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[2015] ZAGPJHC 63
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E v E (08/9066) [2015] ZAGPJHC 63 (17 April 2015)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NUMBER: 08/9066
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between
E[…],
A[…]
L[…]
.......................................................................................................................
Plaintiff
and
E[…],
C[…] E[…]
(born
V[…] D[…]
W[…])
.......................................................................................................
Defendant
Neutral
citation:
E[…] AL v E[…] CE (08/9066)
Coram:
EF DIPPENAAR AJ
Heard:
26-30 January 2015 and 5 February 2015
Delivered:
17 April 2015
Summary:
divorce action dealing with declaration that ante-nuptial contract
excluding community of property and accrual was induced
by undue
influence and is a nullity, declaration that marriage is in community
of property with ancillary relief and spousal maintenance.
ORDER
The
following order is made:
[1]
A decree of divorce is granted;
[2]
The plaintiff is directed to make the understated contributions to
the maintenance of the defendant and to:
[2.1]
make payment of an amount of R15 000.00 per month, into an account
designated by the defendant for a period of five years
commencing on
1 May 2015 and thereafter at the 1
st
day of each
consecutive month, subject to an annual increase commencing on 1 May
2016 in accordance with the Consumer Price Index
as published from
time to time and applicable at that specific time;
[2.2]
retain the defendant as a beneficiary on the existing comprehensive
medical aid scheme and to make payment of the monthly
premiums
thereof directly to the service provider for a period of 5 years
commencing on 1 May 2015;
[2.3]
pay the outstanding monthly instalments and insurance in respect of
the Hyundai I20 motor vehicle presently in possession
of the
defendant until such time as the outstanding balance has been settled
in full after which the defendant shall be liable
for the insurance
in respect of the vehicle;
[2.4]
purchase a house or townhouse of the defendant’s choice with a
value of no more than R1.7 million and to have the property

registered in the name of the defendant, to cause a mortgage bond to
be registered over the said property and to make payment of
the costs
and the monthly payments on the said bond until the mortgage bond has
been settled in full and thereafter to cause the
mortgage bond to be
cancelled at his costs;
[2.5]
take out and maintain a life insurance or other appropriate insurance
policy to secure his obligations in respect of the mortgage
bond
referred to in [2.4] above and to pay the premiums in respect of such
policy until the mortgage bond referred to in [2.4]
has been
cancelled;
[3]
Each party is directed to pay his/her own costs.
JUDGMENT
EF
Dippenaar AJ
[1]
This is a divorce action in which both
parties have sought dissolution of their marriage which was concluded
on 30 March 1991 and
costs. The parties’ two daughters, C[…]
and E[…] have both attained majority during the course of the
divorce
proceedings and the relief initially claimed in respect of
them has become academic and does not require consideration. The
divorce
proceedings were instituted by the plaintiff in February
2008.
[2]
The plaintiff relies on an ante-nuptial
agreement concluded between the parties dated 2 March 1991 in terms
of which community of
property and the accrual system in terms of
chapter 1 of the
Matrimonial Property Act 88 of 1984
, as amended
(“the Act”), are excluded. The plaintiff seeks a costs
order only.
[3]
The defendant, Mrs E[…], seeks
substantial additional relief in her claim in reconvention. She
presently seeks declaratory
relief that the ante-nuptial contract was
induced by undue influence and is a nullity, alternatively that the
parties’ proprietary
regime is regulated inter partes by
chapter 1 of the Act together with ancillary relief. She further
seeks substantial spousal
maintenance until her death or remarriage.
[4]
Plaintiff’s
special plea pertaining to the defendant’s claim based on a
universal partnership was separated and determined
by
Kathree-Sitloane J on 25 October 2012 in favour of the plaintiff
[1]
.
[5]
Pursuant thereto, the defendant by way of
amendment raised the present claim pertaining to undue influence
which induced the conclusion
of the ante-nuptial contract excluding
community of property and excluding the accrual system.
[6]
A
rule 43
order granting defendant interim
maintenance and ancillary relief was granted on 15 October 2009,
followed by a further
rule 43
order in terms of which defendant was
granted a contribution of R150 000.00 to her legal costs on 24
November 2010. At the
time of the trial the plaintiff was
contributing to the maintenance of the defendant in an aggregate
amount of some R27 000.00
which included rental and ancillary
costs in respect of the defendant’s accommodation and the cost
of maintaining her on
a comprehensive medical aid. The cash portion
of plaintiff’s contribution was dependant on SAFL providing a
minimum of R8
000.00 contract work per month to the defendant.
[7]
The matter has a long and unfortunate
history, which it is not necessary to recant in detail. The plaintiff
has sought to argue
that the various delays in the finalisation of
the proceedings were occasioned by the defendant in an attempt to
protract the existence
of the
rule 43
order granted in 2009 in terms
of which she was afforded certain interim maintenance. I am however
not persuaded that the various
postponements can be squarely placed
at the door of the defendant or that it impacts on her bona fides in
pursuing the relief presently
sought. For example, the plaintiff’s
reluctance to fully disclose the necessary documentation pertaining
to his financial
position contributed to the delays.
[8]
There are no reserved costs orders which
remain to be determined. The plaintiff at trial abandoned the costs
order granted in his
favour by Claassen J on 20 October 2011 when the
trail was postponed at the instance of the defendant and she was
afforded the
opportunity to obtain legal representation, her previous
representatives having withdrawn some three weeks before trial due to
a lack of funds. The defendant’s legal representatives have
since November 2011 acted on a pro bono basis and both the attorneys

