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[2018] ZAWCHC 29
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T.N v N.G (formerly N) and Others (18159/2013) [2018] ZAWCHC 29; 2018 (4) SA 316 (WCC) (12 March 2018)
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Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 18159/2013
Before:
The Hon. Mr Justice Binns-Ward
Dates
of hearing: 19-22 February 2018
Date
of judgment: 12 March 2018
In
the matter between:
T.
N.
Plaintiff
and
N.
G. (formerly) N.
(now
G.)
First Defendant
N.
G. N.
N.O.
Second Defendant
G.
F. R.
N.O.
Third Defendant
T.
N.
N.O.
Fourth Defendant
THE
MASTER OF THE HIGH COURT
Fifth Defendant
Judgment
[1]
In this
action the plaintiff claimed a decree of divorce dissolving her
marriage with the first defendant.
[1]
She also sought personal maintenance and orders relating to the care,
guardianship and maintenance of the minor child born of the
marriage,
S..
[2]
It was common ground that the parties’ marriage relationship
has
broken down irretrievably. During the trial the first defendant
made an open tender in respect of the care and maintenance of S.,
essentially in accordance with the terms of the relief that had been
sought in that respect in the summons. Also during the trial,
the
plaintiff abandoned her claim for personal maintenance, save for the
matter of her accommodation expenses until the proprietary
consequences of the dissolution of the marriage have been determined
and implemented. In that regard too the first defendant made
an open
tender during the trial.
[3]
The plaintiff also sought certain relief related to the M. M. N.
Family
Trust (IT [...]) and the S. N. Family Trust (IT [...]). It was
in that connection that second to fifth defendants were joined as
parties to the proceedings. Early in her case the plaintiff informed
the court that she was not persisting in seeking that relief.
No more
therefore needs to be said about it.
The
plaintiff’s claim in terms of
s 6(3)
of the
Matrimonial
Property Act 88 of 1984
[4]
In the result the only substantive matter remaining in dispute that
required
determination bore on the operation of the accrual system
for the purpose of settling the proprietary consequences of the
divorce.
The matter in issue was the value of the first defendant’s
estate at the commencement of the marriage.
[5]
The parties were married out of community property by antenuptial
contract.
The contract provided as follows in the pertinent respect:
2.
The accrual system referred to in Chapter 1 of Act 88 of 1984 (“the
Act”) [the
Matrimonial Property Act] (but
excluding any
amendments thereto) shall apply to the intended marriage between the
parties.
3.
For the purposes of Section 6 of the Act the nett values of the
estates of the parties at
the commencement of their intended marriage
are hereby declared to be as follows;
3.1
That of
N.
[the first defendant]
R3 000 000 and Estate does not include assets inherited and
Professional Businesses e.g. Legal Practice are equally excluded as
part of the estate (
sic
).
3.2
That of
T.
[the plaintiff]
R650 000.
[6]
Section 6
of the
Matrimonial Property Act provides
as follows insofar
as currently relevant:
6.
Proof of commencement value of estate.
—
(1)
Where a party to an intended marriage does not for the purpose of
proof of the net value of his estate at the commencement of
his
marriage declare that value in the antenuptial contract concerned, he
may for such purpose declare that value before the marriage
is
entered into or within six months thereafter in a statement, which
shall be signed by the other party, and cause the statement
to be
attested by a notary and filed with the copy of the antenuptial
contract of the parties in the protocol of the notary before
whom the
antenuptial contract was executed.
(2)
…
(3)
An antenuptial contract contemplated in
subsection
(1)
or
a certified copy thereof, or a statement signed and attested in terms
of
subsection (1)
or
a certified copy thereof contemplated in
subsection
(2)
,
serves as
prima facie
proof
of the net value of the estate of the spouse concerned at the
commencement of his marriage.
(4) The net value of the
estate of a spouse at the commencement of his marriage is deemed to
be nil if—
(
a
)
the liabilities of that spouse exceed his assets at such
commencement;
(
b
)
that value was not declared in his ante
nuptial
contract or in a statement in terms of
subsection
(1)
and
the contrary is not proved.
[7]
In paras. 22.5 and 22.6 of her particulars of claim, as amended, the
plaintiff
pleaded as follows:
22.5 The plaintiff
avers that the declared net value of the first defendant’s
estate at the commencement of the marriage
contained in the
antenuptial contract was incorrect and that such net value was no
more than R750 000 as at the date of the
conclusion of the
antenuptial contract and/or the marriage.
