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[2011] ZAGPJHC 176
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M v M and Another (2011/12734) [2011] ZAGPJHC 176 (23 November 2011)
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Certain
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REPORTABLE
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE NO: 2011/12734
DATE:23/11/2011
J
M
........................................................................................................
Plaintiff/Applicant
and
R S E
M
...............................................................................
First
Defendant/Respondent
F
H-S
..............................................................................
Second
Defendant/Respondent
JUDGMENT
SCHOLTZ A J
[1] In this matter I will refer to the applicant as the plaintiff and
to the first and second respondents as the first and second
defendants respectively.
[2] On 29 March 2011 the plaintiff issued summons against the first
and second defendants in which the plaintiff alleged
inter alia
that:
(a) she and the first defendant were married to each other on 19
February 1986 at Randburg out of community of property and the
marriage still subsists. A copy of the antenuptual contract was
attached to the summons;
(b) there were two children born of the marriage, one of whom,
Claire, was born on 31 January 1990 and was at present 21 years
old.
Claire remains dependant on the plaintiff and first defendant for
emotional and financial support and care. The second child
is
deceased;
(c) the marriage relationship between the plaintiff and the first
defendant has broken down irretrievably, and has reached such
a state
of disintegration that there is no reasonable prospect of the
restoration of a normal marriage relationship between them.
The
reasons for the irretrievable breakdown of the marriage relationship
included the allegation that the first defendant was
having an
adulterous affair with the second defendant;
(d) having regard to the reasons for the breakdown of the marriage,
the first defendant's substantial misconduct, the fact that
the
marriage had endured for 25 years, the fact that the plaintiff was 55
years old, the plaintiff's expectation that the parties
would be
married for the rest of their natural lives and that she would be
properly cared for in her retirement years until her
death, the
efforts, labour, services and skill employed and contributed by the
plaintiff in the maintenance of the marriage, the
family estate and
homes, the up-bringing of the children, the support for the first
defendant and his business venture, as well
as any other factors
which the court may consider, the first defendant would benefit
unduly if "an order for the forfeiture
of assets" was not
made in favour of the plaintiff;
(e) in the alternative:
(i) in terms of the antenuptual contract entered into between the
parties, the community of property, community of profit and
loss and
accrual sharing were excluded;
(ii) no agreement exists between the parties in respect of the
division of the assets;
during the marriage, the plaintiff contributed directly and
indirectly to the maintenance and increase of the estate of the
first defendant by rendering services and by saving expenses that
would otherwise be incurred;
as a result of the foregoing, it would be just and equitable if 50%
of the first defendant's assets be transferred to the plaintiff,
such "redistribution" to be determined by the court;
in the further alterative the plaintiff pleaded that, in the event
that the court may not be inclined to grant the plaintiff
either a
forfeiture of assets or a redistribution of assets as claimed, it
would be just and equitable, based on the reasons
for the breakdown
of the marriage and the grounds set out in the particulars of
claim, that the first defendant provide and
supply the plaintiff
with assets and financial means to enable her to continue her life
in a manner to which she is accustomed.
[3] In view of the amendments, which the plaintiff seeks to introduce
into her particulars of claim, it is not necessary to set
out in
detail the prayers which the plaintiff sought against the first and
second defendants in her original particulars of claim.
On or about
21 June 2011 the plaintiff's attorneys served on the defendants'
attorneys a notice of amendment in terms of rule
28 of the rules of
court, in which the plaintiff sought to effect substantial amendments
to her particulars of claim dated 21 March
2011. For convenience, I
set out hereunder the way in which the plaintiff's particulars of
claim will read if the amendments are
allowed:
The Plaintiff is J M, an adult female part time employee at
Eberhardt-Martin CC, presently residing on the family equestrian
estate ("
the equestrian estate
") situated at Plot
10 Elandsdrift, Beyers Naude Extension, Muldersdrift, Krugersdorp.
The First Defendant is Roger Samuel Eric Martin an adult male
businessman, and qualified mechanical engineer and the main member
of Eberhardt-Martin CC, presently residing at the family home
situated at 37 Viljoen Street, Diswilmar, Krugersdorp.
The Second Defendant is F H-S an adult female whose personal details
are unknown to the Plaintiff and who resides at Plot 10
Elandsdrift,
Beyers Naude Extension, Muldersdrift, Krugersdorp.
Plaintiff and First Defendant are domiciled within the area of
jurisdiction of the above Honourable Court.
The Plaintiff and First Defendant were married to each other on 19
February 1986, at Randburg, out of community of property and
the
marriage still subsists. A copy of the marriage certificate is
annexed hereto as Annexure "JM1".
On 14 February 1986 and at Johannesburg the Plaintiff and the First
Defendant entered into an antenuptial contract in terms of
which
they agreed to that there will be no community of property or profit
or loss between them. The Plaintiff and Defendant
further agreed
that the accrual system defined in chapter 1 of the
Matrimonial
Property Act, 1984
is excluded. A copy of the antenuptial contract
is attached hereto marked as Annexure "JM2".
In terms of clause 7 of the antenuptial contract the First
Defendant agreed to "give, grant and make over" to the
Plaintiff as her sole and absolute property all furniture, linen,
plate and domestic effects to a value of not less than R15
000.00.
The furniture and other effects shall be deemed and considered to
be such as contained in the house or premises occupied
by the
Plaintiff and First Defendant from time to time.
There were two children born of the marriage, namely:
C M M, ("
C
") a female, born on the 31st January
1990, at present 21 years old;
C is currently a student at the University of Pretoria studying
for a BSC degree in Plant Science.
C resides 50% of the time in a cottage in Pretoria and 50% of her
time with the Plaintiff at the equestrian estate.
C is engaged in equestrian and show jumping activities and owns 10
horses which are stabled and maintained at the equestrian
estate.
