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[2015] ZAGPJHC 346
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M v M and Another (2005/8128) [2015] ZAGPJHC 346 (27 March 2015)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2005/8128
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
27/3/2015
In
the matter between:
JEM
(BORN
DAVIS)
Plaintiff
and
DSM
First Defendant
STATTON,
FIONA
ROSE
Second Defendant
JUDGMENT
WINDELL
J
:
Introduction
[1]
The plaintiff and first
defendant were married to each other on 16 April 1977 out of
community
of property by Antenuptial Contract.
[2]
All aspects pertaining to the
disputes between the parties were disposed of previously
bar two,
namely, maintenance and damages for alienation of affection.
[3]
This matter was allocated to me
for hearing at roll call on the morning of 5 February 2015.
I was
informed later on in chambers that the plaintiff had abandoned her
claim for damages for alienation of affection against
the second
defendant. Evidence was led and the parties presented me with oral
argument and on request delivered heads of argument
as well as other
documents that could be of assistance to the court.
[4]
This judgment therefore deals
with the one outstanding issue, namely maintenance.
Factual
Background
[5]
The plaintiff was the second
eldest of five children who enjoyed an idyllic childhood.
On the
brink of adulthood, the marriage relationship between the plaintiff’s
parents ended abruptly.
[6]
The family home was sold and the
plaintiff together with her siblings and mother moved
into other
accommodation. In austere circumstances, the plaintiff and her eldest
brother contributed financially towards maintaining
the household.
[7]
The plaintiff met and fell in
love with the first defendant as an aspirant second-year
student at
university. The plaintiff and first defendant completed their medical
studies and qualified as medical doctors. Shortly
afterwards, as
young adults, they got married.
[8]
Early married life was blissful
despite the fact that the plaintiff and first defendant
received
meagre wages working as Interns. Attempts by the plaintiff to
conceive a child over a six year period were unsuccessful
until a
daughter was finally born out of the marriage.
[9]
Around the time of their
daughter’s birth, the plaintiff had just qualified as a

specialist. The plaintiff was primarily responsible for caring for
the young infant. After a six week period after their daughter
was
born, the plaintiff returned to work on a part-time basis. During the
week, she divided her day in order to attend to her professional
and
personal responsibilities: mornings were spent at home caring for
their daughter; in the afternoons, the plaintiff would be
at her
place of work for two and a half hours.
[10]
Further attempts to grow their family failed even
though the family unit relocated to move closer to a facility
that
offered superior infertility treatment to the plaintiff.
[11]
At around this time, the plaintiff was approached
by a firm with an offer of employment specifically in
the plaintiff’s
field of medical expertise. The plaintiff accepted the offer of
employment as their daughter was due to start
attending pre-primary
school during the mornings enabling the plaintiff to spend afternoons
with their daughter.
[12]
This arrangement continued for a period of four
years until the plaintiff decided to return to university
in order to
obtain a science degree in genetics. The plaintiff obtained the
requisite permission to have the prescribed minimum
time period to
complete the degree condoned from four years to a year. The plaintiff
successfully completed her studies and obtained
the further
qualification. The intense and demanding nature of her studies,
however, proved time consuming and taxing on the plaintiff.
So
gruelling were the demands made on the plaintiff during this time
that she declined to return to work when requested to do so
by her
employer.
[13]
The first defendant completed his military service
between 1977 and 1978. He started practicing as a cardiologist
in
1984. The first defendant began his practice at Flora Clinic in 1989.
The first defendant continued to work and progress his
career as a
specialist physician during the time when the plaintiff returned to
university. He was the breadwinner of the family
and administered
their finances.
[14]
The plaintiff and first defendant mutually admired
one another for their academic and professional achievements
which
were impressive. The relationship between them was sound although not
always emotionally fulfilling as far as the plaintiff
was concerned.
They encountered challenges normal to any marriage relationship.
[15]
The plaintiff and first defendant provided their daughter with a
secure and comfortable environment
in which to grow up in. The family
enjoyed frequent holidays at the coast. As their financial status
improved, the plaintiff and
first defendant together with their
daughter were able to spend vacations at luxurious game parks.
Vacations were also spent skiing
in Europe and America. The plaintiff
and their daughter idolised the first defendant.
[16]
The plaintiff was a deeply religious woman. The
plaintiff’s religious convictions were shared by their