22.6 The plaintiff
accordingly avers that any accrual calculation in terms of
section 4
of the
Matrimonial Property Act &hellip
; (“the MPA”) must
be based on the fact that the net value of the first defendant’s
estate as recorded in the
antenuptial contract and/or at the
commencement of the marriage was and ought to have been no more than
R750 000, and the
plaintiff intends leading evidence to rebut
the prima facie value of R3 000 000.00 contained in the
antenuptial contract,
as per
section 6(3)
of the MPA.
Arising
out of those allegations the plaintiff sought the following relief in
prayer 6 of her summons (as amended):
Implementation of the
provisions of the Antenuptial contract between the parties taking
into account the actual net value of the
first defendant’s
estate as set out in paragraphs 22.5 - 22.6 above; and insofar as
might be necessary rectifying the antenuptial
contract by deleting
the sum of R3 000 000 in clause 3.1 thereof and
substituting it with the sum of R750 000.
She
also included the customary prayer for ‘further and/or
alternative relief’.
[8]
Close attention to subsections 6(1) and (3) of the
Matrimonial
Property Act shows
that read together they are ineptly worded. If
read literally the antenuptial contract referred to in the opening
phrase of
s 6(3)
would appear to cross-reference to an
antenuptial contract in which a party has not made a declaration of
value, for that is the
type of antenuptial contract with which
s 6(1)
deals. But such a reading, which was applied in
Jones and another
v Beatty NO and others
1998 (3) SA 1097
(T), at 1100I-J, calls
into question the very purpose of
s 6(3).
The unhappy wording of
the provisions has given rise to conflicting judgments on their
proper construction.
[9]
Olivier v Olivier
1998 (1) SA 550
(D) concerned a case in
which both of the parties had declared in their antenuptial contract
that the commencement values of their
respective estates were nil. In
the subsequent divorce proceedings, in which the wife sought
implementation of the accrual system
by payment to her by her husband
of half of the difference between the accrued value of her estate and
the accrued value of his
estate, the husband pleaded that he had in
fact been possessed of an estate of value at the commencement of the
marriage and, relying
on
s 6(3)
of the
Matrimonial Property Act,
sought
an order declaring that his estate had shown no accrual,
alternatively a lesser accrual than that of his wife.
[10]
PC Combrinck J held that there was no basis in law for the
husband’s invocation
of
s 6(3).
The learned judge found
that
s 6(3)
was of no application in a case where the parties
had expressly declared the value of their estates. He held that a
declaration
of value in an antenuptial contract was contractually
binding and conclusive, at least
inter partes
. Accordingly, if
the declaration was not correct it could be attacked only on the
well-recognised grounds of misrepresentation,
duress, undue influence
etc. Rectification could also be sought if the declaration had been
incorrect due to common error. Combrinck
J concluded that
s 6(3)
was only for the benefit of third parties, such as heirs, who might
have an interest in impugning the asset values stated in an
antenuptial contract or postnuptial statement.
[11]
Buys J, however, interpreted the provisions differently in
Thomas v Thomas
[1999] 3 All SA 192
(NC). That matter
concerned an opposed application to amend a pleading in a divorce
action in which the plaintiff had initially
admitted that the net
value of his estate at the commencement of the marriage had been as
recorded in the parties’ antenuptial
contract. The proposed
amendment involved the withdrawal of the aforementioned admission. It
was predicated on the recent realisation
by the plaintiff that the
stated values of two farms that had been recorded in the contract as
being part of his assets had in
fact been materially understated. The
learned judge identified that the matter raised the antecedent
question whether the net values
of the spouses’ assets as
recorded in their antenuptial contract constituted conclusive proof
thereof, or whether, by reason
of
s 6(3)
, it was merely prima
facie proof; in other words, a stated value that was amenable to
correction or rebuttal.
[12]
The judge undertook a contextual assessment of the purpose of
s 6
within the scheme of the accrual system provided for in terms of
ss 2
to
4
of the statute. He concluded that it was clearly evident that
the provision for stating the net asset values of the parties’
estates in an antenuptial contract providing for the accrual system
or in a statement made after the marriage as provided in
s 6(1)
was to serve as proof of such values. He considered, however, that
the effect of
s 6(3)
was that the probative effect of such
declarations or statements was to be only prima facie, and therefore
subject to rebuttal
by any interested party. Such ‘interested
party’ might include either of the spouses or any legally
interested third
party. The learned judge considered that when the
parties to a marriage declare the values of their respective estates
at the commencement
of the union for the purposes of the accrual
system they are not reaching agreement on such values, but merely
fixing and recording
a value that both of them accept will stand as
prima facie proof thereof.
[13]
The judgments in both
Olivier
and
Thomas
found that
sensible effect could not be given to
s 6
on a strictly literal
reading. They both found that the words ‘
contemplated
in subsection (1)
’
in
s 6(3)
had been inserted per
incuriam
.
