L.W v C.W and Others (12866/2014) [2020] ZAWCHC 86 (26 August 2020)

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[2020] ZAWCHC 86
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L.W v C.W and Others (12866/2014) [2020] ZAWCHC 86 (26 August 2020)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
Case
No:  12866/2014
In
the matter between:
L
W
Plaintiff
and
C
W
First
Defendant
C W
N.O.
Second
Defendant
L W
N.O.
Third
Defendant
DOROTHY
DIXON
N.O.
Fourth
Defendant
(In their capacities
as the Trustees for the time being of the C’s Trust IT No.
3043/97)
THE MASTER OF THE HIGH
COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH
COURT
Fifth
Defendant
CORAM:
JUDGE SALIE-HLOPHE
DATE
OF HEARING:
11 MAY 2020
DELIVERED:
26 AUGUST 2020
COUNSEL
FOR PLAINTIFF:
Advocate L Buikman
ATTORNEYS
FOR PLAINTIFF:
Catto Neethling Wiid Inc.
COUNSEL
FOR DEFENDANTS:
Advocate Ferreira
ATTORNEYS
FOR DEFENDANTS:
Roberts
Inc.
JUDGMENT DELIVERED
ELECTRONICALLY ON 26 AUGUST 2020
SALIE-HLOPHE,J:
1] This matter commenced
before me in September 2017 as an action for divorce together with
relief in respect of patrimonial consequences,
maintenance and costs.
On 5 March 2019 this Court granted an Order between the plaintiff and
first defendant, by agreement, in
which a decree of divorce was
granted dissolving the bonds of marriage between them together with
an order interdicting the first
defendant from encumbering his
property and that belonging to the Trust to enable a receiver to give
effect to any order of this
Court to divide any accrual.  The
balance of the issues in the divorce action were postponed for
determination upon finalisation
of the trial.
Background
facts
:
2]
L and C W were married to each other on 7 March 1997 and at Cape Town
out of community of property with application of the accrual
system.
Two children were born of the marriage, a daughter (aged 23) at
present attending university and a son (aged 18)
in matric.  The
plaintiff’s estate had a commencement value of R50 000-00.
She excluded a number of assets including
her interest in a
restaurant partnership, On the Rocks, and various immovable
properties and policies.  The first defendant
excluded his
interest as a sole proprietor in a business named Art Cast. The
parties agreed that these assets “
or
any other assets acquired by such party by virtue of his possession
or former possession of such asset”
would
not be taken into account as part of such party’s estate at
either the commencement or the dissolution of the marriage.
The
antenuptial contract excluded the consumer price index when
calculating the plaintiff’s commencement value.  It
made
provision for the fact that the parties could not during their
marriage make donations or dispositions of assets at less than
their
fair market value without the consent of the other party.
Further, it provided that the first defendant would cede
a life
insurance policy to the plaintiff.
3]
In July 1997, shortly after the marriage, the C’s Trust IT
No.3043/97 (“the trust”) was formed.  The founder
of
the trust is the first defendant.  The plaintiff and first
defendant are trustees and beneficiaries together with the children.

Mr. Peter Gees, a financial advisor, was the first independent
trustee, replaced by Ms. Schafer, a bookkeeper by profession.
[1]
The trust was formed to purchase an immovable property for the first
defendant’s business which was subsequently sold.
In 2000
the parties’ then matrimonial home situate at […]
Street, Parklands was purchased by the trust followed by
a vacant erf
in Langebaan during 2002.  A holiday home was developed on the
erf, referred to as the “Langebaan”
property.
Another erf was purchased in Atlantic Beach Golf Estate, developed
into a family home in 2006/2007.  In 2008
the parties moved from
[…] Street to the Atlantic Beach property.
4]
The plaintiff gave birth to a daughter in September 1997, sold her
share in the partnership restaurant in August 2000, was diagnosed

with Hodgkins Lymphoma two months later and underwent a series of
radiation and chemotherapy treatment.  In 2002 she gave
birth to
their son.  The first defendant was the breadwinner of the
family, had developed the business successfully over the
years into
the company, Gilded Edge (Pty) Ltd (“Gilded Edge”), the
family lived a lavish lifestyle and regularly travelled
locally and
internationally.  The plaintiff had not pursued employment or
other businesses since selling her shares in the
restaurant in 2000
and received a small salary from first defendant’s business,
the Gilded Edge, although she was not so
employed.
5]
It is not disputed that the first defendant had a number of
extra-marital indiscretions since the earlier days of the marriage,

which included a long standing extra-marital affair with an employee
of the business, Ms. B.  This relationship started around
2003
until approximately 2015.
[2]
6]
In 2003 the first defendant, unhappy with the terms of the ante
nuptial contract, raised his grievances with the plaintiff and

pursuant to an application to change their marital regime, this Court
granted the parties the right to enter into a postnuptial

agreement.
[3]
In the
affidavit in support of the application for the registration of a
postnuptial agreement (with a confirmatory affidavit
signed by the
plaintiff) the first defendant stated as follows:
“
8.1
It was always our intention to exclude any interest which either the
Second Applicant and I may have in any business both at
the time of
the marriage and subsequent thereto.  The Second Applicant has
subsequent to our marriage sold her interest in
the business referred
to in the Antenuptial Contract and I have furthered my business
interests.  It is our wish for any interest
which either of us
may
have in any
business venture, to be excluded from any accrual calculation.”
7]
After the granting of the Order, the parties concluded a postnuptial
agreement
[4]
on 31 October 2005
in terms of which they agreed that:
7.1]
the first defendant excluded his interest in the Gilded Edge CC and
his interest in any current and/or future business and/or
interest in
any partnership, close corporation or company” as well as his
interest in any immovable property;
7.2]
the plaintiff’s excluded assets were her interest in any
current and/or future business and/or interest in any partnership,

close corporation, company, immovable property and her interest in
the policies that existed at the time of the antenuptial contract.

The Park Manor property, owned by the plaintiff prior to the marriage
was excluded.  The clause regarding donations was removed
and
the CPI was included to calculate the plaintiff’s commencement
value of R50 000-00.
8]
It is not in dispute that the effect of the postnuptial agreement
secures the first defendant in his financial position with
an onerous
position for the plaintiff.  Whilst the accrual was not
excluded, the effect of the terms of the postnuptial agreement
was
that her accrual claim would be substantially limited.
9] The parties’
marriage started breaking down from 2008 and finally in 2014 when,
after a heated argument, the plaintiff
moved out of the main
bedroom.  In 2010 the plaintiff approached her attorneys of
record and in 2013 the parties entered divorce
and settlement
discussions.  In or around May 2014 the first defendant
instituted divorce proceedings out of the Cape Town
Regional Court.
As the plaintiff wanted to claim relief against the trust, the matter
was removed by agreement from the Regional
Court, followed by these
proceedings, instituted by the plaintiff in July 2014.
10]
On 31 August 2015 the first defendant brought an application to
separate the relief relating to the trust.  The application
was
dismissed with costs.  An order
pendente
lite
in terms of rule 43 was granted during 2015 that the first defendant
maintain the plaintiff and the children in an amount of R34
500,
contribution towards costs together with the payment of expenses
relating to a property owned by the plaintiff and which the
first
defendant continued to use as his second home.  This was on the
basis that the plaintiff and the children would continue
to reside at
the Atlantic Beach property,
[5]
she had however since vacated with the children.  The property
is occupied by the first defendant.
11]
On 17 March 2017 the Court ordered in terms of a rule 43(6) that the
first defendant make a further contribution of R350 000
towards the
plaintiff’s costs.  In terms of a further rule 43(6)
application the monthly maintenance amount payable
by the first
defendant was increased to an amount of R40 250 and ordered the first
defendant to contribute towards the applicant’s
rent to a
maximum of R30 000 per month as well as the payment of a number of
household expenses.
[6]
Combined
the value of the present maintenance paid by the first defendant is
approximately R85000 per month.
[7]
12]
During May 2019 the Langebaan property, owned by the trust, was sold
for an amount of R6 507 385-79.  The amount was paid
by the
first defendant’s attorney, also acting as the transferring
attorney, to the Gilded Edge.  The basis of the payment
was that
first defendant’s business had a loan account in the trust.
In terms of an order of Court (commonly referred
to in the trial as
the interdict application) an order was granted, by agreement that
the funds totalling R5 394 315.20 be “ring-fenced”
in a
money market account held by the Gilded Edge at ABSA Bank pending the
final determination of the divorce action.
[8]
At the resumption of the trial in May this year, the first defendant
was found in contempt of Orders of this Court
[9]
and an order was made that a portion of the ring-fenced amount was to
be paid into the trust account of the plaintiff’s attorneys
of
record as follows:
12.1]
R82 429 in respect of outstanding amounts in respect of previous
orders;
12.2]
R350 000-00 as a contribution towards the applicant’s arrear
legal costs;
12.3]
R45 000-00 per day commencing on 11 May 2020 on each day of trial
thereafter until closing arguments;
12.4]
R8 000-00 per day in respect of plaintiff’s expert witness
attendance;
12.5]
The costs of the application was ordered to stand over for
determination of the action.
[10]
13] The first defendant
had at various instances not complied with the maintenance orders,
resulting in the issue of three writs
of execution and contempt of
court proceedings.  After institution of the first contempt
proceeding the amount was settled
in February 2020 in excess of R185
000 and the second contempt proceeding culminated in an order finding
him in contempt of Court.
Issues for
determination:
14]
This Court is required to determine the patrimonial and maintenance
disputes between the parties, briefly summarised as follows:
14.1]
determination of the accrual that has taken place in the first
defendant’s estate.  There is no accrual in the
estate of
the plaintiff;
14.2]
whether the assets that are currently registered in the name of the
C’s Trust form part of the first defendant’s
estate for
the purposes of calculating the accrual that has taken place in his
estate;
14.3]
whether the first defendant owes the plaintiff R1 010 000 being the
total that the plaintiff claims had been advanced by her
to first
defendant personally as loans.  The first defendant maintains
that of this funds, he personally owed her an amount
of R130 000,
that the Gilded Edge owes her R151 240 and that R225 466-00 is owed
to her by the trust.  The first defendant
also maintains that
both the Gilded Edge and the trust have repaid the plaintiff her loan
accounts in these entities;
14.4]
whether a declaratory order should be granted that the credit amount
of the proceeds of the sale of the Langebaan property,
which is
currently held in an ABSA bank money market account of the Gilded
Edge, is an asset of the trust.  Relief is sought
that the
proceeds form part of the first defendant’s assets and that
this amount may only be released to the first defendant
once he has
made payment in full of the amount that is due to the plaintiff in
terms of the accrual;
14.5]
determination of the amount of maintenance contribution the plaintiff
requires on divorce until her death or remarriage (Her
monthly
maintenance needs were not placed in dispute).  The required
contribution is subject to the findings of this Court
in respect of
the accrual amount due to her;
14.6]
costs of the action,
[11]
including the costs of senior counsel (together with the qualifying
fees of the experts) as well as the costs of applications which
stood
over for later determination: rule 43 application
[12]
,
postponement application,
[13]
rule 43(6) application
[14]
and
contempt of court application.
[15]
Issues not in
dispute:
The
parties agreed prior to the commencement of the trial that:
15.1]
first defendant agreed to contribute towards the children’s
maintenance requirements until such time as they have completed
their
tertiary education and are self-supporting, notwithstanding that they
may have attained the age of majority by:
15.1.1]
payment to plaintiff of the sum of R8000 per child per month;
15.1.2]
bearing the costs of and by retaining the children as dependant
members of a medical aid scheme and by bearing the costs
of all of
the reasonable medical expenses incurred in private healthcare in
excess of the cover provided by the medical aid scheme,
together with
undertaking to reimburse the plaintiff for payments made within 5
days of the provision of the proof of payment or
invoice;
15.1.3]
payment of all reasonable expenses incurred in respect of Justin’s
education, together with an undertaking to reimburse
the plaintiff
for all expenses which had been paid by plaintiff or that he shall
make payment directly to the service providers
as the case may be,
within 5 days from the provision of proof of payment or the invoice;
15.1.4]
payment of the reasonable costs of all or any university fees and/or
fees due to an institution for higher learning attended
by the
children including related costs, including vehicles and costs
relating thereto;
15.1.5]
annual adjustment of the maintenance for the children in accordance
with the Consumer Price Index inflation on the anniversary
of the
date of divorce.
15.2]
maintenance for the plaintiff until her death or remarriage.
Whilst the amount was not agreed, the first defendant has
agreed to
make payment of:
15.2.1]
her reasonable medical expenses and to retain the plaintiff as a
member of a comprehensive medical aid together with re-imbursement
of
payments made upon provision of the proof of payment or invoice;
15.2.2]
annual adjustment in accordance with the Consumer Price Index
inflation on the anniversary of the date of divorce;
15.2.3]
the parties agreed to the capital value of the plaintiff’s
maintenance requirements as per expert report of actuary,
Mr. Alex
Munro.
[16]
At the resume
hearing on 11 May 2020 the parties agreed that the contents of the
updated actuarial report of Mr. Munro would
be admitted into evidence
without the need to call the said expert.  According to the
admitted expert report, every R1 872
020 would generate R10 000 upon
investment;
[17]
15.2.4]
On 11 February 2020 the parties’ respective financial experts,
Mr. Horton Griffiths (“Griffiths”) on behalf
of the
plaintiff and Mr. Hilton Greenbaum (“Greenbaum”) on
behalf of the first, second and fourth defendants, signed
a joint
minute
[18]
in which they
agreed on the net value of all the assets of the parties as well as
the trust as at date of divorce, 5 March 2019,
save for the
following:
15.2.5]
the value of the contents of the property situated at the Atlantic
Beach property registered in the name of the Trust is
valued for the
plaintiff at R750 000 and for the first defendant at R20 000;
15.2.6]
whilst initially the value of the vehicle in the plaintiff’s
possession was disputed, the value was agreed during
the trial as
R85 000;
15.2.7]
the value of the total loan owed to plaintiff was determined for the
plaintiff as R1 010 000.  For the first defendant
it was
R506 706, made up as follows:  (i) R130 000 by the first
defendant personally; (ii) R151 240 due by the Gilded Edge;
and (iii)
R225 466 due by the trust;
15.2.8]
the assets of the first defendant were determined by his expert as
R30 825 085 and R30 508 379 by the expert for the plaintiff.

