.] Defendant paid the municipal account (including rates and taxes) of the Hout Bay property;
[14 12] No separate books or records were kept in respect of rentals paid by the various tenants of the Hout Bay property and rentals received in respect of the other immovable properties leased by defendant personally all formed part of the same set of records;

[14.13.] To the best of her knowledge neither she nor defendant are beneficiaries of the Trust;

[14.14.] In response to a question by this court, she confirmed that the bank account details on the Trust lease agreements' are the same as the defendant's personal bank account details.

[15] Defendant's evidence relating to the Trust was, in essence, limited to the following:

[15.1] He regarded the Hout Bay property as being one where he could retire. When he was diagnosed in 2002 with diabetes he was informed that his life expectancy was immediately reduced by ten years. The purpose of the Trust was to ensure that his assets would be protected for his children and grandchildren, not only after his death, but in the event that South Africa plunged into financial ruin. The fact that defendant failed to mention any intention on his part to also make provision for plaintiff in the event of his death gave rise to the clear impression that it was also his intention to protect his estate against any accrual claim by the plaintiff in the event of termination of the marriage, whether by divorce or death;
[15.2.] He clearly regarded the access bond registered over the Hout Bay property as his own and made numerous references to 'my access bond' whilst being cross examined by plaintiff's counsel regarding whether or not he had withdrawn any funds from the access bond. He also confirmed that he personally had made payments on account of the access bond.

[16] Defendant also elected not to produce a copy of the Trust Deed despite request by plaintiff to do so. Similarly, he did not produce any financial statements of the Trust, minutes of meetings of the trustees of the Trust, resolutions by the trustees of the Trust, any evidence of any bank account of the Trust (including any bond statements relating to the access bond over the Hout Bay property), nor did he produce any separate books or other records of the Trust.

[18] Accordingly, I conclude that the agreed nett asset value of R2,8m must be taken into consideration in the assessment of the accrual in the estate of the defendant for purposes of s 3(1) of the Act.

[19] As I have concluded that the Trust asset indeed forms part of defendants estate for purposes of the accrual calculation, it is not necessary for me to make any findings regarding defendant's loan to the Trust as this would result in a partial duplication of the value of this asset for purposes of the accrual calculation.

THE VALUE OF DEFENDANT'S INVESTMENTS IN HUNGARY

(a)	€20 195.00	
(b)	€77 570.00	
(c)	€30 903.97 	
(d)	C79 495 00	
(e)	€1 090.00	
(f)	€47 300.00	
(g)	€30 000.00	
	C286 553.00	

[21]     Defendant admitted all of the amounts invested save for the following-

[21.1.] He alleged that the amounts at (b) of €77 570.00 and (d) of €79 495.00 must relate to the same investment; and

[21.2.] He alleged that the amount at (g) of €30 000.00 must be included in the amount at (f) of €47 300.00 (initially defendant alleged that the amount at (c) of €30 903.97 must be the same as the amount at (g) of €30 000.00, but appeared to abandon this contention during the course of his evidence and cross examination).

[22] As to defendant's first contention, this cannot be correct. An e-mail addressed by the defendant to one Yvonne at Unicredit Bank dated 29 December 2009 reads as follows:-

[23] An undated letter addressed by defendant to Yvonne which defendant testified had been prepared, if not sent (defendant could not recall) after plaintiff left the former common home in January 2010. reads as follows:

'My Euro investment of €79 495 plus interest of €1 090 matures on 2010/01/05 Kindly re-invest the above amounts for a further six months at 1.5% interest as telephonically arranged with yourself today. Please confirm the new capital amount and new date of maturity via e-mail.'

[24] Defendant was unable to provide any satisfactory explanations for the following:

[24.1] That the amounts referred to by him in the two communications to Yvonne differ;
[24.2] That the dates of maturity of the investments differ, [24.3] That the interest rates differ:

[24.4.] That if. as alleged by defendant, the second communication to Yvonne was a follow-up to his first communication since she had failed to respond thereto, why no reference was made in the second communication to his earlier communication to Yvonne.
[25] Accordingly, the overwhelming probabilities are that the amounts of €77 570.00 and €79 495.00 are indeed two different investments. It is also noted that defendant did not dispute the interest component on the investment of €79 495.00.

[27] I accordingly conclude that the total value of defendants investments in Hungary is €256 553. In argument plaintiffs counsel submitted that this court should apply an exchange rate of R9.18 to the Euro which submission was not challenged by defendant's counsel in his argument. I thus find that the value of defendant's total investments in Hungary, in rand terms, is R2.355.156.54.