In consequence, both judgments declined to follow the construction of
the provision applied in
Jones
supra. I find myself in respectful agreement with those findings.
[14]
On the point of difference between the two
judgments
I am in essential agreement with the judgment of
Buys J, and respectfully disagree with the construction in
Olivier
that
s 6(3)
is only for the benefit of third
parties when the commencement values have been stated in an
antenuptial contract.
[15]
In my view
it is evident when one considers the provisions of chapter I of the
Matrimonial Property Act as
a whole that the legislature contemplated
a system of accrual determined by objective criteria, save where the
parties might otherwise
contractually agree – for example by
agreeing that an inheritance should be included in the calculation of
an accrual, rather
than excluded as is the default position in terms
of
s 5.
The accrual system as provided for in terms of the
chapter works on the basis set out in ss 2-5 of the Act.
[2]
Section 4 provides in general terms that ‘[t]
he
accrual of the estate of a spouse is the amount by which the net
value of his estate at the dissolution of his marriage exceeds
the
net value of his estate at the commencement of that marriage
’.
Its more specific provisions provide for what is ordinarily to be
included in or left out for the purposes of determining
the accrual
and how the effect of inflation is to be accommodated in calculating
the accrual. The respective net values at the
commencement and
dissolution of the marriage are matters of objective fact, not
matters to be determined by agreement. It is not
open to the parties
by means of a declaration to invent the objectively determinable
facts by declaring or stating fictitious values.
The way in which
they are entitled
by
agreement
to alter the ordinary operation of the accrual system is by excluding
or including specified types of assets that ordinarily would
be
included or excluded in terms of the statute for the purpose of
determining the respective accruals;
not
by misrepresenting or misstating the objectively determinable
commencement values.
[16]
The object of s 6, as its sub-heading proclaims, is to regulate
and facilitate
the proof
of the commencement values of the
spouses’ respective estates. It affords an evidential status to
the declaration by the
parties in their antenuptial contracts or
their postnuptial statements of the commencement values of their
respective estates.
Having regard to the very lengthy period that
will often intervene between the commencement and the ending of a
marriage, and the
evidential difficulties that are therefore often
likely to arise in regard to the proof of the commencement values of
the spouses’
respective estates, the statutory provision of
various presumptions was only sensible and pragmatic.
[17]
However, as indeed identified by Buys J in
Thomas
, it is
clear from the absence of any practical distinction between a
‘statement’ in terms of s 6(1) and a declaration
in
the body of an antenuptial contract that the legislature did not
intend a declaration in an antenuptial contract to have binding
contractual effect regardless of the objectively determinable facts.
Furthermore, as also pointed out by Buys J, the evident
legislative intention in s 6(3) is underscored by the provisions
of s 6(4)(b), which permit of a negation of the prima
facie
deeming effect of a failure by the parties to declare the
commencement value of their respective estates.
[18]
The very evident intention is that whatever might have been declared,
or not declared by
the spouses, it should always be open to any
interested party (including the spouses themselves) to prove the
actual commencement
values of their respective estates. And that if
such party should succeed in doing so, the proven actual value would
prevail against
the declared, stated or deemed value.
[19]
In the result the submission by Ms
Segal
, who appeared for the
defendants, that it was incumbent on the plaintiff to seek and obtain
the rectification of the parties’
antenuptial contract to be
able to challenge the declared commencement value of the first
defendant’s estate cannot be sustained.
Nonetheless, the
plaintiff bore the onus of proving her contention that the declared
commencement value of the first defendant’s
estate was in an
amount different from the declared value. The effect of s 6 is
that the declared value is presumed to be
correct unless proved
otherwise.
[20]
Despite having been legally represented in the matter until two
months before the trial,
the plaintiff does not appear to have
prepared herself well for the task of discharging the onus of proving
her allegations. She
was able to substantiate her claim only on the
basis of her very generalised testimony and she was not equipped by
trial particulars
or discovered documents to challenge the
countervailing evidence of the first respondent by effective
cross-examination. It does
seem possible that the commencement value
of the first defendant’s estate may have been overstated at
R3 million, but
I am unable to find on a balance probability
that this has been proven to be actually so.