The difference is caused by the dispute on the loan due to
plaintiff.  The expert for the first defendant stated that he
was instructed that certain of these amounts belong to the first
defendant, making his estate greater than that determined by the

expert for the plaintiff.  However, it is so that the amounts
are registered in the loan ledgers of the trust and the Gilded
Edge
as being loans due to plaintiff by both the business and the trust;
15.2.9]
the plaintiff’s assets are determined as being R1 237 766 by
her expert and R734 472 by the expert for the first defendant.

The difference of R503 294 is due to the said amount being contended
as being loans due to the plaintiff thereby increasing the
value of
her estate.  Insofar as the first defendant claims that the
amount is due to him, her assets are determined by his
expert as
being of a lesser value as set out above;
15.2.10] the experts are
in agreement that the net value of the assets registered in the name
of the trust is R7 298 368.
Disputes between
the experts in respect of estate calculations:
16]
The experts are not in agreement as to how the antenuptial contract
and the postnuptial agreement are to be treated in relation
to the
parties’ assets as this is a question of law.  Exhibit A
sets out a depiction of various possible scenarios depending
of what
may be determined by this Court as being applicable to the parties’
marriage.  The said exhibit was confirmed
under oath by the
expert for the plaintiff and not disputed by the defendants.
Which specific scenario is applicable is in
dispute.  On the
plaintiff’s version, scenario 1 and 2 are set out which is a
depiction of the application of the antenuptial
contract where on the
one hand it includes the trust assets and on the other it excludes
the trust assets.  Scenario 3 and
4 are predicated on the first
defendant’s version wherein the postnuptial contract applies
including and excluding the trust
assets respectively.  Scenario
5 and 6 are also on the plaintiff’s version setting out the
financial position in the
event the postnuptial contract applies
including and excluding trust assets respectively.
[19]
Issues in dispute:
17]
The case for the plaintiff is that Art Cast was
sold
to a close corporation in February 2003, of which the first defendant
was a sole member and director.  The purchase price
was credited
to the first defendant’s loan account.  The first
defendant’s case is that the business of Art Cast
(excluded in
terms of the antenuptial contract) was converted into a close
corporation and in turn converted into the company called
the Gilded
Edge, thus being excluded from the accrual of his estate.
[20]
The sole proprietorship was transferred at a sale price of R3 837 919
and thus falls to be excluded from any accrual calculation
of the
value of his estates if the antenuptial contract applies to the
parties’ marriage.  This amount must be deemed
to be part
of the amount in the loan account of the Gilded Edge owing to the
first defendant.
18]
The plaintiff received certain payments pursuant to a dread disease
policy when she was diagnosed with cancer. It is not disputed
that
the plaintiff made payment of an amount of R1 010 000 from the
proceeds of the sale of excluded assets and her policies. Both

experts agree that the loans need to be repaid as they are reflected
as amounts owing in the most recent joint financial minute.
[21]
The amount of the loan is in dispute between the experts.
19]
The first defendant contended during the trial that the payments to
him by the plaintiff were a contribution towards their life
together
and did not constitute loans as the amounts were not repayable and
that he would not have borrowed money from his wife.
However,
analysis of the financial statements of the trust and Gilded Edge
reflected funds as beings loans due to the plaintiff.
The
experts for both sides agreed that the financials show amounts owing
to the plaintiff in the form of a loan account.
The amount of
the funds were however disputed.  The plaintiff received annual
interest payments of loan accounts.  In
terms of an order
granted in terms of Rule 43(6), the first defendant was ordered to
procure payment to the applicant of an amount
of R369 768 which
amount in the papers filed in this application owing to the plaintiff
by the trust and the Gilded Edge CC in
respect of her loan accounts
in these entities.  Whilst the case for the plaintiff is that
the capital loan amount of R1 010
000 is owing to her, the plaintiff
received the amount of R369 768 in terms of the aforesaid variation
of the rule 43 order, leaving
a balance of R640 232.  The
plaintiff maintains the full amount of R1 010 000 remained
due to her.
20] In short, this Court
is required to determine the maintenance amount payable to the
plaintiff; whether the ante-nuptial contract
applies; or whether the
postnuptial contract applies, whether the trust must be found to be
the alter ego of the first defendant
and thus the value of the assets
be included in the estate of the first defendant; whether the amounts
paid by the plaintiff are
in fact loans and the amount which must be
repaid to her; the costs of the interlocutory applications which
stood over for determination
at the end of the trial and the costs of
this action including the costs in respect of the experts for the
plaintiff.
Evidence led by the
Plaintiff and Defendant:
Mrs.
L W
[22]
21]
The plaintiff testified that the parties met in 1995, became engaged
in 1996 and married in March 1997.  In the weeks leading
up to
their marriage it was agreed that the property they owned
respectively prior to the marriage would remain their own but that

they would share in the assets acquired during their marriage,
including future business interests.  Their two children were

born in 1997 and 2002.  She had a miscarried pregnancy shortly
after moving into their home in 2000 and her father died in
April
that year.  In August 2000 she transferred her interests in the
restaurant of which she was a partner.  Two months
later she was
diagnosed with cancer.  She underwent extensive chemotherapy and
radiation therapy.  Justin was conceived
in August 2001 and at a
time requiring her to engage between oncologists and her
gynaecologist.  During this time her husband
had become absent
from home, was very invested in the business and spending time
socializing in the evenings.  She expressed
to him that she
wanted him to spend time at home with her and their daughter.
His staff compliment grew as the business expanded
and one, Ms. B,
was employed by the business.  Their son was born in 2002,
however her husband remained absent and their fights
intensified.
He would make decisions regarding purchasing of properties and she
was not involved or included in these decisions.
From around
2003 first defendant raised discussions that he was unhappy with the
antenuptial contract and at some point presented
her with a draft
post nuptial contract.  He was very aggressive about his
stance.  She testified that her husband was
a bully and she was
petrified of his threats if she had not consented thereto.
22]
She signed the postnuptial agreement on 12 August 2003, though she
does not recall reading the contents thereof nor that of
the first
defendant’s affidavit to the joint application in support of
the change to the antenuptial contract.  She
understood from a
consultation with an attorney appointed by her husband, one Mr.
Visser, that everything would be his in terms
of the postnuptial
agreement.  She laboured under the concern that he would divorce
her if she did not sign and she wanted
to preserve her marriage, her
health, peace, their life together and the interests of their
children. She also recalled them meeting
with an advocate
[23]
whom expressed concerns regarding the consequential effect for
plaintiff’s financial future based on the terms of the proposed

change of the ante-nuptial contract.  At the time of the
execution of the postnuptial contract, she was financially dependent

on her husband being a stay-at-home mom and he was in a secured
financial position. They enjoyed a high standard of living,
travelling
locally and abroad regularly and her husband provided well
for the needs of the family as his business continued to grow
exponentially.
She did not work in the business, however, she was on
the payroll, receiving a bi-weekly income.  There was no
restriction
on her access to the first defendant’s bank cards,
enjoying signing powers and had unlimited access to the cash stored
in
their home safe.  She described her emotional state at the
time of signing the postnuptial agreement to be unhappy, she was

