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[2014] ZAGPJHC 328
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V v V (10/13906) [2014] ZAGPJHC 328 (2 April 2014)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 10/13906
DATE:
02 APRIL 2014
In the matter
between:
[V…………….,
J…………
J……………….]
...................................
Plaintiff
And
[V…………,
M………… J………….
E…..]
................................
Defendant
J U
D G M E N T
MAKUME, J:
[1] The parties in
this divorce action were married to each other on the 11th June 1994
out of community of property with the inclusion
of the accrual
system.
[2] There are two
children born out of that marriage namely:
2.1 H…. M…..
V….. born on the 14th March 1995 (also known as Sean).
2.2 D……
V….. born on the 16th July 2005 (“D….”).
[3] The eldest
child S….. is now a major. Both children presently live with
the plaintiff. A draft order has been submitted
by the parties in
respect of and pertaining to the minor child been D…... In
terms of that draft order the following has
been resolved and agreed
upon and will be made an order of court simultaneously with the
judgment in the main action. The order
reads as follows:
3.1 Both parties
shall have joint parental rights and responsibilities pertaining to
D….. V….. as contemplated in
terms of section 18(3) of
the Children’s Act.
3.2 Primary
residence of D…… V……. shall rest with the
plaintiff subject to the defendant’s rights
or reasonable
contact which shall include the following:
3.2.1 The right to
have the minor child with her on alternative weekends, alternative
short school holidays and half of long school
holidays.
3.2.2 Reasonable
telephonic contact.
3.2.3 The rights to
have the minor child on her birthday.
3.3 The defendant
may approach the court for a variation of the above order at any
given time.
[4] It is common
cause that the parties’ marriage has broken down irretrievably.
The plaintiff in his particulars of claim
as well as the defendant
in her counterclaim both asked for a decree of divorce. The
plaintiff has asked for an order that the
right of the defendant to
share in the accrual of the plaintiff’s estate be forfeited
whilst the defendant requires that
an order be made entitling her to
share in the accrual of the plaintiff’s estate in accordance
with Chapter 1 of Act 88 of
1984.
[5] Furthermore the
defendant claims maintenance for herself in the amount of R11 500,00
per month as well as that the plaintiff
keep her on a medical aid by
paying premiums for same.
[6] The plaintiff
testified that when she met the defendant back in Volksrust the
defendant was a student nurse at a hospital in
Paardekraal. After
their marriage it became difficult for her to commute daily to the
college which was 60 km away. She then stopped
her nursing career.
[7] Shortly after
their marriage the couple moved to Krugersdorp then to Ellisras at
which place the defendant worked between 09h30
to 13h30. She worked
for the same company where the plaintiff worked. She left because
she had to undergo a back operation.
[8] In the year 2004
the contract on which the plaintiff had been employed at Ellisras
came to an end and they relocated back to
Krugersdorp. When they
were back at Krugersdorp the defendant told him that she wishes that
they should go back to Volksrust as
nobody in Krugersdorp wants to be
her friend.
IN ISSUE
[9] It is evident
from the pleadings and the evidence led in the matter that this Court
is required to adjudicate on two issues
namely:
9.1 Plaintiff’s
claim for forfeiture of benefits arising from the accrual system.
9.2 The defendant’s
claim for spousal maintenance including a claim to be retained on
plaintiff’s medical aid.
FACTUAL BACKGROUND
ISSUES
[10] It is necessary
to set out a brief narrative of certain facts and circumstances
giving rise to the litigation which bear on
the questions to be
decided in this matter as they emerge from the pleadings and
evidence.
[11] The plaintiff
is a qualified Control and Instrumentation Engineer. He has worked
in this capacity for various companies and
received training in
Germany. He is presently in the employment of DRA Mineral Projects
(Pty) Ltd in Sunninghill, Johannesburg.
[12] The defendant
holds no qualification and is presently unemployed and has for a
large part of her marriage been a housewife.
