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[2011] ZAGPJHC 132
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B v B (15073/210) [2011] ZAGPJHC 132 (8 September 2011)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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IN THE SOUTH GAUTENG HIGH COURT OF
SOUTH AFRICA
JOHANNESBURG
CASE NO: 15073/210
DATE: 2011-09-07
REPORTABLE
(In the electronic reports only)
In the matter between
B
B
.........................................................................................................
Plaintiff
and
G M
B
…........................................................................................
Defendant
J U D G M E N T
[1] This is an action for the decree
of divorce and certain ancillary relief. The action has been
defended. The matter was set
down for trial this morning.
[2] Until yesterday evening at 18:30
the defendant had the benefit of being represented by Advocate
Beverley Fourie SC, who is one
of the most experienced counsel
especially in matrimonial matters and a counsel who had been well
known to me for almost 30 years.
Beverley Fourie appeared,
representing the defendant, at the pre-trial conference that was held
on 8 August 2011 in her Chambers.
[3] This morning, the defendant
appeared in person and said that she wants a postponement. The
reason she wanted the postponement
was the one that she had no
counsel and also that she wished to claim for spousal maintenance.
Ex facie the pleadings the defendant
is a qualified radiologist. She
was born in 1962. Accordingly, she is in the ripe years of her
income earning capacity. It also
appears from bank statements of
hers that has been placed before the court that she earns in her
practice as a radiologist earns
revenues in excess of R3-million a
year.
[4] Having regard to the fact that the
claim for maintenance had never been raised during the course of the
proceedings until today,
I made it quite clear earlier today that the
defendant as a highly skilled person, capable of earning well, was
most unlikely to
succeed in a claim for maintenance from her present
husband and that this was not a reason to grant the postponement.
[5] From the pre-trial conference that
was held on 8 August 2011, it appears that all it was in dispute as
far as the defendant
was concerned, was whether there had been an
irretrievable breakdown of the marriage. It is significant that the
summons was issued
in this matter in April 2010 and was served in May
2010.
[6] The evidence of Dr B, the
plaintiff, later in the day was that the parties had been separated,
or not living together as man
and wife, for at least a year. The
fact that parties have not been able to live together as husband and
wife for over a year is
in itself a ground for divorce in terms of
the Divorce Act.
[7] I informed the defendant that
having regard to the issues in dispute and the dates upon which
summons had been issued and served,
I could see no reason to grant a
postponement and I advised her from the bench that she had no reason
or prospect of successfully
resisting a divorce on the basis that
there had not been an irretrievable breakdown of the marriage.
[8] It appeared from the minutes of
the pre-trial conference that the defendant would not persist in the
claim that the children
reside with her and that it was also agreed
insofar as the division of the estate to determine accrual upon
divorce that the way
to proceed would be to appoint a receiver to
deal with the matter, even though there was a dispute about the
commencement values
for purposes of computing the accrual values.
[9] At approximately 12:00 noon I made
it clear that the court would be proceeding with the trial action for
divorce today. I indicated
that the matter would proceed at 14:00
and, unless she had a counsel with whom some kind of settlement or
agreement could be negotiated
with the other side, she would be
expected to proceed.
[10] At 14:00 this afternoon I arrived
at court this afternoon. There was no appearance by the defendant.
Ms Woodward SC, who appears
for the plaintiff, and who also had been
known to me for almost 30 years, informed the court that she had seen
the defendant outside
a few moments before I came in.
[11] I was surprised that the
defendant was not in court. Mr Greenstein, the plaintiff's attorney,
was asked by me to go outside
and find out if she was there, but he
came back and reported to his counsel that he was unable to locate
her. I then asked Ms
Woodward what she wished to do and she said
that her client wish to proceed with application for a divorce.
[12] Mr Greenstein, the plaintiff's
attorney, testified that he had gone to look for the defendant, but
he had been unsuccessful.
He described how he even gone to the
woman's toilets on the floor and asked the security guard to see
whether the defendant was
there. On that basis I decided to proceed
and the plaintiff testified.
[13] The plaintiff is an anaesthetist.
He confirmed that the marriage between himself and the defendant had
taken in Manila in the
Philippines on 16 December 1990 by a duly
authorized marriage officer. He confirmed that the parties were both
subject to the
jurisdiction of the court, that they had not lived
together as husband and wife for more than a year and that the
marriage had
irretrievably broken down. He confirmed that the three
children born in the marriage were living with him, that generous
arrangements
were made for the defendant to have regular rights of
access.