vulnerable and felt that she was under duress to consent to it.
She did not however understand the marriage to be broken
down and
would never have signed had she been aware that her husband believed
the marriage was over.  She only found out in
2015 that he had a
12 year extramarital affair with his employee, Ms. C B.
23]
A dread disease policy following her diagnosis of cancer paid out
R450 000 to her which she in turn advanced as loans to
first
defendant’s business, trading at the time as Art Cast.
She also received amounts through an inheritance from
her father’s
deceased’s estate.  The payments so advanced were recorded
as a loan account due to her.
24]
With the experience of some years of tension, she consulted with her
attorney of record during 2010 in respect of the marriage
and related
issues.  Sometime during the period of 2012 and 2014 the first
defendant had instituted divorce proceedings against
her in the
Regional Court.  At this time her husband started removing
assets from her such as the BMW X5 which was in her
possession and
use, replaced with a Polo Vivo.   Her cellphone contract
was not renewed and she was told by first defendant
to get a job
otherwise her contribution towards the household was to be in the
form of cleaning etc.  Herself and the children
had prior to the
divorce action lived a more extravagant and luxurious lifestyle.
She has had to limit expense on clothing,
holidays and cashed in her
share portfolio to cover the costs for herself and the children to
St. Francis Bay.
25]
As she understood it, the trust was created for the purposes of her
husband’s business affairs as he would decide whether
to buy
properties in the name of the trust and that she did not have any
involvement in the matters relating to the trust.
The first
independent trustee, Mr. Gees, was the accountant of the first
defendant, whom was also a personal friend of hers.
After he
resigned, her husband’s bookkeeper, Mrs Dorothy Dixon, became
the trustee.  Though the former common home was
registered to
the trust, they would not pay rent to the trust.  Similarly,
when the Langebaan and Rose-Innes Street properties
was rented out
the rental received was paid to her husband and not reflected as
rental income to the trust.  When orders
pendente
lite
were made
against her husband, he started using the trust to effect the
payments in respect thereof.  He wanted her to sign
trust
resolutions authorising the payments.  At some point she was
removed as a trustee of the trust by way of a majority
resolution
which was placed on her car at the children’s school grounds
but she was subsequently re-instated. In terms of
correspondence
addressed to the independent trustee, her husband undertook to pay
the costs in respect of their daughter’s
university and
residence fees but was of the view that the amounts must be paid
through the trust and that it would reflect as
a loan account due to
him or the company.
26]
When the Sheriff attended upon her husband to execute a warrant
against movables in respect of outstanding maintenance due to
her, he
informed the sheriff that the only movable property he has is the
Polo Vivo in her possession and sent a whatsapp to their
daughter to
hand over the keys of her mother’s vehicle to the Sheriff
should he attend at the premises.  The property
registered in
her name is not suitable to accommodate her and the children as it is
a two-bedroomed apartment and that she rents
it out for an amount of
approximately R10 000 per month.  She obtained a Domestic
Violence Order against her husband not to
abuse her and to return her
movable property.  He was in contravention of the order to the
effect that he could not remove
furniture in her possession or under
her control.  He had not returned the furniture and was in
contravention of the order.
27]
Under
cross-examination
she testified that the antenuptial contract was finalised shortly
before their marriage and that it is possible that her husband
never
obtained a second opinion.  She had insecurities stemming from
an acrimonious marital relationship of her parents, causing
her to be
insecure and suspicious of her husband’s faithfulness.
She did not know how it came to be that her husband
wanted to change
the ante-nuptial contract however he had constantly raised it with
her from 2003. She confirmed that from 2008
they were no longer
intimate and that tensions escalated.  When she consulted with
counsel in the joint application to amend
the antenuptial contract
she was advised by her to obtain independent advice and that if she
persisted in concluding the postnuptial
agreement she should ensure
to own properties or assets jointly with her husband.
28] She attended
university in pursuit of a degree in social science but had dropped
out.  She started off in the restaurant
trade waitressing in
1984, became duty manager and later acquired partnership in a
restaurant until she surrendered it to her partner
in August 2000.
She had experience in preparing wage books, writing up of cashbooks
but do not have bookkeeping experience.
She had no formal
employment since she left the restaurant in 2000 but that she had
recently tried to find employment such as scribing
for children with
special needs at Du Noon Primary School but as she is not bilingual
had not met the requirements.
Mr.
Griffiths:
[24]
29]
The expert for the plaintiff, Mr. Griffiths, confirmed the joint
minute signed between himself and the expert for the first
defendant
in respect of various valuations.  He testified that they were
unable to agree to the valuation of the household
furniture at the
former common home at Atlantic beach and owned by the trust.
The loans calculated by him was done taking
into account the various
bank records and cheque stubs handed to him by the plaintiff
totalling an amount of R1 010 000 whilst
the amount calculated by Mr.
Greenbaum was just over R500 000.  He could not account as to
how first defendant’s expert
had come to that figure.  He
took the Court through differences between himself and Greenbaum and
the various calculation
scenarios incorporating the versions of the
plaintiff and first defendant respectively which is to be determined
by the Court.
Both experts confirmed in their joint minute that
each scenario reflects amounts which are correctly calculated.
[25]
30]
The monthly average income received by the first defendant from the
business and as deducted from the business financials illustrate
an
amount of R270 039 over a 25 month period.
[26]
He analysed the trial balances of the business books of account over
a number of years that there was a drastic increase
in the salaries
paid by the business, from 1,7m to 5,5 m, thereby decreasing the
annual turnover. Whilst this could be a simple
case of the business
having expanded its staff compliment,
[27]
the sales, costs of sales and rental income had remained the same
making the payroll information out of line,
[28]
which requires an explanation from the first defendant or his expert.
31]
He analysed Greenbaum’s expert report which reads:
[29]
“
I
am instructed that the business of Art Cast was sold by C to Gilded
Edge in or about February 2003.”
Greenbaum’s
supplementary report dated August 2017 retains the aforesaid recordal
but the report is supplemented to refer
to the sale price having been
determined by a
goodwill
figure
in 2005 and first defendant’s credit loan account of 3,8 m
arising from the sale of the business, including fixed assets
in 2003
and 2004. He was of the view that the transfer of the business into
the close corporation was a transaction as opposed
to a conversion
because in accounting it is not so that an asset on the balance sheet
can include an internally-generated goodwill.
Only for the
purposes of purchasing a business, would the goodwill value be
reflected as such.  Goodwill is an intangible
value which is
attributed in the course of buying a business but not for the
purposes of conversion of a business.  Goodwill
is essentially
internally generated value only used when there is an actual sale or
acquisition of the business.  It is the
value that is measured
in the transaction between the two parties to the purchase and
sale.
[30]
Hence, reference to
transaction by Greenbaum in his expert notice could only mean to be a
sale transaction.  The purchase
price was credited to first
defendant’s loan account as the purchase amount which included
R2 8m in goodwill value, repayable
to him over a period of time. The
loan account due to first defendant by the business was determined
jointly to be at R4 302 806
(This would include the purchase
price of the business of Art Cast and an excluded asset in the estate
of first defendant).
32]
The accounting records of the trust only reflect the business, Gilded
Edge, as a creditor in 2017.  The Gilded Edge did
not appear in
the trust account records prior to 2016.
[31]
Essentially, after the divorce proceedings were in motion, the
payments due by the first defendant are made via the trust,
by way of
money lent to it by the business and repaid to the first defendant
personally in that the records of the trust records
that the money is
owed to him by way of a loan account.  The trust relies on
funding from Gilded Edge to make the payments
as there is no income
generated by the trust.
[32]
33]
Under
cross-examination
Griffiths confirmed that the accounting of the trust shows it to be a
family trust as opposed to a business trust, with the parties
and
their children as beneficiaries.  He clarified however that
normally in family trusts one would find properties with funding.

In the case of this trust, an analysis of the cash flow illustrates
that the trust is also a channel or conduit for funding.
The
trust gets funding but it goes through to other persons.  Whilst
it funds the children’s school fees etc, which
is normal in a
trust, in this case the school fees are funded by the business, paid
by the trust and the trust repays the first
defendant.  Hence,
it is not a pure family trust or property-owning trust.
[33]
Griffiths testified as follows:
[34]
“
MR
GRIFFITHS: …you asked me what is… different about this;
this is just a normal family trust.  And my answer
was that
fine, a normal family trust gets funded and it buys property.
Normally it doesn’t happen that the family trust
will, for
instance, go and borrow some money somewhere and give it to the
trustee of the trust.
Its
like a – this trust became kind of a banker.
There’s money; its gets money, and its lends the money to other
people.  That’s the point I wanted to make.
….
That
really struck me – its is not a clean, clean family trust.
Its not a business trust; there’s no income, there’s no
sales.  …a family trust is normally more
clean than this
one.”
At
record page 352, lines 15 – 23:
“
MR.
GRIFFITHS: I wouldn’t do it the same.  The trust is a
different, separate entity.  The trust must act in the
best
interests of the beneficiaries, and I would keep the trust separate
from my own financial affairs.  If you ask –
if you say
that there is nothing wrong to do it this way,
why
doesn’t the owner of the business take the loan directly from
the business
?
Why does he have to do it through the trust?”
34]
Griffiths testified that his reference to “loan” due to
the plaintiff is determined from the information she provided
and the
supporting vouchers.  Furthermore, the financials reflect it as
a loan in other words he worked on the narrative provided
by the
plaintiff whereas Greenbaum worked on the end-balances from the
financial statements.
35]
The witness clarified that the mandate to both experts was to
determine valuations of assets and liabilities as at date of divorce,

