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[2014] ZAGPJHC 447
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C v C (8937/2013) [2014] ZAGPJHC 447 (12 June 2014)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
8937/2013
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
12
June 2014
In
the matter between:
C,
J Plaintiff
and
C,
N Defendant
JUDGMENT
MABASA
AJ
Introduction
[1]
This is an action for divorce. The Plaintiff (Mrs C.) is a 59 year
old housewife and the Defendant (Mr C.) is a 55 year old
Chartered
Accountant. The parties were married on 7 December 1985, out of
community of property with the exclusion of the accrual
system. The
crisp issue for determination is the quantum of maintenance. The
principle to pay maintenance has been conceded.
[2]
In a Rule 43 application granted on 02 May 2013 by this Court, the
Respondent/Defendant was ordered to:-
2.1.
pay interim maintenance, to the
Applicant/Plaintiff, in the sum of R20, 000.00 per month;
2.2.
retain the Applicant on his medical aid
as well as pay excess medical expenses not amounting to more than
R1000.00 per month;
2.3.
pay the Applicant's short-term insurance
and car maintenance with the maintenance not amounting to more than
R750.00 per month;
2.4.
make contribution to the Applicant's
costs in the sum of R7500.00.
[3]
On the first day of this trial the Defendant submitted a tender
with
prejudice
for the following order:
3.1.
A decree of divorce;
3.2.
The Defendant to pay maintenance to the
Plaintiff in an amount of R20, 000.00 per month;
3.3.
The Defendant to retain the Plaintiff as
a dependent on the medical aid scheme of which she is currently a
member;
3.4.
The Defendant to make a contribution in
an amount not exceeding R150, 000.00 towards the purchase of a
vehicle for the Plaintiff.
This amount is to be paid directly to the
supplier if and when the Plaintiff has purchased another motor
vehicle;
3.5.
The Defendant to make a contribution to
the Plaintiffs legal costs in the amount of R30, 000.00 payable
immediately and directly
to Plaintiff's attorneys of record. This
amount is payable in addition to the contribution made in terms of
the Rule 43 order.
3.6.
Save for the above, each party to pay
his/ her own legal costs and retain assets currently in his/ her
possession and control.
[4]
This offer was rejected by the Plaintiff. The relief sought by the
Plaintiff includes
inter-alia;
4.1
A decree of divorce;
4.2
Monthly maintenance for the Plaintiff
until her death or remarriage in the amount of R25, 000.00;
4.3
The costs of retaining the Plaintiff on
a comprehensive medical aid scheme with chronic illness benefits;
4.4
Payment of the Plaintiffs excess medical
expenses ;
4.5
Payment of an amount
of R2 million for the purchase of
an immovable property;
4.6
Payment of an amount of
R100, 000.00 for the purchase of household
furniture;
4.7
Payment of an amount of R50, 000.00 in
respect of relocation costs;
4.8
Payment of an amount of R200, 000.00 for
the purchase of a motor vehicle;
4.9
Costs of the suit.
FACTUAL
BACKGROUND
[5]
The parties were married to each other in 1985 in Bloemfontein. Two
children were born of the marriage. A 26-year-old son, who
is a
university graduate and employed as a data analyst, as well as a 20-
year-old daughter who is currently a first year actuarial
science
student Wits University . It is common cause that the Defendant has
agreed to support her until becomes self-supporting.
[6]
The Plaintiff has no formal qualifications. Her highest qualification
is a matric certificate. According to her testimony she
commenced her
employment career at Standard Bank in Bloemfontein and worked herself
through the ranks to a managerial position.
The parties purchased a
house in Bloemfontein and the home loan was registered in her name
because of the preferential interest
rate she received as a staff
member of Standard Bank. The Defendant at that stage was responsible
for household expenses such as
buying groceries and paying the
domestic helper. Her father passed away in 1989 and she received an
inheritance of R20, 000.00.
This money was spent on renovating the
house in Bloemfontein.
[7]
During 1995 the parties relocated to Johannesburg. Shortly after the
move to Johannesburg they took a joint decision that the
Plaintiff
should stop working to look after the minor children. This was after
an incident of serious neglect of the younger child
by the domestic
helper.