[14] The plaintiff confirmed that he
and the defendant had jointly agreed that a clinical psychologist Ms
Robyn Fasser should make
an assessment of the children and also, and
also make recommendations. That report had been put before me and it
had been endorsed
by Bagotla Johannes Mogotlha, the family advocate.
Although Fasser has recommended a share residency,
he plaintiff he explained that this
would not work in this case and in any event it appears from the
minutes of the pre-trial conference
that the defendant herself agreed
that shared residency for the children would not be viable.
[15] Save for some very minor details,
a tender in regard to settlement of this matter insofar as it relates
to access and custody
has been accepted by the defendant. This
appears from the minute of the pre-trial conference. The tender is
broadly consistent
with the report and recommendations of Robyn
Fasser, save that that the primary residence of the children will be
with the plaintiff.
This aspect has been conceded by the defendant as
well. This also appears from the minute of the pre-trial conference.
[16] It is also clear that from the
pre-trial conference that the parties were unable to on the
patrimonial consequences of the
settlement of the matter consequent
upon of the divorce. It is clear that both parties are highly
qualified medical professionals.
I have omitted to mention that the
plaintiff is himself an anaesthetist. It is certainly clear from a
few common cause facts
such as the parties resided at Athol
in Sandton that these are affluent people. I can also refer to the
bank statements of the
defendant. In the absence of some kind of
settlement, it is altogether better that a receiver be appointed and
that is to divide
up the estate of the parties, and then the parties
cannot agree on who should be appointed as receiver,] the Chairperson
of the
Bar Council of Johannesburg, should make the selection.
[17] As I had indicated to the
defendant personally, before I adjourned the court, the fact that the
parties have been separated
for more than a year was, in itself, a
ground of irretrievable breakdown of the marriage between the
parties. It therefore seems
to me, if one has regard to the evidence
of the plaintiff, together with the admitted documents, the facts
that are common cause,
the minutes of the pre-trial conference, and
the recommendation of Robyn Fasser, that should be a decree of
divorce. There
should be an order relating to access that grants the
defendant liberal access but that ensures the children have their
primary
residence with the plaintiff. Insofar as the patrimonial
consequences of divorce are concerned, a receiver should be appointed
to take control of the division of assets between the parties. This
will save agonising and hugely expensive days in court, fighting
over
assets.
[18] Earlier today, I indicated to Ms
Woodward that I would deliver a short judgment and that a draft order
marked X would be made
an order of court. I also indicated that the
draft order would have to be polished in my Chambers to reflect the
tendered agreement
of settlement which the reference was made in
evidence as well as an ANNEXURE A relating to the appointment of a
receiver. The
documents need minor revisions to reflect the court’s
intentions in the light of the proceedings. These we shall do in
Chambers
when I adjourn.
[19] I was about to give judgment a
breathless Advocate Masie Ferreira, hotly pursued by the defendant,
arrived in court. Ms Ferreira
informed me that she understood that
the matter was to proceed before Judge Boruchowitz and that she has
been in his court. Advocate Ferreira
was not here this morning.
I wish to make it clear that there could have been no doubt
whatsoever that the matter was to proceed
before me in my court at
14:00.
[20] Furthermore, the fact that the
defendant was in the corridors of this building just before 14:00,
has been seen there by counsel
for the plaintiff and her attorney,
means that she could have been in no doubt whatsoever that a Judge
from the High Court, who
has lots of important litigation to hear in
the course of the week, was ready, willing and available to attend to
her matter at
14:00. It was acceptable that she was not here.
[21] I nevertheless agreed, after Ms
Ferreira’s arrival here at about 14:30 this afternoon, to stand
the matter down until
15:00 in order to afford the parties a last
opportunity to settle the matter. Counsel for the plaintiff,
together with Ms Ferreira,
accompanied by her instructing attorney,
Mr Craig Bailey came to see me in Chambers. Ms Ferreira and Mr
Bailey explained that
that they were under the impression that they
were to argue for a postponement only. They protested that they were
in no position
to deal with the merits of the matter.
[21] I quickly disabused them of any
such imagination. There is no question that we were not here this
afternoon to consider a
postponement. The matter stood down in order
for the possibility of there being some kind of potential settlement
to be further
explored. Clearly there has been no such settlement.
For this reason I came back to court and started to deliver this
brief judgment.
I have, in the meantime, excused Ms Ferreira and Mr
Bailey from further attendance in this matter.
[22] To summarise, everything that is
before me indicates that it would be highly inappropriate to grant a
postponement. In fact,
the application amounts to an abuse of Court
proceedings. This court simply cannot tolerate that it be treated
this way. We have
important conferences on access to judgment in
this country. The Courts deliver access to justice to the people if
litigants are
free to waste the Courts' time as this particular
defendant seems to think she is entitled to do
[23] Most importantly, the evidence,
not only of the plaintiff himself but also from the facts which are
common cause from the pleadings,
clearly has shown that there has
been an irretrievable breakdown of the marriage between the parties.