daughter. On one occasion, the plaintiff burnt African art belonging
to the first defendant as she regarded the items to be associated

with the practice of “voodoo”. This act deeply angered
the first defendant as it exhibited the plaintiff’s lack
of
consideration for him personally, his possessions as well as her
complete disregard for the value of material items.
[18]
The first defendant became dissatisfied with the plaintiff. The
plaintiff’s family played
a role in this, as the first
defendant supported them financially at times. He felt that the
plaintiff subjected him to emotional
bullying and found that she
became unreasonably aggressive towards him. The plaintiff’s
religious devotion bordered on fanatical.
The first defendant became
extremely concerned about their finances. He felt isolated as he
carried the financial burden on his
own. The plaintiff became aware
of the existence of the first defendant’s extra-marital affair
with the second defendant
which had commenced in 2000. The plaintiff
asked the first defendant to attend marriage counselling but he
declined to do so. At
this stage in their relationship, the plaintiff
experienced suicidal thoughts and attempted to commit suicide. Their
relationship
continued to deteriorate to the point where the
plaintiff told the defendant to leave the marital home which he
summarily did on
17 March 2000.
[19]
During April 2002, the plaintiff and first
defendant lost their only child who died after being involved
in a
motor vehicle accident. She was eighteen years old at the time of her
death. The plaintiff consumed anti-depressants periodically
for the
following five years from 2002 in an attempt to alleviate her
depressive state and as a measure to control her feelings
of grief.
[20]
The plaintiff issued summons against the first and
second defendants during 2005 and the matter has been
enrolled for
hearing on six previous occasions over a nine year period.
Legal
Proceedings
[21]
14 September 2006
The divorce action was
enrolled for hearing by the first and second defendants. All the
parties were legally represented at the
time when the matter came
before court. A draft order was made an order of court which
contained several provisions. It provided
for the appointment of a
referee to determine the assets and liabilities of the plaintiff and
first defendant and to provide the
court with a report thereon. It is
common cause that this valuation was conducted and that the value of
the respective estates
as determined by the referee, was agreed to by
the plaintiff and first defendant. It is also common cause that a
supplementary
report regarding bank accounts held by the first
defendant was submitted to court.
[22]
8 October 2007
The matter was set down
for hearing by the plaintiff. All the parties were legally
represented. On this occasion, the marriage relationship
between the
parties was dissolved, a division of the joint estate was ordered and
cost of the suit were reserved. After the decree
of divorce was
granted, three outstanding issues remained in dispute, namely, the
division of the pooled estate, maintenance and
plaintiff’s
claim for damages for alienation of affection.
[23]
20 March 2009
The defendants applied
for a trial date and set the matter down for hearing. Once again, all
the parties were legally represented.
Nonetheless, proceedings were
postponed
sine die
and each party was ordered to pay their own
costs in respect of the postponement. None of the outstanding issues
were resolved
on that occasion for reasons that are unclear to this
court.
[24]
30 November 2010
The defendant’s
attorney of record applied for a trial date and set down the matter
for hearing. On this occasion, the plaintiff
was unrepresented. The
defendants were legally represented by senior counsel and their
attorney of record. As was the case previously,
three issues remained
in dispute. From a reading of the transcript of court proceedings on
the relevant day, it is clear that the
plaintiff drew the court’s
attention to the fact that she was an unrepresented litigant and, as
a layperson, was not equipped
to canvass the maintenance issue. She
however implored the court to address the issue regarding the
division of the property as
the division was already granted in 2007
and she urgently needed money. The plaintiff submitted to the court
that the referee’s
report was tampered with, but that she was
satisfied that her half of the joint estate was correctly reflected
as R 4,1 million
in the report. The first defendant tendered the sum
to the plaintiff, but the sum is made up of the value of the home
that the
plaintiff resided it, which was valued at R2,5 million
together with the value of her estate which is R1087 007 totalling R3
587
007.The first defendant tendered to pay the balance of R537
303.50 in cash to the plaintiff. The plaintiff however wanted the
R4,1
million in cash and was not interested in the offer that was
made to her by the first defendant. She was planning on using the
cash she would receive from the first defendant to purchase the
property she is currently living in.
The court postponed the
maintenance dispute and the claim for damages for alienation of
affection and dealt only with the division
of the joint property. A
draft order was subsequently made an order of court. In terms of the
draft order it was ordered that :
1.
The first defendant shall transfer the
property described as Erf [....] and [....] N[....] bond free and
unencumbered;
2.
The costs of the transfer of the said
