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[2013] ZAGPJHC 194
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D v D (15402/2010) [2013] ZAGPJHC 194 (10 May 2013)
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REPUBLIC OF SOUTH
AFRICA
SOUTH
GAUTENG
HIGH
COURT
JOHANNESBURG
CASE NO: 15402/2010
In the matter between:
D,
T
Plaintiff
and
D,
A
Defendant
JUDGMENT
MILTZ AJ:
INTRODUCTION
1.
The
plaintiff sues the defendant to whom he was married in community of
property for a decree of divorce as well as an order in
terms of
section 9(1) of the Divorce Act 70 of 1970 declaring that the
defendant forfeits certain patrimonial benefits of the marriage
which
was in community of property. The claim for forfeiture is in
relation to specific immovable property, movable property
and the
plaintiff’s pension scheme benefits.
2.
The
defendant counterclaims for a decree of divorce incorporating an
order for division of the joint estate and an order that the
plaintiff pays the defendant one half of the plaintiff’s
pension interest to be calculated as at the date of divorce and
payable in terms of the provisions of section 37D of the Pension Act
24 of 1956.
THE COMMON CAUSE FACTS
3.
The
plaintiff and the defendant dated for approximately four years prior
to their marriage in community of property at Port Elizabeth
on
Saturday 14 June 2008.
4.
Shortly
before their marriage, the plaintiff requested the defendant to
accompany him to an attorney. The reason therefor
was that the
plaintiff wanted the marriage to be governed by an ante-nuptial
contract with accrual.
5.
Having
seen an attorney and discussed their options the defendant insisted
that the marriage should be in community of property.
The
plaintiff agreed and they were married.
6.
The
plaintiff, a television journalist, was on consignment in New York
where he had been for some time. The plaintiff’s
tour of
duty had approximately 18 months to run after his marriage to the
defendant. He returned to Port Elizabeth for the
wedding.
The defendant lived and worked in Cape Town and she also travelled to
Port Elizabeth for the wedding.
7.
The
plaintiff returned to New York after the wedding. The defendant
returned to Cape Town where she resigned from her employment
and
during August 2008 she travelled to New York to join the plaintiff.
8.
In
the months that followed, the marriage went through troubled times.
In the pleadings and at the trial the parties blamed
each other for
the strife in and breakdown of the marriage. I will refer to
this briefly below.
9.
In
any event the parties returned to South Africa in December 2008 and
spent the holiday period together in Port Elizabeth.
At the end
of January 2009 the plaintiff returned to the United States alone
while the defendant went to her sister in East London.
10.
During
the period that followed the plaintiff provided some financial
support to the defendant but he did so reluctantly.
He also
frequently did not take her telephone calls or respond to her text
messages and e-mails.
11.
Later
in 2009, the defendant learnt that the plaintiff had returned to
South Africa. A meeting was held amongst the parties’
families and the plaintiff and defendant spent time together in Port
Elizabeth. The plaintiff then returned to the United
States to
complete his assignment there. He did not inform the defendant
of his subsequent return to South Africa.
The defendant found
out later in 2009 that he had returned though his use of a local
e-mail address.
12.
In
January 2009, the defendant instituted maintenance proceedings
against the plaintiff in Cape Town. The plaintiff then paid
maintenance to her for a few months. When the plaintiff
returned to the postponed maintenance hearing during June 2009 the
defendant was not present. He learnt then that the defendant
had obtained employment in the interim and that he no longer
had to
pay maintenance.
13.
The
plaintiff instituted the present action during late April 2010.
MARRIAGE IN COMMUNITY
OF PROPERTY
14.
Marriage
in community of property carries major implications for ownership of
the parties’ assets, liability for their debts
as well as their
capacity to enter into legal transactions. Community of
property entails the pooling of all assets and liabilities
of the
spouses immediately on marriage, automatically and by operation of
law. The same regime applies to assets and liabilities
which
either spouse acquires or incurs after entering into the marriage.
The joint estate created by marriage in community
is held by the
spouses in co-ownership, in equal, undivided shares. See
Boberg’s
Law of Persons and the Family (2
nd
ed) at page 185;
and
also
HR
Hahlo, The South African Law of Husband and Wife (5
th
ed) at 157 to 158.
15.
It
is common cause that the marriage relationship between the parties
has broken down irretrievably and that the joint estate is
to be
divided.
16.
In
Soupionas
v Soupionas
1983 (3) SA 757
(T)
at
759 A/B to C, to which I was referred by Ms de Villiers-Golding who
appeared for the defendant, FS Steyn J stated that:
“
If
people, after finding solace and satisfaction in each other’s
physical company for a period of years, decide to marry,
the legal
consequences of the marriage must be an important motivating factor
for that contract of marriage and, consequently,
all the material
consequences of that marriage must have been thoroughly contemplated
between the parties and it would be sound
public policy to enforce
such contractual views of the two parties against each other.”