DEFENDANT'S CLAIM FOR FORFEITURE

'During marriage the spouses would be fully independent and there will be complete separation of property. On dissolution of the marriage gains made during its subsistence will be shared unless the accrual system is expressly excluded in the antenuptial contract'

At p37 the learned author states:

'Just as the right to share in the joint estate and the right to a marriage settlement in an antenuptial contract can be forfeited, so also is the right to share in the accrual subject to the principle of forfeiture of benefits.'

The accrual system is ... founded on the notion that at the dissolution of a marriage out of community of property and community of profit of loss both spouses ought to share in the growth their estates have shown, without there having been a joint estate during the subsistence of the marriage.'
[30]    At p98, the learned authors describe the accrual system as:

'A type of postponed community of profit. During the subsistence of the marriage it is out of community of property and community of profit and loss. Each spouse retains and controls his or her own estate but upon dissolution of the marriage., the spouse share equally in the accrual or growth their estates have shown during the subsistence of the marriage.'

[32]     Section of the Act provides as follows:

[33] It is common cause between the parties that, provided the assets which defendant seeks to exclude are not in fact found to be capable of exclusion by this court, it is plaintiff who has an accrual claim against defendant.

[35]     Section 9(1) of the Divorce Act 70 of 1979 reads as follows:

'When a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part if the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefitted.'

'The three factors governing the value judgment to be made by the trial court in terms of s 9(1) thus fall within a relatively narrow ambit: they are limited to (a) the duration of the marriage: (b) the circumstances which gave rise to the breakdown thereof: and (c) any substantial misconduct on the part of either of the parties. Conspicuously absent from s 9 is a catch-all phrase, permitting the court, in addition to the factors listed, to have regard to any other factor. (Compare, in this regard, the wording of s 7(2) of the Divorce Act dealing with maintenance orders upon divorce which, apart from the fact that the list of relevant factors is significantly longer, also entitles the court to have regard to "any other factor which in the opinion of the court should be taken into account". So, too, in terms ofs 7(5), the list of factors which must be taken into account by a court in the determination of which assets should be transferred by one spouse to the other upon divorce, when the circumstances set out in ss 7(3) and (4) justify the making of such a ''redistribution order" also expressly includes "any other factor which should in the opinion of the court be taken into account"). The trial court may therefore not have regard to any factors other than those listed in s 9(1) in determining whether or not the spouse against whom the forfeiture is claimed will in relation to the other spouse, be unduly benefitted if such an order is not made.'

A MmaliK / J Mmalik

[37]    The three factors mentioned in the section should not be considered

[38] In the instant matter, the duration of the marriage cannot be a relevant factor, as it is common cause between the parties that it is one of almost 26 years.

[39] As to the circumstances which gave rise to the breakdown of the marriage, defendant in his claim in reconvention listed 17 grounds therefor. Of these 17 grounds:

[39.1.] Defendant did not testify at all regarding plaintiffs alleged intimate relationships with other women (which comprised three of such grounds) and it became clear, during the course of his cross examination, that this was nothing other than speculation on his part:

[39.5.] The only other grounds advanced by defendant were that the parties no longer lived together as husband and wife (which is common cause), that there is no meaningful communication between them and that defendant has lost all interest in the continuation of the marriage.

[40] In my view, defendant has not come close to persuading this court that, in the circumstances of the instant matter, plaintiff should be ordered to forfeit her accrual claim.

WHETHER ANY OF DEFENDANT'S ASSETS SHOULD BE EXCLUDED FROM THE ACCRUAL CALCULATION AS A CONSEQUENCE OF THEM HAVING BEEN ACQUIRED WITH ASSETS WHICH WERE EXCLUDED BY HIM IN CLAUSE 5 OF THE ANTENUPTIAL CONTRACT

[41] Defendant's case on this aspect (although not pleaded as such and despite the fact that there is no claim for rectification before this court) boils down to the following:

[41.1.] The assets which were excluded by defendant from the accrual system at clause 5 of the antenuptial contract were:

'Kontant:R22 000.00 Losgoed: R20 000.00'

[41.3.] Virtually defendant's entire estate has been acquired by him by virtue of his former possession of the two policies and his pension interest at the date of the marriage;

[41.4.] Accordingly, this court should order that plaintiff has no claim to almost all of the nett assets in defendant's estate (the precise extent to which plaintiff should have no claim was never properly placed before this court).