property shall be borne by the plaintiff and the first defendant in
equal shares;
3.
The plaintiff and first defendant shall
each retain their assets as identified in the report of the referee
DA Sabbagh;
4.
All the first defendant’s household
contents identified as an asset under the subheading movables in
paragraph 17 of the referee’s
report are in the possession of
the plaintiff. The household contents shall be delivered by the
plaintiff to the first defendant
within 30 days;
5.
The first defendant shall pay the sum of R
537 303.50 to the plaintiff within 30 days after the registration of
the property.
At the time the court
granted the draft order it undertook to provide a written judgment in
respect of the order made. According
to the transcript of court
proceedings on 7 December 2010, the court proceeded to hand down
judgment in respect of the division
of the pooled estate. Only the
plaintiff was present in court on the relevant day. Despite this
court’s request for same,
neither the litigants themselves nor
their legal representatives have been able to furnish me with a copy
of the written judgment.
The plaintiff never applied to have the
court order of 30 November 2010 varied or rescinded with the effect
that the provisions
of the relevant court order remain in operation
and are binding on the parties.
[25]
2 September 2013
The outstanding issues
pertaining to the issues of maintenance and claim for damages for
alienation of affection remained unresolved
for a period of almost
three years until 2013. In 2011, a notice of appointment of attorneys
of record on behalf of the plaintiff
was delivered to court. In 2012,
a notice of withdrawal as attorneys of record on behalf of the
plaintiff was served on the offices
of the correspondent appointed by
the defendant’s attorney of record. On 26 September 2012, the
defendant’s attorney
of record applied for a trial date from
the registrar’s office. The matter was subsequently set down
for hearing on 30 August
2013. The matter was ultimately heard on 2
September 2013. Unlike the defendants, the plaintiff was not legally
represented when
the matter came before court. Once again,
proceedings were postponed
sine die
and the costs occasioned
by the postponement were reserved.
Present
circumstances of the plaintiff
[26]
The plaintiff was 63 years old at the date of the
hearing of this matter. She continues to reside in the
former
matrimonial home situated in N[....]. She resides alone except for
her pet dogs kept on the premises. The plaintiff testified
that she
had access to electricity through exactly two working plug points and
that she did not have a geyser. As a result, she
bathed in cold water
even in winter. She stated that the house, garden and swimming pool
were in a state of neglect. According
to the plaintiff, security at
the house was poor to non-existent. She was being harassed by
property developers who were keen on
buying the vacant land adjacent
to her home as she had rejected their offers to purchase the land.
She stated that cement and rubble
were being deposited into the
drains situated on her premises. She said that she was no longer on a
medical aid as the first defendant
had ceased making payment of the
monthly premiums during 2014. The plaintiff’s motor vehicle and
trailer were attached and
removed on 4 February 2015 by the sheriff
of the court on instructions of her previous attorney of record in
order to satisfy her
unpaid legal fees. The plaintiff now has no
means of transportation. The plaintiff was currently unemployed but
had recently completed
two of three courses in cardiac and life
support trauma. The plaintiff testified that she would write the
examination for the third
and last course during April 2015.
Present
circumstances of the first defendant
[27]
The first defendant was also 63 years of age when
the matter was heard. He has continued to practice as
a cardiologist.
The first defendant resides in a home situated on a golf estate
together with the second defendant. He testified
that he had a
problem with this back which would substantially impact on his
ability to maintain his practice and perform surgical
procedures as a
cardiologist in future. The first defendant stated that his current
motor vehicle was old.
Maintenance
Enquiry
[28]
The sole remaining issue which this court was
seized with for determination was maintenance.
[29]
It is common cause that maintenance enquiries are
facilitated by the good practice of the production of
an itemised
list of the most recent income and expenses on a monthly basis
supported by the relevant founding documentation by
each party.
[30]
These proceedings were set down by the first
defendant’s attorney of record. The actual notice of
set down
notifying the plaintiff and registrar of the relevant date of hearing
was drafted on 2 December 2014. A copy of the notice
of set down was
served on the plaintiff by means of an e-mail on 3 December 2014. The
original notice of set down was delivered
to court on 14 January
2015. The plaintiff and first defendant had at least eight weeks
within which to prepare a list of their
income and expenses and
collate copies of the corresponding tax invoices, receipts, bank
statements and other founding documents.
[31]
The court’s task at hand would have been
assisted by the provision of such a list of income and expenses
and
bundle of founding documents. It must be noted that the court
therefore relied on the oral evidence of the plaintiff and first

