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[2016] ZAWCHC 97
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W v H (25394/2010) [2016] ZAWCHC 97; [2016] 4 All SA 260 (WCC); 2017 (1) SA 196 (WCC) (5 August 2016)
IN THE HIGH COURT OF SOUTH
AFRICA
WESTERN CAPE DIVISION, CAPE
TOWN
CASE NO: 25394/2010
DATE: 5 AUGUST 2016
In the
matter between:
W
....................................................................................................................................................
Plaintiff
And
H
.................................................................................................................................................
Defendant
JUDGMENT DELIVERED ON FRIDAY 5
AUGUST 2016
Weinkove A.J.
INTRODUCTION:
I have been requested by Defendant not to
furnish the names of the parties because he felt that this might have
an adverse effect
on the children, although they are all adults.
I have agreed to refer to Plaintiff as “the wife” and to
Defendant
as “the husband” because there may be parts of
this Judgment which might cause unnecessary distress to the children,
which I would like to avoid.
This is a civil case and disputed versions must
be determined on a balance of probabilities, not as in a criminal
case, “beyond
any reasonable doubt”. The test is
what is more likely than not or whether an inference can be drawn on
the preponderance
of probabilities.
1.
The parties were married to each other on
17 July 1992 in Hamburg, Germany, which marriage was governed by an
Antenuptial Contract
(“ANC”) incorporating the accrual
system. This was a document which the husband produced and in
which he precluded
the wife from claiming maintenance in the event of
the marriage breaking down for any reason whatsoever.
2.
The husband testified that he inherited
substantial assets. While in practice he bought a cattle farm
in Namibia
. This became known as Groot Gamsberg
(“Gamsberg”). This was obviously the beginning of
the husband’s
plan to acquire assets outside South Africa
probably because of exchange control problems within South Africa.
3.
He
also bought an erf in Windhoek upon which he built a house. He
sold the house he owned in Namibia. He thereafter
bought
another plot in Windhoek and built another house. That house
was put in a company called Muy Bien (Pty) Ltd (“Muy
Bien”).
It later became the Spanish Embassy.
4.
At
the time that the husband was divorced from his first wife, he had
four children. He separated from her in 1988 or 1989.
After that divorce he bought the house in Twickenham Avenue, Auckland
Park (“Twickenham”). This property was
bond free.
He then acquired another company called Beerzijnbosvch which owned a
portion of land of about 240 hectares in
the Transvaal. He also
acquired other farms adjoining this land which were engaged in cattle
and sheep farming. He
testified that the farms which I have
described in the Eastern Transvaal were acquired before he acquired
Gamsberg in Namibia.
5.
He stated in his evidence that when he met the wife, “
I
was very attracted to her and it was obviously developing
”
(
Record p.3395(20)
). He also owned a property in
Brenton-on-Sea in Knysna which was purchased in the name of a
company, Emtilist. He told
the Court that he took the wife to
see all these properties “
every one
” (see
Record
p.3398(4)
).
6.
This was the husband’s second
marriage and both his and her evidence was that he was deeply
disturbed and upset by the Divorce
Order in respect of his first
marriage. On the other hand it seems to me that the husband
planned this divorce prior to his
marriage to his wife.
7.
The ANC, which I will later deal with in
detail, contains clauses and provisions which are difficult to
imagine any right thinking
woman would have agreed to have
incorporated in an ANC. A copy of the ANC is annexed to this
Judgment marked A.
8.
The
husband described his first divorce as “
very,
very, very costly
“ (
Record
p.3406(14). I
t was based on a
“clean break” payment. He did not furnish any
details of what was involved.
9.
The wife was gullible and naive. She
had been in a relationship with the husband for some time, during
which time he took
her on a tour of all the properties and assets
that he owned, which impressed her enormously. After he
persuaded her to marry
him, he made it clear that he would not marry
her unless she agreed,
inter alia,
to
the clause, which I will later deal with, relating to her agreement
that no Court could award her any maintenance for any reason
whatsoever.
10.
At the time of her marriage the wife was 28
years of age and the husband was 53 years of age. She was
already pregnant and
the husband was the father. She initially
decided that it was a bad arrangement to continue to be involved with
the husband
and returned to Hamburg, in Germany, intending not to
marry him and to have the child on her own.
11.
The evidence was that the husband
eventually prevailed upon the wife to marry him on the basis that if
she did not do so he would
be deprived of the privilege of bringing
up a child of their relationship.
12.
At the time, the husband was a Senior
Advocate who practised in South Africa, Namibia, Botswana and Lesotho
and he was based in
Johannesburg. He owned properties, a cattle
farm and later on a wine farm.
13.
The large age difference between the
parties made the wife an attractive trophy for the husband, but it in
no way diverted him from
his course of protecting his money from her
and in no way prevented him from planning this divorce action from
the beginning.
14.
The wine farm that the husband acquired was
in the Wellington area, in the Cape. I will deal separately
with the manner in
which ownership of that farm was dressed up to
conceal his true identity as its sole owner.
15.
There are two children born of the marriage
between the parties and a third child who was lost in a miscarriage.
16.
From the start, the husband adopted a
“scorched earth” policy in regard to this litigation.
To do this he unnecessarily
drummed up the costs of this divorce so
as to put the wife in a position where she could not afford to fund
litigation and, as
he hoped, would surrender to his counterclaims.
He raised spurious defences and demanded interim Orders all designed
to increase
the costs of this action.
17.
There is no way that the husband, as a
Senior Silk with a very lucrative practice, did not realise that all
the various applications
and objections that he was raising were
devoid of merit, yet he recklessly pursed his claims.
18.
So, for example, the husband filed a
Special Plea in which he claimed that the accrual could not be heard
in the main divorce action
because of the manner in which the accrual
is described in the legislation, that relief can only be obtained
after a Decree of
Divorce is granted. He contended that there
had to be two separate actions. One for the divorce and one for
a division
in terms of the accrual. Not only is this not the
practice in this Division (which the husband must have known), but it
is
also a nonsensical approach and had no benefit other than drumming
up extra costs so that the party that could afford those costs
achieved an advantage over the other party. He also tried to
invoke a questionable arbitration provision in the ANC to oust
this
Court’s jurisdiction to determine the wife’s accrual
claim.
19.
This is a marriage which has lasted since
1992, that is 24 years. The husband opposed the claim for the
wife’s personal
maintenance on the basis of clause 9 of the
ANC, which states that the wife accepts the donations set out in
clauses 6 and 8 thereof
and in consideration therefor waives any
present or future right to claim maintenance for herself (but
excluding maintenance for
any dependent child or children born of the
intended marriage) should the intended marriage be dissolved in
whatever manner and
for whatever reason and regardless of the conduct
of the parties.
20.
Section 7 of the Divorce Act provides that
a Court granting a Decree of Divorce may in accordance with a written
agreement between
the parties make an Order with regard to the
payment of maintenance by one party to the other. Section 7 (2)
provides that
in the absence of an Order made in terms of sub-section
(1):
“
.... the
Court may, having regard to the existing or prospective means of the
parties, their various respective earning capacities,
financial needs
and obligations, the age or each of the parties, the duration of the
marriage, the standard of living of the parties
prior to the divorce,
their conduct insofar as it may be relevant to the breakdown of the
marriage .... and any other factor which
in the opinion of the court
should be taken into account, make an order which the court finds
just in respect of the payment of
maintenance by the one party to the
other for any period until death or remarriage....
“.
21.
I must point out that although the wife
accepted the conditions of the donations in clauses 6 and 8, the
husband did not in fact
give effect to the donation of the immovable
property. What he did was to sell that property and thereafter
gave her a half
share in another property. That is not in
compliance with clause 6 of the ANC. I will deal with that more
fully later.
22.
The wife contended that the waiver of
maintenance in the ANC is contrary to public policy and is
unenforceable. I am persuaded
that that position is correct.
That clause offends public interest and if I have regard to the
relative situation of the
contracting parties at the time the clause
was sought to be enforced, it renders the enforcement of that clause
unreasonable and
is voidable on the grounds of unfairness. Not
only is the clause
per se
contrary to public policy, but having regard to the conditions which
prevailed at the time the ANC was concluded and the circumstances
which prevail at the moment, to ask this Court to enforce this waiver
would be unreasonable and offensive to public policy.
It is
unfair, particularly because the parties were not negotiating on an
equal footing. The wife was pregnant at the time
and birth of
the child was imminent. She was prevailed upon by the husband
to accept this clause and to believe him when
he said that he wanted
to be a father to their child that was to be born and that her
refusal to marry him was unfair to the child.
23.
I am persuaded that generally any purported
ouster of the jurisdiction of the Court which deprives a party of a
legal right or remedy
is
per se
against public policy.
24.
I
am referred to the decision in
Schierhout
v The Minister of Justice
1925
AD p.417
, where the Court held that if
the terms of an agreement are such as to deprive a party of his legal
rights generally, or to prevent
him from seeking redress at any time
in the Courts of Justice for any future injury or wrong committed
against him, there would
be a good ground for holding that such an
undertaking is against the public law of the land.
25.
If
I have regard to the Constitution as it presently stands and look at
this case decided in 1925, it seems to me that for a long
time the
objectionable provision in the ANC is and always was contrary to
public policy.
26.
I
am also referred to
HAHLO, “The
South African Law of Husband and Wife”, 5
th
Ed. 1985 at p.259
where the author
points out that clauses depriving the Courts of their statutory power
of divorce to award post divorce maintenance
to one of the spouses or
to order forfeiture of the benefits against one of the spouses, is
contrary to the essential nature of
the marriage relationship and, as
such, is against public policy.
27.
Counsel
has also referred me to the Constitution which also enshrines the
values of human dignity and the achievement of equality,
particularly
as this provision only applies to the wife and not to the husband.
He can claim maintenance from her and in
fact did so, which was
another obvious attempt at intimidation because it was withdrawn at
the beginning of the trial. Nevertheless,
the offending clause
prevents only the wife from claiming maintenance and not the
husband. Generally see
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
CC
.
28.
The
clause which the husband is asking me to enforce is
per
se
so manifestly unreasonable that it
offends public policy and is voidable on the grounds of unfairness.
Public policy is now
deeply rooted in our Constitution and the values
that underlie it. Our Constitution, among other values, is
founded on human
dignity, achievement of equality and the enhancement
of human rights and freedoms and the rules of law. The Bill of
Rights
enshrines the rights of all people in our country and affirms
the democratic founding values of human dignity, equality and
freedom.
Public policy must be determined with reference to the
values which underlie our constitutional democracy and is expressed
in the
Bill of Rights. A term of a contract that is contrary to
those values is contrary to public policy and is therefore
unenforceable.
29.