The evidence furthermore
has shown that it definitely is in the best
interest of the children that their primary residence should be with
the plaintiff.
[24] That the defendant should have
liberal rights to access to the children is also clear. It is also
clear and that the financial,
patrimonial consequences of the
dissolution of the marriage should be determined by an independent,
competent expert. The court
is in no position to make a divide up the
assets of the parties. It would be inappropriate to postpone the
agony of divorce because
the court is in no position to divide up
these assets.
[25] The plaintiff has not sought any
order for costs against the defendant even though there have been
three applications where
the parties have squabbled in court over
issues relating to their divorce. All three the applications were
brought by the defendant.
In all three instances costs were reserved,
but the plaintiff does not seek an order for costs against he
defendant.
[26] Accordingly the following order
is made:
1. A decree of divorce is granted.
2. The draft order marked “X”
is made an order of court.
[27] The court will now adjourn. The
draft order will be slightly amended by myself in Chambers and
initialled by me marked “X.”
The court will adjourn. Ms
Woodward, please arrange with your attorney for him to bring the
court file to my chambers.
COURT ADJOURNS
POSTEA:
[28] An order has been made terms of
the draft marked “X”. It reads as follows:
A decree of divorce is granted.
The parties shall remain co-holders
of full parental rights and responsibilities in respect of the minor
children, CLC (“C”)
who was born on 3 January 1995, MLFC
(“M”) who was born on 18 February 1999, and NYC (“N”)
who was born
on 17 January 2000, as provided in section 18 of the
Children’s Act, No. 38 of 2005, subject to the following:-
The primary residence of the
children shall vest with the plaintiff.
The Defendant shall be entitled to
reasonable rights of contact with the children as more fully set
out in paragraph 3 below.
In exercising their parental
responsibilities and rights the Plaintiff and the Defendant shall
have appropriate regard to the
views and wishes of the children as
provided for in section 31 of the Children’s Act.
The Defendant shall have all
reasonable rights of contact with the children having regard to
their social, educational, religious
and health needs and where
appropriate the views and wishes of the children, such contact to
include:-
In weeks 1 and 3 of every four week
cycle, every alternate weekend from Friday after school until
Sunday 18h00.
In weeks 2 and 4 of every four week
cycle, every Thursday evening from 18h00 to 20h00 for dinner.
One half of every school holiday and
every alternate mid-term break subject to the proviso that
Christmas and Easter should
alternate each year between the
parties. The parties shall endeavour in conjunction with the case
manager to prepare a schedule
of holiday contact at the
commencement of each year so that the children are availed of a
predictable and stable holiday timetable.
Mother’s Day from 09h00 until
18h00. The Plaintiff shall be entitled to have the children with
him on Father’s
Day from 09h00 until 18h00.
One half of the day on each child’s
birthday should such birthday not be on a school day and if on a
school day, a period
of at least two hours. Should the children be
with the Defendant on their birthdays the Plaintiff will be
afforded one half
of each child’s birthday if not on a school
day and at least two hours if such birthday falls on a school day.
A reasonable period of time on the
Defendant’s birthday not less than three hours in duration in
the event that the Defendant’s
birthday falls on a weekday
and for the entire day in the event that her birthday falls on a
weekend. Should the children
be with the Defendant on the
Plaintiff’s birthday the Plaintiff shall be entitled to have
the children with him for a
period of not less than three hours in
duration in the event that the Plaintiff’s birthday falls on
a weekday and for
the entire day in the event that it falls on a
weekend.
Reasonable telephonic and electronic
contact at all times.
Each party shall have reasonable
telephonic contact with the children when they are in the care of
the other party.
Braam Beetge is appointed as a case
manager to assist the parties in the exercise by them of their
parental rights and responsibilities
and to protect the children’s
best interests.
In the event of Braam Beetge not
acting as a case manager or resigning the parties shall endeavour
to agree upon the identity
of a psychologist or social worker of
not less than 10 years’ standing and in the absence of such
agreement the parties
shall refer the matter to FAMSA (Family and
Marriage Society of South Africa – Family Life Centre) to
identify and appoint
a case manager to assist in the resolution of
the dispute.
The decision of the case manager
shall not be final and binding on the parties who shall at all
times not be precluded from
seeking relief in the High Court of
South Africa or any other Court of competent jurisdiction.