[42] In this regard, defendant relies on the provisions of s 4(1)(b)(ii) of the Act which, for sake of convenience is repeated hereunder;

•4. Accrual of Estate - (1)(a)...

(b)    in the determination of the accrual of the estate of a spouse -
(ii) an asset which has been excluded from the accrual system in terms of the antenuptial contract of spouses, as well as any other assets which he acquired by virtue of his possession or former possession of the first mentioned asset, is not taken into account as part of that estate at the commencement or the dissolution of the marriage;'

[43] Although defendant's counsel argued that plaintiff bears the onus to establish that defendant's alleged excluded assets should form part of the accrual in his estate.
it is clear that defendant bears the onus to persuade this court that such assets should indeed be excluded from the accrual.

[44] As to defendant's pension interest at the date of the marriage, at best for him, the value of such pension interest was R176.32 plus an equivalent contribution by his employer, thus R352.64. Indeed, defendants counsel, whilst cross examining plaintiff, put it thus:

[48.1.] That Metropolitan Life indeed has the necessary historical records;

[48.2.] The records of that company show that defendant has only ever been the owner of one such policy. This was confirmed in an e-mail dated 30 November 2010 addressed to the plaintiffs attorney by Metropolitan Life, the content of which reads as follows:

'The entry date of this policy was November 1969 and the premium at inception was R10.00 ... We viewed our records on both ID numbers  and  and only found the one policy number 4400913906 linked to J M.'

[48.3.] Policy number 4400913906 was surrendered by defendant on 28 November 1991 and the nett proceeds of such policy, which were paid to defendant, amounted only to R8,887.74, which amount bears no relation to the two amounts contended by defendant totalling R180,000.

[49] Defendant's evidence on this aspect must thus be rejected entirely. Although defendant's counsel sought to persuade the court to exclude the subpoenaed documentation on the ground that it constituted hearsay evidence, to my mind it clearly does not. particularly if regard is had to paragraph 13 of the Minute of the Rule 37 meeting held on 19 August 2010, in which the parties agreed that:

•STATUS VAN BEWYSMATERIAAL

[50] It is noted that defendant did not object to the production of the subpoenaed documents, and accordingly, it was not necessary for plaintiff to prove their authenticity.

[53] Defendant's counsel also argued that defendant must have meant to include his pension interest in clause 5 by virtue of the fact that, as at the date of the parlies' marriage, the interest which a spouse had in any pension fund was not deemed to form part of his or her assets upon divorce. To my mind, this makes no sense. As a pension interest was not deemed to form part of a spouse's assets upon divorce at the date of the parties' marriage, it would clearly not have been necessary for defendant to specifically exclude such a pension interest from the operation of the accrual as it would, as a matter of law. have fallen outside of the accrual had the marriage terminated prior to 1989 when the relevant amendment to the Divorce Act 70 of 1979 came into effect. Defendant's counsel's contention simply lends credence to plaintiffs argument that defendant could not have intended to specifically exclude his pension interest from the provisions of the accrual.

[54] In any event, defendant was unable to inform this court with any acceptable degree of clarity as to how the proceeds of his Metropolitan Life policy were appropriated. The same applies to his pension interest, to the extent that it could ever be regarded as relevant in light of the fact that, on his own version, it had 'no value' at the date of the marriage Indeed, defendant's evidence on these aspects was so vague and insubstantial that it placed this court in a position in which it is well nigh impossible to determine how such proceeds were in fact utilised.

[56] As to the cash of R22.000, defendant attempted to persuade this court that such sum was utilised towards the purchase of one of the Prins Street properties. Defendant however did not adduce any evidence as to how this specific cash amount was preserved and appropriated towards the purchase of any particular immovable property His own evidence was to the effect that at the date of the marriage he only had a bank account at First National Bank which was not an investment account. He admitted that between the date of the mamage and the purchase of the first Prins Street property, he purchased a number of other assets but did not satisfactorily explain how these other assets were financed. He further admitted that he was obliged to repay to the Fidelity Fund an amount of approximately R60.000 within a few years after the marriage. His evidence was insufficient to place this court in a position to accept his contention that the specific amount of R22,000 reflected in clause 5 of the antenuptial contract (a) increased in value to the extent which he alleged it had; and (b) was indeed utilised by him towards the purchase of either the first or second Prins Street properties.

[57] Accordingly the defendant has failed to persuade me that any amount, or asset, must be excluded from the accrual in his estate by virtue of the provisions of clause 5 of the antenuptial contract.

