A divorce battle in the North West has taken an unusual turn, with a pensioner asking the court to make sure her share of the family livestock does not get lost in the split.
The woman, who has been married to her husband in community of property since 1983, wanted the court to allow her to amend her divorce papers to include a claim for a share of the livestock acquired during their marriage.
But her bid was dismissed after the North West High Court in Mahikeng found that the changes she wanted to make to her claim were contradictory.
The livestock at the centre of the dispute include 10 cows, 64 goats and an unknown number of chickens.
The applicant had asked that the cows and goats, which are situated at Mocoseng village, be divided equally between her and her husband. She also wanted the chickens to be shared equally.
The judgment was handed down on Friday by acting judge T Masike.
A party in legal proceedings is not allowed to approbate and reprobate
— Acting judge T Masike
The divorcing couple are both pensioners and have no minor children.
The woman launched divorce proceedings against her husband in April 2024, seeking a divorce and division of their joint estate. However, the case became complicated after her husband disputed that certain properties she believed formed part of their joint estate actually belonged to the joint estate.
According to the judgment, documents discovered during the case showed that two immovable properties belonged to the husband’s late mother and had been left to him in her will. The will specifically stated that the properties should not form part of any marriage or communal estate.
This prompted the woman to seek an amendment to her divorce papers.
Among other things, she wanted her husband to forfeit 50% of his half-share in a property at Unit 6, Mmabatho.
She also wanted the divorce papers changed to deal with the couple’s motor vehicles and the livestock.
Her proposed changes stated that the 10 cows and 64 goats should be shared equally, while the chickens, whose exact number was unknown, should also be divided between the couple.
But in another part of her proposed claim, she asked that her husband forfeit his entire half-share of the joint estate. This contradiction proved to be the stumbling block.
The husband opposed the proposed amendment, arguing that it:
- was made in bad faith;
- would delay the divorce; and
- would make the pleadings vague and embarrassing.
The court rejected several of his arguments, finding there was no bad faith in the woman seeking to amend her claim after discovering that the two properties were not part of the joint estate.
Judge Masike also found that any prejudice caused by delay could be dealt with through a costs order.
However, the court agreed with the husband that the proposed claims were contradictory. The judge said the woman could not, on the one hand, ask for the livestock and other assets to be divided equally while, on the other, asking for her husband to lose his entire half-share of the joint estate.
“A party in legal proceedings is not allowed to approbate and reprobate,” Masike said, explaining that a litigant cannot adopt two positions that are inconsistent with each other.
The court found that allowing the amendment would make the woman’s particulars of claim “vague and embarrassing” and therefore legally defective.
Her application to amend her divorce papers was dismissed, and she was ordered to pay the costs of the application.
This means for now, the livestock remains part of the bigger divorce fight which will be heard in September.
Sowetan
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