She suffers from a
multitude of health problems ranging from depression to
osteo-arthritis in her cartilage for which she has
received medical
treatment.
[13] During or about
2008 the defendant started a relationship with a Ms Retha van Aswegen
(“Retha”) which relationship
the plaintiff says is
intimate in that the defendant and the said Retha are in a lesbian
relationship. The defendant denies this
vehemently and says that
Retha is just a friend to whom she relies for comfort during her bad
times with the plaintiff. The plaintiff
maintains and testified that
Retha is the cause of all the problems that have led to their
divorce.
[14] The defendant’s
relationship with Retha is so peculiar that the defendant went to the
extent of tattooing Retha’s
name on her neck despite the
plaintiff’s protest and disapproval thereof. Initially to hide
that she had the name Retha
tattooed she had it done in Chinese sign
language.
[15] As if that was
not sufficient three months after she had the neck tattoo the
defendant had another tattoo done under her eyes.
It was a Star
tattoo. The tattoos were done by one Chris Koch whose role in this
divorce action would be dealt with later.
[16] The defendant
and Retha commenced their relationship in the year 2008. They
studied nursing together. Retha is now a qualified
nurse and is in
full-time employment at Bell Hospital in Krugersdorp. The plaintiff
complained about the defendant spending more
time with Retha which
started off with one night or weekends away at Retha’s place
and later the defendant would spend a
whole week staying with Retha
and when the plaintiff questioned this defendant would tell him that
they went out on ladies night.
On a certain day a doctor asked the
plaintiff if the defendant was lesbian whereupon he said he does not
know.
[17] One weekend the
plaintiff took the defendant and their two children to a weekend
camping. The defendant insisted on bringing
Retha along against
plaintiff’s wishes and whilst there the defendant and Retha
slept in one room on the same bed whilst
the plaintiff slept with the
two boys. At one stage whilst there plaintiff found defendant and
Retha kissing each other. This
must have surely convinced him that
the defendant was in an intimate lesbian relationship with Retha.
[18] When the
plaintiff objected to the plaintiff spending more time with Retha
than with her family this led to fights between
them. The defendant
would arrive home back from visiting Retha at 03h00 and when asked to
explain defendant told plaintiff not
to treat her like a child.
[19] The plaintiff
testified that the defendant was wasteful with money to the extent
that she overspent the credit limit on their
joint credit card and as
a result the plaintiff dispossessed her of the use of the credit
card. The defendant spent time at the
local casino gambling, she used
a lot of money on cosmetics and other medicines to keep herself slim
and thin. She also did three
boob operations.
[20] After the birth
of their second child the defendant insisted on doing a tummy tuck
operation as well as liposuction for which
the plaintiff paid.
[21] In her
testimony the defendant told the court about her sexual life with the
plaintiff which she says was forced on her by
the plaintiff. This
included oral and anal sex for which the defendant told court she
agreed to because then the plaintiff would
give her extra money for
the special treat. The plaintiff vehemently denied this except that
he admitted having had oral sex only
on two occasion during 2006/2007
with the defendant and says it was with the defendant’s
consent.
[22] The defendant
continued to testify that the plaintiff on several occasions insisted
on having anal sex with her which caused
her to bleed and cry. She
says that this conduct annihilated and embarrassed her. She only did
it for the sake of money. She
says that on numerous occasions the
plaintiff raped her.
[23] The plaintiff
conceded under cross-examination that he is fond of oral sex and
confirmed that whenever the defendant offered
him that he used to
give her R500,00 as he knew that defendant loved gambling it was her
extramural activity. He testified further
that although the parties
argued a lot there was seldom any violence involved save on one
occasion when the defendant was drunk
and they slapped each other
whereupon the defendant fell off from a chair.