Claire remains dependant on the Plaintiff and First Defendant for
emotional and financial support and care.
E B M, a male, born on 3 October 1986, who passed away in March
2005;
The marriage relationship between the Plaintiff and First Defendant
has broken down irretrievably, and has reached such a state
of
disintegration, that there is no reasonable prospect of the
restoration of a normal marriage relationship between them.
The reasons for the irretrievable breakdown of the marriage
relationship are:
During the later part of 2010 the First Defendant commenced an
adulterous affair with the Second Defendant, F H-S, a woman
in her
forties, who also resides on the equestrian estate but in a
separate dwelling which she is renting from the First Defendant;
In January 2011, the First Defendant admitted his adulterous affair
with F H-S to the Plaintiff and requested that their marriage
be
terminated so that he can "have a life";
The First Defendant arranged for a consultation with a lawyer to
institute divorce proceedings and in a cavalier manner requested
the Plaintiff to accompany him with a list of her financial
requirements; this appointment was postponed at the last minute
due
to the unavailability of the lawyer;
When the Plaintiff is absent from the equestrian estate and the
family home at Viljoen Street Diswilmar, F H-S, with the knowledge
of the First Defendant, assumes the role, duties and
responsibilities of the Plaintiff and conducts herself as the "Lady
of the Manor";
The First Defendant and F H-S are openly flaunting their adulterous
relationship, having no respect for the Plaintiff or her
marriage
relationship with the First Defendant;
The First Defendant treats the Plaintiff with utter contempt and
disrespect;
The Plaintiff and First Defendant no longer share common interests,
save for their child, Claire;
The Plaintiff has lost all love, respect and affection for the
First Defendant;
The Plaintiff and First Defendant no longer reside together.
During March 2011 the First Defendant, assisted by the Second
Defendant, made an offer to Belinda Clauda Deverson to purchase
a
property described as Holding 46 situated at Lammermoor AH for the
cash amount of R2.6 million for the benefit of the Second
Defendant. The property is to be registered into a close
corporation (to be formed) and the Second Defendant would be the
sole member of the close corporation.
Having regard to:-
the reasons for the breakdown of the marriage as set out in
paragraph 9 supra;
the First Defendant's substantial misconduct as set out in
paragraph 9 supra;
the duration of the marriage i.e. 25 years;
the age of the Plaintiff i.e. 55 years and the fact that she
without any qualifications has obtained invaluable experience
in
horses since the age of 12, managing the equestrian estates
belonging to the family. Horse owners of different walks of
life,
entrusting their horses with her for stabling, caring and training
over a period of 20 years and being a committee member
of the West
Region Gauteng Horse Society and having assisted Claire, who has
provincial colours in show jumping, showing, and
cross country
financially and emotionally without the assistance of the First
Defendant over a period of 15 years;
The Plaintiff's expectation that the parties would be married for
the rest of their natural lives and that she would be properly
cared for in her retirement years until her death;
The efforts, labour, services and skill employed and contributed by
the Plaintiff in the maintenance of the marriage, the family
estates and homes, the upbringing of the children, the support for
the First Defendant and his business venture;
During the marriage, the Plaintiff contributed directly and
indirectly to the maintenance and increase of the estate of the
First Defendant by rendering services and by saving expenses that
would otherwise be incurred. The details of which are as
follows:
The Plaintiff was employed by the Defendant's company,
Eberhardt-Martin CC in the capacity as administrative clerk, with
insubstantial remuneration, for the last 25 years. She was
initially employed full-time and later on a part-time basis in
order to look after and care for the minor children.
The Plaintiff also in addition to the above, assisted in the
business of the First Defendant by managing the stores, stock,
deliveries, and queries pertaining to the First Defendant's
business.
The Plaintiff managed and maintained the common households and
other family properties as listed on the asset schedule.
Until the death of their son, the Plaintiff was the sole caregiver
of the children. The Plaintiff would also arrange all
aspects of
C's equestrian activities and horse jumping shows. Only after the
death of their son did the First Defendant begin
to display more
interest in C.
The Plaintiff managed all aspects of the equestrian business
conducted firstly on the Viljoen Street property and later on
the
equestrian estate.
The Plaintiff took care and managed all aspects of the marriage,
home and family while the First Defendant concentrated on
his
business activities and ventures.
The Plaintiff has cared for, with the assistance of a caregiver,
the First Defendant's father who suffered a stroke approximately
3
years ago, which includes taking him on holidays, sometimes
without the First Defendant.
The existing and prospective means of the parties and the standard
of living of the parties prior to the divorce action;
as well as any other factors which the Honourable Court may
consider;
it would be just and equitable that the Honourable Court order the
First Defendant to pay maintenance towards the Plaintiff in
the form
of a lump sum payment, having regard to the clean break principle,
and a resettlement allowance.
The assets accumulated by the First Defendant during the subsistence
of the marriage are set out in a schedule annexed hereto
as Annexure
"JM3".
The maintenance in the form of a lump sum payment and a resettlement
allowance is calculated as follows:
A lump sum payment of R20 million to be paid to the Plaintiff, to
be invested by the Plaintiff in order to secure and obtain
an
income for the Plaintiff for the remainder of her life.
A fully paid immovable property of the Plaintiff's choice for the
residence of the Plaintiff with a value of R3 million;
First Defendant to pay all costs pertaining to the transfer of the
aforesaid immovable property into the Plaintiff's name including
all utility connection fees;
First Defendant to pay all reasonable costs of furnishing the
aforesaid immovable property, alternatively the Plaintiff shall
be
entitled to remove and retain all household movable and effects
currently housed in all immovable properties occupied by
the
Plaintiff and First Defendant in terms of clause 7 of the
antenuptial contract as set out in paragraphs 6 above;
First Defendant to transfer the Toyota Hi-Lux motor vehicle with
registration letters and numbers XXL 284 GP into the Plaintiff's
name. The First Defendant shall replace this vehicle with a vehicle
of similar class and standard (to be registered in the
Plaintiff's
name) when the Toyota Hi-Lux reaches 100 000 kilometers or 5 years,
whichever comes first. The First Defendant
shall cover all running
costs of the vehicles so provided including fuel up to 300 litres
per month. This shall be conditional
to the Plaintiff being the
holder of a valid driver's license.