[8]
During this time both their cars were stolen and they were without
transport whilst waiting for the insurance company to replace
their
cars. It was a very traumatic time for the Plaintiff. She had to do
all the household chores as well as the gardening without
any
domestic assistance. She had to do shopping on foot. She had no
money, no telephone, a two year old baby and a young child
to care
for. She mourned the loss of her job, suffered from insomnia and had
to consult a cardiologist.
[9]
Shortly thereafter she received a lump sum pension payment from her
previous employer, Standard bank in the amount of R186,
000.00. The
parties decided to buy a Toyota Conquest for the Plaintiff. The
Defendant suggested that R180, 000.00 of this money
be paid into the
mortgage bond of their matrimonial home in Hurlingham , Johannesburg.
He
offered to pay her a monthly interest of R2000.00 to cover her
insurance policies. The bond was registered in the name of a
discretional trust, Ruhandri Trust. The trustees of the trust are the
Plaintiff , the Defendant and the Defendant's brother of Willem
Jacobus Coetzee. The beneficiaries are the Plaintiff, the Defendant
and their two children.
[10]
She further testified that the Defendant was very secretive about his
financial affairs. She had no idea what was happening
in the family's
finances. She never saw any of the trust bank statements nor had she
attended any meetings. She signed and initialled
the trust deed and
that was the extent of her involvement in the trust. The Defendant's
financial position was a total secret to
her. He only informed her
that they were very privileged as all their debts were fully paid.
[11]
For the first five years in Johannesburg she did all the household
chores including the gardening by herself. She also took
the minor
children to and from school. She unsuccessfully tried to seek
part-time employment to supplement her income. She enjoyed
sewing and
needle work and got involved in a business venture to do interior
decorating with a friend.
[12]
The Defendant gave her a Samba which is a debit card that she could
only use at stores like Checkers and Game. It had a R5000
limit was
intended for groceries only. The Defendant paid all the other
household expenses. The Plaintiff had to pay for her own
doctors'
consultations and over-the-counter medicine. In order to save money
she bought second hand clothes for the children.
She also made
her own clothes. This card was subsequently recalled by the
Defendant.
[13]
She earned between R3000 and R5000 per month from her part-time
activities. With the money she bought fabric and made curtains
for
the matrimonial home, and as well as other decorative items such as
headboards and bedside lamps. The Defendant did not approve
of her
part-time activities and she says that "he despised it"
[14]
In her view the Defendant did not have a good relationship with the
children. He is a perfectionist with very high standards.
Both the
children are highly intelligent and hard-working. The Defendant
refused to buy computer equipment for their studies and
refused to
allow them Internet access at home. Her son completed his degree in
2012 and is now working as a data analyst. He lives
with the
Defendant. Her daughter passed matric with seven distinctions. She
commenced her studies at Pretoria University and was
awarded a
bursary to study chemical engineering. However, she did not complete
her studies as she struggled to cope without a computer.
She lives
with the Plaintiff
[15]
In 2013 the Plaintiff surrendered her insurance policy to purchase
computer equipment for her daughter. She received R36, 000.00
of
which R10, 000.00 was spent on the computer equipment. The balance
was used to assist her ageing mother who lives in Warden
in the Free
State. Her mother fell and broke her hip and the Plaintiff spent
three months assisting with her care and recuperation.
When she
returned to Johannesburg she had lost her sewing contract.
[16]
She stated that the reasons for their breakdown of the marriage were
that the Defendant started drinking heavily after his
mother passed
away. He had numerous adulterous affairs, which he denies. The living
conditions in the matrimonial home became unbearable
because of the
Defendant's alcohol abuse. She moved out of the matrimonial home and
now lives in a rented flat.
[17]
The Plaintiff is not a healthy person. She testified with regard to
her medical condition that she suffers from high blood
pressure, deep
vein thrombosis, spastic colon, ulcers, osteoporosis in both hips,
cysts on her thyroid glands and disintegrated
discs in her neck. As a
result of her medical problems she had to stop sewing and hanging
curtains. She can no longer sit for long
periods of time as it causes
severe migraines. She is also on medication for depression.
[18]
This has impacted her contract work. For the last three months she
has had no income. She is computer illiterate with no other
skills,
and a limited earning capacity. She has no pension, no savings and no
provision for retirement. She had to borrow R80,
000.00 from family
and friends to institute the divorce proceedings. The Defendant
stopped paying the R2000.00 interest payments.