[24] It was put to
the plaintiff that the defendant is not in a position to take up
employment because of her epilepsy. The plaintiff
disputed this and
said that the defendant takes medication and that her epilepsy is
under control, that there are a number of people
with that condition
who are in employment. The plaintiff testified that the defendant is
lazy and does not want to work. She
always wakes up late as a result
the child Dean was always late for school.
[25] The plaintiff
set out his financial position and told the court that he inherited
R330 000 from his late father’s estate
which money he used to
pay off the bond on the house as well as the bakkie that the
defendant was using. He also paid other debts.
After he had paid off
the bakkie the defendant sold it and purchased a 2.7 double cam
Toyota Hilux bakkie.
[26] The plaintiff
produced his payslip for the month of December 2013 which indicated
his net salary for that month as R70 373,85.
His monthly expenses as
set out on page 173 of Bundle 5 for the period November to December
2013 shows that he spent R61 617,16
per month and is left with an
amount of ± R15 000 per month surplus. He has built a cottage
for his eldest son this cost
him about R150 000. He did this because
his eldest son wants his own time and he is growing to become
independent.
[27] The value of
plaintiff’s policies and investments amount to ± R4,7
million as set out in the documents. The plaintiff
testified that
the defendant did not contribute anything towards the building up of
his assets and therefore she should not benefit
from any accrual. The
defendant argues that it is the plaintiff who told her not to work
and to look after the children and the
household and therefore her
contribution to the built up of the plaintiff’s estate is that
she remained home growing up the
children and looking after the
house.
[28] Under
cross-examination the plaintiff said that when he realised that the
only nursing training facility was far from the defendant
to continue
training as a nurse he told her to stop as at that time his employers
was looking after them adequately. He did not
see any necessity for
the defendant to work. At times the defendant did help in their
office at his place of employment in Volksrust.
[29] When he left
employment at Volksrust he transferred his accumulated pension
benefits to a new fund known as Coronation. He
went for training in
Germany as well as in Sweden. The defendant did come with her and
they also visited France.
[30] When he came
back from overseas he worked at various power stations namely Arnot
in Middelburg and Kusile as well as Matimba
Power Station. At that
time the defendant remained in Krugersdorp where he had purchased a
home. He used to come home once a
month. It was during that time
when he was working at Thathuka Power Station in Standerton when her
youngest son D………….
was born in the year
2005.
[31] It was put to
him that the defendant had to stay home to look after the children
hence she did not work. The plaintiff replied
that if the defendant
had taken up employment he would then have had to make arrangements
that the children go to an aftercare.
[32] He gave the
defendant a debit card to use to make household purchases and
deposited therein on a monthly basis an amount of
± R8 000.
He and the defendant made bulk purchases at Makro for which he paid
out of his cheque account.
[33] He also paid
for water and lights. He conceded that he was very strict with water
usage as there were water restrictions applied
in Volksrust but not
in Krugersdorp.
[34] The plaintiff
further conceded that the defendant does have a back problem and a
slip disc and has constant pain. However,
he maintains that the
defendant is under medication. He denied that the defendant cannot
sit or stand for a long time because
of her back problem.
[35] The court
observed the defendant as she sat in court during the first two days
when the plaintiff testified and when it was
her turn to testify she
did so standing the whole day and did not take a seat. In further
cross-examination about the health problem
of the defendant the
plaintiff denied that the defendant was not in good health. He says
she is on medication which is helping
her to cope.
[36] His evidence is
that his marriage relationship started deteriorating in July 2007
when Retha van Aswegen came into the life
of the defendant. He says
he did not consider a divorce at that time because he had a family to
look after and keep together.
[37] He conceded
that he could have told one Christina Botha who is a friend of the
defendant after she was discharged from the
hospital that he wants to
get rid of the defendant.
[38] When they were
at the camp Retha and the defendant shared a bed. They seldom sat
together with the rest of the family for
meals. Retha and the
defendant were always together. It was put to him that Retha was
assisting the defendant because the defendant
was not well. The
plaintiff disputed this.