The First Defendant to provide and place at the disposal of the
Plaintiff with one BMW X5 or similar motor vehicle for the
purpose
of towing a horsebox. The First Defendant to cover all running
costs of the aforesaid vehicle.
First Defendant to retain the Plaintiff on his medical aid for the
rest of her living years after the divorce order is granted.
The
First Defendant to cover payment of all medical expenses not
covered by the medical aid locally or abroad.
The Plaintiff shall have a usufruct on the equestrian estate for
the purpose of continuing to conduct and manage the equestrian
business conducted on the said property. This usufruct shall lapse
upon Claire selling her share in the said property.
The First Defendant to pay the Plaintiff's cell phone and data card
to the value of R1 200.00 per month.
The Plaintiff shall be entitled to the use of the Umdloti apartment
for three weeks of each year.
The Plaintiff shall be entitled to a one week holiday per year in
the Kruger Park or surroundings.
The First Defendant to pay all medical expenses of one horse
belonging to the Plaintiff. No single payment shall exceed
R5000.00. Any amount in excess of R5000.00 shall be by agreement
between the parties and will depend on the value of the horse
in
question.
With full knowledge of the existing marriage relationship between
the Plaintiff and First Defendant, the Second Defendant enticed
the
First Defendant to enter into a relationship with the Second
Defendant and to vacate the common home of the Plaintiff and
the
First Defendant in order to pursue an adulterous relationship with
the Second Defendant.
Second Defendant committed adultery with the First Defendant at
various places and times unknown to the Plaintiff and is still
committing adultery.
As a result of the Second Defendant's conduct the Plaintiff suffered
damages in that:
Plaintiff lost all love and consortium of the First Defendant as a
result which the Plaintiff suffered damages in the amount
of R250
000.00.
Plaintiff suffered an iniuria as a result of the adultery between
the First and Second Defendant, as a result of which the
Plaintiff
suffered damages in the amount of R250 000.00.
Wherefore the Plaintiff prays against the First Defendant for:
A decree of divorce.
Payment of maintenance and a resettlement allowance to the Plaintiff
calculated as follows:
A lump sum payment of R20 million;
A fully paid immovable property of the Plaintiff's choice for the
residence of the Plaintiff with a value of R3 million;
First Defendant to pay all costs pertaining to the transfer of the
aforesaid immovable property into the Plaintiff's name including
all utility connection fees;
First Defendant to pay all reasonable costs of furnishing the
aforesaid immovable property, alternatively the Plaintiff shall
be
entitled to remove and retain all household movables and effects,
currently housed in all immovable properties occupied
by the
Plaintiff and First Defendant, in terms of clause 7 of the
antenuptial contract as set out in paragraphs 6 above;
First Defendant to transfer the Toyota Hi-Lux motor vehicle with
registration letters and numbers XXL 284 GP into the Plaintiff's
name. The First Defendant shall replace this vehicle with a vehicle
of similar class and standard (to be registered in the
Plaintiff's
name) when the Toyota Hi-Lux reaches 100 000 kilometers or 5 years,
whichever comes first. The First Defendant
shall cover all running
costs of the vehicles so provided including fuel up to 300 litres
per month. This shall be conditional
to the Plaintiff being the
holder of a valid driver's license.
The First Defendant to provide and place at the disposal of the
Plaintiff with one BMW X5 or similar motor vehicle for the
purpose
of towing a horsebox. The First Defendant to cover all running
costs of the aforesaid vehicle.
First Defendant to retain the Plaintiff on his medical aid for the
rest of her living years after the divorce order is granted.
The
First Defendant to cover payment of all medical expenses not
covered by the medical aid locally or abroad.
The Plaintiff shall have a usufruct on the equestrian estate for
the purpose of continuing to conduct and manage the equestrian
business conducted on the said property. This usufruct shall lapse
upon Claire selling her share in the said property.
The First Defendant to pay the Plaintiff's cell phone and data card
to the value of R1 200.00 per month.
The Plaintiff shall be entitled to the use of the Umdloti apartment
for three weeks of each year.
The Plaintiff shall be entitled to a one week holiday per year in
the Kruger Park or surroundings.
The First Defendant to pay all medical expenses of one horse
belonging to the Plaintiff. No single payment shall exceed
R5000.00. Any amount in excess of R5000.00 shall be by agreement
between the parties and will depend on the value of the horse
in
question.
Costs of the suit jointly and severally with Second Defendant the
one paying the other to be absolved.
Further and / or alternative relief.
Wherefore Plaintiff claims against the Second Defendant for an order
in the following terms:
Damages in the amount of R500 000.00 with interest thereon at the
rate of 15,5% a temporae mora from date of summons to date
of
payment.
Costs of suit jointly and severally with First Defendant the one
paying the other to be absolved.
Further and/or alternative relief."
[4] On 5 July 2011 the first defendant's attorneys delivered a formal
notice of objection to the proposed amendments on the grounds
that
the particulars of claim, as sought to be amended, would be
excipiable in that they lack averments which are necessary to
sustain
an action against the first defendant, and/or are vague and
embarrassing and/or contain allegations which are vexatious
and/or
irrelevant. The notice set out 8 specific grounds of complaint
relating to the proposed amendments, which may be summarised
as
follows:
(a) since the parties were married after 1 November 1984 out of
community of property in terms of an antenuptual contract by which
community of property, community of profit and loss and accrual
sharing in any form are excluded, the plaintiff is not entitled
to
claim any orders against the first defendant in terms of
s 7(3)
of
the
Divorce Act, 70 of 1979
, as amended ("
the
Divorce Act
"
;).