As
the wife’s Counsel has pointed out in paragraph 29 of their
Heads of Argument, there are five cardinal reasons why clause
9 of
the ANC deeply offends the core constitutional values of this
country:
29.1 it seeks to
exclude the statutory power of the Court to award maintenance at a
future time when neither
of the parties, nor the wife in particular,
had any basis for apprehending the existence of her potential
entitlement to maintenance
upon divorce;
29.2 it even seeks to
exclude the statutory power which was awarded to the wife in terms of
Section 2 of
the Maintenance of Surviving Spouses Act of 1990 to
claim maintenance from the husband’s estate on the dissolution
of the
marriage by the husband’s death, that is in the absence
of any divorce;
29.3 it specifically
exempts the husband from the consequences of all misconduct on his
part, including
that misconduct which is cognisable by the Court in
terms of Section 7 (2) of the Divorce Act;
29.4 it is a unilateral
waiver and is not accompanied by a corresponding waiver on the part
of the husband.
Hence the husband in these proceedings claimed
personal maintenance for himself;
29.5 the donations in
clauses 6 and 8 of the ANC are ostensibly given as a benefit in
return for the waiver,
but at the same time, contrary to
Section 5
(2) of the
Matrimonial Property Act of 1984
, such donations are not
excluded from the donee’s estate for accrual purposes.
Nevertheless, in terms of clause 3 of
the ANC, these donations are
expressly to be taken into account as part of the wife’s
estate.
30.
Counsel
has also quoted paragraph 116 of
LAWSA,
Vol 6 2
nd
Ed at pp.233-234
which provides that:
“
The general
rule relating to legality is that the term must not be contrary to
any rule of statutory law nor be contrary to good
morals, public
policy, or the nature of marriage. The following terms are
contrary to the general rule ....
(d) maintenance after divorce is regulated
by statute and is subject to alteration by the courts for good
reason. Therefore
a term which arranges maintenance after
divorce is not contrary to the policy of the law, but it cannot
exclude the power of the
courts to vary the agreement....
“
.
31.
The
waiver is offensive because it purports immutably to waive the wife’s
future rights at a time when she could not have
known what her
position would be on dissolution of the marriage.
32.
The
legislator, for policy reasons, enacted Section 7 (2) of the Divorce
Act and Section 7 (2) of the Maintenance of Surviving Spouses
Act to
alter the common law position. Section 7 (2) in particular
expressly entitles any spouse to claim maintenance at the
time of the
divorce and vests the discretionary power to award maintenance in the
Court. (The only time that a waiver of
maintenance can be made
enforceable would be when that waiver is made at the time of the
divorce and is incorporated in a settlement
agreement which may or
may not be made an Order of Court.)
33.
A
further objection to this clause in the ANC is that it is a waiver
which was made even before the parties were married.
A waiver
by one party to any maintenance without a reciprocal waiver by the
other party is offensive to public policy because it
tends to the
achievement of inequality. I am in agreement therefore with
Counsel for the wife that clause 9 of the ANC is
per
se
contrary to public policy and is
unenforceable.
34.
Counsel
for the wife has also quoted the principle that notions of fairness,
justice, equity and reasonableness cannot be separated
from public
policy. Public policy takes into account the need to do simple
justice between individuals. Furthermore,
the requirement that
there should be an adequate and fair opportunity to seek judicial
redress is consistent with the notions of
fairness and justice.
There can be no reason in principle why this test should not be
applicable in determining whether a
clause is contrary to public
policy or not.
35.
It
cannot be argued that the contract was signed by the wife on a free
and voluntary basis when the husband threatened that he would
not
marry her or be a father to their child if she did not agree to this
particular clause. It is inconceivable that persons
should not
have a right to seek judicial redress. Clauses which restrict
this right are offensive and contrary to public
policy.
36.
This
Court must also have regard to the relative situation of the
contracting parties.
37.
The
wife was in an unequal bargaining position and this Court will
recognise the inequality of bargaining power to prevent the
introduction of an injustice which may be caused thereby. The
husband exerted unfair pressure on the wife to obtain her assent
to
that clause. He took advantage of the fact that she was
labouring under a pronounced disadvantage in that she had just
finished a gruelling exam which included four 5 hour tests, a 6 week
thesis and three orals when the husband came to Germany to
persuade
her to marry him. At that time she was pregnant and the birth
was imminent on 27 July. This was a factor which
the husband
used to persuade her to marry him saying it would be unfair to
deprive the child of a father and that it was “now
or never”.
38.
The
wife’s ability to appreciate the full import of that ANC was
limited because:
38.1of her emotional state;
38.2of the fact that they were busy arranging
the wedding;
38.3
of the need to obtain a Visa and Birth
Certificate for the husband;
38.4
she was at the time visiting friends and
relatives and consulting her doctor for regular check-ups;
38.5
having had the benefit of advice from an
experienced matrimonial attorney beforehand, the husband arrived with
a draft ANC prepared
by him in conjunction with his South African
attorney;
38.6
she was German, had only visited South
Africa for a few months, had no real knowledge or understanding of
South African law and
no access to a South African legal adviser or
attorney with knowledge of the South African family and divorce law;
38.7
she was pressured into a hasty marriage, as
set out below, in circumstances where she had no real opportunity to
investigate the
legal position;
38.8
she knew South African law would apply but
believed that the South African and German legal systems of contract
law were the same
and that South Africa also entailed what she
described as “general clauses” which mitigate and
override inequitable
stipulations. She explained this in
evidence in chief and said that “general clauses” are
applied in Germany
if a party enters into a contract without being
faithful and honest or the contract is against good morals or without
full disclosure
and in most cases a Judge would amend the contract if
it was so imbalanced and improper;
38.9
she had no knowledge of the law of
maintenance in South Africa or of the Maintenance of Surviving
Spouses Act and did not appreciate
that the waiver was unilateral;
38.10
her
English was described as dreadful in 1991 when she was working in
Cape Town and the husband refused to address her in English.
This was her evidence and when she testified she maintained that she
had a good command of English but this was not apparent to
this
Court, even after so many years;
38.11
the
husband said he would not marry her without the ANC and made it clear
that he was not prepared to pay maintenance on divorce;
38.12
the
husband refused her request to postpone the wedding until December,
obviously because he realised that the chances of her agreeing
to the
ANC would be reduced and he insisted that they marry before the child
was born. He said it was either that, or not
get married at
all;
38.13
Exhibit “DB1” at
pp.15
to 27
of the Exhibits Bundle is a
letter which the wife wrote to the husband at that time indicating
that she wanted time to reflect
on the marriage, but his attitude was
that it was “now or never”. This letter not only
revealed the severe pressure
put upon the wife by the husband, but
corroborated her evidence that she was more concerned about the
children of the marriage,
custody disputes and the international
nature of the union than the waiver of maintenance. This
illustrated the wife’s
ignorance of the South African law of
divorce because in the letter she asked the husband who would be
liable for maintenance of
the family and what would happen if one of
the parties could no longer work or the husband died. As
Counsel for the wife
also pointed out, at the time of the marriage
the wife could not have known what the facts and circumstances would
be at a future
uncertain date when the waiver may become effective.
She was not aware of her rights in terms of the Divorce Act or the
Maintenance
of Surviving Spouses Act.
39.
Although I find that the clause is
per
se
contrary to public policy and
unenforceable, Counsel for the wife has argued in the alternative
that even if it were not
per se
contrary
to public policy it is unreasonable and should not be enforced
because it would be unfair and would offend public policy.
It
was submitted to me that for the following reasons enforcement of
this waiver would be so palpably unfair and unreasonable in
the
circumstances that it would be offensive to the notions of fairness,
equality, justice and reasonableness which inform public
policy:
39.1 the circumstances
under which the waiver agreement was concluded, as referred to above,
render its
enforcement unreasonable and unjust;
39.2 the waiver was an
integral part of the broader provisions of the ANC which ostensibly
conferred upon
the wife an entitlement to share in the accrual of the
husband’s estate. As was shown in the evidence, the
husband
systematically divested his estate of assets which were
supposedly placed in independent entities beyond the wife’s
reach;
39.3 I will deal in
more detail with the manner in which the husband set up offshore
trusts, thereby putting
assets beyond the wife’s reach.
40.
The calculated result of this was
effectively to subvert any accrual claim by the wife. The
husband actively sought to conceal
from her even those assets which
he has now acknowledged belonged to him. This will be dealt
with further in my Judgment.
41.
Counsel for the wife pointed out that upon
her arrival in South Africa she was forced to be even more dependent
on the husband.
He started speaking to her only in Afrikaans in
a town in which she was a stranger and was having her first baby.
She described
herself as being scared and lonely. Even now,
when it is common cause that this divorce is inevitable, the wife is
bereft
of any financial recourse against the husband if she does not
have an accrual claim against him.
42.
To compound the situation the husband has
claimed many substantial amounts in his claims in re-convention which
I will deal with
later.
43.
Throughout the marriage the wife’s
actual earnings and future earning capacity in South Africa was
limited. She worked
part-time during the marriage but could not
earn enough to support her or the children at a standard of living to
which they were
accustomed. She sacrificed her own career in
Germany to marry the husband and move to South Africa to care for the
parties’
children. Had she remained in Germany, she would
have continued working as a lawyer where she could have become a
partner
in a firm and earned a good salary.
44.
If the wife cannot pursue her claim for
maintenance, she will suffer prejudice, deprivation and indignity.
Her position is
aggravated by the fact that clause 3 of the ANC
provides that:
“
a donation
between spouses .... shall be taken into account and shall not be
excluded from the accrual system.
”
Such donations, in terms of clauses 6 and 8,
were to be the compensation for the wife’s waiver of her rights
to claim maintenance.
These clauses denude that compensation.
45.
The wife is further prejudiced by the fact
that the husband systematically attempted to hide his assets and
denude his estate.
He set up a network of companies, trust
companies and trust structures ostensibly for “estate planning
purposes”.
By his own account, he systematically removed
the growth assets from his estate and has advanced interest-free
loans to those entities
to the detriment of his estate. He
moved assets offshore with the calculated objective of placing them
beyond the wife’s
reach and, as his own expert stated, by
selling his shares in the property owning company of the wine farm to
Tartan Investments
(“Tartan”) he effectively removed the
future growth of assets from his estate.
46.
The husband demonstrably concealed assets
in his estate and he has refused to make proper disclosure as
required by
Section 7
of the
Matrimonial Property Act, for
example:
46.1 he failed to
disclose the contents of the safety boxes in Hamburg and Paarl;
46.2 he refused to
allow furniture and paintings in his Parkview flat to be valued;
46.3 he obstructed the
valuation of the Wellington farm and the contents of the building;
46.4 he concealed his
holdings in certain entities, such as the farm owning entity Blouvlei
Landgoed (Pty)
Ltd (“Blouvlei”) partly held by third
parties on his behalf and he withheld discovery of documents which
revealed the
shareholding;
46.5 he sought to
mislead, by stating that there were no material changes in his 2012
Annual Financial Statements;
46.6 he made
incremental discovery by only making disclosures piecemeal on receipt
of numerous
Rule 35(3)
and
Rule 35(6)
Notices.
47. The circumstances
under which the wife signed the ANC raises concerns as to whether
she
knew, or understood, or had a free choice, in respect of that
contract. She was pregnant at the time by the husband and
did
not at first want to marry him because she was aware of his
controlling ways. She was persuaded to marry him because
he
insisted that he wanted to be a father to the child that was to be
born and claimed that he loved her. This obviously
lulled her
into a false sense of complacency. He then presented her with
the ANC which contained the clauses waiving her
rights to claim
maintenance if the marriage became dissolved for any reason
whatsoever. He also structured the accrual system
in such a way
that even donations over a certain amount would be deductable from
any claim which she would have in terms of the
accrual system.