[39] He repeated
under cross-examination that Retha and the defendant had their
so-called Girls weekend out every month and during
one weekend they
spent the whole weekend gambling at the casino.
[40] He testified
about an incident when the defendant told him that their eldest son
Sean was being aggressive to her. The plaintiff
reprimanded S….
telling him that he will stay with the defendant for the rest of his
life and if S….. does not want
to tow the line then he must
leave the house.
[41] He testified
further that the defendant knew about his policies because whenever
his financial advisor was there they would
all sit together and
listen when he explained his portfolio. The defendant once said to
him it is boring stuff.
[42] It was put to
him that the defendant would testify that plaintiff used to force her
at least three to four times per month
to have anal sex with her.
This the plaintiff vehemently denied as being lies. He admitted that
it only happened twice on the
bed. He denied that as a result of
that she was injured and had to walk to hospital to receive
treatment. The plaintiff questioned
why if that happened did she not
report this to Retha who is her best friend and works at the
hospital.
[43] The plaintiff
conceded that he watches pornography on TV but never in the presence
of the children. The defendant did a breast
operation to make her
breast bigger because he told her friend that she likes it that way
and not because of him.
[44] It was put to
the plaintiff that because of all her frustration caused by the
plaintiff’s unusual sex demands that the
defendant started
using alcohol. The plaintiff denied this and said the defendant had
long started drinking and that she does
finish a bottle of Whisky per
day.
[45] The defendant
went for a job interview at a massage parlour and before she went
there the plaintiff says she told him that
type of work is likely to
involve sexual activities. It was put to the plaintiff that he told
the defendant to accept the job.
The plaintiff denied this.
[46] On the 23rd
December 2009 the plaintiff gave the defendant an amount of R1 000 to
buy herself something to please herself.
The defendant instead went
to the tattoo shop of Chris Koch where she had a tattoo done on her
neck. This the defendant did despite
objection from the plaintiff
who told her he does not like tattoos.
[47] It was on this
day the 23rd December 2009 that according to the defendant the plan
to kill the plaintiff was hatched. According
to the defendant’s
testimony a certain Sarah who is Chris Koch’s wife planted the
seed in her to fix up a “troublesome”
husband. She says
she initially did not like the idea but succumbed later because of
pressure and threats from Chris Koch.
THE EVENTS OF THE
14TH FEBRUARY 2010
[48] The parties
were not living a happy marriage. This is common cause however it is
clear that they were just tolerating each
other. The plaintiff was
suspicious of the defendant’s infidelity because of her
relationship with Retha. On the other
hand the defendant depicted a
picture of an unhappy wife deprived of all the love and yet subjected
to humiliation and unnatural
sexual acts.
[49] It is common
cause that what happened on the 14th February 2010 was the final
straw that broke the camel’s neck. The
plaintiff says that it
is what happened on that day that convinced him that his marriage had
broken down. The 14th February each
year is internationally
celebrated as a day when people who are in love with each other
exchange gifts and cards with messages
in which they express love to
each other. However with the plaintiff it was not to be that type of
day.
[50] It is not in
dispute that in the morning of the 14th of February 2010 which fell
on a Sunday the defendant left home to visit
Retha. It so happens
that this day also marks the birthday of Retha.
[51] The defendant
spent the whole day at Retha’s place from 09h00 to about 17h00.
She returned home according to the plaintiff
she did not look happy
and started shouting about dirty dishes. The plaintiff had spent the
whole day at his home with the couple’s
two minor children.
[52] At about 20h00
the defendant left the house again saying that she was driving to a
nearby Shell garage to buy cigarettes.
She was driving her bakkie.
According to the plaintiff said Shell garage is about 15 minutes walk
to and from their home. At about
20h45 the defendant had not
returned and when he phoned her to find out where she was the
defendant told her that she could not
find the cigarette that she
wants at that Shell garage and had thus proceeded to another garage
further on. The plaintiff told
her that he does not believe her and
said he thinks she is with Retha again.