17.
Although
Steyn J was not dealing in
Soupionas
with
a marriage in community of property, nevertheless the above passage
is pertinent to the common cause facts of the present matter.
The parties did not find themselves accidently married in community
of property. On the contrary the plaintiff wanted to
protect
his estate from community of property by entering into an
ante-nuptial agreement as aforesaid. The parties considered
the
options that were available to them. Having done so they agreed
to a matrimonial property regime that was in community
of property to
the exclusion of other options.
18.
The
natural consequence of holding the parties to their marriage
agreement is that on divorce the joint estate will be divided equally
between them unless a forfeiture order is made. In such event
the value of the assets in the joint estate that must be divided
will
be determined at the date of the divorce. See
Matthee
v Koen
1984 (2) SA 543
(C).
FORFEITURE
19.
However,
as observed above, whereas the defendant seeks an equal division
of the joint estate the plaintiff seeks a forfeiture
order in terms
of section 9(1) of the Divorce Act in respect of certain specified
items.
20.
Section
9(1) provides, beneath the heading “
Forfeiture
of Patrimonial Benefits of Marriage”
that:
“
(1)
When a decree of divorce is granted on the ground of the
irretrievable breakdown of a marriage the Court may make an order
that the patrimonial benefits of the marriage be forfeited by one
party in favour of the other, either wholly or in part, if the
Court,
having regard to the duration of the marriage, circumstances which
gave rise to the breakdown thereof and any substantial
misconduct on
the part of either of the parties, is satisfied that, if the order
for forfeiture is not made, the one party will
in relation to the
other be unduly benefited.”
21.
In
Wijker
v Wijker
1993 (4) SA 720
(A)
at 727 E to F Van Coller AJA said that:
“
It
is obvious from the wording of the section that the first step is to
determine whether or not the party against whom the order
is sought
will in fact be benefited. That will be purely a factual
issue. Once that has been established the Trial
Court must
determine, having regard to the factors mentioned in the section,
whether or not that party will in relation to the
other be unduly
benefited if a forfeiture order is not made. Although the
second determination is a valued judgment, it is
made by the Trial
Court after having considered the facts falling within the compass of
the three factors mentioned in the section.”
22.
Ms
de Villiers-Golding contended that the plaintiff, in seeking to
invoke the forfeiture provisions of section 9(1), in truth is
attempting retrospectively to apply a matrimonial property regime to
the marriage that was never agreed to nor intended to apply
upon the
termination of the marriage whenever that occurred. The parties
chose deliberately to be married in community of
property with full
knowledge of the proprietary consequences thereof. However that
of itself is not a reason not to make
and appropriate order in terms
of section 9(1) if the circumstances giving rise to the discretion to
declare a forfeiture exist,
whether in whole or in part.
23.
The
evidence of the parties as to the extent of the assets and
liabilities which they respectively brought into the marriage is
inadequate to enable me to find that the division of the joint estate
will result in a benefit to the defendant, never mind that
any such
benefit will be undue. See
Engelbrecht
v Engelbrecht
1989 (1) SA 597
(C) at
601
E/F to 602 F.
24.
In
this regard as I have already observed the approach of the plaintiff
to forfeiture was limited to an immovable property which
is bonded
and therefore burdened with liabilities, certain movable assets and
his pension fund benefits. No evidence at all
was presented as
to either parties’ other assets and liabilities.
25.
It
follows that is there is equity in the immovable property and it is
excluded from the joint estate by a forfeiture order then
the
defendant could be prejudiced in the division of the remainder of the
estate. All/any liabilities of the parties will
be brought into
account as part of the division of the estate upon the dissolution of
the marriage.
26.
I
am not satisfied that the plaintiff has shown in relation to the
immovable property or the movable items mentioned in the particulars
of claim that if a forfeiture order is not made in the terms sought,
then the defendant will receive a benefit in the course of
the
ordinary division of the estate.
27.
However,
if my view is incorrect and the defendant will receive a benefit,
then I am not satisfied in any event that such benefit
as she will
receive by virtue of the division of the estate according to normal
principles will be undue in the circumstances.
28.
However,
I consider that the plaintiff’s pension fund benefits are on a
different footing to the other specified immovable
and movable assets
referred to above. The accumulated benefits of the plaintiff’s
membership of the SABC pension fund
are earmarked for his
retirement. The plaintiff is 10 years older than the defendant
who had only recently started working
before the marriage. She
accumulated her own pension benefits during the 6 month period of her
employment prior to the marriage.