defendant under oath in absence of such documentation.
[32]
Founding documentation that was available to court
consisted of the following
:
32.1
A copy of a Momentum policy schedule dated 21 July 2011 for the Dr
David Marks Trust with policy number
[....]confirming that the first
defendant was to receive proceeds in the amount of R74 417.66.
This document was handed up
to court by the plaintiff and it was
marked Exhibit “A”;
32.2
A copy of a payslip dated 25 May 2012 in favour of the plaintiff
issued by National Health Laboratory
Service confirming her net
salary in the amount of R74 417.66 per month;
32.3
A copy of a payslip dated 30 September 2012 issued in favour of the
plaintiff by National Health Laboratory
Service confirming her net
salary in the amount of R69 880.98;
32.4
A copy of a payslip dated 15 February 2013 issued in favour of the
plaintiff by the Gauteng Department
of Health confirming her monthly
net salary in the amount of R41 081.46;
32.5
An original valuation certificate issued on 11 September 2013 by the
City of Johannesburg in respect
of stand [....] N[....] (1981m²)
and stand [....] N[....] (2238m²) in the amounts of
R2 140 000.00 and R2 130 000.00
respectively;
32.6
A bank statement for the plaintiff’s Standard Bank Gold
revolving account with a closing balance
of on 23 January 2015;
32.7
A bank statement for the plaintiff’s Standard Bank current
account with account number [....]
with an opening balance of
R1 708.65 on 18 February 2015;
32.8
A bank statement for the plaintiff’s Capitec savings account
with account number [....] with
a current balance of R9 825.51
on 20 February 2015;
32.9
A copy of an Investec bank statement dated 31 December 2014 issued in
respect of 465 Honeydew Manor
owned by the first defendant confirming
a monthly instalment payable by him in the amount of R24 809.86;
32.10  A copy of the
annual financial statements prepared at 28 February 2014 on behalf of
the first defendant by H. J. Venter.
[33]
The plaintiff is the owner of three immovable
properties, namely, Stand [....] N[....] and Stand [....]
N[....] (
current value R 4 270 000) as well as a vacant stand of land situated
in George valued in 2003 at R 325 000. The plaintiff
stated that, in
her view, it was not fair that she was expected to sell any of her
immovable assets because the first defendant
had an affair. She went
on to state that the property market had not sufficiently recovered
after it imploded in 2008. The properties
are her only security as
she has no pension. She also testified that their daughter had grown
up in the former matrimonial home
and for sentimental reasons she did
not wish to vacate her home. The first defendant, however, remained
adamant that at least one
immoveable property should be sold to
provide the plaintiff with an income pending her employment.
[34]
The plaintiff acknowledged that the first
defendant paid her R 535 000 after the order for was granted in
2010
and that the N[....] properties were transferred into her name and
that there is no outstanding bond over the properties.
She also
confirmed that she received an annuity of R 164 000 and R 700 000
from Ampath for a claim she instituted against them
for unfair
dismissal. The first respondent subsequently paid her another R500
000. The only money she is left with is an amount
of R 500 000 which
she invested in Alan Gray and R 500 000 in a Liberty account. The
amount of her outstanding legal fees are in
the vicinity of R 260
000.
[35]
It is common cause that the plaintiff is a qualified haematologist
and that her previous employment at Ampath, Johannesburg
was
terminated during 2011. Whilst working at Ampath, the plaintiff
earned a net salary in the amount of R63 000.00 per month.
[36]
The plaintiff testified that she was gainfully
employed by the National Health Laboratory Services in Port
Elizabeth
from 1 August 2011 to October 2012. During this period, she earned an
income of R112 120.62.
[37]
The plaintiff testified that she had been
unemployed for approximately a year since 2014. She stated that
her
age prevented her from securing employment. She said that medicine
was “her life” and that she would accept any
offer of
employment for her professional services.
[38]
She rejected any notion that she was voluntarily
unemployed. In 2013, she was approach by personnel at Charlotte