Albeit that the plaintiff has withdrawn her forfeiture and
redistribution claims as against the first defendant in the proposed
amended particulars of claim, the plaintiff has not withdrawn the
forfeiture and redistribution allegations, which she made in
support
of such claims. Such allegations are irregularly relied on by the
plaintiff in support of a new claim for "maintenance"
in
the form of a lump sum payment having regard to the clean break
principle, and a resettlement allowance. The incorporation
of the
forfeiture allegations into other allegations in support of the
plaintiff's lump sum maintenance and resettlement allowance
claim
renders the proposed amended particulars of claim vague and
embarrassing and/or vexatious and/or irrelevant material in that:
(i) it is not clear whether the plaintiff is in need of maintenance
per se from the first defendant, or whether the plaintiff is
claiming
an entitlement to receive the assets from the first defendant by
virtue of any contribution on her part towards the accumulation
of
the estate of the first defendant ;
(ii) the plaintiff is ambivalent as to the legally sustainable relief
which is being sought by her and as to the basis on which
she relies
for such relief as against the first defendant; and
(iii) no proper basis has been laid for the right of the plaintiff to
the relief as against the first defendant;
(b) having regard to the context of the word "payment" in
s
7(2)
of the
Divorce Act, the
plaintiff is not legally entitled to the
lump sum maintenance and resettlement allowance claim, as pleaded;
(c) there is no such thing in law as a "resettlement allowance
claim" and the relief being sought by the plaintiff does
not
fall within the ambit of
s 7(2)
of the
Divorce Act;
(d
) the order sought by the plaintiff in accordance with paragraph
12.4 of the proposed amended particulars of claim is inconsistent
with the antenuptual contract between the parties and therefore
vague, embarrassing and legally unsustainable;
(e) the orders sought by the plaintiff in accordance with paragraphs
12.5 and 12.6 of the proposed amended particulars of claim
are vague,
embarrassing and inconsistent with the antenuptual contract between
the parties and, in addition, the relief which is
sought by the
plaintiff is legally unsustainable;
(f) the items claimed by the plaintiff in paragraphs 12.2, 12.3,
12.4, 12.5, 12.6, 12.8, 12.10 and 12.11 of the proposed amended
particulars of claim are vague, embarrassing and inconsistent with
the antenuptual contact between the parties and, in addition,
the
relief which is sought by the plaintiff is legally unsustainable;
(g) in paragraph 12.12 of the proposed amended particulars of claim
the plaintiff seeks payment of all medical expenses for a horse
belonging to her. The claim for these expenses is legally and
factually unsustainable;
(h) prayers 2.5, 2.6, 2.8, 2.9, 2.10, 2.11 and 2.12 in the proposed
amended particulars of claim are inconsistent with the plaintiff's
claim against the first defendant on the "clean break principle"
as pleaded by the plaintiff.
[5] As a result of the notice of objection, on 19 July 2011 the
plaintiff issued a formal notice of motion under
rule 28(4)
for
orders that the plaintiff's particulars of claim be amended as set
out in the notice of amendment and that the first defendant
be
ordered to pay the costs of the application on the attorney and
client scale. The application was supported by an affidavit
by the
plaintiff's attorney in which she explained that, when the
plaintiff's particulars of claim were originally drafted, counsel
erroneously approached the matter on the basis that the marriage
between the parties had taken place before 1984 whereas the marriage
had taken place in 1986. Consequent to this incorrect approach,
claims for forfeiture and redistribution of assets were included
in
the particulars of claim. These claims were clearly impermissible in
law. The plaintiff's attorney made
inter alia
the following
further averments in her supporting affidavit:
"14 In law, the Plaintiff is only entitled to maintenance in
terms of
section 7(2)
of the
Divorce Act, 1979
. This may include a
resettlement allowance. The purpose of the amendment is to abandon
the incorrect claims under
section 7(3)
of the
Divorce Act, 1979
and
to properly place the Plaintiff's claim under
section 7(2)
of the
said Act.
15 I submit with respect that it is for the trial court to ultimately
decide the Plaintiff's entitlement to maintenance and if
so entitled,
to give substance and content to such entitlement.
16 It is important to note that the First Defendant has not yet filed
any plea in these proceedings. The legal proceedings are
still at a
very early stage and pleading have not yet closed.
17 Apart from being denied the opportunity to exploit an obviously
defective pleading (if this may even constitute prejudice),
I cannot
envisage any possible prejudice to the First Defendant with the
Plaintiff's proposed amendments of the particulars of
claim.
18 It is further submitted that the First Defendant's objections to
the proposed amendments are without merit and are more in the
nature
of legal arguments which are best to be place before the trial court
at the appropriate time."
[6] The plaintiff's application is opposed by the first defendant.
In the answering affidavit, which was deposed to by the first
defendant's attorney, she stated
inter alia
the following:
"
The issues in brief
6. The Applicant's Notice to Amend, if allowed, would render her
Particulars of Claim excipiable.
7. The Applicant's original cause of action is based on claims to the
forfeiture of patrimonial benefits and a redistribution of
assets,
with certain relief flowing from this.
8. This was entirely at variance with the antenuptial contract
executed by the parties after the commencement of the
Matrimonial
Property Act 88 of 1984
, and which excluded the operation of accrual.