5 March 2019.  The cash flow of the business of Gilded Edge and
the determination of the first defendant’s income was
up to
September 2019.  It was put to him that the same income cannot
be anticipated given the economic implications of Covid
19 lockdown.
The witness testified that they were not asked to make determinations
of the financials for the period post
2019 nor was he qualified to
make economic projections.
36]
Under
re-examination
Griffiths
testified that money comes from the business of the first defendant,
goes into the trust account and “goes out the
other side”
to the first defendant.
[35]
Money paid to the trust by the business and repaid to the first
defendant achieves the effect of reducing the salary paid
by the
business to the first defendant.
“
MR
GRIFFITHS: “…But what I saw here and was extra-ordinary
to me is that you’ve got – that is the way it
starts off,
but then the business of the person who started this trust and
advanced the money, the business funds, then takes his
place and
funds the trust.  And what the trust then does is the trust
advances money to the individual.
So
the trust becomes like a middleman.
It gets money from somewhere and it advances it to somebody else.”
Mr. C W
37]
The first defendant testified that he grew up on a farm in Natal.
He started out as a small business in curtain accessories
and later
converted it into a close corporation.  When he got married to
the plaintiff, it was out of community of property
with application
of the accrual system and that both their respective businesses were
excluded.  His present business is the
business converted from
the sole proprietorship which traded as Art Cast.  Prior to the
marriage they were both business people
and that they each wanted to
protect their respective businesses from each other.  He was not
afforded a second opportunity
to consider the terms of the
antenuptial contract.  The persons whom were involved in the
preparation of the antenuptial contract
was Mr. Gees and Mr. Mark
Hurst, a friend and relative of the plaintiff respectively.
38]
His wife comes from a dysfunctional family hence she would accuse him
of having affairs.  They lost any meaningful marriage
by 2008
and had a heated argument in late 2013 which he termed as the
“
rubicon
speech”
,
she moved out of the marital bedroom and it was a definitive moment
in the road pursuant to their divorce.  Whilst he was
always
unhappy about the terms of the antenuptial contract, it was a
discussion with his bank manager to obtain a loan for the
business
where his antenuptial contract was pointed out as not being conducive
to obtaining the said loan.
[36]
He testified that his wife was a very smart business woman and the
terms of the postnuptial contract did not change anything
for the
plaintiff as she could continue to pursue her business interests.
He referred to his wife’s patrimonial claims
as completely
bizarre
[37]
.  It had
always been his intention post the date of marriage to rectify the
antenuptial agreement.
39]
He testified that the interim maintenance orders required of him to
exceed R200 000 per month and “
it
just didn’t fit the cloth”.
In order to meet these payments he would have to take out a monthly
salary of R400 000.  The records reads at page 396,
line 25 and
page 397, lines 1-5.
“
MR
W: So we had to make, we had to make this fit.  And seeing as
that they were,
decided
to attack the trust, it made no, it made sense that the trust to try
and get this
,
these resolutions to fit, to make this happen.  I mean I paid
this money for six years, it made sense that the trust paid
its own
expenses.”
And
further on at record page 400, line 13:
“
MR
W: There is not one second in my life that I see in the trust as my
alter [ego] – everything that I’m, being accused
of.
The trust is a standalone thing.  But after the divorce started,
we’ve had to jump up and down and wriggle
and try and get this
maintenance paid.”
40]
He testified that he is residing in the Atlantic Beach property, but
denies that the furniture could be in excess of R20 000.
He
considers all the furniture to belong to the trust.
Refurnishing of the house could in his estimation cost no more than

R100 000.
41]
He testified further that when his business re-opens, post stage 5
lockdown, it would probably only be able to trade at 20%
of its
former turnover.  He confirmed that he responded with an
affidavit to the writ of execution issued in respect of unpaid

maintenance that the sheriff could execute against the vehicle
registered in his name, the Polo Vivo, presently in the possession

and use of the plaintiff.  He testified that after the divorce
order was granted by this Court on 5 March 2019, he sold 1%

shareholding in the company to his long-time employee, Ms. Hilary
Anne Billing in August 2019 however he still needs to calculate
a
market-value for the share.  He also sold 1% of Essensico CC to
her.
42]
Under
cross-examination
the first defendant confirmed that he instructed his attorney to
communicate in writing that he would forego the mediation attempts
to
resolve the issues in the divorce action.  He conceded that in
his evidence in chief he testified that his wife’s
accusations
of him being unfaithful in the marriage had been without merit,
however, that he had inappropriate marital affairs
and that he had an
extra-marital affair with Ms. B for a long period of time.  He
conceded that the payment of the proceeds
of the Langebaan property
was paid out to him without a trust resolution authorising the
payment.  He denied that the trust
is his alter ego or that he
is in fact the trust.  He confirmed that initially all the
family’s expenses were funded
through the business, without the
Gilded Edge having a loan account in the family trust prior to 2015
for the family expenses so
funded.  As the divorce action
proceeded, payments made by the business started to reflect as being
due to the business by
the trust but not due to him, although he was
responsible for the payments in his personal capacity.  The
trust does not generate
any income.  He maintained however that
the affairs of the trust and that of his own were separate and
distinct.  In
terms of the financials of the trust it is
indebted to the Gilded Edge around R5 m.
43]
He maintained that the money advanced by the plaintiff and which is
claimed back by her in the action are without foundation
as he had
not borrowed money from her.  To the extent that his expert
confirmed that interest on loans were paid to his wife
annually, he
testified that the loans had been repaid to her or that loans were
created in her name for the purposes of her benefit.
44]
With reference to the transfer of 1% shareholding to his employee, in
contravention of the order of divorce granted on 5 March
2019, he
denied that it was done in contempt of the order of divorce and that
it was orchestrated by him to prevent an attachment
of the
shareholding of the business in execution of payments due to the
plaintiff.  The employee to whom he made the transfer
had not at
the time of the testimony paid the purchase price of the 1%
shareholding.  He testified he was not aware that the
divorce
order prevented such transfer.
45] He denied that he
pursued the change of the terms of the antenuptial contract around
2003 as he had started a serious relationship
with Ms. B around that
time.  Communication by way of SMS’s between himself and
Ms. B, though it contained promises
of their future life together and
giving her the choice as to which home she would like to move in to
was referred to by him as
simply pillow-talk and testified that the
“
test of the pudding was in the taste
”, meaning
that he never took her seriously.
46]
Whilst he did not comply with the order for the maintenance
obligations due as at 1 May 2020, he nonetheless made payments for

his personal expenses.  He testified that he wanted to bring the
maintenance obligations to the plaintiff up to date and that
he was
at the time of the beginning of the trial 11 – 13 days late,
but it was his intention to pay it.  He testified
that he always
paid his maintenance obligations, but conceded that monthly payments
were not timeous and that pursuant to the issue
of writs and contempt
of court orders, the amounts were paid.  He conceded that after
a writ was served on his bank account
for arrear maintenance, he did
not pay the December maintenance due thereafter.  He
acknowledged that in opposition to the
contempt application he
indicated that he was not able to pay the maintenance obligations
although he had access to funds and notwithstanding
his stance
earlier in his testimony that he was going to pay the maintenance,
albeit later.
47]
He conceded that he had not returned the outdoor furniture at the
plaintiff’s property notwithstanding the terms of the
domestic
violence order that he return it, because he had placed it at his
holiday home in Misverstand and had not been back there.
When
cornered that that is a contravention of the order, he indicated that
he can return it.  When asked if he had offered
to return it, he
changed his version and said that he is not allowed to talk to her.
He does not recall correspondence addressed
to his attorneys seeking
compliance of the order and return of the furniture.
48]
He travelled to Australia in March this year, flying business class,
a trip that was fully paid for by the business.  He
confirmed
that he did not comply with the maintenance order for that month but
maintained that he had been paying maintenance for
6 years pending
action and after a number of concessions he answered:
“
MR
W: You’re tripping me up on a few things, its fine.”
[38]
49]
In his answering affidavit to the contempt application (heard at the
recommencement of the trial), the first defendant stated
under oath
that the business is not receiving any oncome.  He conceded that
the business bank statements reflect income received
albeit limited
income.  When this was pointed out to him, he testified that it
was a mistake and apologised.
[39]
He also conceded that he had access to funds in the bond account of
the close corporation that owned the business properties in
the
amount of R700 000 which he accessed to finance his legal costs but
had stated in the contempt application that he could not
pay the
maintenance due for the month. He could not dispute that his trip to
the Americas in 2019 costed close to R300 000.
50]
His reasoning for selling 1% of the shareholding in the businesses to
an employee was to ensure that if he were to pass away,
the Gilded
Edge could still be functioning.  He conceded that he resisted a
writ of execution in favour of the plaintiff for
unpaid maintenance
against the shareholding of the business on the basis that he is no
longer 100% shareholder thereof.  He
testified that he was not
aware that he was in transgression of the order of divorce which
ordered that he could not alienate his
assets pending the
finalisation of the remainder of the trial. He acknowledged that his
counter application in August 2019 was
dismissed by the Court in
terms of which it was held that he was not at liberty to use the
proceeds of the sale of the property
to pay the maintenance
obligations.  However, shortly after the order, he instructed
his attorney (who also acted as the conveyancing
attorney) to pay the
money over to the Gilded Edge on the basis of a loan account owing to
the business in order that he could
pay the maintenance payments due
to plaintiff.
51]
He testified that his intention at the time of the antenuptial
contract was to exclude all future businesses and assets from
the
accrual.
[40]
He conceded
that the effect of the postnuptial agreement was as if they would be
married out of community of property.
The record reads:
“
MR
W: We should have been married out of community of property.  It
would have made life so much easier.”
[41]
And further at record
page 530, line 4 – 11:
“
COUNSEL:
So Mr. W, just to summarise….Your intention and L W’s
intention at the time of the entering into the antenuptial
contract
was to exclude everything going forward?
MR
W: Correct”
52]
Whilst he testified that the reason for him wanting the postnuptial
agreement signed in 2003 was so that he could obtain a loan,
however
the bank wanted both him and the plaintiff to sign as sureties.
Whilst it was not put to the plaintiff, he testified
that she did not
want to sign as surety, which prompted him to amend the terms of the
antenuptial contract although he always had
intended right from the
inception of the marriage to exclude his business and all properties
in his name.  The purpose of
the postnuptial agreement he
testified was to bring it in line with that intention. The process
took a period of two years and
was registered in 2005 after the
granting of an order by Court.  He could not remember what
happened to the loan application
or finance that he required in 2003
and which prompted the need for the amendment of the terms of the
antenuptial agreement.
[42]
At
the time of the postnuptial agreement in 2003, the plaintiff had been
recovering from cancer however her business interests
were excluded
in terms thereof.  However she had no business interests. He
conceded that the purpose of the postnuptial agreement
was
essentially to ensure that there would be no accrual.
53]
Further cross examination dealt with his disposition of 1%
shareholding – the company and the close corporation in August

2019 which was in contempt of the order of divorce granted five
months prior.  He maintained that the purpose of the transfer
of
shareholding was not to resist the execution of writs in favour of
the plaintiff and but in order to secure the continuation
of the
businesses in the event of his passing.
54]
He had a meeting with plaintiff’s attorneys of record in 2014
and explained how he operated his financial affairs including
that of
the business and the trust.  He chose not to be formally
represented at the meeting, having obtained legal advice
from a
friend.  Pursuant thereto the plaintiff laid claim to the trust
as being part of the estate of the first defendant.
He was
bitterly aggrieved at the fact that the plaintiff’s attorney
used the information so acquired from him and launched
divorce
proceedings at the instance of the plaintiff for relief against him
and the trust.  He launched a complaint against
the plaintiff’s
attorneys of record to the Law Society (now called the Legal Practice
Council) on the basis that the attorneys
used sensitive information
obtained from him to pursue the plaintiff’s claim against him
and the trust.  He testified
in respect of the meeting with
plaintiff’s attorney as follows:
“
COUNSEL:
But you’re complaining that she’s used financial
information against you.
MR
W: Not the financial information more the discussion on the mechanics
of how we set out, how everything works.”
(Record
page 649)
DISCUSSION:
Is the business
excluded from the accrual?
55]
It is trite law that the effect of the terms of the antenuptial
contract
apropos
the business of the first defendant is that Art Cast (a sole
proprietorship as at time of the marriage), its proceeds and assets