48. The probabilities
are that the husband correctly assessed the wife as being naïve
and gullible. He took comfort in the fact that she had nobody
to properly advise her because the so-called legal experts
she spoke
to were not sufficiently informed, nor did they understand the laws
of South Africa. After all, her main adviser
was a business law
expert in Germany. I can hardly imagine a less qualified lawyer
than a business law expert in German law
to advise a client who was
concluding an ANC under the accrual system in South Africa.
49.
No self-respecting South African attorney who is familiar with
the provisions of the
Matrimonial Property Act of South
Africa and
who practised in that field would have allowed his client to sign a
document such as I am asked to accept as a binding
agreement between
the parties in respect of their marriage to each other.
50.
As I previously indicated, the husband did
not comply with his obligations in terms of clause 6.1 of the ANC
which provided that
he transfer to the wife a half share in the
unbonded Twickenham property. He acknowledged in evidence that
he did not do
so. Therefore he has not discharged his
obligation. It was only 18 months after the marriage, at the
end of 1993, that
the parties “jointly acquired” a new
matrimonial home situated in Saxenwold, which was bonded. There
was evidence
that Twickenham was unbonded and, strictly speaking, the
husband defaulted in his obligation to transfer one-half of that
property
in order to implement his rights relating to the waiver of
maintenance.
51.
I am further asked to exercise an
overriding discretion to award maintenance to the wife in the absence
of a written agreement between
the parties with regard to the
division of their assets or the payment of maintenance by one party
to the other. I am asked
to hold that because the waiver clause
disentitles the wife to any maintenance whatsoever, that agreement
constitutes the absence
of a written agreement between the parties in
regard to the payment of maintenance. Counsel is correct in
this respect but
I am absolutely satisfied, for the reasons above set
out, that the terms of this ANC in regard to the payment of
maintenance are
contrary to public policy and are not binding upon
this Court.
52.
Ex abundante cautela
however,
I exercise such discretion in her favour to the extent that it is
necessary to do so. I am persuaded that I can and
must do so in
the circumstances of this case.
53.
See Section 173 of the Constitution of the
Republic of South Africa 1996 which gives this Court its inherent
power herein referred
to and reads as follows:
“
T
he
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice
”.
54.
As
far as the quantum of maintenance is concerned, I take into account
that:
54.1 this is a marriage
of 24 years;
54.2
the wife is now 51 years of age and the husband is 76 years of age;
54.3
for a long time this has been an
unhappy marriage with problems;
54.4 the wife left the
husband after the marriage in January 1994 but they became reconciled
in that year;
54.5 in 1995 the wife
had a miscarriage which had a traumatic effect upon her;
54.6
since 2007 the parties and their children
have resided in the Rondebosch, Cape Town, property. The
husband lived part of the
time in his Parkview flat in Johannesburg
and she spent all her time in the Rondebosch property. By 2009
the marriage became
very unhappy. The wife was work tired and
depressed. She felt low and belittled and even considered
suicide.
She had obviously compromised her career opportunities
in Germany and was not qualified to work in South Africa. The
South
African equivalent degree would have been a B.Iuris;
54.7
the wife has worked part-time earning
modest earnings. She started selling Herbalife and then
stationery. Thereafter
she worked for the Goethe Institut and
then for the wine farm;
54.8
the wife used her income mainly to fund
annual trips to Germany for herself and the children to visit her
family. When she
started working, the husband was not prepared
to pay for these trips;
54.9
the parties enjoyed an above average middle
class standard of living in an up-market neighbourhood. They
sent their children
to private schools, drove expensive motor cars,
took annual overseas holidays with their children, entertained
friends at their
home, often lavishly, and bought good quality
clothing overseas;
54.10
from early 2007, the husband maintained
three residences simultaneously, that is the Parkview flat, the
Rondebosch property and
the Wellington farm. He now owns a home
in a security estate in Wellington having sold the Parkview flat.
He maintains
the residence at Rondebosch and the Wellington farm;
54.11
the
wife’s existing and prospective means and income earning
capacity are such that she will never be able to support herself
from
her own resources, certainly nowhere near the standard of living the
parties enjoyed during their marriage. She needs
to live in an
acceptable home and I consider the Rondebosch property to be such;
54.12
the
wife has claimed maintenance in the sum of R30 000.00 per month,
which amount is arrived at by deducting her current earnings
from
Amazon.com where she deals with German speaking clients. She is
basically a telephone operator. At the moment,
the husband pays
the sum of R16 231.20 per month towards her living costs.
He pays some of her vehicle expenses and
short-term insurance,
R2 800.00 towards her medical aid and R5 000.00 towards
groceries. This is approximately
R25 522.00 per month;
54.13
the
husband suggested that the wife’s reasonable maintenance needs
should not be more than R19 737.00 per month, which
was contrary
to the statement by his then Counsel, Hodes SC, that he accept that
her expenses are approximately R25 000.00
per month. He
claimed he needed R25 000.00 per month for himself (see
Record
p.3972(24)
). See also p
p.4045
and 4047
where he concedes a similar
amount for the wife;
54.14
By
contrast, the husband’s earning capacity runs into a nett
taxable income of over R3 million to R5 million per
annum.
In the 2014 and 2015 years, his returns were between R3 million
and R3.8 million. He set-off “farming
losses”
against his practice income, which I find suspect. The evidence
is that based on the incomplete Financial Statements
for the period
1997 to 2012, that is a 5 year period, the husband funded so-called
“farming losses” in respect of the
Wellington wine farm
in an amount totalling R12 million. It is inconceivable
that the husband, an astute Senior Counsel,
with commercial
experience would have carried on pumping an amount of approximately
R60 000.00 per month into a wine farm
running at a loss.
The probabilities are that the wine farm was not making any loss but
that the husband claimed losses for
the reasons of tax avoidance.
There is no logical explanation why an educated person would have
persisted in pumping millions
of Rands into an enterprise making a
loss. At the same time, while making all these losses, he was
able to set up trust entities
in offshore investments. It is
common cause that the husband borrowed
€
23 000.00
from the wife to fund the Mas D’Andrum Farm (“the French
farm”) and that must also be an asset
in his estate.
54.15
the
husband is spending R11 258.00 per month on financing his motor
vehicle. He lives in Johannesburg and spends weekends
in
Wellington on his wine farm and in his newly purchased home on a
secure estate in Wellington. He initially acknowledged
that his
current expenses were calculated by him to be R114 352.70
per month, including a contribution of roughly R50 000.00
per
month towards his farming activities. He later calculated his
personal expenses, which comprised 18 items only and did
not include
many categories of expenses, to be R18 467.00 per month.
55.
There is a vast disparity between the
wife’s and the husband’s income earning capacity and
their means. The husband
has an estate which exceeds
R22 million, which excludes the value of many of the offshore
assets and properties and which
should be included.
56.
As far as the payment of the sum of
R300 000.00 is concerned, I do not agree with the wife’s
Counsel that the husband
has not, on a balance of probabilities,
proved that he did make payment of that amount. The evidence is
that he wrote a letter
to the wife confirming that he had made that
payment. If in fact he had not paid the money, one would have
expected her to
have recorded that fact. She did not do so.
See the trial
Record at p.3488
and my ruling at
p.3496(6)
.
57.
As far as the wife’s claim for an
Order in terms of Section 6 (2) of the Divorce Act is concerned
(which would oblige him
to prove that he had made satisfactory
provision for the maintenance of his dependent major children), the
husband alleged that
he had made adequate provision for the children,
but he has not made financial disclosure to this Court to prove that
this is so.
The probabilities are that he made provision for
his children in the offshore Trusts but that he also made provision
for himself
in those same Trusts. His failure and refusal to
identify the Trustees and furnish their names is sinister to say the
least.
58.
In the
Record a
t
pp.3930-3948
evidence is
clearly set out that the husband wrongly refused to make discovery of
relevant documents and obstructed the wife in
the preparation of her
case. These related to discovery of the Share Register of the
companies in which the husband had an
interest, the Minutes of the
Directors’ and Shareholders’ Meetings and the fact that a
company controlled by him owned
shares in the wine farm company on
his behalf. That is, Gamsberg held 15.1% of the shares in the
property holding company
of the wine farm on behalf of the husband.
59.
At
p.3993
the husband is again discredited in a Reply
to a Request for Trial Particulars where he said there was no lease
between him and
the land owning company of the Wellington farm.
However, there is an entry that he was paying R25 000.00 per
annum as
lease costs for that property. His answer was “
that’s
a book entry
”. See
p.3994
as the husband tried
to talk himself out of that reply. At
p.3996
the husband
could not explain how, if the property was the property of the wine
farm and owned by Tartan by almost 25%, it can
be leased for a
nominal rental of R25 000.00 per annum, which the husband
described as merely “
a book entry
”. The
interesting thing is that Tartan is a company which is registered in
the British Virgin Isles. See
Record p.3996(24)
.
60.
It is common cause that the husband farms
on both his Wellington and French farms. He has most recently
declared an annual
income or R3.2 million per annum from his
practice against which he set off his farming losses before paying
tax.
61.
There are no tax returns or assessments for
the following years but according to the husband’s Financial
Statements for the
period from 2005 to 2012:
61.1 in the 2005
financial year the husband’s practice grossed R3 473 025.00;
61.2in 2006 it was R4 326 520.00;
61.3in 2007 it was R5 680 060.00;
61.4in 2008 it was R3 225 439.00;
61.5
in 2009 it was R3 376 245.00;
61.6
in 2010 it was R4 246 464.00;
61.7
in 2011 it was R3 439 293.00;
and
61.8
in 2012 it was R3 430 243.00.
62.
No Financial Statements have been produced
by the husband in respect of the period 2012 to date, a period of 4
years. However,
his nett taxable income in 2014, according to
his provisional tax return, was R3.29 million and
R4.89 million.
His 2015 nett taxable income was
R3 million. I see no reason why his real income will not
be as much, if not more than
this in the future.
63.
Counsel has addressed me in respect of the
expert evidence of Ms Hofmeyr in regard to the wife’s earning
capacity. The
problem I have with Ms Hofmeyr’s evidence
is that it is based on the wife’s unduly optimistic assessment
of what she
can earn in the future. I am satisfied on the
evidence before me, and having regard to the evidence of Dr Czech,
that the
wife does not enjoy any reasonable prospect of earning much
more than she is currently earning working for Amazon.com as a German
speaking telephonist, if at all.
64.
The wife’s self-confidence has been
shattered by this long drawn-out trial and she is on the verge of a
mental breakdown.
I am particularly impressed with the evidence
of Dr Czech and it seems to me that the likelihood that the wife will
continue to
earn the modest income that she currently does is
uncertain to say the least. It must be demeaning for her,
having regard
to the position that she occupied as a marketer of
wines produced by the Wellington wine farm, to now become a
telephonist for
Amazon.com.