[19]
She testified about her financial position in great detail. The gist
of it is that the parties are debt free. All their finances
are
controlled by the Defendant whom she describes as a very "stingy"
man. The matrimonial home is held by the trust,
of which both
plaintiff and Defendant and the two major children are the
beneficiaries. The Defendant currently resides in the
matrimonial
home. The Plaintiff wishes to purchase a unit a retirement village to
secure accommodation for herself in later years.
[20]
Industrial psychologist Lisa Roets testified on behalf of the
Plaintiff. The objective of her assessment was to determine the
future employability of the Plaintiff. She confirmed that the
Plaintiff has been unemployed since 1995. She started a business
venture with a friend to make curtains and to do interior decorating.
This was unsuccessful. The Plaintiff is not a healthy person
and it
is unlikely that she will find employment in the open labour market.
Due to her advanced age she is unemployable as she
cannot acquire new
skills. The income she received from her sewing activities was not a
large amount and it is not a stable source
of income. The Plaintiff
does not have formal qualifications. She was simply making curtains
upon order and in the long term this
was not sustainable. This
evidence was not challenged.
[21]
The Defendant is a 55 year old chartered accountant and associate
director at PriceWaterhouseCoopers. He testified that he
has been in
the employment of the same company since 1981. He will be compelled
to retire in approximately 4 years' time at the
age 60. He receives a
net income of approximately R64, 000.00 per month. He also receives
an annual bonus which is the equivalent
of one month salary.
[22]
In his view the marriage broke down simply because the parties grew
apart. Until recently (a month before the trial) there
was still talk
of a possible reconciliation. He conceded that this is no longer
possible and that the marriage has broken down
irretrievably.
However, he still loves his wife and children. He stated that the
Plaintiff was a faithful wife and good mother.
He disagreed that the
Plaintiff's evidence that he did not have a good relationship with
the children. He tried to be involved
in their lives insofar as it
was possible for him.
[23]
He does not dispute the fact that the Plaintiff is a beneficiary of
the trust and that it owes her R180, 000.00. He has full
control and
a veto right as chairman of the trust, which means that he can remove
the Plaintiff as the beneficiary of the trust
at any time.
[24]
The Defendant is a very prudent man. He testified that he was raised
by conservative parents who instilled upon him the value
of saving.
The family never had a lavish lifestyle and he is extremely debt-
adverse. His goal was to invest in his income wisely
to make
provision for his retirement and that of the Plaintiff. As a result
he has built up a sizeable estate which includes several
immovable
properties which are held in trust and closed corporations. All the
family cars are old and have not been replaced in
many years.
[25]
Based upon the Plaintiff's calculations of the Defendant's nett worth
is in the region of R10 million, of which a sizeable
component R2.8
million consists of cash in hand. The Defendant is financially savvy
and has invested his income in such a manner
that he will receive
maximum benefit upon retirement.
The
issues
[26]
The main issue in dispute is the amount of money payable to the
Plaintiff as maintenance.
The
law
[27]
The Plaintiff now turns to this Court to make a determination in
terms of
section 7
(2) of the
Divorce Act 70 of 1979
. This section
stipulates that:
'the court may,
having regard to the existing or prospective means of each of the
parties, the 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,
the conduct in so far 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 one party to
the other party for any period until the death or remarriage of the
party
in whose favour the order is given, whichever event may first
occur.'
The
existing and prospective means of the parties.
[28]
Ms Halgryn for the Plaintiff submitted that the Plaintiff finds
herself penniless after 29 years of marriage to the Defendant.
From
the evidence it is clear that the Plaintiff's financial situation is
dire. She has had no income from her sewing activities
for the last
three months. She is entirely dependent on the maintenance that she
receives from the Defendant. She has no savings,
no investments or
any other form of financial security. This evidence is uncontested.
[29]
The Defendant is a wealthy man. Based on the Plaintiff's calculations
his net asset value is in the region of R10.4 million.
However, the
three immovable properties in which he has an interest are held in
trust or closed corporations. His provident fund
benefit in
the sum of RS 720 644.00 is included in the
calculation. According to his own list of assets
and liabilities he
stated a total of R4.7 million as his total assets. He has no
liabilities and its creditors are negligible.