which replace this excluded asset or acquired with its proceeds are
excluded from the accrual.  In terms of Section 4(1)(b)(ii)
of
the Matrimonial Property Act 88 of 1984 (“the MPA”):
“
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 of the first-mentioned asset,
is not taken into account as part of that estate
at the commencement
or dissolution of the marriage.”
56]
According to the February 2003 financial statements of the Gilded
Edge CC, the first defendant
sold
Art Cast to the close corporation of which he was the sole member and
director.  The purchase price was credited to the first

defendant’s loan account.  Although the first defendant’s
case is that the business of Art Cast was
converted
into the close corporation (not sold), this evidence is not borne out
by the financial statements which reflect the transaction
as a sale.
In his, report dated 20 February 2019 Greenbaum states that he was:
“…
instructed
that the business of Art Cast
was
sold
by C to Gilded Edge CC in or about February 2003.  This is
evidenced in the CC’s 2005 comparative figures in the financial

statements of the CC which reflects a goodwill figure of R2 818 166
in 2005 and C’s credit loan account of R3 837 919 arising
from
the sale of the business, including fixed assets in 2003/2004.”
[43]
57]
Only the expert for the plaintiff, Griffiths, testified.  He
explained in his testimony that the reflection in the financial

statements of a goodwill figure is evidence of a sale and not a
conversion as being the evidence of the first defendant.
As at
the date of divorce the defendant’s loan account was still
showing in excess of R4 m.  There is no evidence to
support or
illustrate that the first defendant’s excluded proceeds had
acquired assets which enjoys the exclusion as set
out in Section
4(1)(b)(ii) of the MPA.  The first defendant bears the onus in
that regard.  However, it is not challenged
that the amount
credited to his loan account (in excess of the sale price) is
excluded from any accrual calculation of the value
of his estate if
the antenuptial contract is found to be applicable to the marriage of
the parties.
58] In my view the first
defendant’s contention that the business was not sold but
simply converted from the Art Cast sole
proprietorship to Gilded Edge
CC was a tailored explanation to overcome the terms of the
antenuptial contract.  A conversion
of the business would
continue to make it the same excluded business contemplated in the
antenuptial contract.  However, neither
the terms of the
financial statements nor the report by his own expert and the expert
testimony of plaintiff’s expert support
a finding that Art Cast
had been converted into a close corporation and not sold.  The
first defendant testified that the
Mr. Gees who had assisted in
preparing the antenuptial contract had “
snookered”
him in that as soon as his sole proprietorship would be sold, it no
longer had the protection of being excluded from the accrual.
The
first defendant thus felt tricked, enticed or trapped by the
conclusion of the antenuptial contract.  If anything, on
a
balance of probabilities, he sold Art Cast to the close corporation
as it was a more lucrative option.  He was not mindful
of the
fact that the sale of the business would mean in terms of the
antenuptial contract that proceeds and assets acquired from
such
proceeds would be excluded and not the sale of his business.  It
is evident that he pursued the more financially viable
option, that
is, to sell Art Cast at a value which provided for an excess of R2 m
in goodwill.  A conversion would not have
allowed for a goodwill
value and the business would have been converted at a far lesser
value.  The first defendant had clearly
not been truthful to the
Court and fabricated a conversion theory as a means to secure his
business, (now operating as a company),
from the accrual calculation.
Is the postnuptial
agreement valid?
59]
The first defendant maintained that he always wanted to be married
out of community of property and that he wanted to rectify
the
antenuptial contract.  The effect of the postnuptial contract
was to exclude everything that he would acquire in the future
as the
assets that the parties would share in jointly were the assets
registered in the trust.  The plaintiff maintained that
the
first defendant unduly and unlawfully influenced her to sign the
postnuptial agreement in that she was on a low ebb as a result
of
emotional abuse by the first defendant, exacerbated by her diagnosis
of cancer, extensive treatment of cancer, the passing of
her father
and her fears regarding the dissolution of the marriage as well as
the adverse consequences for her and the children.
She believed
the first defendant that were she not to sign the postnuptial
agreement that the children and her would end up with
nothing.
She wanted to preserve the peace and the status quo, believing that
by doing so she would succeed in sustaining
the family unit, the
marriage and their lifestyle.
60] It is significant a
feature that the parties were in vastly different financial positions
as at the time they signed the postnuptial
agreement.  The
plaintiff had at this time become financially dependent on the first
defendant, had no business interests
with little prospect of pursuing
same in the foreseeable future given her health including her
emotional circumstances and the
fact that she had been the primary
carer of their two young children. The only person who stood to
benefit from the postnuptial
agreement was the first defendant.
Whilst he was excelling in the business and basking in the
affirmation of his success,
she had by that time regressed in those
spheres, offering her commitment to the primary care of their
children, running of the
household and overcoming a miscarriage,
cancer and extensive medical treatment.  It is not in dispute
that when the plaintiff
signed the postnuptial agreement, she was
very unhappy when they attended at counsel when the joint application
was prepared and
was emotional during the consultation.  The
fact that the plaintiff seemingly acquiesced to the first defendant’s
demands
by signing the affidavits and the postnuptial agreement does
not mean that she was not unduly or improperly influenced to do so.
61]
The first defendant was alive to the numerous vulnerabilities that
the plaintiff experienced at this time.  He had become
the
proverbial hand that rocked the cradle.  Given the financial and
emotional superiority he had by that time exercised over
her and by
asserting himself in his persistence to protect and advance his
financial interests, he abused his position of trust
as the
breadwinner in the family and as a spouse and partner to his wife.
The parties were not on equal footing in concluding
a change in the
patrimonial consequences of their estates and it is patent that the
first defendant was not committed to the marriage
at the time.
The execution of a nuptial contract (before or after the marriage) is
for the purpose of determining the patrimonial
issues in terms of a
future or sustained
marriage
as opposed to the creation of a divorce.
62]
The historical gender based inequalities continues in recent times to
persist in marriages, though it had no doubt declined
in recent
decades.  Systematic gender differences given the respective
roles of the spouses in the marriage results in reality
that one
party may have more authority in the marital and financial decision
making.
[44]
In a society
where gender inequality remains a reality, one partner often
excelling in pursuing a career and financial success
whilst the other
is servicing the interests of the union by primarily taking care of
the household and the children, it cannot
be held in these
circumstances that such spouse are seen to have equal bargaining
power to the other.  This is the case herein.
Given
plaintiff’s vulnerable position in the marriage and the
consequent power imbalance, she was unable to contest her objections

or to bring into will the protection and advancement of her own
financial interests.  It is fair to say that the plaintiff

experienced emotional battering by her husband.  Her consent may
have been apparent but not real.  That much is borne
out by the
facts of this case.   It is evident that the first
defendant unduly influenced the plaintiff by capitalising
on her
subordinate and crippling circumstances to act contrary to her own
free will resulting in her acting to her detriment not
only to the
adverse financial consequences she faced but also to the fact that it
would bring about for her further determination
and emotional
subjugation.
63]
Whilst the case for the first defendant is that he pursued the change
of the antenuptial contract because on an occasion in
2003 when his
bank manager considered the terms thereof as a bar to the granting of
a loan, it is far more plausible an explanation
that he had in 2003
due, to being in a serious extra-marital affair or simply not taking
the marriage seriously, wanted to ensure
that if the marriage did not
succeed he would be free from sharing his estate with his wife, save
for paying spousal maintenance
to her.  Though the first
defendant denied the seriousness of the relationship notwithstanding
that it spanned over a period
of 12 years where he had made various
offers to her of a life together, it remains a fact that he was not
committed to the marriage
and that he clearly wanted in the
circumstances to secure his financial interests to the detriment of
his wife.  He tried
to achieve her exclusion from his financial
interest
post facto
without any embroilment and an easy financial disentanglement from
his wife.
64]
It is not without significance that whilst he insisted on the
conclusion of the postnuptial agreement for the interests of the

continued marriage, he stated in his opposing affidavit to the Rule
43 application launched by the plaintiff in February 2015,
that:
[45]
“
The
fact of the matter is that our marriage has been over
for
more than ten years
and we have only stayed together for the sake of the children.”
It
is evident that when he went about to ensure changes to his nuptial
contract he was in actual fact managing his affairs to enable
an
extrication as favourably as possible for himself from the marriage
and a time when he had no confidence in the marriage. He
also induced
in the plaintiff a belief that the change to the terms of their
antenuptial agreement would be simply to regulate
their future
marriage, at a time when he was in fact not committed to the marriage
and had been conducting himself contrary to
the sanctity of a
continued marriage.
65]
The evidence supports the inescapable conclusion that by 2003 the
first defendant perceived the plaintiff as an obstacle to
his
financial and business security.  He had not conducted himself
with good faith in the marriage, the plaintiff had become
more
emotionally insecure and dependant on him and he did not want her to
come after his assets in the event of divorce.
Bringing about
the effect of an out of community marriage by changing the terms of
the accrual would to his mind achieve his desired
goals.  The
postnuptial contract was nothing but a financial exit strategy of the
marriage for the first defendant.
Spouses however cannot seek
to exclude assets from their marriage which do not exist at the time
of their marriage.  On the
first defendant’s case the
postnuptial agreement was simply to rectify his intention at the time
of the conclusion of the
marriage, but rectification of an error in
the antenuptial contract which the first defendant sought to achieve
was not common
to both parties as it was his intention as opposed to
theirs, to have the consequence of being effectively married out of
community
of property.  Had the Court been aware of the true
position of the plaintiff it would not in any event have granted the
order
allowing for the change of the antenuptial contract.  On
this basis alone, it stands to be rescinded.
66]
Section 21 of the MPA regulates a change of matrimonial property
system.  The parties herein, however, had not sought to
change
their marital regime.  It sought to bring about change to the
effect
of the applicable matrimonial regime through an amendment of the
terms the accrual by retaining the marriage as being a marriage
in
terms of Chapter 1 of the Act, on the face of it, (a marriage subject
to the accrual system) but which is in truth and in fact
out of
community of property.  The MPA brought into our jurisprudence
the default position that every marriage is in community
of property
(
communio borum
)
unless the parties entered into an antenuptial contract to the effect
that it is out of community of property.  Furthermore,
if the
marriage is contracted by an antenuptial contract to be out of
community of property the default position is that it is
subject to
the accrual system unless it is expressly excluded by the antenuptial
contract.
67]
The purpose of these default positions is clearly an embodiment of
the principle that marriage also represents a collaboration
of a
partnership with patrimonial consequences and affording the parties
to a marriage in various degrees as to what financial
interests they
would choose to share.  The term “accrual” means the
net increase in value of a spouse’s
estate since the date of
marriage.  It bears the principle that what belonged to each
party upon entering of the marriage
remains their respective
property, however, what had been earned during the marriage belongs
to both parties. The accrual system
is effectively a deferred
community of gains.
68]
The application of the accrual system presupposes that at the
dissolution of that marriage, the spouse whose estate shows no
or
smaller accrual than the estate of the other spouse acquires a claim
against the latter for an amount equal to half of the
difference.
[46]
Notwithstanding that the estates are separate and the right to share
only comes into effect upon dissolution of the marriage,
the spouse
to an accrual marriage retains the right to protect his or her
potential claim to the growth of the other spouses’
estate.
The provisions of the MPA acknowledges that right and provides relief
in terms of section 8 to 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 other spouse at the
dissolution of the marriage is
being or will probably be seriously prejudiced by the conduct or
reasonably apprehended conduct
of the other spouse and that other
persons will not be prejudiced by such an order, the immediate
division of the accrual may be
granted in accordance with the
provisions of the MPA and on such or other basis as the Court may
deem just.
69] The aforesaid is a
clear illustration that a marriage subject to the accrual system
anticipates the one party to have a claim
upon dissolution against
the other party with the greater growth in estate. An accrual system
cannot be valid when in truth it
amounts to being a marriage out of
community of property and a construction of an antenuptial contract
with inclusion of the accrual
but effectively making it a marriage
with the exclusion of the accrual is not valid.  For these
reasons I am of the view that
the postnuptial agreement is contrary
to the provisions of the MPA and cannot be of any force and effect
and in addition to the
reasons stated above it is accordingly set
aside.
Were the payments
advanced by plaintiff loans to the first defendant?
70]
It is not disputed that the plaintiff made payment of an amount of R1
010 000 from the proceeds of the sale of excluded assets
and payment
of a dread disease policy.  The first defendant maintained
during the trial that the payments so made to him was
made by the
plaintiff towards their expenses and did not amount to loans as same
were not repayable.  This position is however
contrary to his
expert witness (in the form of the joint minute) which reflect the
funds as being loans.  It is also contradicted
by the contents
of his personal letter addressed to the plaintiff dated 14 March 2014
which reads:
“
I
built the house.  I did all the work.  I do all the
maintenance.  I pay for everything.  You help me as little