[21]
The plaintiff succeeded in establishing that the property at Fort
Beaufort owned by the
first defendant at the commencement of the
marriage had been inherited from his mother, and therefore fell, in
terms of the antenuptial
contract, to be excluded from the declared
value. She also succeeded in establishing by way of her own evidence
and concessions
extracted from the first defendant under
cross-examination that there was no net value in the property at
Bellville registered
in his name at the time because it was fully
bonded. The net value of a two-bedroomed apartment that the defendant
owned in Rondebosch,
and which he had purchased for approximately
R240 000 six years earlier with a mortgage loan, is also
unlikely to have exceeded
R500 000. The BMW motor vehicle that
he drove was leased by the law practice in which he is a partner. To
the extent that
it represented any value in his estate, which is
doubtful, it was in any event excluded from the computation by the
terms of the
antenuptial contract. Making allowance for some
furniture and the value of an old Mazda bakkie that he had purchased
for R45 000
and to which he had effected some improvements, one
is still left with an approximate sum far short of the declared total
net value
of the first defendant’s estate.
[22]
The first defendant testified, however, that the balance of his
estate at the commencement
of the marriage had comprised of
approximately R1 million that he held in cash, a share portfolio
that obviously constantly
varied in value with movements on the stock
market, but to which he ascribed, based on vague recollection, a
value of about R650 000,
and a provident fund investment and two
retirement annuities about which he was unable to provide meaningful
particularity, but
which, for all one knows, might have brought the
net value of his estate up to the declared value of R3 million.
[23]
Had the plaintiff been properly prepared for trial she would have
been in a position either
to realise that her claim was misconceived,
or to effectively deal with the first defendant’s vague and
unsubstantiated evidence.
She was not. In consequence she failed to
discharge the onus with which she was burdened. By contrast, the
vagueness of the first
defendant’s evidence could not redound
against him because he bore no burden of proof.
[24]
The plaintiff’s claim predicated on the allegations in para.
22.5 and 22.6 of her
particulars of claim therefore cannot succeed.
The prima facie probative effect of the declaration by the first
defendant in the
parties’ antenuptial contract of the
commencement value of his estate has not been rebutted.
The
quantification of the accrual claim by a referee appointed in terms
of
s 38
of the
Superior Courts Act 10 of 2013
[25]
An accrual claim sounding in money was not part of the plaintiff’s
case. She merely
asked for an order directing that the accrual system
be implemented on the basis of a determination that the commencement
value
of the first defendant’s estate was R750 000, and
not R3 million, as declared. Such an order, without more, would,
in the absence of an agreed accounting and settlement between the
parties, necessitate further litigation to determine the amount
of
the monetary payment to be made in implementation of the order and by
which of the parties it fell to be made.
[26]
It has in fact even been debated whether a claim for payment in terms
of the accrual system
can properly be entertained as part of a
divorce action.
Section 3
of the
Matrimonial Property Act provides
that the claim arises at the dissolution of the marriage, which
implies that it may be made only after a divorce order has been
granted. It was for that reason that Olivier J held in
Le Roux v
Le Roux
[2010] JOL 26003
(NCK) that the plaintiff was not
entitled to proceed with her claim for payment under the accrual
system as part of the divorce
proceedings. However, that approach was
distinguished on grounds of pragmatism (or as it was expressed in the
judgment by Sutherland
J, ‘
for policy reasons
’) in
JA v DA
2014 (6) SA 233
(GJ). In the latter matter, after
referring to the judgment in
Le Roux
, the learned judge
proceeded as follows at para. 19-20:
…
If applied
literally, this means that a litigant must engage in two distinct
actions, the first for divorce and the second for an
order pursuant
to
s 3
of the MPA.
[20] Without challenging
the correctness of the finding that enforceability must await the
date of dissolution, it does not seem
to me inappropriate to sue for
both a divorce and an order pursuant to
s 3
of the MPA in a single
action, in which the accrual order is made dependent upon the
granting of a divorce order. For policy reasons,
if no other, and the
obvious saving of costs and avoidance of delay, the double-barrelled
approach is preferable, a view shared
by Olivier J but which he
reluctantly disavowed because of what, in his view, would be
infidelity to the provisions of
s 3.
The pleading of circumspect
prayers could probably overcome that danger of infidelity. Practical
factors alone ought to determine
whether any post-dissolution
revisions to provisional calculations become necessary.
[27]
The remarks
from Sutherland J’s judgment in
JA
v DA
quoted above were obiter, as the sole question in the case was the
date upon which the exit values of the parties’ estates
fell to
be calculated for accrual purposes. The question was whether it was
the date on which the divorce order was granted, or
on which
pleadings in the divorce action closed. The quoted remarks were,
however, nonetheless mentioned with approval by Tsoka AJA,
also
in an obiter dictum, in
AB v
JB
2016
(5) SA 211
(SCA), at para 19.