and counsel acted pro bono during the trial.
[9]
It is common cause between the parties that
the defendant bore the onus on the issues raised in her claim in
reconvention who accepted
the duty to begin. The defendant testified
and called Sister Elsa Steyn as an expert witness pertaining to her
future employability
and earning capacity. The plaintiff also
testified.
[10]
By agreement between the parties, two
expert reports of Dr Kellerman, an industrial psychologist, were
accepted into evidence and
she was not called to testify. Dr
Kellerman’s evidence pertains to the future employability and
earning capacity of the defendant.
[11]
The
issues which must be determined pertain to: (1) the validity of the
ante-nuptial contract, and whether it was induced by undue
influence
and constitutes a nullity; (2) if so, whether the marriage is in
community of property in which event the parties are
ad idem that a
referee should be appointed to divide the common estate; in the
alternative (3) whether the accrual system under
chapter 1 of the Act
is to be declared applicable to the marriage inter partes; (4)
whether the defendant should be granted spousal
maintenance in terms
of section 7(2) of the Divorce Act
[2]
and, if so, the nature and extent thereof; (5) costs.
[12]
During the trial, the plaintiff
unconditionally tendered to continue paying the instalments and
insurance in respect of a 2011 Hyundai
I20 motor vehicle which was
acquired for the defendant pursuant to the rule 43 order, until such
time as the outstanding balance
of some R70 000.00 was paid. I
understand the tender to mean that it will endure until the
outstanding balance is paid in
full.
[13]
The plaintiff is a 48 year old businessman
with substantial membership interests in seven close corporations,
who holds a NST6 qualification
from Germiston Technical College. He
is an electrical contractor whose main business interest is in South
Africa Fault Location
CC (“SAFL”).
[14]
The defendant is a 47 year old nursing sister who attended Upington
Technical High School, whereafter she obtained a four year
nursing
diploma at SG Lourens Nursing College in 1989 whilst employed at the
HF Verwoerd Hospital as a student nurse. She is a
registered nursing
sister (general, psychiatry, community nursing) and midwife. From
1991 to 1997 she was employed as a nursing
sister at the Union
Hospital. Defendant left the nursing profession during or about
November 2002. She has experience in neonatal
intensive care obtained
during the period 1990 to 2002 and from 2012 to present. Since 2012
defendant has rendered nursing services
via an agency on an ad basis
at the Clinton Hospital in its neonatal ICU between three and seven
days per month. Subsequent to
the defendant leaving the nursing
profession on a full time basis, the plaintiff taught her how to
assemble personal computer (“PC”)
boards with components
provided by SAFL, whereafter she performed part time services for
SAFL from 2003 as a technician doing PC
board assembly work for a
remuneration of R4 000.00 per month. She has no formal training
in this field. Defendant is presently
employed by SAFL as a contract
worker. No formal agreement regulates defendant’s employment
with SAFL.
[15]
The defendant met the plaintiff, the
brother of one of her friends, during 1990 and the parties formed a
romantic relationship during
or about September 1990. They were
married at Kathu in the Northern Cape on 30 March 1991. At the time
of their marriage, the plaintiff
was 24 and the defendant 23 years
old.
[16]
Shortly before their marriage and on 2
March 1991, the parties concluded a written ante-nuptial agreement
excluding community of
property and the accrual system under chapter
1 of the Act in Pretoria. Although the ante-nuptial contract attached
to the particulars
of claim is not signed by both parties it is
common cause between them that such contract was concluded.
[17]
Prior to their marriage, neither of the
parties had substantial assets other than a motor vehicle and
furniture and both parties
needed to work to meet their household
expenses. It is undisputed that the defendant at the time had more
items of furniture than
the plaintiff. The defendant was living in a
rented flat whilst the plaintiff and his sister shared a rented flat.
The plaintiff
was at the time employed at Patented Devices in
Johannesburg whilst the defendant was employed as a nursing sister at
the Union
hospital in Pretoria.
[18]
Two daughters were born of the marriage
during 1993 (C[…]) and 1995 (E[…]). At present they are
respectively 21 and
19 years old. C[…] is married and E[…]
is studying photography through a UK based entity. Both daughters
live in
Jeffries Bay. The plaintiff is contributing to their
maintenance.
[19]
No assets were registered in the name of
the defendant during the marriage.
[20]
The parties’ marriage broke down
during November 2007, with the plaintiff announcing to the defendant
that he could no longer
continue with the marriage during a session
with a psychologist who had been treating him for depression since
about mid 2007.
The plaintiff advised defendant that he had met
someone else and wanted to explore that relationship further. The
plaintiff left
the matrimonial home on 28 December 2007, since which
time he has cohabited with his present girlfriend, Ms Oosthuizen,
with whom
it was undisputed he formed a relationship during or about
mid 2007.
UNDUE
INFLUENCE ISSUE
[21]
In
summary, the defendant pleaded
[3]
that during March 1991, and immediately prior to the marriage the
parties verbally agreed that the operation of the accrual system

would apply to their intended marriage
[4]
.
Contrary to the verbal agreement and on 2 March 1991, the plaintiff
acquired an undue influence over her, which weakened defendant
and
her resistance and made her pliable, which influence plaintiff used
in an unscrupulous fashion/fraudulent manner in order to
prevail on
defendant to agree to the signing and conclusion of an ante-nuptial
contract which excluded the accrual system, resulting
in the
conclusion of such contract. The defendant further contends that
exercising a normal free will she would not have concluded
the
ante-nuptial agreement which is to her prejudice and that she is
entitled to a declaratory order that the ante-nuptial contract
is
null and void. In the alternative, defendant claims a declaratory
order that the parties’ marital regime is governed inter
partes
as if the provisions of chapter 1 of the Act is applicable to the
marriage.
[22]
This
claim was introduced by way of amendment after the upholding of the
plaintiff's special plea to defendant’s claim based
on a
universal partnership
[5]
by Kathree-Sitloane J.
[23]
Despite initially objecting to the proposed
amendment, plaintiff did not persist in his objection and the
amendment was effected
on an unopposed basis. During argument, after
the evidence, the plaintiff contended that the claim was excipiable
and fell foul
of the parol evidence rule. No exception was however
taken against the particulars of claim as amended. Had such exception
been
taken, it may have resulted in the duration of the trial being
reduced, or a further amendment being proposed. This is a factor