Maxeke Hospital to attend an interview which she subsequently did.
She testified that she received no response from the Gauteng

Department of Health. The plaintiff submitted her
curriculum vitae
to Coronation Hospital from whom she also received no response. The
plaintiff investigated the possibility of a job opportunity
with
Vermaak & Partners situated in Pretoria in 2013. She was
subsequently informed by Dr Vermaak that they did not have a
place
for her at their practice. The plaintiff confirmed that she had
canvassed job opportunities at Pathcon situated in Cape Town
but to
no avail. In 2014, the plaintiff approached Lancet Laboratories for
whom she had worked for previously in her career regarding
existing
vacancies. She was informed that there was none. The plaintiff
approached Ampath Laboratories for work. This was extraordinary
given
the fact that the plaintiff have received the amount of R700 000
from Ampath Laboratories in settlement of a claim for
constructive
dismissal against Ampath. The plaintiff mentioned that the Health
Professions Council would not allow her to change
her qualification
in order for her to practice as a general practitioner which further
prevented her from earning an income. She
agreed that her
qualifications are recognised abroad.
[39]
Counsel for the first defendant put it to the
plaintiff that the reason why she was unable to secure employment
in
her particular field of expertise was that she had a bad temperament
and was rude to her colleagues and supervisors in the workplace.
The
plaintiff conceded that she was temperamental and that her conduct
had negatively impacted on her professional inter-personal