[3]
[28]
The issue
whether the accrual claim can be determined within the ambit of the
divorce proceedings arises squarely in the current
case because,
notwithstanding the position on the pleadings described earlier,
[4]
the first defendant’s counsel handed up a draft order that
provided for the appointment of a referee in terms of
s 38
of
the
Superior Courts Act 10 of 2013
to attend to the calculation of
the accrual award. The plaintiff, during her evidence, consented to
the appointment of a referee
for this purpose, as proposed. The
parties by their conduct thereby signified that they wanted the
accrual claim determined within
the ambit of the divorce action. The
implication must follow because any matter referred by a court to a
referee in terms of
s 38
must relate to a question for
determination in the proceedings pending before the court that
directs the referral. This is so because
the referee’s findings
fall to be adopted as findings by the court ‘
in
the proceedings in question
’
[5]
,
and may be the basis of a consequent order.
[6]
As mentioned, the alternative would be for fresh proceedings to be
instituted to decide the question.
[29]
I consider that in the peculiar circumstances it would be to
inappropriately elevate form
above substance to decline to decide the
case in accordance with the parties’ common desire to have the
accrual claim determined
only because the pleadings have not been
brought formally into line with it. I respectfully agree with the
approach enunciated
in
JA v DA
supra, loc. cit., and for the
reasons stated there. In the circumstances I am willing to accede to
the parties’ request that
the order to be given at this stage
of the proceedings should incorporate a referral of the matter of the
quantification of the
accrual claim to a referee for enquiry and
report in terms of s 38 of the Superior Court Act. Granting such
an order would
be covered by the prayer for ‘further relief’.
The referee’s appointment will be regulated substantially in
accordance
with the proposal set out in the draft order handed up by
the first defendant’s counsel.
Costs
[30]
Ms
Segal
argued that the plaintiff should be ordered to pay
the first to third defendants’ costs of suit. I am not
persuaded, however,
that such an unqualified order would be fair or
just in the circumstances.
[31]
Costs fall
to be decided judicially in the exercise by the court of a broad
discretion in the strict sense of the concept. The general
rule that
costs should follow the result does not always work satisfactorily in
matrimonial proceedings, and particularly when
the interests of the
parties’ children fall to be addressed as part of the issues
for determination. In the current case
the contentious issues became
very much narrowed only during the course of the trial. So, for
example, the matters concerning the
care and maintenance of S. were
settled by the plaintiff’s acceptance of a tender made by the
first defendant during the
course of the hearing.
[7]
Appropriate provision for the plaintiff’s costs of
accommodation pending the final determination of the accrual claim
was
also made only during the course of the trial. Against that, I
take into account that the plaintiff only abandoned her apparently
ill-conceived claims in respect of the trusts at the beginning of the
trial. The defendant trustees were represented by the same
legal
representatives as those who represented the first defendant in his
personal capacity. And the trusts are of the sort that
have been
labelled as ‘family trusts’.
[8]
It does not seem to me that the claims against the trustees would
have contributed materially to the overall costs of the litigation.
I
think it would also be appropriate, in what were primarily
matrimonial and family law proceedings, to take into account the
apparent inequality of the financial means of the parties. The first
defendant is a well-established senior attorney and self-described
entrepreneur, whereas the plaintiff is a middle ranking civil servant
dependent upon a comparatively modest salary. She has incurred
substantial debt in respect of legal expenses leading up to the
trial. To burden her with the liability to pay the first defendant’s
costs of suit would work unduly harshly in the circumstances and,
having regard to her role as primary caregiver, would also probably
redound negatively against the material best interests of the
parties’ minor child.
[32]
For these reasons, save in respect of the costs incurred in respect
of proceedings on Wednesday
21 February 2018 (with which I shall deal
presently), I am disposed to make no order as to costs.
[33]
The plaintiff failed to attend court on the third day of the trial.
She emailed a doctor’s
certificate to the court registrar on
the morning of 21 February. The certificate stated that the
plaintiff was not fit to
attend work on that day, but would be able
to return to work the following day. The certificate gave no
particulars of the nature
of the plaintiff’s illness and stated
that they could be provided only with the patient’s consent.
The plaintiff, however,
made herself uncontactable, and it was not
possible to obtain her consent for particulars of the doctor’s
diagnosis to be
obtained.
[34]
The court was left with no choice in the circumstances, despite the
opaqueness of the explanation
for the plaintiff’s absence, but
to postpone proceedings to the following day. On that day the
plaintiff once again failed
to appear and the matter was stood down
so that the first defendant’s attorney might subpoena the
doctor who had issued the
certificate to attend court that afternoon
to give evidence concerning the apparent reason for her absence. In
the course of further
investigation by the attorney while the matter
was standing down, it was discovered that the plaintiff was actually
at her place
of work in a building less than 100 metres from the seat
of the court. It was also learned that she had been there on the
previous
day, and moreover at the time of the morning when
proceedings had been set to resume at the commencement of the third
day of the
trial. She could therefore as easily have been at court as
at her office. Soon after these discoveries had been made, and after
the first defendant had obtained an order directing the security
personnel at the plaintiff’s place of work to attend court
to
testify in accordance with their surveillance information as to the
plaintiff’s comings and goings on 21 and 22 February,
the
plaintiff arrived at court shortly before midday and the hearing was
able to be resumed and completed on that day.