which is to be considered in awarding an appropriate costs order.
[24]
The
plaintiff in his plea
[6]
denies that he was in a position to or attempted to weaken the
defendant and her resistance or used any influence in an
unscrupulous/fraudulent
manner or at all. He contends that defendant
was at all times fully aware and in agreement with the terms of the
ante-nuptial contract.
[25]
The
requirements to be met in order to succeed with the relief sought
[7]
are the following:
[25.1]
that the plaintiff gained an influence
[8]
over the defendant;
[25.2]
that this influence weakened the defendant’s resistance and
made her will malleable; and
[25.3]
that the plaintiff used that influence in an unconscionable manner to
persuade the defendant to agree to a transaction which
operated to
her prejudice and which she in normal circumstances would not have
concluded.
[26]
The
defendant cannot succeed unless the contract is one which, but for
the undue influence, would not have been made.
[9]
[27]
The
effect of undue influence, as with fraud, is to make the contract
void ab initio only if the influence induced in the mind of
the party
seeking relief was such a fundamental mistake that his/her apparent
assent to the contract is in truth not assent at
all. In all other
cases this contract is voidable at the option of the party
influenced.
[10]
[28]
A confidential relationship between persons
such as prospective spouses is a relevant factor to consider but does
not create any
presumption of undue influence.
[29]
On the defendant’s version, she had
no knowledge of marriages out of community of property and her
parents were married in
community of property. She had no experience
of divorce or litigation in her family. She wished to be married in
community of property.
She and the plaintiff had a discussion
about the issue prior to concluding the ante-nuptial contract during
which he explained
to her that it would be best for them to be
married out of community of property as their family unit would be
protected against
third parties if anything went wrong in the new
business he intended starting. He referred to the disastrous effects
of his father’s
recent sequestration and mitigation of such
effects as his mother was able to save certain of the furniture and
assets as his parents
were married out of community of property. The
defendant was aware of the sequestration and its consequences as she
was a friend
of plaintiff’s family at the time.
[30]
According to the defendant, the plaintiff
indicated that his experience of the sequestration was traumatic and
that he wanted to
protect her from such a traumatic experience. This
convinced her to accept the plaintiff’s suggestion and she
agreed to a
marriage out of community of property. The plaintiff
further promised that they would prepare wills and take out policies
to protect
each other. He promised that as between them ‘everything
that was his was also hers’. When this was done she was
satisfied
that everything was in place. The will and policies were
however only finalised some 21 months later, after the plaintiff had
started
his new business (which ultimately grew into SAFL). According
to the plaintiff the will and policies were executed in order to
protect his business and not the defendant.
[31]
The defendant testified that she implicitly
trusted the plaintiff and accepted his promises and suggestions as
being in their best
interests. There was no discussion between them
about the accrual system at the time.
[32]
The defendant testified that the plaintiff
made the arrangements to see an attorney in Pretoria whom they
jointly consulted on one
occasion when they signed the ante-nuptial
contract. The plaintiff collected her from work and they went to see
the attorney. The
attorney asked how they were to be married and the
plaintiff responded out of community of property. The plaintiff also
indicated
that it was to be without accrual when asked. The defendant
at the time thought accrual meant children. The attorney did not
explain
to them what the various options meant. Defendant agreed to
and signed the ante-nuptial contract. She did not query any of the
regimes with the attorney.
[33]
At the end of the defendant’s case,
the plaintiff sought absolution in respect of this claim, which I
refused. I provided
reasons for such refusal at the time.
[34]
The plaintiff disputed the defendant’s
version in various respects. His version was that the parties had
discussed the various
benefits and disadvantages of the various
systems. He provided no detail of exactly what they had discussed and
did not testify
specifically that he had explained the accrual system
to the defendant. He denied attempting to influence the defendant and
emphasised
that she was a strong willed woman who stood by her
principles and was not easily influenced.
[35]
The plaintiff’s version was that the
defendant had found the attorney in Pretoria and had made the
arrangements for the conclusion
of the ante-nuptial contract. He
agreed that they consulted the attorney once when they signed the
ante-nuptial contract, during
which visit the attorney explained the
different ways in which the parties could get married. Both parties
agreed to the ante-nuptial
contract and signed it.
[36]
The plaintiff contended that the
ante-nuptial contract did not prejudice the defendant as she had more
assets than him at the time.
This contention is unsustainable as the
uncontested evidence was that the defendant’s assets at the
time comprised of a VW
beetle, kitchenware and a few pieces of
furniture, with no considerable value.
[37]
The plaintiff testified that the reason he
wanted to be married out of community of property excluding the
accrual system was because
he started his career as a businessman at
the tender age of 13 and knew how to do business. He was aware that
it was necessary
to take risks and that it was important to protect
the people around him. He had discussed the proposed marriage with
his father
who advised him to get married out of community of
property as it would protect them if something went wrong with
plaintiff’s
business activities and should his estate be
sequestrated. In cross-examination it was pointed out that at the
time of the father’s
marriage the accrual system did not exist
and it was improbable that defendant’s father would have
advised him on the intricacies
thereof. He could not satisfactorily
explain how he acquired knowledge of the accrual system.
[38]
The plaintiff’s evidence on this
important issue is in various respects unsatisfactory. The plaintiff
was in various instances
evasive, glib and unconvincing in his
evidence and did not squarely deal with pertinent issues such as the
discussion of the accrual
issue.
[39]
Mindful
of the applicable principles
[11]
,
and on the probabilities, I accept the defendant’s version that
the plaintiff convinced her to agree to get married out
of community
of property. I further accept defendant’s version that the
accrual system was not discussed expressly between
the parties and
that she may not have fully understood the meaning and implications
of the accrual system at the time. It is common
cause on the parties’
evidence that the consequences of the sequestration of plaintiff’s
father was pertinently raised
by the plaintiff and formed an
important part of their discussion. The plaintiff was far more
commercially astute than the defendant
and had clearly considered the
various implications of the available marital regimes in the context
of his future plans. It is
improbable that the attorney only drafted
the contract during the single consultation with the parties.
[40]
I also accept that the plaintiff promised
the defendant in the process that she would be protected. Plaintiff’s
denial that
he had influenced the defendant in any way and his
disavowal of any promises to the defendant in the circumstances ring
hollow.
[41]
The circumstances surrounding the
termination of the defendant’s nursing career and her
subsequent contract employment at
SAFL, her lack of salary increases
and the retention of her salary by SAFL, which defendant accepted
without demur until the divorce
proceedings were pending, on the
probabilities illustrate that the plaintiff was the dominant party in
the relationship and not
the defendant.
[42]
The defendant’s version that it was
the plaintiff who arranged the drafting and consultation with the
attorney accords with
the probabilities. On his own version, the
plaintiff was the party with definite ideas as to how the parties
should get married
and a knowledge of the meaning and implications of
the various regimes. The attorney must have been provided with
instructions
at the time the consultation was arranged as to how to
draft the ante-nuptial contract, which was signed during the
consultation.
It is improbable that the defendant would have done so
and would specifically have provided instructions to exclude the
accrual
system as she was not aware of its meaning and import. It is
more probable that the plaintiff took the initiative in this regard.