as possible even though you are supposedly the homemaker.  I
paid for it entirely through my business bonds.”
Furthermore
it was not disputed that the plaintiff received annual interest
payments on the loan.  The experts could however
not agree on
the amount.  The plaintiff’s expert was of the view that
the amount of R 1 010 000 remained due to the
plaintiff whilst the
expert for the first defendant considered the financial statements of
Gilded Edge, the trust and first defendant
and determined the amount
to be R506 000 in total.
71]
Counsel for the first defendant argued that the plaintiff did not
testify as to explain the basis for any such loans; the purpose
of
any of the loans; what the terms of any loan agreement were; and what
the discussions with the first defendant with regards
to such loans
were. The affairs between husband and wife and the running of their
household is not a business enterprise.
The relationship
between them in the course of financial affairs is
sui
generis
compared to persons engaging each other in such matters and contracts
as a whole. For example, prescription do not run between
spouses in
respect of monies due to each other.  This is illustrative of
the law’s respect for the sanctity of marriage
and the
preservation of the bonds of between them. Parties to the marriage do
not engage each other in the construction of their
finances with the
calculated prudence as business individuals.  They do not
necessarily keep records of finances or agreements
between them.
Whilst their marital union is recorded in writing by way of a
marriage certificate, their undertakings to each
other are generally
not reduced to writing.  They go about these affairs with a
relaxed attitude, alacrity and a lot of good
faith.  They are
generally gullible to each other until the love has gone.  Like
the lyrics of the popular Earth, Wind
and Fire hit: “
After
the love is gone”
,
[47]
“
what
used to be right is wrong
.”
As the cold reality of war dawns, all the “
I
do’s
”
become “
You
didn’t
”.
72]
In terms of an interlocutory order of this Court, the defendant was
ordered to pay to plaintiff an amount of R369 768 in lieu
of partial
repayment of the loans advanced by the plaintiff.  This amount
must be taken into account in the determination
of the amount due by
first defendant to the plaintiff. The versions by the parties on the
issue whether the amount advanced were
in fact loans are
diametrically opposed between the parties.  The plaintiff’s
evidence is that she advanced the money
to the first defendant and
that he nominated in which accounts it ought to be paid.  The
first defendant’s version is
that the payments were not loans,
however contradicted by the financial statements that an amount of
R506 000 reflected as loans
due to the plaintiff supported by his own
expert.
73]
The question remains as to whether the amounts advanced by the
plaintiff were in fact loans.  The submissions on behalf
of the
first defendant is that the plaintiff did not sufficiently explain
the basis for such loans, the purpose of such loans,
the terms of the
loan agreements and what the discussions were around the loan
agreements.
[48]
It was
also submitted that the claim of loans is a matter of reverse
engineering and that it is her case at the eleventh
hour.
[49]
The plaintiff testified in a manner which is clear and satisfactory
and in relation to this aspect it cannot be said that her evidence
is
not to be believed.  The first defendant’s testimony on
the other hand was evasive and contradictory in his denial
that
plaintiff had advanced the amounts to him as loans.  His
evidence was that they had previously engaged relatives to invest
any
extra money in the business which would generate a return on
investment.
74]
I am satisfied that not much turns on the fact that the loans were
reflected in the financials of the first defendant personally,
the
trust and the company.  On a balance of probabilities I am
satisfied that the plaintiff had proven that she had advanced
the
amounts as loans to the first defendant personally irrespective how
he sought to allocate it.  The monies were from assets
excluded
from accrual being policy proceeds, properties and inheritance.
She was by that time not financially independent
and it is highly
improbable that she would have disposed of these monies by simply
paying it over to the first defendant.  It
was a persistent
feature of his evidence that he provided for the family’s
needs, that he did so well and had worked very
hard to sustain
himself as the breadwinner. It was only after the institution of the
action and during
pendente
lite
proceedings
that he took the stance that his wife should go get a job and start
becoming financially self-sufficient and start
to make
contributions.  He did not rely on her finances nor did she
contribute financially to the business or the marriage.
75]
However, the principle is that he or she who alleges must prove and
it is not sufficient that she is merely required to prove
that the
amounts paid were in fact loans.  The onus remains on her to
discharge that the full amount is due as opposed to
the amount as per
the books of account and as per the report of the first defendant’s
expert.  I am not persuaded that
the full amount of R1 010 000
had successfully been proven to be outstanding and owing to her. The
financial books of account shows
that the amount outstanding is R506
000.  The plaintiff did not adduce evidence which could support
a finding that the full
total of the amounts paid is due and
payable.  Her expert relied on cheque stubs, her bank statements
reflecting the payments
and instructions given to him by the
plaintiff to come to the amount of R1 010 000.  That her expert
repeated her instructions
cannot make it more creditworthy than what
the Court found it to be.  The fact that the first defendant
denied it was loans
or claimed that any monies paid were
contributions by plaintiff does not shift the onus on to him.
The burden to satisfy,
on a balance of probabilities, what the amount
due to her is, continues to rest upon her.
76]
The issue of a loan was only pursued upon commencement of the trial
in September 2017, as an agreement between counsel that
there exists
a claim of an unpaid loan between the parties.
[50]
At the inception of the action, by issue of summons, 22 July
2014, the plaintiff’s particulars of claim are set at
over 22
pages, dealing with various claims except the loans advanced by her
to the first defendant.
[51]
The particulars of claim were amended in terms of Rule 28 at the
resumption of the trial on 11
th
May 2020, 6 years after issue of the summons in a highly contested
litigation with various interim applications.  Taking into

account all relevant factors, this Court finds for the plaintiff in
the amount of R506 000 less the amount of R369 768 paid to
her in
terms of the order of Mantame J.
[52]
In the result, the first defendant is liable to the plaintiff for the
balance of R136 232.
Is the trust the
alter ego of the first defendant?
77]
The plaintiff seeks an order that the assets of the trust are
considered to be those of the first defendant.  The parties

together with their two children are the beneficiaries of the trust.
The evidence of the plaintiff’s expert is that
the way in which
the trust’s finances were run, particularly since around
2016/2017 were unusual.  The trust had no
income and met the
payments put through the trust, (in particular with reference to the
past 3 to 4 years), by way of funding from
the company and thereby
introducing a new creditor, namely the company.  Nothing stopped
the first defendant from paying the
maintenance expenses directly
from the company as he traditionally (prior to the acrimony of
divorce proceedings) had done.
However, as the litany of court
proceedings followed in the bitter action between the parties, the
structure of finances changed
so that the Gilded Edge who previously
funded the first defendant, now started funding the trust which
resulted in a loan account
created in its favour.  This caused
the financial statements of the trust to reflect an increase in the
Gilded Edge’s
loan account. Instead of lending funds to its
member on loan account, the Gilded Edge was paying the trust.
The trust was
interposed as a banker, holding the trust property as
collateral for payments of the first defendant in respect of
financial commitments
of the first defendant.  The financial
obligations of the first defendant was not that of the trust, it was
in respect of
payments due by him in her personal capacity.  The
orders made against him were not made against the trust.
78]
The trust seemed to have been put into effective use as the hostility
increased and by making the trust effect payment of maintenance