9. The Applicant also incorrectly arrogated to herself the locus
standi to make claims for maintenance and a redistribution of
assets
on the part of the parties' daughter, C. C turned 18 on 31 January
2008. The Applicant had no locus standi to prosecute
claims against
the First Respondent on the part of their major daughter. The
proposed amendment now excludes relief for C. Mention
of this aspect
is omitted in the Applicant's Founding Affidavit in this Application.
10. The Applicant is now seeking to introduce a new substitute cause
of action based on her claim to personal maintenance, including
a
resettlement allowance. But, in essence, the same relief claimed by
her for herself in the current Particulars of Claim is claimed
in her
Notice to Amend.
11. The Applicant has persisted in claims which are in substance
proprietary in nature, in flagrant disregard for the antenuptial
contract which expressly excludes them and with reckless disregard
for the well-established legal precept that "pacta sunt
servanda".
12. The Applicant has entirely misconstrued the rationale behind the
permissibility of a resettlement allowance, as articulated
in
prevailing case-law on the subject. She has sought to introduce
claims under its ambit which cannot be sustained, and which,
if
sustained, would negate the entire rationale behind the execution of
an antenuptial contract. She is seeking to vitiate the
antenuptial
contract without saying so in as many words.
13. For the reasons comprehensively set out in the First Respondent's
Notice of Objection, an amendment of the Applicant's Particulars
of
Claim along the lines envisaged will amount to an exercise in
futility.
14. If the amendment were allowed, the First Respondent would be
severely prejudiced in preparation for trial on claims which are,
quite simply, bad in law.
15 With due respect, it would constitute a disservice to the trial
Court if the issues in this Application were not adjudicated
at this
juncture, in advance of the hearing in the divorce action."
"Paragraphs 14 and 15
20. With respect, I submit that it is legally untenable for the
Applicant to bring the claims in question under the umbrella of
a
"resettlement allowance".
21. If this were permitted, all antenuptial contracts excluding
proprietary claims could be entirely negated through this expedient
mechanism.
22. Members of the public would have no confidence in the validity of
their contracts, and the floodgates would open.
23. The issue here is squarely one of law, which enjoins this
Honourable Court to interpret the provisions of
section 7
of the
Divorce Act 70 of 1979
in its determination of what falls within the
purview of a "resettlement allowance."
24. The adjudication of this issue is plainly one which falls within
the province of the the Court hearing this Application. It
would
certainly assist in narrowing issues and curtailing what could become
an unduly costly and protracted trial, to the ultimate
detriment of
both parties."
"Paragraph 17
27. The prejudice which the First Respondent will suffer if the
amendment were granted is patent.
28. The grant of the contemplated amendment would, in effect,
recognize a claim to a redistribution of assets under the guise of
a
resettlement allowance. This in the face of an antenuptial contract
which expressly excludes a claim to accrual. This in the
face of
legislation which prohibits a claim to a redistribution for marriages
contracted after 1 November 1984, (when the
Matrimonial Property Act
88 of 1984
came into operation).
29. The First Respondent and the Applicant will be obliged to make
discovery of documents which would ordinarily be irrelevant
for
purposes of trial. The trial will become unduly protracted and unduly
costly.
30 In the best interests of both parties, there is every reason to
curtail the trial by resolving issues which, in law, are not
triable."
[7] In prayers 2.1 - 2.12 of the proposed amended particulars of
claim the plaintiff has not claimed payment of a monthly amount
to
cover her living expenses. It appears from paragraph 12.1 that the
claim for the lump sum of R20 million is "in lieu of"
such
claim. The fundamental question, which is raised by the first
defendant's objections, is whether some or all of prayers 2.1
- 2.12
could be awarded in terms of
s 7(2)
of the
Divorce Act, since
it is
common cause that the plaintiff does not have a claim in terms of
s
7(3)
of the
Divorce Act.
[8
]
Ss 7(1)
and (2) of the
Divorce Act provide
as follows:
"
(1) A court
granting a decree of divorce may in accordance with a written
agreement between the parties make an order with regard
to the
division of the assets of the parties or the payment of maintenance
by the one party to the other.
(2) In the absence of an order made in terms of
subsection (1) with regard to the payment of maintenance by the one
party to the
other, the court may, having regard to the existing or
prospective means of each of the parties, their respective earning
capacities,
financial needs and obligations, the age of each of the
parties, the duration of the marriage, the standard of living of the
parties
prior to the divorce, their conduct in so far as it may be
relevant to the break-down of the marriage, an order in terms of
subsection
(3) and any other factor which in the opinion of the court
should be taken into account, make an order which the court finds
just
in respect of the payment of maintenance by the one party to the
other for any period until the death or remarriage of the party
in
whose favour the order is given, whichever event may first occur."
[9] The
application for amendment was
argued before this court on 20 October 2011.
During
the argument the plaintiff's counsel contended that
s 7(2)
of the
Divorce Act confers
a wide discretion on the court and that, in an
appropriate case, it would be open for the trial court to grant
orders as claimed
in prayers 2.1 - 2.12 of the proposed amended
particulars of claim. She relied heavily on the judgment in
Zwiegelaar v Zwiegelaar
2001 (1) SA 1208
(SCA).
In this case the trial court
dissolved the marital regime between the parties and made certain
ancillary orders. The court accepted
the appellant's evidence that,
having been ordered out of the common home, she was obliged to
acquire certain household necessaries
to render her home habitable.
The trial court also found that the respondent was financially able
to provide these. Paragraph
2 of the order, which was made by the
trial court, reads as follows:
" Verweerder word gelas om, as onderhoud ingevolge die bepalings
van art 7(2) van die Wet:
(a)
die bedrag
van R8 000 per maand aan eiseres te betaal vanaf 1 Januarie 1997 tot
haar dood of hertroue, welke ookal eerste mag plaasvind;
(b)
die bedrag
van R50 000 voor of op 15 Januarie 1997 aan eiseres te betaal vir die
aankoop van huishoudelike benodigdhede."