It is however improbable that the attorney offered no explanation of
the different marital regimes during the consultation unless
he was
satisfied that both the parties understood the agreement they were
concluding. If the defendant did not understand the meaning
any of
the provisions of the contract she could and should have queried it
at the time.
[43]
In
Barnard v Barnard
[12]
,
Griesel J considered the propriety of a claim to set aside an
ante-nuptial contract which excluded community of profit and the

accrual system on the basis of, inter alia, undue influence on the
part of the husband.
[13]
As in the present instance, Mrs Barnard contended that the entire
contract was a nullity and that the marriage was one in community
of
property. Restitution was not claimed. Griesel J found that the
relief claimed was misconceived and upheld the objection to
the
proposed amendment.
[44]
Griesel
J, after considering Ratanee v Maharaj and Another
[14]
,
Rakagiatis v Estate Rakagiatis
[15]
and Umhlebi v Estate of Umhlebi and Fina Umhlebi
[16]
,
cases relied on by the defendant in this matter, found them
distinguishable on the facts. Moreover, such cases constitute
authority
for the proposition that undue influence may be relied on
as a causa for restitution in integrum and not for the proposition
that
the voidibility of an ante-nuptial contract on the ground of
undue influence inevitably results in a marriage in community of
property.
[17]
I am in respectful agreement with this view.
[45]
There
is no automatic right on the part of a prospective spouse to
participate in the accrual of the estate of the other spouse
and such
right accrues only by agreement
[18]
.
[46]
The defendant contends that the Barnard
decision is incorrect. I do not agree.
[47]
In the present instance, it is not the
defendant’s case that there was an agreement that the marriage
would be in community
of property and her evidence was expressly that
she agreed to a marriage out of community of property as it would
protect the parties
against third parties. It was not the defendant’s
evidence that there was any prior agreement that the marriage would
be
in community of property, despite the contention in her plea.
Defendant’s complaint solely relates to the exclusion of the

accrual system. Any lack of consensus, if proved, can at best only
affect one severable clause of the ante-nuptial contract, being
that
pertaining to the accrual system and cannot result in the nullity of
the whole ante-nuptial contract. The defendant’s
evidence that
the plaintiff promised her that ‘as between them, everything
that was his would also be hers’ cannot
in my view be elevated
to an express agreement that the parties would be married in
community of property. It would rather form
part of plaintiff’s
method of persuading defendant to agree to a marriage out of
community of property.
[48]
As
in Barnard, the defendant is seeking to substitute a new and more
favourable contract for the one allegedly induced by undue
influence.
This she cannot do absent any suggestion that there had been a prior
agreement or understanding between the parties
that their marriage
was to be in community of property
[19]
.
Her express evidence does not support such finding and such evidence
may well have fallen foul of the parol evidence rule. It
is however
not necessary to express a definitive view on this issue.
[49]
It follows that the defendant is not
entitled to a declaratory order that the marriage was in community of
property, whether on
an inter partes basis or otherwise, even if she
discharges the onus in respect of undue influence.
[50]
The defendant contends that Barnard was
wrongly decided given the default position of a marriage being in
community of property
in the absence of an ante-nuptial contract. I
am not persuaded that such contention is correct. If anything, the
undisputed evidence
indicates that that there was an express
discussion and agreement on the marriage being out of community of
property and not in
community of property.
[51]
I
am further not satisfied that the defendant’s evidence
illustrates that the plaintiff’s evidence was undue. On the