His cash in hand and
other similar institutions amount to the sum of R2 874 709, 00. His
monthly salary is approximately R64 000.00
nett, and he receives an
annual bonus in the discretion of the company which is the equivalent
of one month's salary.
Their
respective earning capacities
[30]
The Plaintiff has no formal qualifications or training. This sewing
and needlework activity from which she has generated a
meagre income
is more of a hobby than a stable income producing venture. The
industrial psychologist confirmed that the Plaintiff
is unemployable
in the open labour market. She concluded that it is too late for the
Plaintiff to acquire new skills to build a
career that would provide
her with an income from which he could live. She is almost 60 years
old and cannot be expected to learn
new skills, or to be gainfully
employed. Her poor medical condition was not disputed by the
Defendant.
[31]
The Defendant is a highly qualified professional employed as an
associate director at PriceWaterhouseCoopers where his job
involves
Risk Management. He holds a B Compt. Honours degree. He has been
employed by this company for his entire working life.
According to
his testimony he has to retire at the age of 60 years. He is in good
health.
Financial
need and obligations of the parties
[32]
Counsel for the Defendant, Mr Heyneke conceded the Defendant's
obligation and ability to pay maintenance to the Plaintiff.
Each of
the parties provided their own income and expenditure list. According
to the Plaintiffs list, her reasonable monthly
expenses
amounted to R34, 840.00. Mr Heyneke submitted that this list needed
adjustment as some of the expenses were duplicated
or incorrectly
calculated and it included some of her daughter expenses which the
Defendant has agreed to pay. According to him,
the adjusted figures
for the Plaintiff s maintenance needs are an amount of R17, 610.00.
He argued that the Plaintiff will not
only have a surplus but she
will also earn "pocket- money" from sewing. Accordingly the
sum of R20, 000.00 which constitutes
roughly a third of the
Defendant's income is more than reasonable.
Standard
of living of the parties prior to the divorce
[33]
Ms Halgryn submitted that the parties did not live a life of luxury
as a result of the Defendant's miserly attitude. He forced
them to
live a frugal life while his estate flourished to R10 million. He
provided basic necessities such as food and accommodation.
The
age of the parties and the duration of the marriage
[34]
The Plaintiffs 59 years old and the Defendant 55. The parties were
married for 29 years.
Conduct
relevant to the breakdown of the marriage
[35]
Ms Halgryn argued that the conduct of the Defendant such as his
extramarital affairs and excessive drinking, his abusive treatment
of
the Plaintiff, as well as the frugal lifestyle that he forced the
family to live led to the breakdown of the marriage relationship.
The
Defendant did not challenge the Plaintiff's reasons for the breakdown
of the marriage.
Application
of the law
[36]
Ms Halgryn made it clear that the Plaintiff is not seeking a
redistribution of assets in terms of
section 7
(3) of the
Divorce
Act. Instead
she was pleading with this Court to use the very wide
discretion which is conferred upon it by the subsection 7 (2) in
making an
order which is 'just'. Failure to do so will offend the
rights and values of equality and dignity as enshrined in our
Constitution.
Mr Heyneke argued that the Plaintiff's claim for a lump
sum amount is nothing but a transfer of assets which the Plaintiff is
not
entitled to. He conceded, however that lump sum payments are
permissible in law.
[1]
[37]
The Plaintiff assumed the traditional role of homemaker whereas the
Defendant's role was that traditional breadwinner. The
problem with
this gendered division of labour is that it can result in great
inequity if the marriage is terminated after many
years and close to
retirement of the parties. This cannot be in line with our
Constitutional ideals.
[38]
Our Constitution is a value-laden document with one of its ideals the
achievement of a society based on equality.
[2]
The achievement of substantive equality and transformation are
foundational values of the Constitution. Academic writers advance
the
view that substantive equality can be understood as a remedy to
systemic and entrenched inequalities. In this regard Albertyn
argues
that the idea of substantive equality entails 'transformatory'
change.
[3]
[39]
In contemporary South Africa gender equality within marriage and
society generally remains aspirational.