65.
As far as Mr Le Roux is concerned, he
clearly aligned himself with the husband and I do not consider his
evidence particularly helpful
or objective.
66.
Counsel for the wife attacked the
credibility of Mr Le Roux and it is correct that he was neither
independent nor objective.
He contradicted himself, avoided
answering questions and was argumentative. His suggestion that
the wife has an earning capacity
of between R35 000 and
R40 000.00 per month is far-fetched and absurd. She worked
for her husband and was assisted
by two experts whom the husband had
employed, one Philipe, who was described by him as a genius and an
expert wine blender, and
one Mr Bruer, who he described as a “world
class marketer”. Mr Bruer died in 2005 (
Record
p.3513 ff
). The wife was married
to the owner of the wine farm, was useful to him in selling the wine
in the sense that she was fluent
in German and has an aristocratic
surname which was impressive to persons from Germany. As
Counsel properly pointed out,
Mr Le Roux did not investigate whether
the wife found new markets, or whether she did any particular
research on modern trends
in regard to wine drinking, or what sort of
wines the people in Asia drink.
67.
Counsel for the wife criticised Mr Le Roux
who did not produce his notes until pressed to do so. When he
did produce his notes,
it was clear that he had done an evaluation of
the wife’s personality based on her say-so and not an
evaluation of the post
that she had filled at the Wellington wine
farm.
68.
As far as Ms Hofmeyr is concerned, she was
clearly objective and unbiased, but she did rely to a great extent on
the say-so of the
wife who had an over-optimistic assessment of her
own abilities.
69.
Finally, as far as Dr Czech is concerned,
he is a psychiatrist and it was his opinion that the wife suffered
from depression.
He said that, having regard to her experiences
in the marriage and in this trial, it was no wonder that she was
depressed.
70.
As far as the wife’s earning capacity
is concerned, Ms Hofmeyr correctly assessed that the wife had
symptoms of anxiety and
depression and was emotionally vulnerable,
facts which adversely affected her income earning capacity.
This corresponded
with Dr Czech’s diagnosis of ongoing major
depression. This is a chronic and progressive illness and can
result in
cognitive impairment where on-going small traumas cascade
into major episodes.
71.
As far as I am concerned, both Dr Czech and
Ms Hofmeyr are unduly optimistic about the wife making a recovery and
earning as much
as R10 000 or R15 000.00 per month.
In any event, if she were to do so, the husband would be in a
position to apply
for a variation of the amount of maintenance which
I intend to award the wife, which will be based on her present income
earning
capacity.
72.
Dr Czech talks about a 2 year period to
recuperate. Ms Hofmeyr’s opinion is based on the wife
selling herself into the
hospitality industry or to an up-market
boutique guest house for a wine farm. Having listened to the
wife and her cross-examination,
I consider that both Dr Czech and Ms
Hofmeyr are unduly optimistic about her potential to make a proper
recovery to compete effectively
in the labour market.
73.
The wife, when she worked for her husband
at the Wellington wine farm, was working under conditions of
sheltered employment (
Record p.3523
).
In the background were Mr Bruer and Philipe (who I have already
referred to). All decisions were ultimately made
by the husband
and she was not placed in a position to make independent decisions.
I consider that the husband’s suggestion
that the wife has the
capacity to earn R35 000 to R40 000.00 per month as a
marketer in the wine industry is absurd.
74.
The wife’s present emotional well-being has been
seriously compromised in that she suffers from depression. The
manner
in which the husband has conducted this litigation is
sufficient to break the spirit of the strongest litigant because he
has embarked
on nothing less than a “scorched earth”
policy. One of his more remarkable claims is for repayment,
after all
these years of marriage, of the rates and municipal charges
that he paid in respect of the common home because that home and its
successors in title were registered in the names of the parties
equally. He kept meticulous records of all the monies he
paid
for the rates and, for the first time in these proceedings, now
claims repayment of these sums on the basis that she, as half
owner
of the property, is liable for half the rates. I find this
claim incredible to say the least. He never told her
that she
was liable to pay this money and he never asked her for it at any
stage until this litigation. Had he done so in
the first place
she would have then had the choice of electing to sell her share or
to rent out the property so that she could
derive an income therefrom
and at the same time oblige the husband to provide a home for her and
her family according to his maintenance
obligations.
75.
This claim is typical of his mind set and is remarkable in
every respect. He decided to improve the former common home for
their comfort and enjoyment during their marriage but kept records of
all the costs of the improvements to the property.
He has
now sprung a claim against the wife for her half share of the costs
of these improvements, many of which were for his exclusive
benefit.
The house was used as a show piece to impress his instructing
attorneys and promote his practice as a successful
Senior Counsel.
These costs are his costs of maintaining the wife.
76.
It is inconceivable that the husband does
not have offshore income and resources. The probabilities are
overwhelming that
he does have such resources. I will deal more
fully with the husband’s credibility later, but I have no doubt
that
he has good reason not to furnish details about his offshore
investments, the offshore Trusts and the identity of the Trustees of
these Trusts. I do not believe that he does not know who the
Trustees are. I also do not believe him when he said that
these
Trusts are only for the children’s benefit and not for his
benefit. He was caught out in cross-examination when
it was
shown to this Court that he lied when he said he was not a
beneficiary in the Family Trust. The Deed of Trust was
produced
by the wife, which showed that that statement was false.
77.
These Trusts are situated in Guernsey and
one of the Trusts was in Monaco but is now being moved to the British
Virgin Islands.
There can be no doubt that there are enormous
costs involved in setting up Trusts in offshore countries which
co-operate in the
hiding of assets.
78.
To the extent that I am asked to make an
Order in terms of Section 6 (2) of the Divorce Act, I decline to do
so. All his children
are of an age where our law recognises
them as majors and they must take such steps as they may be advised
if the husband has not
made satisfactory provisions for their due
maintenance and support. If necessary, that may become another
action but I am
not prepared to tag this claim onto the wife’s
claim as her Counsel has urged me to do.
79.
It
seems sinister to me that the husband formed offshore Trusts in
countries outside South Africa which maintain levels of secrecy,
are
known to run banking facilities for people who want to keep their
financial affairs secret and whose wishes are accommodated by
the laws of those lands.
80. These countries will
not give information about their clients’ financial affairs
and
are structured in such a manner that they are beyond the reach of our
Courts.
81. The husband claimed
that the Trust he established offshore is controlled by Trustees
who
are not subject to a Letter of Wishes which he directed to them. I
do not believe this to be true.
82. As far as I am
concerned, the probabilities are that the husband would not have
parted
with his money and established or invested in Trusts in any
country without maintaining control over the funds that he placed
there.
I do not believe him when he said there was no Letter of
Wishes and that he has no control over the money placed in these
Trusts.
83.
At
p.3885
he was again questioned about his interest in the Family Trust.
As it was put to him, it was alleged in the pleadings that
he did
have an interest in that Trust and the question was why did he not
make discovery of the Trust Deed? His answer was
that if he did
not have an interest in the Trust, why should he discover it?
(
Record p.3885(18)
).
He was then asked whether he accepted that if someone was a
beneficiary in a Trust he had an interest in that Trust.
His
answer was he did not accept that the beneficiary had any interest in
a discretionary Trust. Again, he stated that he
was not a
beneficiary in any Trust. He persisted in this answer
(
p.3886
).
He stated in terms “
I am not a
beneficiary in the Trust and the discretionary nature of any Trust
such as the Family Trust, let’s talk specifically
”
excluded any beneficial interest. At
p.3887
he admitted that having looked at the beneficiary Trust, the Family
Trust, he was a beneficiary. He said it was never his
intention
to be a beneficiary. It was pointed out that he created the
Trust himself. He was the author of the Trust
and he caused the
Trust to be formed. This exchange of answers demonstrated the
reckless attitude of the husband. He
was an untruthful witness.
84. The husband’s
excuse was that he withheld discovery of relevant documentation
because, notwithstanding the pleadings in the matter and the
allegations by the wife, his personal view of the law excused him
from making discovery of documents relating to her claim.
The Trust set up in Guernsey was set up by the husband in the
1980’s (
Record p.3902
). He said he was not a
Trustee and he said on oath “
I don’t know who the
Trustees are
” (
p.3902
). Counsel for the
Defendant, deliberately interrupted cross-examination time and again
to alert the husband into giving particular
answers. At
p.3903
(5 ff)
she demonstrates this attitude. It is improper for
Counsel to do this and Counsel must know that. It colours the
answer
which the witness ultimately gives and it is improper
interference with the process of this Court.
85.
According to the husband, the Schoonwater Trust is now located
in Monaco. This was the Trust which was set up for the children
born of the husband’s marriage to the wife and in which he was
described as being one of the beneficiaries. Again,
he pleaded
that he did not recall being made a beneficiary and again said it was
never his intention that he should be. See
Record p.3924(18
ff)
. This was the only Trust for which the wife was able to
obtain a copy of the Trust Deed and she knew that there were at least
two other Trusts.
86.
The husband claimed that the wine farm does
not belong to him and that he set up an intricate arrangement of
dividing up all the
components of ownership of the farm into separate
parts. So, the land is owned by one entity, the wine cellar and
the processing
of the wine is owned by another entity and the grapes
that are produced on the farm are owned by another entity and all
these entities
are separate components which make up the whole of the
farm. The husband owns part of each of these entities in his
own name
but is employed and engaged to control the whole farm.
87. The probabilities
are that this is a deliberate subterfuge and that in fact the husband
owns the whole farm, but his ownership is masked by the entities
which he created. The probabilities are that there are tax
advantages in this scheme and that he likes to operate behind a
veil. To get to the truth of this matter one must lift that
veil.
88.
Another difficulty I have with the
husband’s evidence is his explanation concerning the employment
contract which he designed
for the Wellington wine farm and wine
cellar for himself and Mr Tolme. He explained to this Court how
he inserted clauses
in that contract defining duties for Mr Tolme,
who was engaged as a marketer and sales person for the wine farm’s
wines.
He said that the problem with employing people is that
the labour laws of this country are so weighted in favour of the
employee
that it is necessary to build in clauses that can be used to
get rid of an employee when necessary. He said he deliberately
put in clauses defining duties which he knew were beyond the capacity
of Mr Tolme so that if and when necessary he could get rid
of him on
the grounds of breach of contract. What is remarkable is that
when he gave this explanation he spoke in a boastful
manner because
in his mind he was clever. This contract was not concluded in
good faith and further questioned the husband’s
integrity.
I annex, marked “B”, a copy of the transcript of this
evidence.
89. As far as the
husband’s financial affairs are concerned, the evidence that
was
introduced in his evidence in chief was never put to the wife.
See
Record p.3637(13 ff)
. He was argumentative and
evasive throughout cross-examination. He persistently used the
phrase “
I have no recollection
”. His
evidence contradicted the evidence of Mr Le Roux, who was his
witness, and he even claimed privilege in respect
of those
contradictions.
90.
Time and again the husband’s Counsel,
interrupted cross-examination and tried to introduce evidence
herself. Efforts
on my part to silence her were fruitless.