evidence presented, the defendant has in my view not discharged the
onus of proving that the conclusion of the ante-nuptial contract
was
induced by undue influence and that the requirements of such claim
have been met. I am not convinced that the conduct of the
plaintiff
constituted unconscionable conduct as envisaged in Patel
[20]
or amounted to anything more than the eloquence of a talented
businessman
[21]
.
[52]
I am further not satisfied that the
defendant has illustrated that it was the conduct of the plaintiff
which caused her to agree
to the conclusion of the ante-nuptial
contract. On her own version, the defendant was happy to conclude any
agreement which would
protect them against third parties if the
plaintiff’s estate was sequestrated.
[53]
The defendant further took no steps to
ascertain the consequences and implications of the accrual system and
did not request the
attorney for any explanation at the time of
signature of the ante-nuptial contract. On her version, once she
discovered its meaning
in the nurses’ tea room in 1997, she did
not raise the issue with the plaintiff, nor sought to have the
ante-nuptial contract
amended or to obtain advice on the issue. She
never insisted that any assets acquired be registered in her name.
She was satisfied
with the contract until the divorce proceedings
were instituted.
[54]
In the circumstances, I am not satisfied
that the defendant has discharged the requisite onus and this claim
of the defendant must
fail.
[55]
The
conduct of the plaintiff is however a factor which in my view should
be considered in determining the defendant’s entitlement
to
maintenance in terms of section 7(2) of the Divorce Act
[22]
.
SPOUSAL
MAINTENANCE ISSUE
[56]
In the present instance no redistribution
order in terms of section 7(3) of the Divorce Act was sought, nor
would it have been appropriate
to do so.
[57]
Section 7(2) of the Divorce Act lays down
the jurisdictional requirements which must be met to determine
whether a Court, in the
exercise of its discretion, should grant any
order in respect of spousal maintenance. Section 7(2) provides: ‘in
the absence
of an order made in terms of subsection (1) with regard
to the payment of maintenance by the one party to the other, the
court
may, having regard to the existing or prospective means of each
of the parties, their respective earning capacities, financial needs

and obligations, the age of each of the parties, the duration of the
marriage, the standard of living of the parties prior to the
divorce,
their conduct in so far as it may be relevant to the break-down of
the marriage, an order in terms of subsection (3) and
any other
factor which in the opinion of the court should be taken into
account, make an order which the court finds just in respect
of the
payment of maintenance by the one party to the other for any period
until the death or remarriage of the party in whose
favour the order
is given, whichever event may first occur.’
[58]
Absent
such an order a spouse has no right to maintenance after divorce
[23]
.
Section 7(2) provides a discretionary remedy
[24]
requiring a party to make out a factual basis for a maintenance award
to be made before the quantum and duration thereof are
determined
[25]
.
[59]
In
the context of section 7(2) what is “just” entails a
recognition that in an appropriate case the accommodation
requirements
of the spouse have to be met as part of such spouse’s
reasonable maintenance needs
[26]
.
An enquiry into what is “just” is directed at the
interests of both spouses and the impact which the order will have
on
each.’
[27]
It encompasses a moral component of what is thought to be “right”
and “fair”
[28]
.
[60]
Where
there can be no equitable division of capital assets because there
was no community of property nor sufficient ante-nuptial
settlement
to ensure fairness, application of the provisions of section 7(2)
must be utilised to ensure that the parties are treated
fairly
vìs-a-vìs one another
[29]
.
[61]
As
pointed out by Satchwell J in Botha v Botha
[30]
:
‘the constitutional dispensation against which we must measure
the impact of all court orders affirms principles of human
dignity,
the achievement of equality and non-sexism'.
[62]
It
is trite that medical expenses form merely one of the components
embraced in the general concept of the duty to support
[31]
.
The common-law duty to support has been described as entailing the
provision of accommodation, food, clothing, medical and dental

attention and whatever else the spouses require.
[32]
Although this duty to support terminates at divorce, it can survive
in terms of a settlement agreement, alternatively a court order.
[33]
[63]
In
determining a just award, I have considered the relevant factors
without any factor being dominant.
[34]
[64]
At the date of the trial, the marriage had a duration of 24 years,
the last 7 years of which the parties have been separated.
The
plaintiff is presently 48 years old and the defendant 47. During the
marriage the parties enjoyed a relatively high and comfortable

standard of living, which the plaintiff has been able to maintain,
despite his substantial contribution to the interim maintenance
of
the defendant and the parties’ major children.
[65]
The
defendant argued that the supporting documentation provided in
respect of the plaintiff’s assets, and specifically the
value
of his interests in the seven close corporations of which he is a
member, is unreliable as it pertains to different years.
During
cross-examination, the defendant illustrated various of the
inaccuracies in the schedules provided by the plaintiff in respect
of
his assets/liabilities and income and expenditure.
[35]
This resulted in an amended schedule being provided by the plaintiff
during argument
[36]
.
[66]
The plaintiff according to his evidence and
after cross-examination, presently has assets of R4 406 517.00,
including
a house of R1.725 million and a 2011 Nissan Navara VAX
motor vehicle. R2 932 134.00 of his assets comprises of loan
accounts
to the various close corporations in which he has an
interest and a loan of R80 000.00 made to his daughter, C[...],
to start
up a business. His liabilities at present are R3 040 218.83,
leaving, on his version, nett assets in an amount of R1 366 298.17.