[35]
The plaintiff endeavoured to explain her absences. I do not find it
necessary to go into
the particulars. Suffice it to say the
explanation was wholly unsatisfactory. There was no reason why the
plaintiff could not have
attended at court on 21 February, if
only to explain that she was not well. She was in the immediate
precinct having travelled
all the way into the city from Bellville to
collect some files on which she was working. Her claim that she had
not appreciated
that the trial would be continuing on 22 February
was risible. Her failure to make any enquiries as to what was to
happen
as a consequence of her absence on 21 February showed a lack
of bona fides.
[36]
I have therefore determined that the plaintiff should bear the wasted
costs incurred by
the first defendant in respect of the aborted
hearing on 21 February 2018 and in respect of the attendances of the
first defendant’s
attorney on 22 February 2018 to
ascertain her whereabouts.
Order
[37]
The following order is made:
1.
A decree of divorce dissolving the bonds of marriage between the
plaintiff and
the first defendant is granted.
2.
The plaintiff and the first defendant are declared to be co-holders
of full parental
responsibilities and rights in respect of the minor
child, S. N. (“
the minor child
”), born on
[…] 2008, as provided for in sub-secs 18 (2) - (5) of the
Children’s Act 38 of 2005, subject to the
provisions of the
Parenting Plan (“
the Parenting Plan
”)
annexed, marked “
X
”, to the plaintiff’s
particulars of claim, save that the word ‘
mother
’
in paragraph 2.1.1 (c) thereof shall be read as ‘
father
’,
and save further that the resumption of access to the minor child by
the first defendant as provided for in the Parenting
Plan shall occur
under the supervision of a clinical psychologist jointly appointed by
the parties, or failing that, by the facilitator
appointed in terms
of the Parenting Plan.
3.
The first defendant is ordered to contribute towards the maintenance
of the minor
child as follows:
3.1. By
paying to the plaintiff the sum of R6 500.00 (six thousand five
hundred rand) per month on or before
the first day of the month
following the grant of the decree of divorce, and thereafter on or
before the first day of each and
every succeeding month until the
said child attains the age of majority.
3.2.
The amount to be paid in terms of paragraph 3.1 above shall be
deposited by the first defendant into a bank
account designated by
the plaintiff in writing, and shall be increased annually on the
anniversary date of the date of the grant
of the decree of divorce in
line with the annual increase in the consumer price index (‘CPI’)
during the preceding
year as published in the Government Gazette from
time to time,.
3.3. By
retaining the minor child until she attains the age of majority or
becomes self-supporting, whichever
occurs later, as a dependent on
his current medical aid scheme which provides comprehensive cover to
the minor child. (The first
defendant is ordered to provide the
plaintiff with the minor child’s medical aid card within 5
(five) days of the date of
the grant of this order.)
3.4.
Subject to paragraph 4 below, and should the medical expenses
incurred in respect of the minor child exceed
the limits of the
medical aid cover provided for her, by bearing the costs in respect
of all medical, dental, surgical, hospital,
ophthalmic, orthodontic,
ophthalmological and other medical treatment reasonably required by
the minor child, including but not
limited to sums payable to a
physiotherapist, psychiatrist, physician, psychologist, as well as
all prescribed pharmaceutical expenses,
including chronic medication,
incurred on prescription, and the reasonable costs of spectacles
and/or contact lenses, provided
that, save in the case of
emergencies, the plaintiff must first obtain the first defendant’s
prior approval therefor, which
approval shall not be withheld.
3.5.
Paying the minor child’s primary and high school educational
costs, including her school fees at Curro
School, or any similar
school, as well as the costs of her reasonable extramural activities
and the equipment and attire required
by her therefor, together with
her prescribed school uniforms, prescribed books and stationery,
local tours, school excursions
and local camps.
3.6.
Paying for the minor child’s tertiary education fees, as well
as board and lodging at such tertiary
education institution, if
applicable, in the event that the minor child demonstrates the
aptitude and desire to pursue any recognised
tertiary education
qualification, and for so long as the minor child while undergoing
such tertiary education is promoted to the
next academic year.
4.