Warning her to stop had no effect. See
Record p.3840(17 ff)
.
Effectively Counsel overruled me and introduced evidence to assist
the witness. Her conduct was deplorable.
91.
The evidence that the husband gave in
connection with the Wellington wine farm was unsatisfactory. He
refused to authorise
the wife’s representative to obtain
information about Tartan, which apparently owns part of the property
owning company in
relation to the Wellington wine farm. His
answers in cross-examination were evasive. (
Record
p.3852 ff
). At the end of
the day, the Wellington wine farm, according to the documents, is
partly owned by an entity in Guernsey and
partly owned by the
husband.
92.
The husband was thoroughly discredited in
cross-examination, particularly concerning the assets and
offshore Trusts which
were connected to him. He stated on oath
that he was not a beneficiary of the Family Trust in favour of his
children. When
presented by the Wife’s Counsel with a copy of
his Trust Deed defining him as a beneficiary, he would have the Trust
Deed
amended. It is common cause that he did not make discovery of
any documents relating to this Trust. It was specifically put
to him in cross-examination that there was an allegation in the
Particulars of Claim that he did have an interest in this Trust
and
his answer was “w
ell that was
denied
”. See
Record
p.3879 ff
.
93.
It is common cause that he made no
discovery of his shares or shareholdings. His answer was that
he regarded the issue as
irrelevant because there was no valid
maintenance claim. I regard that as a dishonest reply because,
as an advocate and a
lawyer, he knew, or must have known, or at least
had regard to the fact that there is strong legal authority which
provides that
the clauses that he put in the ANC are void,
unenforceable and contrary to public policy. His answer in any
event disregarded
the fact that it is the wife’s case that
those clauses in relation to maintenance are not enforceable.
Nevertheless,
he refused to make discovery of documentation relating
to her claim for maintenance. He knew that on the pleadings
this was
one of the issues and the extent of his assets, means and
resources were relevant to the wife’s claim.
94. What is
evident is that the husband, although an officer of the Court, made
discovery of documentation which withheld discovery of relevant
documents which he knew, or must have known, the wife was entitled
to
see. See also his answers at
p.3934
to this issue.
95. The answers which
the husband gave at
p.3936
as to why he refused to give
information relating to his own expenses and living costs were
because he was still of the view that
the waiver for maintenance was
effective and that on the pleadings and in terms of the ANC there was
an effective waiver.
I regard this as a disingenuous and
obstructive attitude on his part.
96. The husband said
that on his retirement he would need a bond free house and about
R25 000.00 per month (
Record p.3972(24)
).
97.
At
p.3976
the husband was unable to explain why in the list of shareholdings
which he held in private companies he did not list his shareholding
in the land owning property of Wellington farm. This is another
example of the husband’s reckless disregard for the
legal
process in which he is well versed.
98.
The husband’s attitude in respect of
this trial was to refuse and/or delay furnishing replies to
legitimate requests for further
particulars and generally obstructing
the wife in the preparation of her case. See
p.3981 ff
.
99. The answers
the husband gave at
p.4001(9 ff
) do not make sense. He
conceded that he had set up Trusts for his children, but he had no
idea who the Trustees were and
he had not seen documentation in
relation to that.
100. A reading of the
Record
at
pp.4006-4009
demonstrated that the husband was an evasive
witness. He contended that he did not know who the Trustees of
any of the Trusts
were, answering that he relied on Mr Len Durham to
nominate these people.
101.
The husband stated that the farming
operation in Wellington had consistently been conducted at a loss.
See
Record p.4072(14)
.
The cost to the husband to run the wine farm amounted to R50 000.00
per month based on the last 16 to 17 years that
he has given us
records. See
p.4075(15)
.
The wine farm had never been profitable and no improvements had been
made to the property. At
p.4076(5
ff)
the husband maintained that he
would continue farming at a cost of R600 000.00 per annum.
He would retire and live off
an income stream sufficient to cover his
losses. The only source of income he would have is a living
annuity, but that could
never be sufficient to cover even half of the
monthly losses accruing in respect of the farming venture. This
evidence could
not possibly be true. This farm was not running
at a loss. The losses were artificial and purely generated to
set off
tax on the husband’s income as an Advocate.
102. If one has regard to the
questions put at
p.4101,
the wife should be awarded R30 000.00
per month plus free accommodation, were she to continue earning
R7 000.00 per month
working for Amazon.com.
103. The husband is even seeking to
implement the clause that gifts exceeding a certain value must be
taken
into account in the calculation of the accrual claim. The
concept of chivalry is beyond his comprehension and lies dead and
buried in his mind, if it ever existed.
104. More importantly, providing that
gifts over a certain value be taken into account in the calculation
of the accrual claim means that the half share in Twickenham and the
R300 000.00 which were to be given to the wife in return
for the
waiver of a maintenance undertaking have little if any value to her
because they are part of her estate in terms of the
accrual system.
This fact should have been explained to the wife before she could be
expected to sign this agreement.
105. Adverting now to the wife’s
accrual claim, the husband raised a number of defenses. He said
that his estate had not shown any accrual. That statement was
self-evidently false because the ANC provided for a nil commencement
value for each of the parties’ estates. The wife is
insolvent and all the assets which the husband now possesses
represent
his accrual.
106. The husband’s contention that a
claim under
Section 8
of the
Matrimonial Property Act can
only be
brought by “application” and not by way of an action
because that is the word that is used in the Act, is spurious.
Clearly that claim could be brought by way of an action or an
application.
107. The husband took a special defense
that the claim under the
Matrimonial Property Act could
not be
brought until after the dissolution of the marriage. That
contention was equally illogical and bad in law. The
claim
under
Section 8
was being brought in the divorce action, as is the
practice in this division and all other divisions that I am aware
of.
Various authorities in support of these rulings have been
furnished by Counsel for the wife and I do not propose to repeat
them.
108. He also took a special plea to the
fact that clause 11 of the ANC provides that a resolution of disputes
concerning the value of assets and liabilities had to be done by
arbitration. This is all very interesting, but we do not
have a
dispute concerning the value of assets and liabilities. We have
a dispute as to whether there is an accrual or not.
109. The wife’s Counsel pointed out
that the husband’s expert, Mr Greenbaum, acknowledged that
he
has assets of at least R12 million and proclaimed that these
represent the fruits of the so-called excluded assets.
The
problem is that Mr Greenbaum’s opinion in this respect is based
on information furnished by the husband. In truth
and in fact,
the husband had not furnished any proof that any of his assets were
the fruits of the so-called “excluded assets”.
Any
attempt to gain that information by way of Requests for Further
Particulars and a request that the husband furnish information
regarding his assets and liabilities were refused by him. He
adopted an obstructive approach to disclosing his assets and
liabilities and it is clear that he did not and will not provide that
information.
110. Counsel for the wife pointed out that
our Courts, both in this division and elsewhere, routinely
entertained
accrual claims as part of divorce proceedings. A
long list of cases is cited and form part of the List of Authorities
provided
by Counsel for the wife. It would be wholly
impractical for parties in a divorce action to have to run two
actions, one to
obtain a divorce and another to obtain payment of the
accrual. The practice in all our divisions allows that these
proceedings
be done in a single action. Again a great number of
cases have been cited by the wife’s Counsel and these form part
of the Heads of Argument which have been furnished to me and the
parties.
111. It is useful to quote
Section 8
(1)
of the
Matrimonial Property Act relating
to the accrual claim which
provides as follows:
“
8(1) A
court may on the application of a spouse whose marriage is subject to
the accrual system and who satisfies the court that
his right to
share in the accrual of the estate of the other spouse at the
dissolution of the marriage is being or will probably
be seriously
prejudiced by the conduct or proposed conduct of the other spouse,
and that other persons will not be prejudiced thereby,
order the
immediate division of the accrual concerned in accordance with the
provisions of this Chapter or on such other basis
as the court may
deem just.”
112. The husband is under a duty to
disclose the nature and extent of his assets and liabilities.
Despite repeated demands, he has refused to make such disclosure.
Section 7
of the
Matrimonial Property Act provides
as follows:
“
When it is
necessary to determine the accrual of the estate of a spouse or a
deceased spouse, that spouse or the executor of the
estate of the
deceased spouse, as the case may be, shall within a reasonable time
at the request of the other spouse or the executor
of the estate of
the other spouse, as the case may be, furnish full particulars of the
value of that estate.”
113. Such a request was addressed to the
husband and was incorporated in various Requests for Particulars
and
demands for discovery, all of which were ignored. I have been
referred to the unreported decision of
B v B
included
in Counsel for the wife’s List of Authorities, where the Court
held as follows:
“
Since
community of property is excluded, each spouse maintains a separate
estate. If a spouse so desires, the assets which
make up the
separate estate are under his or her sole control. In an
accrual claim, therefore, the spouse making the claim
often has
little or no knowledge of the assets which make up the estate of the
other party. It is presumably for this reason
that the
legislature enacted
s7...
It is therefore clear that the
legislature requires full particulars if requested.”
114. I agree with the wife’s Counsel
that because of the statutory obligation there is an onus and
an
evidential burden which rests upon the husband because he has
peculiar knowledge of his assets and liabilities and he is under
a
statutory obligation to disclose it. If he does not do so, then
he offends the Court’s statement in the matter of
MB v DB
which points out that litigation is not a game where parties can play
their cards close to their chest in order to obtain technical
advantages or to prejudice the other party.
115. I am referred to the decision of
Mostyn J
in
NG v SG
, the English case
referred to by Counsel for the wife in his List of Authorities where
the Court held that non-disclosure is a
bane which strikes at the
very integrity of the adjudicative process. Without full
disclosure the Court cannot render a true,
certain and just verdict.
It cannot lawfully exercise its power. It is thrown back on
inferences and guesswork which
may result in an unjust result to one
or other party. This judgment accords with the process which
was adopted in this division
where Cloete AJ, as she then was, in the
matter of
AM v JM
held that:
“
Although the 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 the defendant bears the onus
to persuade this court that
such assets should indeed be excluded
from the accrual.”
116.
Simply put, there was an onus on the
husband to show that certain assets were excluded, to identify those
assets and to trace those
assets to show that they were still there
and should remain excluded. He was in possession of all the
facts relating to these
assets and he should bear the onus of
demonstrating what had happened to them. He should bear the
onus of showing the present
values. That decision, which was
reflected in the matter of
MB v DB
quoted in Counsel for the wife’s Heads of Argument, was not
overturned on appeal. The Supreme Court of Appeal found
it
unnecessary to decide the issue of onus and refrained from doing so.
There were no excluded assets that could be traced
from the
discovered documents. On the evidence therefore the husband did
not prove that any particular asset should be excluded
by the ANC.
117.
Section 8
of the
Matrimonial Property
Act where
it refers to applications must not carry the narrow meaning
of an application as opposed to an action. Disputes concerning
an accrual claim cannot usually be addressed by affidavit, unless all
the facts concerning the dispute are common cause.
There are
various cases where a comparable Statute has referred to an
application which has been held to include action proceedings.
These cases were quoted by Counsel for the wife in paragraph 122 of
his Heads.