[53] The plaintiff
phoned again some thirty minutes later to find out where she was
whereupon the defendant did not answer her phone.
The plaintiff
decided to go and lie on his bed and watch television. Shortly
thereafter he heard the dog barking. He was watching
television in
the main bedroom with Sean whilst Dean son was playing TV games in
the lounge.
[54] The defendant
entered the main bedroom followed by two unknown men one of whom had
his hand on the shoulder of the defendant.
At first the plaintiff
thought this must be a hijack or a home robbery when the defendant
said in Afrikaans “Ek is jammer,
ek is jammer”.
[55] The two men
were Chris Koch and Heinrich Kraft. One of the men said “Vandag
gaan jy sterf en vrek jou donder”.
The plaintiff raised his
hands in a form of surrender and pleaded with the two men not to hurt
his family and to take whatever
they wanted in the house. He was hit
with a fist and sprayed with water on his face.
[56] The one man
later to be known as Heinrich Kraft stabbed him with a knife on his
body. He sustained about 13 stab wounds on
his neck and his body. All
this happened in the presence of the defendant and the minor child
Sean. He was bleeding from the face.
Chris Koch said to the eldest
son “Jou pappie is besig om dood te bloei”. Sean fought
with Chris Koch whilst the plaintiff
grabbed Heinrich Kraft, kicked
him and strangled him. The two assailants managed to get out of the
house and fled the scene. The
plaintiff took out his firearm and shot
outside from the window of the house. This drew the attention of
their neighbours.
[57] An ambulance
was summoned and the police also called. Chris Koch and Heinrich
Kraft were arrested about 30 minutes later not
far from the house of
the plaintiff. The plaintiff was taken to hospital. The defendant
did not accompany him to hospital neither
did she visit him. She
decided to go and spend the balance of the night with Retha and later
booked herself in at hospital for
depression.
[58] It appeared
that during the gruesome attack on the plaintiff the defendant stood
by and did not trigger the panic button nor
did she try and get help
from the neighbours or even phone the police.
[59] It is common
knowledge that the defendant stood trial as the third accused with
Chris Koch and Heinrich Kraft and all three
were convicted of
attempted murder in the Krugersdorp Regional Court during 2012. At
the time of the hearing of this matter sentence
had not as yet been
passed on all three.
[60] The learned
magistrate in his judgment found as follows at page 435:
“It is quite
clear that there was an agreement or arrangement or a conversation
that took place prior to the date of the assault
on Mr Vermaak
initiated by accused 3 with regard to the killing of her husband. It
is quite clear that this witness after having
conversation in this
regard proceeded to assist Ms Vermaak in the furtherance of the
offence on the day concerned.”
[61] This clearly
was a contract murder initiated by the defendant to kill the
plaintiff because of what she says was the abuse
on her by the
plaintiff.
EVENTS POST THE 14TH
FEBRUARY 2010
[62] The events
following upon the savage attack on the plaintiff are worth
mentioning for they have a bearing on this judgment.
[63] Shortly after
the attack and whilst the plaintiff was in hospital the defendant
made a sworn statement to the police at 23h00
on that day in which
she told the police that she was hijacked by two white male persons
who drove with her to her house where
they proceeded to assault and
attack the plaintiff as already explained. Two days later on the 16th
February 2010 she made a second
statement which was completely
different from her first statement.
[64] In her second
statement she no longer said anything about the hijack but that in
fact Chris Koch whom she had come to know
in December 2009 called her
to fetch him and later forced her to take him and Heinrich to the
common home where they proceeded
to attack the plaintiff in the
manner already explained above.
[65] Whilst the
plaintiff was still being treated in hospital the defendant who never
even on a single day paid plaintiff a visit
telephoned him to tell
him that she had sourced the services of a good lawyer who needs to
be paid R10 000 to help the plaintiff
about the firing of the shots.