obligations the first defendant could in that way have it reimbursed
to the company via a loan account due to it by the trust.
This
in turn amounts to the first defendant pilfering away at the net
asset value of the trust, by having maintenance contributions
repaid
by to his business and set off against the trust. By reflecting the
payments made by the trust in terms of a loan account
payable to
first defendant personally, the effect was that he was looting the
assets of the trust to the detriment of its beneficiaries.
This is
well illustrated by the fact that the Langebaan property gets sold in
excess of R5m which would be proceeds due to the
trust, for the
benefit of the beneficiaries (the parties and the two children).
However as a result of the loan account due
to the company, he
claimed the proceeds of the sale by calling up the loan account.
The language of the first defendant during
his evidence in chief was
most telling that he did not operate at armslength to the trust.
By stating that he “
paid
this money for six years, it made sense that the trust paid its own
expenses
”
demonstrates the paradigm of the first defendant in this regard.
His personal expenses in his view was the trust’s
expenses.
At best the company under his control would lend the money to the
trust to pay his expenses and in return the trust
assets stood to
account for it.
79]
The Langebaan property (owned by the trust) inclusive of its movables
were sold in April 2019 for a cash amount of R6 750 000,
with a net
balance of R6 517 127.  The attorney for the first defendant was
appointed to attend to the registration of transfer
on the basis of
an undertaking that the net proceeds would be retained in trust,
pending the finalisation of the trial.  When
the plaintiff’s
attorney demanded payment of compliance of the first defendant’s
maintenance obligations outstanding
at the time, his attorney
responded on 15 May 2019 that the first defendant could not comply
with the provisions of the order and
made suggestions which
culminated in utilising the proceeds of the sale proceeds which
belonged to the trust.  When the plaintiff
was not amenable to
these proposals, events unfolded where the majority of the net
proceeds were paid to the company in respect
of its loan account held
in the trust.  The first respondent had in this way effectively
achieved the relief which was dismissed
in the Rule 43(6)
application, that is, the Court specifically refused his claim that
the proceeds of the Langebaan property be
used to pay the first
respondent’s personal obligations which had previously been met
with income generated by the company.
The trust had no
obligation whatsoever to pay the first defendant’s maintenance
obligations.
80]
Furthermore the payment was made pursuant to an invalid resolution as
the plaintiff was not given notice of such resolution
prior to the
majority of the trustees taking a decision.  The first defendant
and his bookkeeper (as independent trustee)
signed the resolution
without it having been furnished to the plaintiff.  The payment
also amounted to a breach of the provisions
of the divorce order of 5
March 2019 which required that the assets would remain intact and
third party creditors would not be
preferred to disenable the parties
from being able to execute any future orders that the Court could
make upon finalisation of
the action.  The matter was thus
subjudicae.  The actions of the first respondent meant that he,
as the sole director
of the company, had upon receipt of the payment
become in control of the Langebaan sale proceeds.  An urgent
application brought
by the plaintiff for interdictory relief was
successful in terms of an order by agreement on 7 June 2019, in terms
of which the
proceeds were ring fenced in the ABSA account of the
Gilded Edge, pending the final determination herein.
81]
In his expert testimony, Griffiths did not testify that the trust is
a sham.  It was however clearly abused by the first
defendant.
These are distinctly different concepts in our law.  It is now
generally accepted that the issue of going
behind the trust form
should be clearly distinguished from the issue whether a particular
trust is a so-called scam.
[53]
In the case of a ‘sham’ trust, no valid trust has ever
come into existence, typically because the necessary intention
to
create a trust was absent.
[54]
In this case the assets would still vest in the personal estate of
the founder of the trust and there would be no trust to go
behind.
[55]
On the other
hand, the principle of “going behind the trust form”
entails accepting that the trust exists, but
disregarding the
ordinary consequences of its existence.  A Court’s
willingness to ‘go behind the trust form’
in a particular
instance appears to be closely linked to the notion of trust abuse.
Dishonesty or unconscionability is not
necessarily requirements
before trustee conduct can be described as trust abuse.
[56]
82]
In
REM
v VM
[57]
the Supreme Court of Appeal held that this would generally occur when
the trust form is used in a dishonest or unconscionable manner
to
evade a liability or avoid an obligation.  This type of trust
abuse is typically represented by a general disregard of
the
separation between the ownership (or control) of trust assets and its
enjoyment and non-compliance with the basic principles
of trust
administration.  In
Badenhorst
v Badenhorst
2006 (2) SA 255
(SCA)
,
dealt with a claim where the parties were married out of community of
property and in considering a claim for a redistribution
order, the
wife sought an order that 50% of the value of the husband’s
estate be transferred to her.  Incorporated was
a claim that the
assets of a discretionary trust be regarded as assets in her
husband’s estate. In order to decide the issue
the Court
formulated the following test:
“
To
succeed in a claim that trust assets be included in the estate of one
of the parties to a marriage there needs to be evidence
that such
party controlled the trust and but for the trust would have acquired
and owned the assets in his own name.  Control
must be de facto
and not necessarily de iure.”
[58]
83]
In assessing whether a party has such
de
facto
control, regard must be had to both the terms of the particular trust
instrument and the evidence of how the affairs of the trust
have been
conducted. The evidence herein was that the independent trustee, the
bookkeeper of the first defendant, acted nominally
in her function as
the independent trustee, generally at the behest of the first
defendant and did not wish to get involved with
decision making of
the affairs of the trust.  In certain respects the first
defendant would invoke a decision for the trust
and only thereafter
seek endorsement by way of a resolution.  It is apparent that
the first defendant never intended to hand
over control of the trust
affairs to the named trustees.  It is common cause that prior to
2014 when the plaintiff had instituted
proceedings in this Court, the
parties had never asked the independent trustee (appointed in 2005)
to sign any resolutions.
The first defendant and plaintiff
signed resolutions but according to the second to fourth defendants,
these were only resolutions
as required by financial institutions and
transferring attorneys etc.
[59]
84]
Trust affairs would be discussed on a daily basis between the
plaintiff and first defendant, with the first defendant making
the
final decisions.  In most respects the first defendant would
decide on the trust finances or how money would be spent.

Whilst initially the trust was funded by the first defendant, this
changed pursuant to the Rule 43 order when the first defendant

decided (according to him with his bookkeeper) to restructure the
trust’s affairs to enable the trust to make payment of
many
expenses of the beneficiaries.  No rental was paid to the trust
in respect of properties belonging to the trust, however,

appropriated by the first defendant.  The trust is named the C’s
Trust as opposed to the W Family Trust.
85]
In considering the trust instrument, it is most telling that the
trust deed regulates what happens when the office of a trustee
is
vacated.  In clause 5(f) under the heading: “
TRUSTEES
VACATING OFFICE”
The
office of the trustee shall be vacated:
“
If
the majority of the Trustees shall in writing require him to resign,
provided that it shall not be competent for the trustees
to remove C
W in this manner.”
[60]
This
is a clear illustration that the trust deed favours the first
defendant’s involvement in the trust over others and that
he is
in total control.  He also testified that he paid the expenses
and legal costs of the trust and that once the divorce
is finalised
the books will be corrected.  The attorney of the first
defendant also acts as the attorney for the trust, suggesting
that
there could never be a conflict of interest, actual or anticipated.
In May 2019 first defendant instructed his attorney,
who also
attended to the conveyancing of the Langebaan property, to repay the
amount of R5 395 000 to the Gilded Edge in payment
of the loan
account due to it.  Only after the payment had been made did the
first defendant seek the plaintiff’s consent
for the payment
transfer to the company.
86] The first defendant
reported the plaintiff’s attorneys to the Cape Law Society on
the basis that the averments in the
particulars of claim which relate
to the trust and specifically where it is alleged that its assets are
beneficially owned and
controlled by him, were drafted on the basis
of financial information that he gave them in a meeting.  He
claims this financial
information was used against him in the divorce
and joining the trustees as a party to the action.  First
defendant also complained
of information given to this Court during
the opening address by the plaintiff’s counsel in which the
mechanisms and functioning
of the Gilded Edge were explained.
He took issue with the fact that it was based on the information
which he had told the
plaintiff’s attorneys.  In an answer
to a question from the Court, the first defendant confirmed that
whilst the information
in the particulars of claim and the opening
address on behalf of the plaintiff in relation to the machinery of
the trust was correct,
he felt aggrieved by the manner in which it
was obtained.  The admissibility of information so acquired
however was not placed
as an issue in dispute before this Court. In
conclusion of this point, the first defendant’s testimony in
this regard was
not satisfactory.  He was evasive, argumentative
and contradicted himself in material respects.  The evidence
supports
the inherent probabilities that the first defendant
controlled the trust and he would have acquired and owned the assets
in his
own name but for the trust.  I am satisfied that the
evidence meets the requirements for this Court to invoke its
discretion
in terms of common law in the granting of an equitable
remedy in law which would adequately address the consequences of
unconscionable
abuse of the trust form by the first defendant.
Accordingly the value of the trust assets is to be added to the value
of
the first defendant’s personal estate for the purpose of
calculating the accrual calculation.
Calculation of the
Accrual:
87]
Having determined above that the terms of the antenuptial contract
applies with inclusion of the value of the trust assets,
it follows
that scenario 1 of the amended Exhibit A(1) applies.  There is
no accrual in the estate of the plaintiff.
The first
defendant’s estate is valued at R26 457 plus the value of the
trust R7 298 368 totalling an accrued estate in the
amount of R33 755
647.  Fifty percent of this amount is due to the estate of the
plaintiff totalling
R16
877 823
to be paid by the first defendant.
[61]
88]
The payment of the amount of R5 394 315.20 in the Gilded Edge ABSA
Bank money market account (the ring-fenced amount) represents
the
proceeds of the sale of the Langebaan property which was registered
in the name of the trust.  The payment was paid pursuant
to an
invalid resolution and is declared part of the trust’s assets
for the purposes of the divorce.  An order that
the amount be
allocated to the payment of the accrual amount due the plaintiff is
warranted given the fact that the first defendant
do not respect
orders of Court, had repeatedly been in contempt thereof and once
subjected to an order, engineers creative ways
to get around the
terms thereof.  He also attempted dissipation of the sale
proceeds which necessitated plaintiff’s
resort to the urgent
interdict application which culminated in the order (by agreement) in
terms of which the money in the ABSA
Bank account of the Gilded Edge
was retained pending direction of this Court.  He also
dissipated (in contravention of the
order by this Court) 1% transfer
of his shareholding in the Gilded Edge and Essensico CC
respectively.  When the cross examination
of the first defendant
stood over on the Thursday until Court could resume on the Monday, he
continued with his testimony with
documents which he sought leave to
hand up recording the purported 1 % transfer of shares to his
employee and which had in fact
been executed over the past weekend.
When again confronted with the fact that he was in contempt of the
Court’s order
as had been the subject of his earlier cross
examination, he answered:
[62]
“
COUNSEL:
That you had violated the order of this Judge by encumbering that
asset.
MR. W: Okay
COUNSEL: And then
what you did, was you compounded it on the weekend.  That’s
what I’m saying to you.
MR.
W: Well, I don’t know this stuff, so…”
At
line 3 of record page 762, the first defendant testifies further
under cross-Examination:
“
MR.
W: I am not an administrative type of person, and I just tried to do
as much housekeeping as I could over the weekend…”
“
MR.
W: Obviously it needed to be done at any stage anyway.  So I’ve
done it…”
89]
The first defendant described himself in his evidence in chief as a
“
maverick”.
When asked by the Court what he meant by that he said he is a
businessman and that he takes chances.  The conduct of
the first
defendant is exactly that.  He gambles with his affairs, his
marriage and orders of Court.  He does not align
himself within
the parameters shown to him by authority.  This is well
illustrated throughout the record.  He conducts
his affairs in a
manner that’s suitable to him.  He is recalcitrant
[63]
in his way of doing things, irrespective of the letter of the law.
During his cross-examination and after he was vigorously
cross-examined
as to the fact that he had divested himself of 1%
shareholding in his business and the close corporation respectively,
notwithstanding,
that the order of this Court prohibits him from
doing so, he pleaded ignorance of the terms of the divorce order in
that regard.
He was clearly well aware of what he was doing and
that he was in breach of an order.  However, (whilst under
oath), he saw
fit to continue his cross examination with a flippant
attitude explaining the sale agreement was executed over the
intermittent
weekend on the basis that he just did his homework as it
had to be done.
Valuation of the
furniture owned by the trust:
90] I am not persuaded
that the values provided by either experts are reliable and
reasonable figures.  The items of the Atlantic
Beach property
had not been reasonably assessed or appraised and itemised.  The
experts had provided a value in accordance
with their instructions.
This was apparent from the evidence of the parties, in particular,
the first defendant who testified
that the furniture could not be
worth more than R20 000.  Taking into account the standard of
living of the parties, they
had moved into the property in 2008 and
their holiday home furniture sold for R1 m, the property is luxurious
golf estate, I am
satisfied that R500 000 would be a reasonable
determination in respect of the furniture.
Maintenance in
respect of the children and the plaintiff:
91]
It was agreed between the parties that an order in respect of the
maintenance payable by the first defendant may be taken in
terms of
the amount payable per child and other related costs for their care
until such time as they have completed their tertiary
education and
are self-supporting notwithstanding that they have respectively
attained the age of majority adjusted annually by
such rise that may
have taken place in the CPI on the anniversary date of the divorce.
The parties further agreed that first
defendant will pay spousal
maintenance to the plaintiff until her death or remarriage, the
amount determined by the Court is also
agreed to be subjected to a
CPI adjustment annually on the anniversary date of divorce as well as
other costs related to her medical
care.
92]
For the purposes of determining the quantum of maintenance payable by
the first defendant to the plaintiff, the parties agreed
to a
maintenance projection prepared by forensic actuary, Mr. Alex
Munro,
[64]
on behalf of the
plaintiff.  The purchase of a R5 m property for the plaintiff,
would leave her with a balance of R63 450
per month towards her
maintenance requirements.  It was not placed into dispute that
the maintenance needs of the plaintiff
is R95 193-00 monthly.
[65]
The plaintiff has income generating immovable property (excluded from
accrual) to which she testified would afford her income of
R10 000
per month, reducing her required maintenance to just over R85
000.
[66]
At the
resumed hearing on 11 May 2020 the parties’ agreed that the
contents of the updated report of the forensic
actuary would be
admitted into evidence without the need to call Mr. Munro.  According
to him for every R10 000 required by
the plaintiff to finance her
maintenance needs of R85 000 she requires R1 872 020 to be able to
generate it through investment.
93]
In terms of the projection figures of the accrual calculation which
had been determined by this Court above,
[67]
after deduction of a R5m expense allocated to an immovable property,
the balance of the funds being R11 877 823, if invested, will
provide
the plaintiff an amount of
R63
450
per month.
94]
The schedule of monthly expenses in respect of the plaintiff were not
placed into dispute.  During closing arguments counsel
for the
plaintiff submitted that the amount as per the schedule filed dated
August 2017 indicates an amount of R85 400, which amounts
to R95 193
per month adjusted annually to date of hearing in accordance with the
rise of the Consumer Price Index.
95]
The schedule had not been updated or amended at the resumed hearing
some three years later save for insofar as it relates to
inflation
adjustment.  Upon a proper analysis of the listed expenses with
the evidence on record, I consider it appropriate
and reasonable that
the capital monthly maintenance be adjusted accordingly.
Certain amounts are deducted as set out in the
foot hereof and in
light of the Order which follows or as had already been catered for
in the remainder of the Order. This includes
certain provision
relating to the motor vehicle expense, cleaning expenses in respect
of the Park Manor property subjected to lease,
medical expenses and
medical aid premium for plaintiff and the children.  In answer
to a question by the Court, plaintiff’s
counsel indicated that
the rental income of R10 000 of the Park Manor property had already
been provided in the maintenance schedule
and the required
contribution had been reduced accordingly.  On perusal of the
schedule it is not apparent that such income
had been provided for
and in the result same is deducted from the total maintenance
contribution to be considered by this Court.
[68]
In the result the reasonable maintenance requirements for the
plaintiff is determined to be R88 976 adjusted to R78 976 taking
into
account the plaintiff’s rental income.
96] Taken together with
the return on income from the balance of the investment provided for
in the actuarial report given the accrual
payment to the plaintiff,
calculates to just over
R15 500
per month deficit.
The first defendant is accordingly ordered to contribute this amount
as a cash contribution towards plaintiff’s
maintenance
requirements.
Costs:
97]
The plaintiff was successful in every application and interlocutory
proceeding brought pending finalisation of this trial.
Certain
matters stood over for costs to be determined accordingly.  The
defendant’s stance was that the plaintiff is
not entitled to
any payment whatsoever from any accrual, that she was required to
find employment to sustain her reasonable costs
of her maintenance
needs.  The plaintiff is substantially successful in her claims
before this Court and it follows that the
costs must follow the
result.
98]
The postponement of the trial in March 2019 was as a result of the
first defendant’s expert report filed belatedly, the
costs of
the postponement application still have to be determined.  The
first defendant tendered and made payment of the plaintiff’s