[4]
Our Courts have a duty to remedy disadvantage resulting from social
or historical context. This would necessitate a retreat from
legal
formalism towards a purposive approach in adjudication to ensure
justice and fairness between the parties.
[40]
Former Chief Justice Pius Langa stated that "it is no longer
sufficient for judges to rely on the say-so of parliament
or the
technical readings of legislation as providing justifications for
their decisions. Under a transformative Constitution,
judges bear the
ultimate responsibility to justify their decisions not only by
reference to authority, but by reference to ideas
and values."
[5]
Accordingly, our courts have to embrace transformative
constitutionalism. The judiciary should not only be deeply committed
to
the values of the Constitution but should actively seek to promote
Constitutional values.
[41]
The Plaintiff in this matter made economic and career sacrifices for
the benefit of the marriage, as opposed to the Defendant
who did not
sacrifice his career and retains all the benefits and is now at a
considerable financial advantage. Her inability to
support herself
financially is a direct result of the career sacrifices she made for
the good of the family. Although she performed
the role of the
traditional housewife she made a valuable contribution to the .growth
of the Defendant's estate.
[42]
I am of the view that the Plaintiff demonstrated real need and the
Defendant has conceded his duty and ability to pay. The
Defendant
further conceded the competence of a lump sum payment, in addition
to, monthly maintenance payments, by offering the
Plaintiff an amount
of R150, 000.00 for the purchase of a motor vehicle.
[43]
With regard to her claim for accommodation in a retirement village,
Ido not think it is an unreasonable claim. It is a necessity
not a
luxury. In the
Zwiegelaar
case Scholtz AJ referred to Sinclair
in
The Law Marriage
vol 1 at 443 and stated that the author
"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". Since her claim
for accommodation will be allowed, the claim for medical aid and
excess medical expenses
will be incorporated in the monthly
maintenance payment, as the rent component will fall away.
[44]
The Plaintiff conceded that the R100, 000.00 claim for purchase of
household furniture is no longer accurate, and that an amount
of
R30,000 should be sufficient. For relocation costs the Plaintiff
reduced her claim from R30, 000 to R20, 000.
[45]
With regard to costs Ms Halgryn argued that the Defendant was not
prepared to concede that the Plaintiff is unemployable. Therefore
the
evidence by the industrial psychologist was justified and necessary.
[46]
In conclusion I am satisfied that the Plaintiff established a claim
within the parameters of the provisions of
section 7
(2) of the
Divorce Act. The
amount to be awarded is aimed to do justice between
the parties having regard to all the factors considered. as well as
the constitutional
requirements of justice and equity.
[47]
In the result to make the following order:
1.
A decree of divorce is granted;
2.
The Defendant is to pay monthly
maintenance for the Plaintiff until her death or remarriage in the
amount of R20, 000.00;
3.
The Defendant is to pay an amount of
R1.5 million to the Plaintiff for the purchase of an immovable
property;
4.
The Defendant is to pay an amount of
R30, 000.00 to the Plaintiff for the payment of household furniture;
5.
The Defendant is to pay an amount of
R20, 000 to the Plaintiff for relocation costs;
6.
The Defendant's is to pay an amount of
R200, 000.00 to the Plaintiff of the purchase of a motor vehicle;
7.
Costs of this suit, including the costs
of the Plaintiff's expert, the industrial psychologist.
_______________________
MABASA
AJ
ACTING
JUDGE OF THE HIGH COURT OFSOUTH AFRICA
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Counsel
for the Plaintiff:Adv T. Halgryn
Instructed
by: Karin Davis-Hannibal
Counsel
for the Defendant: Adv E. Heyneke
Instructed
by: Gerhard Botha Attorneys
Date
of Hearing: 02 June 2014
Date
of Judgment: 12 June 2014
[1]
Zwiegelaar v Zwiegelaar
2001 (1) SA 1208
(SCA).
[2]
See the preamble and
s 1of
the Constitution.
[3]
Catherine Albertyn 'Substantive Equality and Transformation in South
Africa' (2007) 23 SAJHR 257.
[4]
Amanda Barratt 'Whatever Iaquire will be mine and mine alone':
Marital agreements not to share in constitutional South Africa
2013
SALJ 688.
[5]
Chief Justice Pius Langa 'Transformative Constitutionalism' STELL LR
2006 3 at 353.