Plaintiff’s liabilities include an amount of R70 000.00
pertaining to the outstanding balance of the Hyundai motor vehicle

tendered to the defendant and amounts of R143 487.36 and R91 961.34
in respect of E[...] and C[...]’s motor vehicles. Plaintiff’s

liabilities further consist of various loans with different financial
institutions, eight credit cards and other loans in respect
of legal
fees. The amended schedule provided during argument reflected an
increase in assets of some R405 676.00 in relation
to the loan
accounts.
[67]
Plaintiff testified that to date, excluding
the trial, his legal fees had amounted to some R820 000.00. His
legal fees in defending
the defendant’s claims may ultimately
be in the region of some R1 million. In evidence, plaintiff
complained that these legal
fees have ruined him financially and has
been the source of a substantial portion of his current debt.
[68]
Plaintiff’s monthly expenses amount
to R101 979.43. Plaintiff’s evidence was that he does not
budget and spends his
money until it is finished. SAFL pays for any
expenses that his monthly salary from SAFL cannot meet. In
plaintiff’s view,
his children consider him an ATM machine. It
is clear that the plaintiff is a caring father and attempts to
satisfy his children’s
needs, and on occasion, their whims, in
excess of their necessary requirements.
[69]
It
does not appear that the plaintiff has substantial difficulties in
meeting his monthly expenses, even when the additional expenses
are
substantial, as during the month of C[...]’s wedding where an
amount in excess of R13 000.00 was spent on restaurants
and
entertainment and E[...]’s expenses increased to R17 300.00.
Upon finalisation of the divorce proceedings, plaintiff
will have no
further legal expenses. Plaintiff sought to rely on a resolution of
the members of SFL on 1 November 2011
[37]
in which the other members in SAFL complained of the plaintiff’s
drawings, which would ‘put the company in dire straits’.

I agree with the defendant’s contention that this document
appears orchestrated, as borne out by subsequent events. The
plaintiff is the managing member of SAFL and did not reduce his
expenses thereafter but increased them substantially. No further

complaints appear to have been raised by the other SAFL members.
During the past year, plaintiff’s expenses in respect of
E[...]
increased substantially to some R17 300.00 per month on
occasion. It must be borne in mind that a parent’s duty
of
support to a major child who is not yet self-sufficient is in
relation to necessary expenses and not all expenses.
[70]
The defendant’s financial position
stands in stark contrast to that of the plaintiff. No assets were
registered in her name
during the marriage nor did she independently
acquire any assets.
[71]
The
defendant’s assets
[38]
,
including the value of R119 000.00 in respect of the Hyundai
motor vehicle, is R196 567.42 and comprises of furniture and
two Old
Mutual policies. Her liabilities are R208 187.53 (including the
outstanding debt of R70 000.00 in respect of the vehicle)
and
R138 187.53 excluding the vehicle. Her liabilities comprise of
various clothing accounts, some of which on her evidence date
back to
a period prior to the breakdown of the marriage, a private loan with
a balance of R16 695.91 utilised for university fees
and related
expenses for E[...] and various liabilities with Absa and Nedbank.
The defendant has a negative nett asset balance,
if the vehicle which
the plaintiff has tendered and the legal costs which plaintiff has
abandoned are excluded.
[72]
The plaintiff has adopted the approach that
the loan in respect of E[...]’s aborted university expenses was
a folly on the
part of the defendant, for which she must bear the
consequences. This view appears harsh, bearing in mind the
plaintiff’s
own indulgent approach towards E[...].
[73]
In evidence, the defendant testified that
her present average monthly income is in the region of R8 000.00
earned from assembling
PC boards for SAFL. Defendant further earns an
average of R6 545.00 from part time nursing resulting in an
average monthly
income of some R14 545.00 per month. The
threshold of an R8 000.00 income earned by the defendant from
SAFL was a factor
included in the rule 43 order.
[74]
From the evidence, and as argued by the
defendant, it is improbable that SAFL will continue to make use of
the defendant’s
services. The defendant has no job security and
no formal contract exists regulating the services she presently
renders to SAFL
on a contract basis. It is clear that the defendant
was not treated as a normal contract worker, in that she has not
received any
increases in her remuneration since 2003 and a
substantial portion of her income had been retained by SAFL until it
became an issue
after institution of the divorce proceedings. The
income generated by defendant from SAFL subsequent to the granting of
the rule
43 order was close to the threshold of R8 000.00
referred to in the rule 43 order. Defendant has during the course of
the
divorce proceedings not actively utilised her best endeavours to
maximise her employment opportunities but has remained dependent
on
the PC assembly work she obtains from SAFL. The plaintiff’s
contention that the defendant is “in a comfort zone”’,

is an accurate summary of the position. Upon divorce, it is not
probable that the defendant will continue to derive this income
and
that her employment with SAFL, such as it is, will continue.
[75]
The defendant in evidence expressed a wish
to continue working for SAFL as in the past as her primary job. Her
expectations in this
regard appear unrealistic. The plaintiff
testified that from his perspective, the position was
‘uncomfortable’. Plaintiff’s
current girlfriend, Ms
Oosthuizen is employed by SAFL which may exacerbate the discomfort.
It is probable that the defendant was
only provided with work as it
was linked to the rule 43 order which was granted. I shall return to
the issue of defendant’s
employment prospects later.
[76]
According to Dr Kellerman, defendant’s
average income varied between R8 868.70 and R9 430.00 per month at
the time of her
assessment in 2011. This figure is in the region of
the threshold set in the rule 43 order and, provided this threshold
was met,
the plaintiff did not have to pay an additional amount of
maintenance to the defendant to make up the shortfall.
[77]
The defendant’s monthly expenses
amount to R27 717.91, taking into consideration plaintiff’s
tender in respect of the
Hyundai motor vehicle.
[78]
The plaintiff did not strenuously contest
the defendant’s expenses. In evidence, he suggested that she
could obtain cheaper
accommodation in New Redruth in an amount of
R7 000.00 per month, but no cogent evidence was presented
supporting his view.
Plaintiff further criticised defendant’s
telephone expenses as being too high and criticised her monthly
church contribution
of R1 000.00.
[79]
Considering the nature and extent of
defendant’s expenses as presented, they do not appear
excessive. Even stripped to the
minimum, it is clear that the
defendant on her present income will not be able to afford payment of
her medical aid expenses, accommodation
and ancillary expenses in
order to sustain a dignified standard of living.
[80]
Of the factors to be considered under
section 7(2), the defendant’s earning capacity was the most
contentious.
[81]
The report of Dr Kellerman concludes that
the defendant is unlikely to obtain employment as a PC board assembly
technician in the
open labour market by virtue of her lack of
qualifications. In her view, the defendant would be better suited to
the nursing profession,
although her age and break in experience
could count against her. There is however a shortage of trained
nurses which could increase
defendant’s prospects of obtaining
a permanent position.
[82]
According
to Dr Kellerman’s internet research, a professional nurse in
ICU could earn between R5 787.00 to R24 110.00
per month.
The quantum yearbook 2011 reflects that a professional nurse can earn
between R9 464.00 and R16 846.00 per
month. In her
supplementary report
[39]
,
Dr Kellerman refers to available Netcare positions (in 2011) at
between R12 850.00 and R17 000.00 per month. It is unclear