The plaintiff told her that he does not need or require the services
of a lawyer.
EVALUATION OF
EVIDENCE
[66] It is clear
that the plaintiff and the defendant had a strange sexual life. I
say this because the plaintiff admits to watching
pornography and
also admitted that once or twice he and the defendant engaged in anal
sex. He says it was by consent. The defendant
says she was
compelled to do it for the sake of money and when she could no longer
carry on with this she decided to get rid of
the plaintiff. Their
private bedroom life and happenings will forever remain known only by
the two of them.
[67] The plaintiff
as compared to the defendant was open and honest with their sexual
life. On the other hand the defendant exaggerated
what used to happen
to her and yet she took no steps to get help. It is strange that she
did not deem it necessary to confide
in her closest friend Retha
about what she described as anal rape on her by the plaintiff.
[68] The defendant
would like this Court to believe that she decided to have her husband
killed because of the bedroom abuse when
she could have simply laid
criminal charges against him or at worst simply walk out of their
marriage and divorce the plaintiff.
[69] The defendant
lied to the police about the happenings of the 14th February 2010
unbeknown to her her co-accused had decided
to tell the truth namely
that they were hired assassins. When she left the home at 20h00
she said to the plaintiff that she
was going to buy cigarettes when
she knew very well that she was going to fetch Chris and Heinrich to
do her dirty work.
[70] She did not
care if her children were around or not all she wanted to see is the
plaintiff dying. There is evidence that her
eldest son does not want
to see or speak to her. He is growing up as an angry young man due
to what he experienced. I have no
doubt that even the youngest son
is traumatised.
[71] I have no
hesitation in finding that the reasons behind the decision to kill
the plaintiff were not the alleged sexual abuse
and harassment it was
all about money. She knew that she stands to benefit close to R4
million had the plaintiff died subject of
course to her not being
implicated in the killing. She had promised Chris and Heinrich money
from the proceeds of the life insurance
policies of the plaintiff and
his other investments. Where else would she have got the money to
pay the killers because she was
unemployed. It could only have been
from the plaintiff’s estate.
THE FACTS APPLIED TO
THE LAW
Forfeiture of the
benefits
[72] It is trite law
that in answering the issues in this matter this Court is guided by
the provisions of the
Matrimonial Property Act No 88 of 1984
as well
as the Divorce Act.
[73]
Section 3
of
the
Matrimonial Property Act reads
as follows:
“At the
dissolution of a marriage subject to the accrual system by divorce or
by death of one or both of the spouses the spouse
whose estate shows
no accrual or a smaller accrual than the estate of the other spouse
or his estate if he is deceased acquires
a claim against the other
spouse or his estate for an amount equal to half of the difference
between the accrual of the respective
estates of the spouses.”
[74] The plaintiff
has been employed since the date of marriage and his estate has
increased considerably from the amount of R73
000 when the
antenuptial contract was signed. It is now estimated at well over R7
million. The defendant has not been employed
and during the few
occasions that she was there is no evidence of her building up on her
assets which stood at R37 000 when they
married.
[75] It is the
accrual portion of the plaintiff’s estate to which the
defendant pleads that she is entitled to fifty percent
thereof as at
date of divorce. She bases her claim on the fact that she has been a
good wife all along despite what happened on
the 14th February 2010.
She also says that she looked after the children and raised them
whilst the plaintiff was working and
building up his estate.
[76] The plaintiff
relies on section 9(1) of the Divorce Act which reads as follows:
“When a decree
of divorce is granted on the grounds of the irretrievable breakdown
of the 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 the 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.”
[77] The plaintiff
pleads that the breakdown of the marriage was substantially as a
result of the criminal deeds of the defendant
who hired people to
kill him and for that the plaintiff prays that the defendant will be
unduly benefited if it be ordered that
she acquires a share in the
accrual of the estate.