118. I have already ruled that clause 11
of the ANC relates to disputes concerning the value of any asset
or
liability as at the date of marriage and certainly does not relate to
the existence of assets and liabilities at the time of
the
termination of the marriage. Furthermore, the dispute relating
to value does not appear from the pleadings and was raised
long after
the commencement of these proceedings. In any event, because of
the husband’s refusal to provide a statement
of his assets and
liabilities, a dispute of this nature could never have arisen.
The only asset of value related to the Wellington
wine farm and that
evidence was entered and disposed of without objection. It must
not be forgotten that for a long time
the husband’s interest in
Blouvlei was concealed. Certain shares in that company were
held on his behalf by Gamsberg
and that only emerged during the
trial. Any possible dispute in the value of the wine farm only
crystalised when the husband
filed an expert report on 17 October
2014, some 4 years after the institution of the action, and 4 months
after the trial had commenced.
Prior to this he claimed he had
no knowledge of the value of the farm. These same
considerations apply to the value of the
Cellar on the farm.
119. In computing the value of the
husband’s estate, it seems to me that inasmuch as he has failed
to furnish a list of his assets and liabilities, I must in the
circumstances value those assets which he admitted he owned and/or
which I believe have been proven to be owned by him and to then treat
them as accrued assets and therefore direct that the wife’s
accrual claim must apply to the value of those assets so that each
party should have half.
120. In applying the provisions of the
accrual claim, I have to treat the donations of R300 000.00 and
half share in Twickenham as part of the assets which the wife should
have received. The R300 000.00 is gone and lost
and she
never received her half share in Twickenham. She did, however,
receive a half share in the former common home and
I must take that
value into account.
121. The wife’s schedule of assets
and liabilities is recorded in Schedule B at p.99 of her Counsel’s
Heads of Argument. It shows that taking into account all her
assets, which total just over R4 million, and deducting
all her
liabilities, which exceed R5 million, she is effectively
insolvent. It must be remembered that from the outset
the
husband refused to identify which assets and their values were owned
by him directly or indirectly at the date of the parties’
marriage. He stated that “
the information required
does not arise out of the pleadings alternatively constitutes an
interrogatory, alternatively does not
relate to any issue justiciable
in this action
”. See paragraph 140 at p.58 of the
wife’s Counsel’s Heads of Argument.
122. The evidence has shown that the
husband failed to disclose his assets and actively concealed assets.
He persisted in making incomplete and incremental discoveries of
documents. He claimed that his No 2 account would record
the
realisation on the sale of his excluded assets existing at the time
of the marriage as well as the purchase of new assets from
such
proceeds. These accounts were only the subject of discovery by
the husband in the eleventh Supplementary Discovery on
20 October
2015 and were hopelessly incomplete. He refused to furnish any
statement of his current assets and liabilities
and their value as
required by
Section 7
of the
Matrimonial Property Act. His
expert, Mr Greenbaum, made no effort to independently establish and
verify the extent of the husband’s current assets or
to
establish a documentary trail to show that these assets were acquired
from the proceeds of the so-called excluded assets.
123. It is important to note that in the
crucial period 1992 to 1998, in which period Mr Greenbaum’s
report stated that excluded assets were realised to generate funds,
the bulk of the statements in respect of the No 2 account are
missing. Furthermore, the husband’s income in Namibia was
ignored. He also practiced as a Silk at the Johannesberg
Bar,
in Botswana and Lesotho. Mr Greenbaum took no account of these
other sources of income between 1992 and 2001.
He made no
effort to determine the order or magnitude. Even today, the
only evidence of the husband’s South African
income in this
critical period is informal income statements for the years February
1997 and February 1998. There was no
disclosure of his income
over the relevant period in Botswana and Lesotho. Mr Greenbaum,
in his thesis, pre-supposed that
the fruits of the excluded assets
realised in the period 1996 to 1998 were not moved offshore or used
for purposes other than the
acquisition of loan accounts. There
was no such evidence before this Court.
124. Counsel for the wife annexed a
Schedule “C” to his Heads of Argument which details the
sequence of events regarding pleadings and the husband’s
discoveries. This highlights the husband’s repeated
refusals to make disclosure, his concealment of assets, the falsity
of certain statements made in relation to assets and interests
and
the incremental revelation of information as documents were obtained
from other sources. It cannot be said by any stretch
of the
imagination that he made a full disclosure of his assets and
liabilities. So, for example, his 2012 Financial Statements
omitted reference to his 25.1% shareholding in Blouvlei, his 26% of
the shares in the company owning the trademarks and his 25.1%
shares
in the Cellar. These shareholdings were not held in his name
but were held on his behalf by Gamsberg in terms of various
Deeds of
Trust, none of which were discovered. On this basis the wife
contends that the husband was concealing them.
125. Only much later, when the husband
acquired knowledge that his shareholdings had been uncovered by
subpoenaed
documents, did he make selective disclosure of further
interests in loan accounts which he held in corporate entities.
So,
for example, he initially claimed that he had no interest in the
Family Trust and in reply to a
Rule 35
(3) Notice he stated on oath
in his Affidavit that he had no such interest. This was false
because the terms of the Family
Trust Deed which he had signed stated
that he was both a Trustee and a beneficiary. Significantly, he
never discovered the
Trust Deed which was also only produced under
subpoena. After it had been dealt with in evidence, the Trust
Deed was hastily
amended to remove the husband as a beneficiary.
126. In other Replies, the husband
repeatedly stated that he had no lease with Blouvlei in respect of
its
farm. It later emerged that he did lease the farm property,
albeit at a nominal rental which in recent years has not even
been
paid.
127. The husband refused, in the face of
the wife’s Rule 35 (3) Request, to produce the Liquidation
and
Distribution Account in his late father’s estate.
However, he himself produced it after he had testified for his
own
purposes during the presentation of his case, plainly because he
thought it was to his advantage.
128. It was the husband’s case that
the No 2 account recorded all the realisations and sales of assets
existing at the time of the marriage as well as the purchase of new
assets. The statements and records relating to this account,
which would have included cheques and cheque stubs, were material to
this investigation. Nevertheless, save for the exception
of two
monthly statements for this number 2 account which he discovered,
evidently because he wished to rely on entries showing
payments he
made to the wife, the bulk of the No 2 account statements which he
eventually produced were withheld until 20 February
2015. Even
then, the statements relating to the period between 1996 and 1998,
which were relevant to tracing the proceeds
of excluded assets, were
missing.
129. If I have regard to the meticulous
manner in which the husband kept records of the rates and electricity
accounts that he paid in respect of the common home so he could claim
half of these expenses from the wife, I find it incredible
that these
trivial statements were so carefully collected but not the
documentary proof where he had invested his excluded and
other
assets.
130. I am satisfied that the Discovery
Affidavits which the husband made were not
bona fide
. It
should be noted that every one of the Discovery Affidavits contained
the disclaimer notice that the Deponent had no other
documents in his
possession or under his control relating to these issues, yet he did
not discover the documents showing that the
shares held by Gamsberg
were held by it as his nominee. The husband cannot avoid
responsibility for withholding this information
because according to
him he believed that the wife was not entitled to pursue her claims.
131. The issues are defined by the
pleadings and it is not open to a party, however important a Senior
Counsel
he may be, to pre-judge and make discovery of documents as
and when he wishes. The wife’s complaint that the husband
attempted to mislead her and this Court indeed has considerable
merit.
132. As a witness, the husband was
argumentative and often refused to answer questions. I do not
for
example believe him when he said that he had no knowledge of the
Trustees or the Directors of the various Trusts and corporate
entities which he was instrumental in setting up offshore and in
particular those structures which hold the French farm.
133. As a starting point I must look at
the value which Mr Greenbaum gave to the husband’s estate of
R12 016 000.00. The problem is that that valuation
excluded certain assets and under-valued others. It must
accordingly be adjusted. It is clear that these assets are not
traceable as the fruits of the so-called excluded assets.
I
must therefore regard them as accrued assets. Mr Van der Spuy
valued the Wellington farm at R15.7 million. Mr
Marais, a
so-called expert valuer on behalf of the husband, valued the farm at
R12.5 million.
134. The problem with Mr Marais’
valuation was that he could not explain why he previously valued that
farm for municipal purposes at a much higher value. So, he
valued the one plot at R4.3 million in July 2012 while he
currently valued it at R1.7 million. The wine farm is made
up of two plots. The smaller one was valued at less
than half
of the municipal value that he previously gave for that part of the
land. He clearly aligned himself with the husband
and I cannot
accept his evidence in regard to value.
135. I agree with Counsel for the wife
that the full value of the Wellington farm should be included because
the husband is in
de facto
control of that property. The
offshore company which he claimed owns part of the land and part of
the farm constituted a
book entry and a sham.
136. The Glacier Living Annuity of the
husband’s estate has a value of R3 270 638.00.
I agree with Counsel for the wife’s contentions set out in
paragraph 185 of his Heads of Argument that for the purposes of
this
matter I must regard the value of the husband’s estate as
R22 259 702.00. This allows R2 million
for legal
costs.
137. I also believe that the husband
effectively owns the French farm and I do not believe him when he
said
he does not know who the Trustees or the Directors are, but he
exercises full control over that property. I do not know the
value of that property. I cannot include it, but if there has
been any use of excluded assets in terms of the ANC, they must
reside
in the offshore company which owns the French farm. The fact
that I cannot establish the value of that property reinforces
the
conservatism of my finding that the Wellington farm must be treated
as wholly owned by the husband and not financed by excluded
assets.
When he sold the Namibian property, which was held in the name of Muy
Bien (see paragraph 194 of Counsel for the
wife’s Heads of
Argument), he was paid offshore.
138. Counsel for the wife was correct in
saying that Mr Greenbaum was not in a position to demonstrate that
any of the excluded assets financed any current assets. He
completely relied on what he was told by the husband and he did
not
make an independent enquiry or investigation. Mr Greenbaum has
not investigated the current structuring of the husband’s
estate, including the French farm structure.
139. Counsel for the wife set out in
Schedule D to his Heads of Argument how he calculated the claim in
respect of the accrual. In the circumstances I consider that to
be a fair and reasonable approach which I will incorporate
in my
Judgment.
140. As far as the counterclaim is
concerned, the husband had no explanation as to why he waited 24
years
before he decided he should put in a claim for rates and
electricity charges and alterations in respect of the jointly owned
common
homes. The evidence from the wife was that he always
acknowledged that he would pay for the alterations and the rates and
electricity charges, which he did for 24 years. The
probabilities are that her explanation makes more sense than his
does.
It is difficult to imagine how he could possibly have
shared bed and board with the wife. He fathered children with
her and
behaved as a husband to her, while all the time secretly
accumulating evidential proof of the extent of the rates,
electricity,
water and other household charges that he was paying
for, including the cost of alterations and repairs which he did to
the various
homes. I do not believe him when he said that he
did not acknowledge that he would pay these expenses.