[1
0] On appeal, the full
court of the Cape Provincial Division of the High Court allowed the
appeal and held that
s 7(2)
of the
Divorce Act precluded
the trial
court from granting paragraph 2(b) of the order.
[1
1] On further appeal
to the Supreme Court of Appeal the court said
inter
alia
the following in
2001 (1) SA 1208
(SCA) at 1211 H - 1212 D and 1212 G - 1213 F:
"
[8]
It was submitted on behalf of the respondent that in as much as the
term 'maintenance' is not defined in the Act its proper
meaning is to
be gleaned from the definition of the words 'maintenance order' in
the Maintenance Act 23 of 1963, where it is defined
as
'. . . any order for the
periodical payment of sums of money towards the maintenance of any
person made by any court (including
the Supreme Court of South
Africa) in the Republic . . . '.
Consequently, where
s 7
of
the
Divorce Act refers
to maintenance, it must be understood
to mean periodic payments and specifically excludes the payment of a
lump sum.
[9]
In
dealing with the argument advanced on behalf of the respondent, the
trial Court stated:
'Ek
is van mening dat die betaling van 'n eenmalige bedrag, nie instede
van nie, maar tesame met ander periodieke bedrae, as deel
van 'n
onderhoudsbevel in terme van
art
7(2) van die Wet gelas kan word.'
[
10]
The argument that maintenance in terms of
s 7(2)
is restricted to
periodical payments is supported by the academic literature. Hahlo in
The South
African Law of Husband and Wife
5th
ed at 357 stated with reference to s 7(1) and (2) of the Act
respectively:
'An
agreement for the payment of a lump sum, even where it is expressly
stated that the lump sum is to be paid in lieu of maintenance,
is not
an agreement for the payment of maintenance in terms of s 7(1).
Section 1 of the Maintenance Act 23 of 1963 defines a maintenance
order as ''any order for the
periodical
payment
of sums of money towards the maintenance of any person made by any
court . . .''. [My emphasis.] It may, however, amount
to an
agreement as to the division of assets, which the court may embody in
its order.'
And:
'Section 7(2) envisages
periodical payments. It does not allow the Court to make an award of
a lump sum, in lieu of maintenance.'
(See also Lesbury Van Zyl
Family Law
Service
C36
and Joubert (ed)
The
Law of South Africa
vol
16 (1st reissue) at para 191.)
For
the purposes of this judgment I shall assume, without deciding, that
s 7(2) envisages periodical payments
."
(my emphasis)
"
[13]
It was not submitted, nor indeed could it be argued, that the term
'maintenance' should be narrowly construed. Sinclair in
The
Law of Marriage
vol
1 at 443 correctly refers to maintenance in the matrimonial context
as a reciprocal duty of support which
'entails the provision of
accommodation, food, clothing, medical and dental attention, and
whatever else the spouses reasonably
require'.
[14]
Upon
dissolution of the marriage, the word cannot attract a different
meaning. Where a Court is satisfied that the one spouse is
entitled
to maintenance and the jurisdictional requirements as laid down in s
7(2) of the Act have been met, then it is entitled
to make an order
which is 'just'. 'Just', in the context of s 7(2), entails a
recognition in an appropriate case that the accommodation
requirements of the one spouse have to be met as part of such
spouse's reasonable maintenance needs. To hold otherwise would be
to
render nugatory the clear requirement that the maintenance award be
'just'.
[15]
It
is implicit in the judgment of the trial Court that, notwithstanding
the imprecise formulation of the order, the learned Judge
intended to
award the appellant a sum of money as part of her maintenance
requirements for the purchase by her of household necessaries
in
order to establish a home - she having been ordered out of the common
home.
This
sum was awarded not in lieu of, but in addition to, what she
reasonably required for her monthly maintenance needs.
(my emphasis)
[16]
The
effect of the order does not offend against s 7(2) and, seen in
proper perspective (ie having regard to its substance rather
than its
form), the order is clearly valid. Mr
Cloete
was
constrained to concede that a reformulation of the order which in
effect achieves the same result would not offend against s
7(2).
Whilst the
section may envisage periodic payments, these need not be equal. In
principle there can be no objection to an order which
in effect makes
provision for fixed monthly payments but in respect of one or more
months makes provision for the payment of an
increased amount, or
provides for recurring, unquantified future amounts such as medical
expenses or school fees
- cf
Schmidt
v Schmidt
1996
(2) SA 211
(W). In doing so, the Court must of course take into
account the prospective means of the parties and the ability of the
party
in respect of whom the order is made to comply therewith. By
way of example, the sum of R50 000 awarded to the appellant could
have been spread over the first ten months and the respondent ordered
to pay R13 000 per month over that period and R8 000 per month
thereafter. Mr
Cloete
did not
dispute that Louw J could legitimately have done so to give effect to
what he intended." (my emphasis)
[12]
The SCA accordingly allowed the appeal in
Zwiegelaar
and held that, in the application
s 7(2)
of the
Divorce Act, it
was
permissible for the court to grant an order that one spouse pay to
the other as "maintenance" (a) a monthly amount
until her
death or remarriage and (b) a once off amount to enable her to pay
for household necessaries.