[78] The factors
which the courts have in the past taken into account when deciding
whether or not a forfeiture order should be
made under section 9(1)
are the duration of the marriage, the circumstances which gave rise
to the breakdown, and any substantial
misconduct on the part of
either of the spouses.
[79] In the matter
of Singh v Singh 1983 (1) SA (CPD) 781 the court decided that the
wife’s misconduct with another man amounted
to substantial
misconduct and outweighed the fact that the marriage had lasted 20
years. In the present matter the defendant’s
intimate
relationship with Retha does not seem to be substantial misconduct on
its own for despite knowing of it the plaintiff
continued with the
marriage since 2008. He says he just decided to ignore the existence
of the relationship.
[80] However it is
this strange relationship that led to the events of the 14th February
2010. The defendant came to know Chris
Koch through her association
with Retha. She went to Chris to tattoo Retha’s name on her
neck. The learned writer Hahlo
and Sinclair in the book “The
Reform of the South African Law of Divorce” published in 1980
writes as follows:
“The Divorce
Act revolutionizes the South African law of divorce by replacing
fault with failure, matrimonial offence with
marriage breakdown as
the main ground of divorce.”
[81] The parties in
this matter have been married for 16 years when the plaintiff decided
to sue for a divorce. In his particulars
of claim he cites the final
cause of the breakdown as the brutal attack on him on the 14th
February 2010 by two men who had been
hired by the defendant. I
regard this cause of the breakdown as substantial which justifies a
forfeiture order.
[82] Section 9(1) is
couched in terms such as that not only does it give the trial court a
discretion whether or not to order forfeiture
it also says that
forfeiture may be either wholly or in part and largely there must be
proof that the guilty party will be unduly
benefited if forfeiture of
the benefits is not ordered. .
[83] The marriage of
the parties was to a certain extent happy until about 2007/2008 when
the defendant commenced the relationship
with Retha. This
relationship has all the elements of infidelity. Retha sat in court
throughout the hearing and was never called
as a witness to
corroborate the defendant’s denial of their relationship being
an innocent one based on support for each
other.
[84] It is common
knowledge that the plaintiff has done well for himself since the
marriage. On the other hand the defendant has
done little to
establish her contribution save to say that she looked after the
children and kept the home.
[85] At page 791C-F
in the matter of Singh v Singh supra Baker J in dealing with the
adultery aspect committed by the defendant
which was the cause of the
breakdown of the marriage said the following:
“I intend to
order forfeiture because the defendant’s misconduct with Bennet
was ‘substantial’ in my opinion
and outweighs the fact
that the duration of the marriage was 20 years. The third
consideration enjoined upon the court, namely
the circumstances which
gave rise to the breakdown involves fault and responsibility. It
overlaps the misconduct factor insofar
as the adultery and desertion
are concerned and is neutral insofar as the quarrelling, arguing and
recrimination are concerned,
for I consider the blame for this should
be apportioned 50/50. I consider that division would unduly benefit
defendant and she
is not in my opinion entitled to it. I do however
consider that she is entitled to salvage something from the wreck of
her marriage,
even though she is largely responsible for it.”
[86]In his affidavit
in support of his counter-application in the Rule 43(6) application
dated the 19th November 2013 the plaintiff
at paragraphs 18 and 20
thereof says the following:
“18. We are
married out of community of property with the accrual system and if
the applicant had decided that she was not
happy in our marriage she
could simply have approached her attorney or another attorney to
institute a divorce action. In that
instance she would have received
approximately at that stage R1,5 million being her share of the
accrual in my estate.
20.Simply put for
divorce purposes I was worth R1,5 million but if I was dead I would
have been worth R7 million.”
[87] Having
considered all the relevant factors required to be applied in
accordance with section 9(1) of the Divorce Act I have
come to the
conclusion that the defendant should be entitled to a portion of the
R1,5 million that represented accrual to the estate
of the plaintiff
prior to the events of the 14th February 2010.