relationships at work. The plaintiff testified that she had undergone
counselling and her behaviour had improved. Nonetheless,
counsel for
the first defendant suggested that the plaintiff should consider
seeking job opportunities outside Gauteng, at least,
initially. The
plaintiff was not amenable to this suggestion as she testified that
she owned immoveable property in Gauteng, her
support network of
friends resided in Gauteng and that at the age of 63, she was not
prepared to relocate to another province to
start afresh.
[40]
The plaintiff testified that her expenses were as
follows:
40.1
Rates & Taxes
The plaintiff required an
amount of R10 000.00 per month in respect of rates and taxes
levied in respect of her immovable properties;
40.2
Pet Food
The plaintiff has two
dogs one of which was a still a puppy. The plaintiff stated that she
requires between R2000 and R3000 a month
to feed the animals
adequately;
40.3
Groceries
The plaintiff stated that
she requires between R15 000 and R20 000 per month for
groceries. This amount made provision
for the purchase of meat.
40.4
Personal Expenses
The plaintiff said that
the amount of R4000 per month would be sufficient to provide for her
personal expenses. It is unclear exactly
what expenses these entail.
40.5
Pharmaceuticals
The plaintiff consumes
vitamins and other supplements in the amount of R4000 per month.
40.6
Clothing
The plaintiff testified
that she required an amount of R6000 per month to purchase clothing.
She said that she had become accustomed
to buying clothing at
boutiques and did not think that the amount was excessive.
40.7
Cell phones
The plaintiff has two
cell phones and requires an amount of R3000 monthly.
[41]
The plaintiff stated that she needed maintenance
in the amount of R60 000 per month in order to provide
for her
reasonable expenses adequately. She repeated the fact that her house
required a lot of maintenance and that carrying out
such work would
be costly. She also said that she required a motor vehicle. The
plaintiff testified that the referee’s report
was incorrect in
that it did not include a valuation of the Dr David Marks Trust as
well as a yacht that belonged to the first
defendant.
[42]
The first defendant testified that he earned
between R91000 and R97000 per month. He testified that his
expenses
per month were as follows:
41.1
Mortgage bond – R24 800;
41.2
Groceries – R10 000;
41.3
Water & Lights – R6000;
41.4
Golf estate levies – R2000;
41.5
Petrol – R2000;
41.6
Clothing – R500;
41.7
Golf subsidies – R10 000 per annum;
41.8
Savings – R40 000;
41.9
Insurance – R1800.
[43]
Counsel for first defendant estimated his expenses
at approximately R87 100.00 per month. The amount
made provision
for savings in the amount of R40 000.00 per month which the
first defendant required for reason of his medical
disability. The
expenses of the first defendant include those of his partner, the
second defendant, as opposed to a single party.
The
Law
[44]
In terms of Section 7(2) of the Divorce Act 70 of 1979 (“
the
Divorce Act
>”), a court may award maintenance to a party
upon divorce, either permanently or for a specified period
(rehabilitative maintenance).
In deciding whether to exercise its
discretion, in favour of, or against an order for maintenance, the
court, must consider whether
such an order would be just, fair and
equitable having regard to :-
44.1
the existing and/or prospective means and/or needs of each of the
Plaintiff and the Defendant;
44.2
the respective earning capacities of the Plaintiff and the Defendant;
44.3
the existing and/or prospective financial needs and/or obligations of
both the Plaintiff and
the Defendant;
44.4
the respective financial needs and obligations of the Plaintiff and
the Defendant;
44.5
the respective ages of each of the parties;
44.6
the duration of the marriage;
44.7
the standard of living enjoyed by the parties prior to the divorce;
44.8
the parties conduct, and insofar as it is relevant to the breakdown
of the marriage;
44.9
the reasons that gave rise to the breakdown of the marriage; and
44.10
any other factor which this Court may deem appropriate.
[45]
The reciprocal duty of support
which is one of the invariable consequences of marriage comes to an
end when the marriage ends.
Section 7(2)
of the
Divorce Act makes
provision for court orders relating to maintenance upon divorce.
Having regard to the factors set out in paragraph 44 above,
the
court has a discretion to make an order which it deems just. The
relevant question to be answered is whether the plaintiff
is entitled
to spousal maintenance and, if so, the quantum and duration thereof.
[46]
The award of maintenance is determined by the requirements of need,
on the one hand, and ability to pay on the other.
[47]
Marriage is now widely regarded as a partnership of two economically
independent individuals. The so called “clean break”

principle has come to the fore in terms of which the parties should
become economically independent of each other as soon as possible