141. I am satisfied that the payments
referred to in the counterclaims relate to costs and charges for
household
necessaries. If I have regard to the
Matrimonial
Property Act No 88 of 1984
, Section 23 (1) of the Act stipulates:
“
that any right of recourse
which a spouse may have against the other spouse in terms of the
common law or any law which is in force
at the beginning of 1984, or
which was enforced before that date, in respect of contributions made
for household necessaries, lapses
on that date.
”
The only method under which a claim for household necessaries can
be brought would be in terms of Section 23 (4) which requires that
there be an agreement between the parties that the spouse concerned
would have a right of recourse in respect of household necessaries,
which agreement the husband failed to plead or prove. As far as
I am concerned, charges for rates and electricity are household
necessaries. The husband is liable to pay these charges in
accordance with his duty of support. The income which the
wife
earns and has earned during the marriage was and still is trivial.
There is no way that she could pay for these expenses.
The
husband has no claim in respect of these costs.
142. As far as the costs of alterations
and redecorations to the homes are concerned, no evidence has been
placed before me that these alterations, or extensions, or so-called
improvements enhanced the market value of the property.
In some
instances they may have done, but to prove that they had, the husband
would have had to lead expert evidence to indicate
the market value
of the property prior to these alterations and the market value of
the property after these alterations allowing
for inflation and
resultant changes in the value of property. That increase in
value would have to be attributable to the
nature of the alterations
or so-called improvements that had been done.
143. Inevitably, when a person buys a new
house, even one that has been recently altered or so-called improved,
the new owner will probably want something different or want to
introduce changes. I do not accept for one moment that
the costs of alterations or improvements automatically pro rata
increase the value of a property, because it may simply amount
to
restoring a particular room, for example back to what it previously
was. I would need expert evidence to be proved and
tested
before me before I made that quantum leap which contradicts all my
years of experience as a purchaser and owner of property.
144. It has also not escaped my notice
that the alleged statements, which he attributed to his wife in his
evidence in chief and her so called undertakings were not all
put to the wife during her cross-examination.
145.
From the beginning of cross-examination,
the husband was argumentative and evasive. He latched onto an
answer of “
I have no recollection
”
and used it consistently. His evidence was in contradiction to
Mr Le Roux’s evidence who was his so-called expert.
At
one stage he even claimed privilege in respect of contradictions in
the evidence that he and Mr Le Roux gave. See
Record
p.3813
.
The husband’s contentions:
146.
In my view, it is the fault of the husband
that the divorce trial has taken 50 days of Court time, which I have
set out in the first
part of this Judgment. He adopted a
“scorched earth” policy with a total disregard for the
costs involved.
147.
I do not intend to deal with each of the
submissions made by the husband’s Counsel save to point out
that the contract which
the husband has been seeking to enforce is
illegal, unenforceable and contrary to public policy.
Furthermore, there has been
no character assassination of the
husband. He has achieved that on his own.
148.
As far as time and money that has been
wasted is concerned, the blame for this lies at the feet of the
husband, who refused to make
proper discovery and adopted an
obstructive attitude throughout this litigation.
149.
I will now deal with the question of
separation of trials and the separation of legal issues. I am
satisfied that those attempts
on the part of the husband were nothing
less than his attempts to adopt a “scorched earth” policy
and to prevent the
wife from being able to afford representation.
The allegation by the husband’s Counsel that this Court adopted
a legally
faulty approach in insisting that the question of accrual
be dealt with in the same hearing as the divorce, underlines the
obstructive
policy adopted by the husband and carried out by his
Counsel. It was the husband’s Counsel’s attitude
that she
could dictate to this Court how to handle its proceedings.
This is reflected in the first paragraph of her Heads of Argument.
I do not intend to deal with all the other provocative statements
contained in this paragraph, but record my rejection of the
accusations and complaints levelled at the conduct of these
proceedings.
150.
The waiver in the ANC was not a contract
that was “freely entered into”. I have detailed the
circumstances under
which that contract was concluded and hopefully,
when the husband and his Counsel have read this Judgment, they will
appreciate
that the responsibility lies with them for
the drumming up of costs in this matter.
151.
The so-called donations which the husband
refers to are emasculated by the provision of the ANC which maintains
that donations must
be treated as part of the wife’s accrual
and the value thereof deducted as having been paid to her.
Again, paragraph
15 of the husband’s Heads is misguided because
the so-called donations are not in fact donations at all.
152.
I do not intend to deal with all the
sub-paragraphs in paragraph 15 of the husband’s Heads, save to
point out that the words
“unjust enrichment” have no
application in this matter because there has been no enrichment of
the wife as contended
by the husband. Furthermore, the husband
ignores
in toto
the question of his duty of support.
153.
The so-called common cause facts set out in
paragraph 16 ff are not common cause, save as set out in my Judgment
above. I
do not accept that the husband has an indirect
minority interest in the Wellington wine farm. The
probabilities are that
he owns that farm. Furthermore, as I
have indicated, the parties did not jointly own equal shares in the
Twickenham Avenue
property. That property was never owned by
the wife at any stage. In the result, clause 9 was never
implemented.
154.
As far as my inherent powers to do justice
between the parties are concerned, I have referred to the
Constitution. In any
event, I hold that the offending clauses
are contrary to public policy and only implement my inherent powers
ex abundante cautela
.
155.
As far as
pacta
sunt servanda
is concerned, I am fully
aware of this principle and I accept that it is one which is
frequently applied in commercial contracts
and contracts of service
etc. However, as I have indicated, an ANC is a contract which
is
sui generis
.
Any
pacta
that finds its way into an ANC will always be subject to the test of
public policy because ANCs are unique in the sense that they
can only
be executed in a prescribed manner and in a prescribed form because
this is the very foundation of a contract of marriage.
The
legislator and our Courts have consistently monitored contracts of
this nature. It is not helpful to refer to commercial
contracts
or to import the findings of the Courts in those cases into ANCs as
if ANCs stand on the same footing.
156.
An ANC stands in a special position because
it regulates the terms of a marriage which is usually the foundation
of a family entity
and creates and controls the circumstances of the
birth of children and the very existence of the family unit. I
accordingly
find little help in the cases quoted by the husband’s
Counsel in relation to commercial matters. I know of no case
where our Courts have ever enforced a provision in an ANC which
incorporated a waiver by the wife of any right to claim maintenance
in the future should the marriage break down for any reason
whatsoever and irrespective of the fault of the husband, at the same
time precluding her from any access to the Court’s power in
terms of Section 7 (2) of the Divorce Act to award maintenance
to
her. Particularly where it is a unilateral waiver only
applicable to the wife and not applicable to the husband and which
even precludes her rights to claim maintenance from his deceased
estate in terms of the Surviving Spouses Act. Effectively,
I am
asked to enforce a provision of this nature. I consider that
the terms of this waiver are contrary to public policy
and in the
circumstances of this case unfair and abhorrent.
157.
I take no comfort in the fact that our
Courts have from time to time enforced contracts which are
controversial under the principle
of
pacta
sunt servanda
. I do not believe
that this doctrine applies to this matter.
158.
The husband’s Counsel consistently
referred to the waiver given in consideration of proprietary and
financial benefits.
I have set out in my Judgment that strictly
speaking Twickenham was never partly transferred into the wife’s
name.
Further, the so-called “financial benefits”
were no bargain to her whatsoever because those donations were to be
taken
out in determining her accrual. In terms of the
Matrimonial Property Act donations
would be exempt from consideration
in determining accrual. As I have indicated, this aspect of the
matter could never have
been explained to the wife because it does
not even seem to have been understood by the husband.
159.
Furthermore, I find little value in quoting
passages out of cases which long pre-date our Constitution. It
is of little help
to me to quote cases from 1902, 1938 and 1960.
No case, even that far back, has ever been quoted to me where there
was a
waiver of a future right to claim maintenance in an ANC
concluded before the marriage.
160.
What the husband’s Counsel seems
adamant in doing is mixing up a waiver of maintenance in a settlement
agreement concluded
after the marriage with the facts of this case.
I have no problem with including a waiver of maintenance in a
settlement
agreement and even made an Order of Court because I am
conscious of the fact that divorces are often settled on the basis
that
the wife waives any claim to personal maintenance. But
then she would be represented by a South African attorney and both
parties would agree that a waiver of this nature be incorporated in
the settlement agreement which would then be made an Order
of Court.
This present matter involved a waiver before the marriage even took
place. It was put into the ANC under
the circumstances which I
have outlined in detail in this Judgment. As I have indicated,
it is not helpful to quote cases
which are so far removed from this
matter as to become irrelevant, albeit that they were decided by
prominent Judges. None
of these cases relate to a waiver of a
right to ever claim maintenance which is incorporated in an ANC and
even including a waiver
to exercise rights in terms of Section 7 (2)
of the Divorce Act.
161.
The power of the Court to grant maintenance
in terms of Section 7 (2) has an even greater significance today than
before the Divorce
Act. Previously a divorce required proof of
fault. The present situation is that a divorce can be obtained
on a no
fault system, so the Court’s power in Section 7 (2)
under proper circumstances to order one spouse to pay maintenance to
the other spouse obtains an even greater significance.
162.
The husband’s Counsel has managed to
generate over 200 pages of arguments and documents in support of the
husband’s
argument. This excludes the enormous bundles of
copies of cases which are being cited. Nowhere have I been
referred
to any case in this country which has implemented a waiver
of maintenance provisions by a wife in an ANC and has gone so far as
to waive her rights to even claim maintenance in terms of Section 2
of the Divorce Act.
163.
I have dealt with the level of advice which
the wife received from her mentors and family in Germany. I
have dealt with the
so-called benefits which she received from the
so-called donations and I have indicated that she presents today as a
person who
is completely insolvent, even if the benefit of a
half-share in a common home is valued. I am unpersuaded that
there has
been any unjust enrichment of the wife’s position
arising out of this marriage and this ANC. I have dealt with
the
payment of R300 000.00 and I have already indicated why I am
treating that payment as having been made. I therefore do
not
need to analyse the husband’s arguments in regard to this
payment. He succeeds on this issue.
164.
In summary I would record the following.
165.
The contract of marriage is
sui
generis.
It is unlike any other
contract, e.g. of sale, or
locatio
conductio
etc.
166.
The institution of marriage is regulated by
the law. A marriage can only be performed by a duly appointed
marriage officer
and a divorce only by a Court of law.
167.
The marriage itself is proclaimed to bind
the parties to each other “until death” do them part”.
168.
The law of divorce strictly controls how
and with what consequences a marriage contract can be terminated.
169.
Parties to a marriage owe each other a duty
of
uberrimae fides
at
the time of the conclusion of an ANC and throughout the marriage.
170.
It is not helpful to refer to the rules of
interpretation of commercial contracts and to seek to import them
into an ANC contract.
It is also not helpful to seek guidance
from judgments by our Courts in respect of different contracts with
different rules and
methods of termination.
171.
In this case, the wife was at a severe
disadvantage and I have described those disadvantages in this
Judgment. She did not
and could not have known and understood
the import of this contract in the context of South African law.
172.
Her advisers were not able or trained to
appreciate the terms of this ANC or its meaning in the South African
context.
173.
The husband planned this divorce even
before he concluded this marriage. The parties were nowhere
near an equal bargaining
position and the wife was rushed into this
contact and marriage by the husband.