whether these figures are gross or nett of any deductions. No current
figures were provided. Dr Kellerman’s view was that
defendant
would have to update her knowledge in the next 2 years to ensure
employment at a reasonable rate. She would have to enter
the labour
market on a relatively low level of pay but could have the potential
to progress to higher levels of compensation after
about 3 years.
[83]
During cross-examination the defendant was
extensively cross-examined about various alternative options
theoretically available
to her, both in a direct nursing environment
and in related environments. No tangible alternatives were provided
and it is not
appropriate to speculate about the likelihood of the
defendant obtaining employment in any of the fields suggested.
[84]
From the defendant’s evidence it is
however clear that she has made no concerted effort to upgrade her
skills in the time
that the divorce proceedings were pending and did
not heed Dr Kellerman’s recommendation that she update her
skills in order
to become commercially competitive.
[85]
In cross-examination, the defendant was
justifiably criticised for not utilising the protracted period it
took to finalise the divorce
proceedings to enhance her skills and to
fully investigate all possible employment opportunities. She was also
criticised for providing
her nursing services through an agency which
receives 25% of her earnings and for not rendering nursing services
for more than
a few days a month.
[86]
There is merit in this criticism and it
appears that the defendant adopted a “wait and see”
approach as to what the
result of the divorce proceedings would be
before she actively made alternative arrangements. She conceded this
to be the case
in cross-examination. From the defendant’s
evidence this attitude appears to have been underpinned by a strong
sense of betrayal
arising from the conduct of the plaintiff and a
breach of the promises he had made. This does not however justify the
approach
adopted by the defendant. The defendant’s approach is
regrettable and unrealistic and illustrates a lack of foresight on
behalf of the defendant. The defendant’s attitude is in my view
a factor which must be taken into account in considering the
issues
surrounding maintenance.
[87]
The plaintiff argued that the defendant is
effectively the author of her own misfortune in the circumstances and
that she is well
able to maintain herself but deliberately chose not
to do so. This contention however disregards that the defendant’s
employment
prospects at present are limited and it will take time to
enhance her skills and become economically competitive. According to
Dr Kellerman’s report, even if the defendant utilises her best
endeavours, it will take a period of some five years until
her skills
are upgraded and defendant can command a competitive salary which can
meet her needs.
[88]
The plaintiff contended that the defendant
after resigning from her nursing position started her own business
assembling PC boards.
His evidence was that he attempted to support
her in spreading her wings and growing the business but shat she was
hesitant to
do so as she was fearful and in a comfort zone. The
plaintiff suggested that she did indeed start her own business after
the parties’
separated by creating an invoice reflecting
herself as the ‘managing director’ of a business styled
‘Perfecta’.
The defendant denied ever commencing her own
business as the creation of the invoice was merely to boost her sense
of self-worth
at a time when she was at her lowest ebb, which
letterhead had been created by her friend, C[...], the plaintiff’s
sister.
It seems that the plaintiff was opportunistic in seizing upon
the letterhead to contend that defendant had in fact started a
business,
as he must have been aware that SAFL’s records
referred to the defendant personally as the contract worker and not
the business.
The plaintiff, as the person who trained the defendant,
must also be fully aware of her level of skill and any deficiencies
therein.
His evidence overstated the acumen and independence of the
defendant.
[89]
The plaintiff’s approach further
disregards the role he played in the defendant’s relative
economic inactivity during
the marriage. On his own version, he
suggested to the defendant to leave the nursing profession after an
accident in 2002 and encouraged
her to ‘do her own thing’.
The defendant’s undisputed evidence that the parties had a
separation of roles during
the marriage in which she primarily
supported the family household and children and the plaintiff worked
to financially support
the family. The defendant stayed at home and
assisted the plaintiff in his business with the PC board assembly in
her free time,
utilising her pension funds to set up a workshop.
[90]
Defendant’s evidence was not disputed
that the plaintiff suggested to her to commence the PC board assembly
work so that the
money came back to their family and did not go to a
third party. Defendant utilised her income thus derived, not for her
own benefit
but to assist with household expenses. Plaintiff could
thus subsidise his personal expenses towards his family from his
business,
whilst deriving the benefit of the assistance given to him
by the defendant.
[91]
Plaintiff spent his time and efforts in
furthering his career as a businessman and built up a substantial
estate. From his own evidence
it appears that he has never budgeted
but has utilised his businesses to subsidise his expenses where
necessary. He has also been
able to substantially support his major
daughters in an amount in excess of R20 000.00 per month.
[92]
Whilst the defendant can be criticised for
not aggressively enhancing her skills base after the separation of
the parties, the enquiry
does not end there. The simple reality is
that the defendant exited the nursing profession in 2002 and did not
return thereto until
2012 when she commenced nursing in the neonatal
ICU unit of the Union Hospital on a part time basis during 2012.
[93]
Sister Steyn’s evidence is undisputed
that the defendant does not possess, not only the skills, but also
the youth, stamina
and personality traits to obtain a full time
position in order to train as a fully-fledged neonatal ICU sister and