[13] The judgment of the trial court in
Zwiegelaar
was delivered on 12 December1996. (See para [1] of the judgment of
the Full Court,
1999 (1) SA 1182
C)). At the time
the
Maintenance Act 23 of 1963, as amended ("
the 1963 Maintenance
Act
") was in operation. This Act defined "maintenance
order" as follows:
"
maintenance
order
" means any order for the
periodical payment of sums of money
towards the maintenance of any person made by any court (including
the Supreme Court of South Africa) in the Republic and, except
for
the purposes of section
eleven
,
includes any sentence suspended on condition that the convicted
person make periodical payments of sums of money towards the
maintenance of any other person. (my emphasis)
[1
4]
The 1963
Maintenance Act was repealed and replaced by the
Maintenance Act 99
of 1998
, as amended ("
the 1998
Maintenance Act
"
;),
which came into operation on 26 November 1999. This Act now defines
"maintenance order" as follows:
"
maintenance order
"
means any
order for the payment,
including the
periodical payment,
of sums of money
towards the maintenance of any person issued by any court in the
Republic, and includes, except for the purposes
of section 31, any
sentence suspended on condition that the convicted person make
payments of sums of money towards the maintenance
of any other
person." (my emphasis)
[1
5] When the
legislature enacted the 1998
Maintenance Act it
clearly recognized
that a maintenance order need not be limited to one for the
"periodical payment" of sums of money.
In essence, this is
what the Supreme Court of Appeal held in
Zwiegelaar.
[16] At the hearing of the application for amendment the first
defendant's counsel contended that the plaintiff's claims for prayers
2.1, 2.6 and 2.8 - 2.12 in the proposed amended particulars of claim
could not be made in term of
s 7(2)
of the
Divorce Act
.
She
correctly conceded that the claims for
prayers 2.2, 2.3, 2.4, 2.5 and 2.7 could be made in terms of
s 7(2)
of the
Divorce Act.
>
[
17]
There is
ample authority that a court will not allow an amendment of a
pleading if the amendment will render the pleading excipiable
.
For instance, i
n
De Klerk v Du Plessis
1995 (2) SA 40
(T) at 43I - 44A van Dijkhorst J stated the following:
"
The application for amendment was opposed on
the ground that the incorporated part of the plea would then be
excipiable for a number
of reasons. An amendment which would render a
pleading excipiable should not be allowed. Whether a pleading would
or would not
become excipiable is a matter of law which should be
decided by the Court hearing the application for amendment. It would
be incorrect,
in my view, to hold that it is arguable that the
amendment would not render the pleading excipiable, allow it, and
send the parties
away to prepare for another battle
on
exception on the same point. I agree with the views expressed in this
respect in
R M van de Ghinste & Co
(Pty) Ltd v Van de Ghinste
1980
(1) SA 250 (C)
256H-259C. Insofar as certain remarks in
Crawford-Brunt
v Kavnat and Another
1967
(4) SA 308 (C)
and
National Union of South African Students
v Meyer
1973
(1) SA 363 (T)
368H are susceptible of a different interpretation, I respectfully
differ."
[
18] There is however
sound authority that an exception cannot be taken to particulars of
claim on the ground that the particulars
do not support one of
several claims arising out of one cause of action. In
Dharumpal
Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A)
the
plaintiff claimed from the defendant about £10 403, which was
made up as to £9 500 for the balance of the purchase
price of
certain vehicles and equipment which the plaintiff had sold to the
defendant in terms of a written agreement, interest
in terms of the
agreement in the sum of £1 900 and certain credits for payments
which had been made by the defendant.
In response to the particulars of claim
the defendant filed 2 exceptions, the first of which read as follows:
1.
Defendant excepts to plaintiff's declaration as being bad in law and
not sufficient to sustain in whole or in part his claim for
the sum
of £1,900, in that
(
a)
plaintiff
alleges a breach of the agreement, annexure A to his declaration.
(b)
In
terms of clause 8 of the said agreement, plaintiff is entitled to
claim payment of the entire balance of the purchase price then
owing,
or to cancel the said agreement and retake possession of the motor
buses.
(c)
Plaintiff
has elected to claim payment of the entire balance then owing.
(d)
The sum of £1,900 claimed as interest in terms of the agreement
is not a sum which can be included in the entire balance
'then
owing'.
[
19] At 705 A-D Hoexter
JA stated the following:
"
I
begin by defining the action in the present case. It is one for the
balance of the purchase price of certain buses and for the
interest
thereon. There is only one cause of action, viz., the breach of
contract committed by the excipient, and both the claim
for the
balance of the capital of the purchase price and the claim for
interest are based on that cause of action. The first claim,
to which
I shall refer as the major claim, is just as much part of the action
as the second, to which I shall refer as the minor
claim. It follows
that if the averments in the declaration are sufficient to sustain
the major claim, then, even if they are not
sufficient to sustain the
minor claim, they are sufficient to sustain the action
in
part
. The
excipient is not entitled to have the declaration set aside because
it is not sufficient to sustain both the major and the
minor claims
in the action. That is nevertheless what the excipient asks the Court
to do in his first exception. He excepts to
the whole declaration on
the ground that the averments therein do not sustain merely the minor
claim. In my opinion such an exception
cannot be countenanced in the
face of the express words of
Rule 55.
"
[2
0] At 706 A-G Hoexter
JA proceeded to state the following:
"
As
far as I am aware there are no Rules of Court in the other Provinces
similar to
Rule 55
of Natal. In spite of this fact the position in
the other Provinces appears to be no different from that in Natal.
The Transvaal
case of
Goller
and Others v van der Merwe
,
1903 T.S. 157
, was followed in the Orange Free State in the case of
Sugden
Baron St.Leonards v Kannemeyer
,
1921 OPD 121
, and both these cases were followed in the Cape in the
case of
Stein
v Giese
,
1939 CPD 336.
In the last-mentioned case JONES, J., stated the legal
position as follows at p. 338:
'Now it has been laid down, and, I think, if I may say so, correctly
laid down by the Orange Free State Provincial Division, and
by a full
Court in the Transvaal, that it is not open to a defendant to except
to one of several claims arising out of one and
the same cause of
action. What I mean is this, that where a cause of action is the
breach of a contract for instance, and there
are several separate
claims made because of that breach, an exception to the summons that
it discloses no cause of action in respect
of one of those claims,
cannot, and will not be sustained.'