These she paid to her parents
and did not bring into the community of her marriage as she ought to
have done. The defendant
did not contribute to the plaintiff’s
pension fund in any manner at all and was maintained, however poorly,
by the defendant
until her re-employment during the first half of
2010.
29.
On
the other hand the defendant gave up her job in Cape Town, travelled
to the United States to be with her husband for what turned
out for
her to be a miserable and unhappy four months and from a relationship
point of view apparently has been marking time ever
since.
30.
Upon
a consideration of all the relevant circumstances I am satisfied that
the defendant will benefit unduly in relation to the
plaintiff within
the contemplation of section 9(1) of the Divorce Act if a forfeiture
order is not made in relation to a portion
of the plaintiff’s
pension fund benefits.
31.
In
considering that a forfeiture order is indicated I have had regard to
the relatively short duration of the parties’ marriage.
The other factors referred to in section 9(1) do not arise for
determination, particularly as I am not persuaded of any misconduct
on the part of the plaintiff or defendant or any particular
circumstances other than those I have already mentioned that impact
on the order I propose to make. Quite simply, the parties were
never compatible with one another and ought never to have
married
each other. Even the short period of time they spent together
as man and wife was intolerable for them.
32.
However
I do observe that had it been necessary for me to choose one parties’
version as to the circumstances which gave rise
to the breakdown of
the marriage or as to the other’s misconduct, I unhesitatingly
would have chosen the cogent, consistent
and plausible version of the
defendant over that of the plaintiff. However such a finding
would not have impacted on the
order.
Engelbrecht
v Engelbrecht (supra)
at
602J to 603B.
33.
The
plaintiff’s evidence that the cause of the breakdown of the
marriage was the defendant’s payment to her parents
of her
pension benefits during September 2008 was contrived and improbable.
On the other hand, the defendant’s attempts
at reconciliation
despite what she considered to be the serious misconduct of the
plaintiff in hiding the marriage, not supporting
her adequately,
being emotionally unsupportive and spending considerable time with
friends and associates to her exclusion, particularly
when she was
with him in New York was not seriously placed in issue.
34.
On
the contrary the plaintiff attempted to justify his behaviour towards
the defendant by referring to his discovery in September
2008 that
the defendant, without telling him, had remitted her pension benefits
to her parents. I have already referred to
that above.
The conceded meeting of the parties’ families during mid or
late 2009 lent further credibility to the defendant’s
version.
If the marriage was already over in December 2008 as alleged by the
plaintiff then there was no reason for the parties
families to meet
or for any other attempted reconciliation between the parties.
35.
The
defendant’s complaints about the plaintiff’s behaviour
throughout the relevant period were corroborated not only
by the
plaintiff’s own testimony but also by the bank statements
reflecting erratic maintenance payments.
36.
Finally
the intimately sexual e-mail sent by the plaintiff to TN that was
referred to in evidence raised questions about and cast
serious doubt
upon his reliability as a witness. The plaintiff insisted that
he only ever enjoyed a professional relationship
with N but when
faced with the e-mail was quick to retort that it was dated long
after the marriage broke down. While the
timing of the e-mail
might have excused his relationship with N it did not excuse his
earlier evidence that their relationship
was always and only a
professional one.
37.
The
parties will be partially successful in their respective claims.
The costs probably should be borne by the joint estate.
However
I will order that the parties respectively bear their own costs.
CONCLUSION
In the premises, the
following order is made:
1.
A
decree of divorce is granted;
2.
In
terms of section 9(1) of the Divorce Act 70 of 1970 the defendant
forfeits half of her fifty percent entitlement to share in
the
pension benefits of the plaintiff (member number 06090/00131290XO) in
the SABC pension fund;
3.
The
plaintiff is to pay the defendant twenty five percent of the
plaintiff’s pension benefits in the SABC Pension Fund
(membership
number 06090/00131290XO) calculated as at 10 May 2013 and
payable in terms of section 37D of the Pension Act 24 of 1956,
alternatively
when such benefits accrue to the plaintiff, which
occurs first;
4.
An
endorsement is to be noted against the records of the plaintiff’s
pension fund, which is administered by Sanlam, in respect
of the
orders in 2 and 3 above;
5.
Save
as aforesaid the joint estate is to be divided equally between the
parties;
6.
The
parties shall bear their own costs.
I.
MILTZ
ACTING JUDGE OF THE SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
MR W FREYSEN OF THE FIRM
FREYSEN ATTORNEYS APPEARED FOR THE PLAINTIFF
ADVOCATE C DE
VILLIERS-GOLDING INSTRUCTED BY ATTORNEYS HEYNS & PARTNERS
APPEARED FOR THE DEFENDANT