In the event that the plaintiff incurs any expenditure by paying for
any medical
expenses for the minor child upfront in the case of an
emergency or when it cannot reasonably be expected of her first to
obtain
the first defendant’s prior approval, and such expenses
are not covered by the medical aid cover provided, she shall
forthwith
provide a copy of the relevant invoice/s and proof of
payment to the first defendant via email, who shall reimburse her
within
five (5) calendar days of presentation of such invoice and
proof of payment thereof.
5.
In the event of the first defendant ceasing to be a member of his
current medical
aid scheme during the currency of his obligation
under paragraph 3.3 above, he shall ensure that the minor child is at
all times,
and without interruption, registered as a medical aid
beneficiary with equivalent benefits to those currently provided in
terms
of the comprehensive cover afforded by the medical aid scheme
of which he is currently a member and shall be solely responsible
for
payment of the premiums in respect of such medical aid cover.
6.
The parties shall not be precluded from approaching the relevant
Maintenance
Court for a variation of the maintenance set out in
paragraphs 3 to 5 above by virtue of any subsequent change of
circumstances
after the making of this order.
7.
The party whose estate has accrued to a greater extent shall make
payment to
the other party of half the difference between the accrual
in the parties’ respective estates, calculated as at the date
of the grant of this order, and with regard to the provisions of the
antenuptial contract executed by the parties on 8 December
2005.
8.
The parties are directed to endeavour to agree upon the calculation
of the accrual
claim debt (if any) within 30 (thirty) days of the
date of this order. In the event that they are unable to reach
agreement, then,
in accordance with the first defendant’s
request and the plaintiff’s consent:
8.1. A
referee shall be appointed (in the manner set out below) in order to
enquire into and report to this Court
upon the valuation of the
parties’ respective estates, and the computation of the accrual
claim in accordance with the order
made in paragraph 7 above.
8.2.
The parties and/or their legal representatives must jointly address a
letter to the South African Institute
of Chartered Accountants
(“
SAICA
”), to which letter a copy of this
order must be annexed, requesting SAICA to nominate a chartered
accountant with at least
15 years’ experience (“
the
chartered accountant’
), to act as a referee appointed
in terms of
s 38
of the
Superior Courts Act 10 of 2013
, to
undertake the calculation of the value of the parties’
respective estates and to determine the amount due in terms of
paragraph 7 above.
8.3.
SAICA must be requested to furnish the parties and/or their legal
representatives with the details of the
nominated chartered
accountant together with a copy of his/her consent to accept the
appointment.
8.4. In
the event of the chartered accountant’s acceptance of
appointment failing for any reason, the parties
and/or their legal
representatives must jointly within 3 days of obtaining knowledge of
such failure, follow the steps set out
in clauses 8.2 and 8.3 until a
successful appointment is obtained; failing which, and if a chartered
accountant will not accept
appointment, they must both state an
account for debatement before the court for the purpose of the
determination of the accrual
claim in accordance with directions to
be obtained on application to the presiding judge in chambers.
8.5.
The referee appointed in terms of this paragraph shall have the power
to procure the attendance before him
or her of either of the parties
and of any other person whose evidence is considered by the referee
to be relevant and shall have
the authority to examine any such
person under oath and to require such person or any other person to
produce any document or record;
and in that connection the provisions
of
s 38(4)
and (5) of the
Superior Courts Act 10 of 2013
read
with the Uniform Rules of Court in respect of action proceedings
shall apply.
8.6.
The referee shall file the original of his report of record with the
Chief Registrar of the Court and on
the same date deliver a copy
thereof by email to each of the parties or their legal representative
at the email addresses to be
provided by the parties to the referee
for that purpose.
8.7.
The remuneration of the referee shall be determined by agreement with
the parties, failing which the referee
shall be entitled to a
reasonable remuneration and reimbursement of any reasonably incurred
expenditure, such remuneration and
expenditure to be subject to
taxation by the taxing master as provided for in terms of
s 38(6)
of the
Superior Courts Act.
8.8.
Liability
as between the parties for the referee’s fees shall
be determined by agreement between them, failing which agreement, by
order of the Court made upon application by either party or the
referee within 10 (ten) days of the delivery of the report
on
reasonable notice to the other party.
8.9.
The parties are directed to give effect to the conclusion in the
referee’s report, provided that either
or both of them may
instead apply to the Court on notice within 10 (ten) days of the
delivery of the report for any order of the
nature contemplated in
terms of
s 38(1)
of the
Superior Courts Act.
9.
Pending
the determination and payment of the accrual (if any) as
provided for in paragraph 8 above, the first defendant shall, with
effect
from the date upon which the plaintiff vacates the premises
currently occupied by her at 3 Pine Street, Richwood, Bellville,
make payment on first day of every month of an amount R10 000.00 by
way of a contribution towards the cost of alternative accommodation
for the plaintiff during the said period.