174.
During the marriage parties owe each other
a mutual duty of support in law (maintenance). That duty can
only be terminated
upon divorce. Only a Court can terminate
that marriage and thereby that duty of support.
175.
Divorce is now in terms of the no fault
system, a right which either party can claim. But, in deserving
cases the Court will
only do so after considering and ruling upon a
maintenance claim.
176.
Hence Section 7 (2) of the Divorce Act.
At that time, the Court can, if satisfied, refuse to grant a party a
maintenance order
or even confirm a settlement which waives a
maintenance claim forever.
177.
Our Courts respect the sanctity of marriage
and will not lightly deprive a spouse of his or her rights in terms
of Section 7 (2),
even if that waiver is part of the ANC and relates
to a future unknown state of events.
178.
There is a world of difference between
sanctioning an agreement which both parties ask to be sanctioned at
the time of a divorce
action and an agreement made long before the
divorce and even more so before they even marry each other.
179.
The Heads of Argument of the husbands
Counsel reveal faulty reasoning and distorted statements of the
history of this marriage,
the conduct of the husband, and the
evidence before this Court.
180.
On the facts of this case, the husband
could not escape a defence of “duty of support” in
relation to claims for half
payments of the rates
stante
matrimonio
and even more so now, more
than 20 years after he paid them.
181.
I do not agree that the ANC was an
agreement which was “freely and voluntarily made”.
It was imposed upon the
wife.
182.
The wife was not given a choice or even
reasonable opportunity to take proper advice.
183.
I know of no case in South Africa where our
Courts have held that a waiver of maintenance in an ANC has ever been
held by a Court
to be binding on a wife. I have not been quoted
such authority.
184.
I undertook to give reasons for my
Judgments in the husband’s application to re-open his case,
lead further evidence and introduce
certain documents which he had
not previously discovered amounting to over 600 pages. He also
applied for another separation
under Rule 33 (4) so that the Court
could immediately deal with his claim for the former common home to
be immediately sold or
taken over by either party against payment of
an amount, as agreed or as determined by the Court. I undertook
at the time
that I gave Judgment in these two applications to furnish
my reasons for Judgment in both those matters when I give Judgment in
the main action. Therefore I would record the following.
185.
After the husband had been cross-examined,
after he had been re-examined, after he had closed his case and had
completed his evidence,
the matter was postponed for a further date
to enable this Court to hear one further witness, Mr Hilton
Greenbaum. Mr Greenbaum
was only available on a much later
date. While waiting for that date the husband’s Counsel
launched an application
to file a Further Discovery Affidavit
containing over 600 pages and for the husband to be recalled to deal
with these documents.
186.
This
application was opposed by the wife and I heard full argument, which
was recorded in
Volumes 46 to 48,
pp.4759
to
5134
. This covered the period
from 16 September until 21 September 2015, during which time I heard
argument by Counsel for the
wife, lengthy argument by Counsel for the
husband, a reply by Counsel for the wife and even further argument by
Counsel for the
husband.
187.
I
gave an order in that application, together with my order in relation
to another application brought by the husband to be permitted
to
compel the wife to sell the former common home either to him, or to
buy it from him, or to have it sold by public auction or
otherwise so
that that asset which was in their joint names could be divided.
188.
I
refused both these interlocutory applications and ordered the husband
to pay the costs thereof. At that stage, the trial
was
virtually completed and the evidence, bar the evidence of Mr
Greenbaum, had been heard.
189.
As
indicated in my judgment, I am quite satisfied that the husband was
adopting a “scorched earth” policy to this litigation.
He was deliberately seeking to delay the proceedings and from the
very beginning was engaging in dilatory tactics to drum up the
costs
of the action so as to put the wife into a position where she could
not afford to defend herself.
190.
I
indicated at the time of giving those orders that I would be giving
my reasons when I finally gave judgment in this matter.
Notwithstanding the aforegoing, I received various demands from the
husband’s attorney requiring me to furnish reasons for
judgment
as if I had not already indicated that those reasons would be
forthcoming when I gave a final judgment in this matter.
191.
As
Counsel for the wife pointed out in his argument, this was not simply
a matter of producing one or two documents which had been
overlooked
and which were relevant to the matter, but was a re-opening of the
husband’s case by introducing over 600 pages
of documentation,
coupled with the need to recall the wife as a witness to testify in
connection with these documents and, as Counsel
for the wife pointed
out, this Court could hardly not permit the wife to be recalled and,
depending on the nature of the documentation,
call such other
witnesses as may be necessary. It should be noted that he only
introduced these documents now and there are actually
642 pages.
It would require a considerable period of time for the wife’s
Counsel to consult with her in respect of
each of these documents.
The probabilities are that she would have to be recalled to deal with
those documents and, in addition,
the husband’s accounting
expert, Ms Ladopolis, would have to consider these documents and
would have to advise the wife and
probably be also recalled.
192.
This
was a crude attempt by the husband to re-open and delay these
proceedings for an ulterior purpose. I did not examine
these
documents and was advised that they were so prolix that even the
wife’s Counsel and her attorneys were unable in the
short time
available to look at all these documents and take instructions from
their client.
193.
The
husband, in his Affidavit, said that these documents were not
discovered in the first place because they were not relevant,
but
that they were now relevant in connection with his credibility
because of certain answers he gave in cross-examination.
The
husband has busied himself at all times seeking postponements of this
matter to delay these proceedings. I was not prepared
to allow
him to continue to do so. As Counsel for the wife pointed out,
if the husband said that the documents are irrelevant
to the issue
then they are inadmissible. The husband had good reason to be
concerned about his credibility. He damaged
that credibility in
his own testimony and by his own conduct as set out in my Judgment.
I am not relying to any extent on
the unsatisfactory evidence that he
has given in connection with cross-examination in relation to
particular documents.
194.
The
husband also indicated that he wanted to amend his Counterclaim and
introduce documents which he wanted to rely on in support
of the
Counterclaim.
195.
Counsel
for the wife has furnished me with a Chronology and full written
argument. He pointed out that cross-examination of
the husband
had been completed and that while under cross-examination, he claimed
to have found these documents and referred them
to his legal team for
advice. For the husband, a Senior Counsel to conduct himself in
this manner is nothing short of scandalous.
I am advised that
the Supplementary Discovery Affidavit has more than 160 items.
These are not pages, but separate items.
The only explanation
given by the husband as to why he did not discover these documents in
the first place is because they were
not relevant.
196.
As
Counsel for the wife pointed out, over the 4 years that this matter
has been before the Court, the husband made sixteen Discovery
Affidavits. Strangely enough, the first fourteen of them all
contain the statement that he had no other documents relating
to
these issues other than the documents referred to in the Affidavits.
Significantly, Counsel for the wife pointed out that
the new
Discovery Affidavits did not contain this statement. He also
pointed out that there was an inordinate delay between
the discovery
of these documents and the furnishing of them to the wife’s
attorney. The husband not only produced these
documents but set
out over three pages a series of serious and comprehensive admissions
which he sought from the wife. Furthermore,
he indicated that
his Counterclaim would be amended. After the fourteenth
Discovery Affidavit, he claimed to have found a
second batch of
documents where yet another series of admissions were sought.
This time he gave notice that he intended to
increase his
Counterclaim to an amount of R98 000.00. The fifteenth
Supplementary Affidavit was also attested and this
included 178
different items. Again significantly, there was no disavowal by
the husband that he had no other documents in
his possession or under
his control relating to this matter. This application was
coupled with the application I mentioned
for a separation of trials
in terms of Rule 33 (4) for an Order that the husband’s claim
that the former common home be divided
or sold.
197.
I
do not intend to deal with all the separate complaints raised by the
wife’s Counsel as these are set out in
Volumes
46, 47 and 48 of the Record
. In
those Volumes Counsel for both parties were given a free opportunity
to present their arguments. Nothing said by
the husband’s
Counsel persuaded me to allow this trial to be further postponed and
for these documents to be introduced by
way of discovery.
198.
I
deliberately delayed the furnishing of these reasons because I had no
doubt that, notwithstanding the fact that these were interlocutory
Orders, this would not have dissuaded the husband from trying to
appeal these decisions so as to achieve his purpose of delaying
these
proceedings to attain a tactical advantage over the wife, given her
financial and emotional circumstances .
199.
My
refusal to allow a separation of issues in terms of Rule 33 (4) was
motivated by the same consideration. I will not permit
the
husband to carry out his “scorched earth” policy and drum
up the costs of this trial by these inordinate delays.
As was
disclosed to me in the application, the husband separately sought an
Order before a different judge reducing the contribution
towards
costs which I had previously ordered him to pay and even managed to
persuade that other Court to limit the daily period
over which that
contribution was to be made. I have not had sight of his
Affidavit, but I understand that he seems to have
persuaded that
Court that the wife was delaying these proceedings and that she was
being obstructive. If that allegation
was made by the husband,
it was knowingly false. Be that as it may, I was not prepared
to have a piecemeal determination
of the issues in this matter
because that would open the door to the husband to further delay
these proceedings by appealing against
an unfavourable award which he
would inevitably have received in regard to the separation of issues
in relation to the former common
home.
200.
His
Lordship Mr Justice Dolamo had already dismissed an application by
the husband for an Order under Rule 33 (4) for a separation
of the
trial in regard to the validity of the clause in the ANC which
deprived this Court of its jurisdiction to grant the wife
maintenance.
201.
There
is no question that the husband made discovery on an incremental
basis throughout this matter. He was deliberately obstructive
in giving discovery and a great number of Discovery Affidavits were
filed.
202.
I
was also satisfied that the wife wouldl suffer irredeemable prejudice
if either of these applications were allowed.
203.
Throughout
this matter the husband engaged in selective and piecemeal
discovery. He deliberately delayed in bringing that
application
so as to cause the maximum prejudice to the wife.
204.
I
have refrained from making specific findings in relation to the
answers which the husband gave in relation to the documents described
in his Affidavit. I must also take into account that he seemed
to want to bring a new Counterclaim but that all concerned
the same
issue as to why he claimed to be entitled to be compensated for
expending money on the common homes and in order to maintain
and
support himself and his wife. As the wife said, he always
acknowledged that he would bear those expenses himself and
his
conduct in all the many years of their living together was consistent
with that statement. I would not permit him to
drag these
proceedings out any longer.
205.
If
the husband had made proper discovery in the first place, an
application of that nature could never have been even contemplated.
206.
In
conclusion, therefore, these two applications were brought in bad
faith. They were unreasonable and were designed to drag
out
these proceedings so as to make it impossible for the wife to
continue to afford legal representation.
207.
Counsel
for the husband belatedly filed a further section of her Heads making
up 102 pages together with about another 100 pages
of copies of
documents. They pertain in the main to submissions in regard to
the question of costs to which I have given
consideration. I am
not persuaded that there should be any Order as to costs in the
husband’s favour. On the contrary
the Order for costs which I
intend to make is appropriate and well justified by the husband’s
conduct.
208.
I
accordingly make the Order as set out in the Order of Court which is
annexed hereto and marked X.
Weinkove, A.J.