[61] Accordingly, I find that there is insufficient evidence before me to enable me to determine what portion, if any, of the sum of R50.000 should be excluded from defendant's estate.

CALCULATION OF THE ACCRUAL

[62] In light of my findings and conclusions, I calculate the accruals in the respective estates of the parties to be as follows:

[62.1.] Plaintiff:

Allan Gray Retirement Annuity Fund	R193 565	
The Amalgan Defined Contribution Provident Fund	R72 403	
Total	R265 968	
Less Loan from First National Bank	R50.000	
Accrual in Plaintiffs estate	R215 968	

[62.2.] Defendant:
16 Prins Street	R2 100 000	
26 Prins Street	R1 530 000	
17 Scott Street	R1 930 000	
18 Rocklands	R3 150 000	
Investments in Hungary	R2 355 156	
Audi TT motor vehicle	R147 000	
Mazda motor vehicle	R45 000	
11 Elise Way, Hout Bay	R2 800 000	
Total	14 057 156	
Less: Inheritance	310 000	
Accrual in Defendant's estate	R13 747 156	

[63] One half of the difference in the accruals of the respective estates of the parties i.e., R 13 747 156 - R215 968, divided by 2 is R6 765 594.

[64] After deduction of the value of 16 Pnns Street of R2.1m and the R250.000 advanced on plaintiffs accrual claim already paid to her by defendant, I find that defendant must pay to plaintiff the sum of R4.415.594 in cash.

COSTS

[65] It is clear that plaintiff has been substantially successful in her claims and I see no reason why the defendant should not be ordered to pay her costs, including the costs of the urgent application launched by plaintiff under case number 20251/2010. In this regard, it is clear from the papers filed of record in that matter that it was only as a result of the urgent application that the nett proceeds of the sale of 26 Prins Street were held in trust by defendants attorneys pending finalisation of the divorce action between the parties and any further directions of this court. It is also clear that the postponement of the divorce action on 2 September 2010 was occasioned by defendant terminating the mandate of his legal representatives at the time and appointing new representatives. He should clearly bear the costs of the postponement in these circumstances.

ORDER
[66]     In the result, I make the following order:
[66.1.] A Decree of Divorce between the parties is granted;

[66.2.] The value of the asset of the J M Family Trust must be taken into account in the assessment of the accrual of the estate of defendant for purposes of s 3(1) of the Matrimonial Property Act 88 of 1984;

[66.3.] Defendant shall pay to plaintiff the sum of R6J65.594 in respect of her accrual claim, such sum to be paid to plaintiff as follows:

[66.3.1.] Defendant shall immediately take all steps necessary to transfer to plaintiff the immovable property situated at 16 Prins Street Oranjezicht. Cape Town. The costs of registration of transfer thereof shall be borne by plaintiff. To this end, defendant shall sign all documentation necessary to give effect to the aforementioned transfer within seven(7) calendar days of being called upon by plaintiff's attorneys in writing to do so, failing which the registrar of this court is hereby authorised to sign all such documentation on defendant's behalf;
[66.3.2] Plaintiff shall retain as her sole property the sum of R250.000 already paid to her by defendant as an advance on her accrual claim;

[66.3.3.] The balance of the sum due to plaintiff, namely. R4.415,594 shall be paid directly into such bank account as is nominated in writing by plaintiff within 60 calendar days from the date of this order, free of deduction or set off, and to this end. defendant shall instruct his attorneys of record to pay to plaintiff on account of the cash sum payable to her the full amount of the proceeds of the sale of the immovable property at 26 Prins Street which are currently held by them in trust on defendant's behalf;

[66.3.4.] Defendant shall forthwith sign all documentation necessary to transfer the Citroen motor vehicle registered in defendants name but in plaintiff's possession into the name of plaintiff within seven calendar days of being called upon by plaintiffs attorneys to do so in writing, failing which the registrar of this court is hereby authorised to sign also such documentation on his behalf and to instruct the licensing authorities to make available the relevant registration documents, alternatively copies thereof, to plaintiff in order to enable her to transfer the vehicle into her name;

[66.3.5.] Save as aforesaid, each party shall retain as his/her sole and exclusive property those assets currently in his/her possession and/or under his/her control.:

[66.4.] Defendant shall effect payment of plaintiffs costs, including the costs of the urgent application under case number 20251/2010 and the costs of the postponement of the divorce action on 2 September 2010 as taxed or agreed.

[66.5.] The terms of this order shall be binding upon defendant's estate.