10.
The plaintiff’s claim in terms of
s 6(3)
of the
Matrimonial Property Act 88 of 1984
, as set forth in prayer 6 (as
amended) read with paragraphs 22.5 and 22.6 of her amended
particulars of claim, is dismissed.
11.
Save that the plaintiff is ordered to pay the wasted costs incurred
by the first defendant arising
out of the postponement of the trial
on 21 February 2018 and those incurred by him in respect of the
attendances of his attorney
on 22 February 2018 to ascertain the
plaintiff’s whereabouts, and save as otherwise might
subsequently be ordered in
terms of paragraph 8 above, there shall be
no order as to costs.
A.G.
BINNS-WARD
Judge
of the High Court
[1]
It
emerged during the evidence that subsequent to the commencement of
the action the first defendant has changed his surname from
Nongogo
to Guzana.
[2]
Sections
2
to
5
provide:
2
Marriages subject to accrual system
Every
marriage out of community of property in terms of an antenuptial
contract by which community of property and community of
profit and
loss are excluded, which is entered into after the commencement of
this Act, is subject to the accrual system specified
in this
Chapter, except in so far as that system is expressly excluded by
the antenuptial contract.
3
Accrual system
(1)
At the dissolution of a marriage subject to the accrual system, by
divorce or by the death of one or both of the spouses,
the spouse
whose estate shows no accrual or a smaller accrual than the estate
of the other spouse, or his estate if he is deceased,
acquires a
claim against the other spouse or his estate for an amount equal to
half of the difference between the accrual of
the respective estates
of the spouses.
(2)
Subject to the provisions of section 8 (1), a claim in terms of
subsection (1) arises at the dissolution of the marriage and
the
right of a spouse to share in terms of this Act in the accrual of
the estate of the other spouse is during the subsistence
of the
marriage not transferable or liable to attachment, and does not form
part of the insolvent estate of a spouse.
4
Accrual of estate
(1)
(a) The accrual of the estate of a spouse is the amount by which the
net value of his estate at the dissolution of his marriage
exceeds
the net value of his estate at the commencement of that marriage.
(b)
In the determination of the accrual of the estate of a spouse-
(i)
any amount which accrued to that estate by way of damages, other
than damages for patrimonial loss, is left out of account;
(ii)
an asset which has been excluded from the accrual system in terms of
the antenuptial contract of the spouses, as well as
any other asset
which he acquired by virtue of his possession or former possession
of the first-mentioned asset, is not taken
into account as part of
that estate at the commencement or the dissolution of his marriage;
(iii)
the net value of that estate at the commencement of his marriage is
calculated with due allowance for any difference which
may exist in
the value of money at the commencement and dissolution of his
marriage, and for that purpose the weighted average
of the consumer
price index as published from time to time in the Gazette serves as
prima facie proof of any change in the value
of money.
(2)
The accrual of the estate of a deceased spouse is determined before
effect is given to any testamentary disposition, donation
mortis
causa or succession out of that estate in terms of the law of
intestate succession.
5
Inheritances, legacies and donations excluded from accrual
(1)
An inheritance, a legacy or a donation which accrues to a spouse
during the subsistence of his marriage, as well as any other
asset
which he acquired by virtue of his possession or former possession
of such inheritance, legacy or donation, does not form
part of the
accrual of his estate, except in so far as the spouses may agree
otherwise in their antenuptial contract or in so
far as the testator
or donor may stipulate otherwise.
(2)
In the determination of the accrual of the estate of a spouse a
donation between spouses, other than a donation mortis causa,
is not
taken into account either as part of the estate of the donor or as
part of the estate of the donee.
[3]
Also reported on SAFLII
sub
nom Brookstein v Brookstein
[2016] ZASCA 40.
[4]
At
paragraph [25]
above.
[5]
See
s 38(2)
of the
Superior Courts Act.
[6
]
An
informative discussion of the history of the procedure currently
provided for in
s 38
of the
Superior Courts Act and
of the
juristic character of the referee’s role is to be found in
Wright
v Wright and Another
[2012] ZAGPJHC 250; 2013 (3) SA 360 (GSJ).
[7]
Consider
the discussion in AC Cilliers,
The
Law of Costs
(LexisNexis
loose-leaf edition, Issue 36) at §12.11A.
[8]
Nieuwoudt
NO v Vrystaat Mielies (Edms) Bpk
2004 (3) SA 486
(SCA) at para. 17 and
Land
and Agricultural Bank of South Africa v Parker and Others
[2004] 4 All SA 261
(SCA);
2005 (2) SA 77
;
[2004] ZASCA 56
, at para.
25-27.