after the divorce. This “clean break” principle was
affirmed in
Beaumont v Beaumont
1987 (1) SA 48
(C).
[48]
Rehabilitative maintenance may be awarded to a divorced woman for a
limited period where she trains for a job or profession.
This concept
presupposes that the woman is capable of training. It is trite that
no maintenance should be awarded to a woman who
can support herself
Qoza v Qoza
1989 (4) SA 838
(Ck)
at 841.
[49]
In
Joubert v Joubert
2004
(1) All SA 426
(C)
a 46 (forty-six) year old wife who had not worked for 17
(seventeen) years was awarded rehabilitative maintenance for a period
of
18 (eighteen) months only.
[50]
In
Chizengeni v Chizengeni
1989 (1) SA 454
(ZH)
at 456 the view was
expressed that it would be superficial and unrealistic to suggest
that the first wife must be maintained at
the same standard even
though her husband has subsequent commitments.
[51]
In the matter of
Botha v Botha
2009 (3) SA 89
(W)
Satchwell J
explored the question of the court’s general discretion to make
a just award having regard to the provisions of
Section 7
(2) of the
Divorce Act. The
Botha matter involved a divorce action in which the
Plaintiff (Mr Botha) and the Defendant (Mrs Botha) claimed a
dissolution of
the marriage. At issue was the interpretation and
application of
Section 7
(2) of the
Divorce Act which
confers a
discretion upon the court to make a maintenance order in favour of
one spouse against the other. The learned Judge pointed
out that the
language of
Section 7
(2) is clearly discretionary: the use of the
word “may” allows for a positive exercise of the judicial
discretion to
grant maintenance and equally to allow for a negative
exercise of judicial discretion, to not grant maintenance.
In
paragraph 43 Satchwell J stated that “
The
purpose of the court’s enquiry in terms of
section 7(2)
is to
determine what award would be “just”. The enquiry is
necessarily directed towards the interest of both spouses
and the
impact which the order will have on each.”
At paragraph 46 Satchwell J said that “
what
is thought to be a just order in the context of the divorce act must
contain a moral component of what is thought to be “right”

and “fair”. Fairness envisages that the order is
appropriate between the parties and when measured against all the

factors specified in
section 7(2)
and those others which a court
decides should also be taken into consideration.”
[52]
In determining the quantum of maintenance Brassey AJ said in
MB
v NB
2010 (3) SA 220
(GSJ)
para
33 that “
to
postulate that the party should it continue, following divorce, to
live in the style to which they have become accustomed for
so long as
this was permitted by the resources that the disposal. If, as so
often happens, the capital and income was insufficient
to meet the
standard, then each should abate the requirements accordingly. In
this limited sense the tombstone is subjective: the
issue is not what
people generally would regard as reasonable, standard far too
amorphous to be useful, but what the parties have
come to depend on,
subject always to the criterion of affordability.
Brassey
AJ also held that the potential income of the spouse who is claiming
maintenance must be determined in order to establish
whether he or
she will be able to meet his or her maintenance needs from such
income. If the answer is in the negative, the income
of the other
spouse must be determined in order to establish whether, with due
regard to his or her own comparable maintenance
needs, he or she
earns enough to make good the shortfall in the claimant's income. In
view of the facts of the present case, Brassey
AJ concluded that the
husband's income of R60 000 per month was sufficient to enable him to
pay R5 000 per month to his wife, which
would very nearly make good
the entire shortfall of R6 500 in the wife's income. However, as he
concluded that the wife was
'a
person of considerable talent
',
who would be able
'to
make good the shortfall by her own enterprise fairly soon'
,
Brassey AJ restricted the duration of the payment of maintenance to
three years. In restricting the duration of the payment of

maintenance, he also took into account that the wife had capital
resources and would acquire an additional R771 482 when her husband