In Beck on
Pleadings,
loc. cit.
,
it is stated that the case of
Stein
v Giese
has been approved by the Appellate Division. That statement is,
however, not correct; in the case of
du
Plessis v Nel
,
1952
(1) SA 513
(AD)
,
the case of
Stein
v Giese
was referred to with approval by only one of the Judges in a
dissenting judgment. The other members of the Court did not deal with
the particular point which necessitated reference to that case. In my
opinion, however, the three cases to which I have referred
were
correctly decided.
The
main purpose of the exception that a declaration discloses no cause
of action is to avoid the leading of unnecessary evidence.
That
purpose cannot be served by taking exception to a declaration on the
ground that it does not support one of several claims
arising out of
one cause of action
.
In the present case, for instance, the upholding of the exception
that the declaration does not support the minor claim would
make no
difference whatever to the evidence to be led at the trial. All the
averments in the declaration would have to be proved
by evidence in
order to establish the major claim. Even assuming that the
declaration does not support the minor claim, I cannot
see in what
way the defendant will be embarrassed in pleading, in view of the
fact that it is bound to plead to the declaration
as framed in order
to meet the major claim. The legal point raised by the exception can
be argued at the trial. If there are indeed
circumstances which would
make it more convenient that this point should be decided before
evidence is led, the defendant could
apply to the Court in terms of
Rule 59
for an order directing the question of law to be decided
before evidence is led." (my emphasis)
[21]
I assume that Natal
Rule 59
, to which Hoexter JA referred in the above passage, was the
predecessor to Rule 33(4) of the Uniform Rules of Court.
[2
2] In Santos and
Others v Standard General Co Ltd
1971 (3) SA 434
(O) at 437B-E de
Villiers J stated the following:
"
It is trite law
that an exception that a particular claim discloses no cause of
action, cannot succeed unless it goes to the root
thereof, that is to
say unless the upholding of the exception would have the effect of
destroying it altogether. (See
Dharumpal
Transport (Pty.) Ltd
. v
Dhurampal
,
1956
(1) SA 700 (AD)
at
p. 706). In the present case third plaintiff prefers two distinct
claims against second defendant, one on her own behalf and
one on
behalf of her minor daughter. Even if the construction placed upon
sec. 11 (1) (ii) (
aa
) by Mr.
Lichtenberg
is correct, that will not have the effect of destroying either of
these claims. Both will still remain, but each for a lesser amount.
The main function of the exception will not have been attained,
namely the elimination of unnecessary evidence. The legal issue
involved can just as effectively be argued and determined at the
trial and second defendant will in no way be prejudiced: it is
at
liberty to tender the amount it considers legally due. (Cf.
Thornton
v Royal Insurance Co. Ltd. and Another
,
1958
(4) SA 171
(C)
at
p. 174). Moreover, second defendant's real complaint is that third
plaintiff's claims contain a
plus
petitio
and a complaint of this nature
can never be a good ground for an exception that a pleading does not
disclose a cause of action.
(Cf.
Melmed
v Proprietors, Park Hotel, Port Elizabeth
,
1946 CPD 503
at p. 504, and
Thornton v
Royal Insurance Co. Ltd. and Another, supra)
."
[2
3] The plaintiff has
made the averments in paragraphs 5, 6, 8, 9 and 10 of the proposed
particulars of claim in support of the claims
in paragraphs 12.1 -
12.12, which are repeated in prayers 2.1 - 2.12. In my view any
claim, which the plaintiff has against the
first defendant for
maintenance in terms of
s 7(2)
of the
Divorce Act, will
be a single
cause of action, albeit that the claim may have several components.
As I have indicated, during argument in this matter
the first
defendant's counsel correctly conceded that prayers 2.2, 2.3, 2.4,
2.5 and 2.7 of the proposed amended particulars of
claim could be
claimed in terms of
s 7(2)
of the
Divorce Act. Even
if prayers 2.1,
2.6 and 2.8 - 2.12 cannot be claimed in terms of
s 7(2)
of the
Divorce Act, on
the principle set out in
Dharumpal,
the proposed amended particulars of claim are not excipiable, either
on the ground that they are vague and embarrassing or on the
ground
that they do not sustain an action. At worst for the plaintiff,
these further prayers amount to a "
plus
petitio
". The first defendant
should not have any difficulty pleading to the proposed amended
particulars of claim. I have accordingly
decided to allow the
proposed amendments.
[24]
I need not decide
whether, in terms of
s 7(2)
of the
Divorce Act, the
court may order
that maintenance in the form of a lump sum be paid "in lieu of"
periodical payments to cover the living
expenses of the person in
question. I however doubt that such an order could be made. What
would the position be if the recipient
of the lump sum were to
re-marry or die shortly after the payment was made? Would the person
who made the payment be entitled to
any refund? Furthermore, would a
maintenance court be entitled to increase the lump sum in an
appropriate case in terms of the
1998
Maintenance Act?
[2
5] Since I have
decided to allow the proposed amendments, the plaintiff has been
substantially successful in the application.
In the result, I make the following orders:
The Plaintiff is granted leave to amend her
Particulars of Claim in accordance with the Plaintiff's Notice of
Amendment, which
was served on the First Defendant's attorneys on 21
June 2011;
The First Defendant is to pay the
costs
of the Plaintiff's application for leave to amend, including the
costs of two counsel.
____________________________________
D. R. SCHOLTZ
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Heard on: 20 October 2011
For the Plaintiff: Adv R Ferreira
Adv C McKelvey
Instructed by: Masilo Freimond Inc.
For the First Defendant: Adv K Bailey SC
Instructed by: Tanya Brenner Attorney
Date of judgment: 23 November 2011