The costs of the case manager shall
be paid in equal shares by the parties unless the case manager
orders otherwise in appropriate
circumstances.
The minor children shall continue
receiving such therapy until such time as such treatment is deemed
unnecessary by their respective
therapists.
The parties are married subject to
the accrual system as provided for in Chapter 1 of the
Matrimonial
Property Act, No. 88 of 1984
.
The parties have not reached
agreement on the commencement values of their estates at the time
of the marriage. The Defendant
asserts that the commencement value
of each party’s estate at the time of marriage is deemed to
be nil. The Plaintiff
asserts that the commencement value of his
estate is R1,390,000.00 and the commencement value of the Defendant
R50,000.00 as
recorded in the Notarial Contract entered into
between the parties.
Within four weeks from date of
signature of this agreement the parties and their legal
representatives shall exchange an account
of their respective
assets and values, duly supported by documentary proof. Thereafter
the parties shall debate the accounts
provided and shall endeavour
to reach agreement as to the nett value of each party’s
respective estate at the time of
divorce.
Should the
parties fail to reach agreement as provided for above, then the
parties shall appoint a referee in terms of
section 19
(
bis
)
of the Supreme Court Act, No. 59 of 1959, as amended, in order to
determine the nett value of each party’s respective
estate at
the date of divorce.
In the absence of the parties being
able to agree on the identity of a referee, the Chairperson of the
Johannesburg Bar Council
shall be called upon to nominate a duly
qualified chartered accountant in private practice with not less
than 10 years’
experience to act as referee.
The powers of the
referee in addition to those referred to in section 19 (
bis
)
of the Supreme Court Act, No. 59 of 1959, shall be those set out in
annexure
“A”
hereto.
The referee shall not determine the
dispute between the parties relating to the commencement values of
their respective estates.
Should the parties not be able to reach
agreement regarding the commencement values of their respective
estates, then either
party may set the matter down for trial on
this issue only.
The referee shall furnish a report
to the parties in regard to:
the assets of each of the parties
on the date of divorce;
the liabilities of each of the
parties on the date of divorce.
The referee’s report and
determination shall be final and binding on the parties.
Each party shall pay his or her own
legal costs including the costs that were reserved under the
following case numbers:
10/15073
11/13062
10/27601
10/48543
10/48713
ANNEXURE “A” TO THE DRAFT
MARKED “X”
Appointment of receiver to determine
the values of each party’s estate
The appointed receiver, is to be
agreed to between the parties or alternatively in the absence of an
agreement between the parties
is to be a person nominated by the
Chairperson of the Johannesburg Bar Council (hereinafter referred to
as “the receiver”)
is appointed to:
determine the identity of the assets
comprising the estate of each party as at 07 September 2011 (“the
effective date”);
determine the value of each asset as
at the effective date and to determine the liabilities which form
part of each party’s
estate as at the effective date;
prepare a final account between the
parties which reflects the nett asset value of each of their
respective estates as at the effective
date.
The receiver shall have the following
powers:
The right to make all investigations
and to obtain all information from each party and any third party
regarding their assets and
any liabilities;
The right to inspect all documents of
the parties and any third party relating to the existence of any
asset and any liability;
The right to make a physical
inspection of assets;
The right to question the parties and
any third party and to obtain explanations necessary for the purpose
of identifying assets
and liabilities with the right to issue
subpoenas calling for the attendance of any such person before him to
provide explanations
and to produce documents;
Without limitation of the aforegoing,
the rights which are conferred upon a trustee in terms of the
provisions of the
Insolvency Act No. 24 of 1936
and in particular the
right to call meetings and to interrogate the parties and any third
party;
To obtain sworn valuations in respect
of any asset and to engage the services of any suitably qualified
person or persons to assist
him in determining the proper value of
any assets, such costs to be paid by the parties in equal shares;
To afford both parties personally the
opportunity to make such representations to him about any matter
relevant to his duties and
to identify any asset and/or the existence
of any liability included but not limited to:
the time and/or manner in which the
asset was acquired;
the price for which such asset was
acquired and/or valued at the effective date;
To give due consideration to the
representations of the parties and to make such decisions in respect
thereof as he may deem fit;
To apply to this Court on notice to
the parties for any further directions as he shall or may consider
necessary;
To institute legal proceedings against
any person for the delivery to him of any documents in whatever court
it shall be appropriate
to bring such proceedings;
To be paid his reasonable fees and
apportion such fees between the parties equally.
Counsel for the plaintiff: Ms J.A.
Woodward SC
Attorneys for the plaintiff:
Greensteins
Defendant in person
Date of hearing: 7 September, 2011
Date of judgment: 7 September, 2011