[88] I accordingly
order that the defendant receive a cash amount of R750 000 from the
plaintiff as well as to keep the Double Cam
Toyota Hilux bakkie which
is hers.
MAINTENANCE AND
MEDICAL AID
[89] Section 7(2) of
the Divorce Act provides that in the absence of a consent paper in
respect of maintenance of the spouses by
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 insofar as it may be relevant to the breakdown of the
marriage 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 death or re-marriage of the party in whose
favour the order is given whichever
event may first occur.
[90] In terms of
section 9(1) of the Divorce Act the misconduct relevant to the
breakdown of the marriage must be “substantial
misconduct”
but under section 7(2) that misconduct can be any conduct which has
caused or contributed to the breakdown of
the marriage.
[91] The writers
Hahlo and Sinclair (supra) cited the English decision of Wachtel v
Wachtel
[1973] EWCA Civ 10
;
(1973) 1 All ER 829
at 836 per Lord Denning wherein he says
the following:
“There will no
doubt be a residue of cases where the conduct of one of the parties
is in the Judge’s words ‘both
obvious and gross’ so
much so that to order one party to support another whose conduct
falls into this category is repugnant
to anyone’s sense of
justice. In such a case the court remains free to decline to afford
financial support or to reduce the
support which it would otherwise
have ordered.”
[92] In the present
matter the parties’ standard of living was not lavish. On the
other hand there is evidence that the defendant
is hooked on gambling
at casinos using the same money given to her by the plaintiff. She
planned the killing of her husband over
a long period. She knew that
after the death of her husband she stood to benefit financially. The
killing was not aimed at getting
rid of an abuser as she wanted this
Court to believe it was for monetary benefit.
[93] The defendant
has also over-exaggerated her health condition. I do not believe
that she is unemployable. She is still young
at the age of 43 she
can still find suitable employment and fend for herself. In any case
she has been living with her present
lover Retha who is in full-time
employment. She has in a manner “remarried”. I do not
consider that defendant ought
to receive maintenance from the
plaintiff nor is she entitled to benefit from the medical aid fund of
the plaintiff.
[94] Similarly I do
not agree that the defendant is entitled to any medical aid benefits
funded by the plaintiff not under the present
circumstances. She can
with the R750 000 that she will receive purchase for herself an
affordable hospital or medical plan.
[95] The order that
I make is as follows:
1.A decree of
divorce is granted.
2.The plaintiff and
defendant shall have joint parental rights and responsibilities to
the minor child Dean Vermaak as contemplated
in section 18(3) of the
Children’s Act.
3.Primary residence
of Dean Vermaak shall rest with the plaintiff subject to the
defendant’s rights of reasonable contact
with the minor child:
3.1 The right to
have the minor child with her on alternative weekends, alternative
short school holidays and half of long school
holidays;
3.2 Reasonable
telephonic contact;
3.3 The right to
have the minor child on her birthday.
4. The defendant may
approach the court for a variation of the above order at any given
time.
5. The defendant
will forfeit the benefits accruing from the marriage. Plaintiff will
pay to the defendant an amount of R750 000
(Seven Hundred and Fifty
Thousand Rand) being half of what had accrued to the estate prior to
the 14th February 2010.
6. The defendant’s
claims in reconvention are dismissed.
7. Each party will
pay own costs.
M A MAKUME
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
PLAINTIFF’S
COUNSEL E S HEYNEKE
INSTRUCTED BY EMIL
BIHL ATTORNEYS
16 Duiker
Street
Rant en Dal
Krugersdorp
Tel: (011)
660-9187
DEFENDANT’S
COUNSEL I M LINDEQUE
INSTRUCTED
BY BREYTENBACH MOSTERT SKOSANA INC
25 Owl Street
Braamfontein
Yard
Tel: (011)
726-7222
DATE OF HEARING:
14TH to 19TH FEBRUARY 2014
JUDGMENT HANDED
DOWN: 2nd APRIL 2014