wasted costs of the postponement on 4 March 2019.  The costs of
the application for postponement by the plaintiff was necessitated
by
the first defendant.
99]
The costs of the Rule 43 application under case number 5107/2017
instituted on 17 March 2017 and the Rule 43(6) application
on 9 May
2020 stood over for determination.  In terms of the Rule 43 the
Court awarded an amount substantially in excess of
the first
defendant’s tender and she was also substantially successful in
her application for variation of the rule 43 brought
at the inception
of this trial.
100] For the reasons
aforesaid I am satisfied that the first defendant be held liable for
the costs of the plaintiff in the above
proceedings and that an order
in that regard is accordingly justified.
CONCLUSION:
101] In the result and in
all circumstances of this case, I grant the order as set out in the
attachment marked hereto as “X”.
_________________________
SALIE,
HLOPHE, J
[1]
First
defendant’s bookkeeper
[2]
Ms. C B was
employed by the first defendant’s business in 2001.  The
first defendant testified that he was not serious
about the
relationship.
[3]
Volume 2 –
defendant’s trial bundle, page 802
[4]
Pleadings
and File Bundle: 1 of 4 - - postnuptial agreement annexure CW1 to
First Defendant’s plea, page 73
[5]
Pleadings
bundle Rule 43 case number 5107/2017. Founding affidavit annexure
“LW1” page 26.  First defendant was
ordered to pay
the costs of the application.
[6]
The first
defendant’s current interim maintenance obligation.
[7]
Amount made
up of cash maintenance R40 250, plaintiff’s rent R25000,
monthly expense for re-imbursement totalling an average
of R19 500.
[8]
Case number
8932/19 – application instituted by plaintiff in May 2019
[9]
Respondent
was found in contempt of the Orders of Ndita J, Sievers AJ and
Mantame J
[10]
Including
the previous applications in respect of which costs stood over for
later determination.
[11]
Case
No.12866/2014 issued on 22 July 2014
[12]
Instituted
on 17 March 2017
[13]
Instituted
on 4 March 2019
[14]
Instituted
on 11 May 2020
[15]
Instituted
on 22 January 2020 – reset down on 11 May 2020
[16]
Experts
bundle, expert report, page 429 - 432
[17]
Experts
bundle, expert report, page 493
[18]
Expert
minute – plaintiff’s pleadings – expert bundle
page 502
[19]
Exhibit
A(1) as amended – pages 1 – 6 thereof attached with
calculation in respect of each scenario
[20]
Underlining
to emphasise ‘SOLD” as opposed to “CONVERTED”
[21]
Mr.
Greenbaum, expert for the first defendant, calculated the loans as
being R506 000
[22]
Evidence of
all witnesses summarised
[23]
Advocate
McCurdie
[24]
Expert for
the plaintiff.  Qualifications not in dispute – testimony
appears from record page 239
[25]
Record page
277, line 10 - 13
[26]
Record page
293, line 10 - 20
[27]
Record page
307, line 20
[28]
Record page
309, line 1 - 10
[29]
Expert
bundle- expert report – page 411 – paragraph 2.3
[30]
[30]
Record page
265, line 1-3
[31]
Record page
321, line 10 – 20 and Record page 327, line 3- 5
[32]
Initially
some funding came from bond finance and plaintiff but mostly from
first defendant – record page 344, lines 10
– 20
[33]
Record page
349, lines 3 - 4
[34]
Record page
351, lines 20 – 25 and record page 352, lines 1 - 8
[35]
Record page
375, lines 1 – 20
[36]
Paragraph 9
of the Antenuptial Contract
[37]
Footnote Record page 401, line 1 and 2
[38]
Record page
454, line 15
[39]
Record page
455, lines 21 - 22
[40]
Record page
524 and 525
[41]
Record page
526, lines 6 - 7
[42]
Record page
531
[43]
Expert
report by Greenbaum – expert bundle, page 470
[44]
Lerner, G:
The creation of patriarchy - Oxford University Press - 1987
[45]
Case
number: 3634/15 – affidavit of CR W – dated 12 March
2015 at paragraph 10 thereof
[46]
Heaton, J –
South African Family Law 3
rd
edition (Durban: Lexis Nexis 2010 at 94)
[47]
Song
released by Earth, Wind and Fire 1979 – R&B band
[48]
HOA –
on behalf of the first defendant – page 11, para 12
[49]
HOA –
on behalf of the first defendant - page 10
[50]
Email dated
11 September 2017 between Adv. Buikman SC and Adv. Cloete SC:
“
Adv Cloete
SC and I are in agreement that the following issues will require
evidence at the hearing:
1 …
2. It is not
agreed that the first defendant has a loan liability to the
plaintiff [is] in an amount of
R1 010,00
as contended by her.  Mr. Greenbaun, the first defendant’s
expert, maintains that,
based on his
understanding, the first defendant owes the plaintiff an amount of
R130 000, that the
close corporation
Gilded Edge CC, owes her R151 140,00 and that R185 294,00 is owed to
her by
the C’s Trust.”
[51]
Pleadings
bundle – 1 of 4 – divorce summons and particulars of
claim dated 22 July 2014 – subheadings titled:
marriage, the
trust, accrual, maintenance, costs
[52]
The order
of Mantame J reads: “
The
defendant is ordered to procure payment to the applicant of an
amount of R369 768 which amount is, according to the defendant,

allegedly owing to the applicant by the C’s Trust and the
Gilded Edge CC in respect of her loan accounts in these entities”
[53]
Honore:
South African Law of Trust, 6
th
edition, page 311
[54]
Sections 67
and 68 of the Trust Property Control Act 57 of 1988
[55]
See
footnote 48 supra
[56]
Honore at
53 supra
[57]
2017 (3) SA
371
(SCA) at para 17
[58]
Paragraph 9
[59]
Pleadings
bundle – 2
nd
– 4
th
defendants reply to the request for trial particulars para 17.2 p158
[60]
Plaintiff’s
PLEADINGS BUNDLE: Trust Deed: attached as annexure “B”
to Plaintiff’s particulars of claim
[61]
Scenario 1
as per Exhibit A(1) as amended and handed up by agreement.
Projected calculation in the event of a finding that
the ANC applies
including of the trust asset value.
[62]
Record page
761 and 762
[63]
Oxford
Language: “recalcitrant” - defined as having an
obstinately uncooperative attitude towards authority or discipline.
[64]
Expert
bundle, page 429
[65]
Plaintiff’s
trial bundle 4: Filing Notice: Reasonable maintenance requirements
dated August 2017
[66]
Record page
910
[67]
Scenario 1
– Exhibit A(1) as amended
[68]
Park Manor
(cleaning service R2000), gifts for friends/family reduced to R1500,
motor vehicle expense reduced to fuel allowance
of R3000,
entertainment reduced to R5000.  Total reduced by R 6217.