paid her accrual claim to her.
Conclusion
[53]
The plaintiff and the first defendant separated in 2000 after 23
years of marriage, but the divorce order was only granted
7 years
later, in October 2007. Effectively, they were married for 30 years.
The court also ordered on this occasion, the division
of the joint
estate. After the decree of divorce was granted, three outstanding
issues remained in dispute, namely, the actual
division of the pooled
estate, maintenance and plaintiff’s claim for damages for
alienation of affection.
[54]
In terms of the order in October 2007 and the antenuptial contract
the plaintiff was entitled to half of the value of the couple’s

joint estate. The plaintiff was given her share in the form of the
properties in N[....] (valued in 2010 at R 2,5 million), retaining

her assets as per referee’s report (R 1 087 007) and cash in
the amount of R 537 303.50.
This
is not what the plaintiff wanted.
The
plaintiff wanted cash. Her understanding of the legal position was
that as the referee valued the combined estate at R 8,2 million,
she
must get R 4,1 million in cash. She believed that she was entitled to
divide the estate as she wishes and that is why the matter
was
delayed for so long.
[55]
The plaintiff has three unencumbered immovable properties which at
current value is at least R 5 million worth. She received
a total of
R 1, 9 million in cash from different sources since the divorce was
granted in 2007. She has invested R 1 million of
that money in Alan
Gray and Liberty. She earned a substantial salary and only lost her
employment in 2012.
[56]
The plaintiff was mostly unemployed during the period when she and
the first defendant were still together. The first defendant
was for
most of the duration of the marriage the sole breadwinner whilst the
plaintiff was looking after their daughter. The plaintiff
only
started earning a substantial salary when the first defendant moved
out from the matrimonial home.
[57]
The plaintiff is currently unemployed and only has an income
sporadically. When she does earn she gets about R 3000 per session.

She is struggling financially and is currently living under poor
conditions. She currently does not have sufficient means to support

herself.
[58]
The plaintiff has a poor work history. She is a perfectionist and
very temperamental. Her conduct had negatively impacted on
her
ability to obtain employment. The first respondent’s extra
marital affair, the divorce and the untimely death of their
only
daughter has scarred the plaintiff deeply. The plaintiff testified
that she had undergone counselling as she was aware of
her
shortcomings and that her behaviour had improved. She has applied at
numerous institutions and has sent out dozens of Curriculum
vitae
without any success. She is a highly qualified person, but she is
also 63 years old.
[59]
The first defendant is gainfully employed, and has been his whole
adult life. He earns a considerable salary and is able to
save R 40
000 per month towards his retirement. He is financially in a position
to contribute to the plaintiff’s maintenance.
[60]
Taking into consideration all the specific circumstances of the case
and keeping in mind the principles of equity and fairness,
I am
inclined to exercise my discretion in favour of the plaintiff.
However; the plaintiff is a person with high intellect, she
has
outstanding qualifications and she should be able to produce an
income in the near future.
[61]
The plaintiff’s expenses are inflated and it is unrealistic to
suggest that the she must be maintained at the same standard
she was
accustomed to. She will have to cut down on her expenses. She needs
to confront the realities of her position. She has
assets she can
dispose of. In keeping with the “clean break” principle,
maintenance is awarded only for a period of
2 years.
[62]
In the result the following order is made.
1.
The first defendant is
ordered to pay the plaintiff an amount of R 25 000 per month from 1
April 2015. All payments must be made
before the 3
rd
of each month.
2.
This order will
automatically lapse on 31 March 2017.
3.
No order as to costs.
L
WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
COUNSEL
FOR PLAINTIFF:

Plaintiff appeared in person
INSTRUCTED
BY:

Not applicable
COUNSEL
FOR FIRST DEFENDANT:
Advocate H.P. Jefferys S.C
INSTRUCTED
BY:

Louw & Heyl Attorneys
DATE
OF HEARING:

5
February 2015 & 25 February 2015
DATE
OF JUDGMENT:

27
March 2015