that she would
not recommend the defendant for appointment in a
permanent post, of which her hospital presently has two available.
[94]
Sister Steyn’s evidence that in order
to acquire the opportunity of receiving further training, an
individual must have a
permanent appointment, was also not disputed.
[95]
From the available evidence, the defendant
will be able to work a maximum of 14 shifts per month, only if and
when any opportunity
is available.  It is unlikely that so many
shifts will be available.
[96]
On the evidence it appears improbable that
the defendant will obtain the opportunity to further her training in
this field and it
is likely that the defendant will have to make
other choices as to what route to follow once she has properly
investigated what
options are available to her. It will be necessary
for her to do so and to broaden her horizons in order to achieve the
best quality
of life possible. It is inappropriate to resort to
speculation as to what the future may hold for the defendant’s
employment
opportunities.
[97]
A further factor which in my view must be
taken into account is the conduct of the plaintiff, both prior to and
during the marriage.
[98]
Prior to the marriage the plaintiff
convinced the defendant to get married out of community of property
and promised to protect
the family unit. I have already dealt with
plaintiff’s conduct in this regard.
[99]
The plaintiff at no stage during the
marriage alerted the defendant to the prospect that she was not
economically active enough
or should obtain gainful and substantial
employment. He did not suggest that she acquire any meaningful assets
and did not make
it clear that she had to provide for herself during
the marriage. The income earned by defendant from SAFL of some
R4 000.00
per month was not substantial. It is clear that
neither of the parties relied on this income to meet the monthly
household and
other expenses, as illustrated by the retention of
defendant’s income by SAFL without demur. It is clear that the
defendant
was under the impression that her interests were protected
in the marriage and she never queried the lack of any assets being
transferred
or acquired in her name. The plaintiff’s conduct
and assurances must have played a strong role in the defendant’s
perception,
specifically if, as the plaintiff contends, she was a
strong and forceful woman.
[100]
It is also necessary to consider the
plaintiff’s conduct in the breakdown of the marriage and the
reasons which led to the
breakdown of the marriage.
[101]
Fault is not a relevant factor and the
consideration of the plaintiff’s conduct is not examined in
this context, but in the
context of what a just order would be in the
circumstances and whether defendant has established the
jurisdictional requirements
of her claim for maintenance.
[102]
It is undisputed that the initiative to
terminate the marriage emanated from the plaintiff. On his version,
the defendant’s
strong and conservative approach to religion,
her inability to maintain family secrets and her aggressive and
domineering personality
became unbearable, resulting in him seeking
psychological counselling for depression, exacerbated by work stress
during mid 2007.
When he confided in the defendant that he was an
atheist, the defendant’s reaction was harsh and unforgiving.
According to
the plaintiff, the psychologist recommended that he
terminate his marriage ‘if he wanted to survive’.
[103]
On his version, the plaintiff notified the
defendant of his intention to terminate the marriage during a meeting
at the psychologist’s
office in late November 2007. He further
notified the defendant that he had met someone else and wanted to
explore that relationship.
He left the common home whilst the
defendant was visiting her parents on 28 December 2014.
[104]
The defendant on her version, was unaware
of any problems in the marriage. She admitted to being distraught
when the plaintiff informed
her that he was an atheist. She hoped
that they could overcome this issue. She was devastated when the
plaintiff notified her of
his intentions in November 2007. Upon her
return from a visit to her parents over December 2007, she found that
the plaintiff’s
personal effects had been removed from the
common home. The plaintiff and Ms Oosthuizen were in a relationship
by then, which relationship
continues.
[105]
It is necessary to consider the defendant’s
claim for maintenance, until her death or remarriage. Defendant
claims the following:
(1) an order directing plaintiff to provide her
with a home of her choice at his cost and at no cost to her, with a
value of no
more than R4 million. (During the trial defendant reduced
this amount to R1.7 million, being the value of the townhouse in
which
she presently resides); (2) payment of the rates, taxes,
electricity and other municipal charges in respect of the home; (3)
payment
of levies if the home is a townhouse; (4) payment of
household and householders insurance; (5) security in respect of the
home;
(6) a monthly amount of R20 000.00, including annual
increases in accordance with the Consumer Price Index; (7) payment of

all medical, dental, hospital and prescribed pharmaceutical expenses
and expenses ancillary thereto and to maintain defendant as
a
beneficiary on a comprehensive medical aid scheme; (8) transfer of a
motor vehicle of defendant’s choice with a value of
no more
than R300 000.00, to be replaced every four years with a similar
vehicle; (9) payment of an amount of R100 000.00
as a
resettlement allowance; (10) payment of an amount of R300 000.00
in respect of household furniture, appliances and equipment.
[106]
The plaintiff contends that the defendant
is not entitled to any maintenance and that she is well able to look
after herself and
meet her own needs.
[107]
In considering all the factors as envisaged
by section 7(2) and the additional factors referred to above, and
after considering
the interests of both the plaintiff and the
defendant, I am satisfied that the jurisdictional requirements of
section 7(2) have
been met and that it would be just that the
defendant be awarded maintenance. It is now necessary consider the
nature and extent
of such maintenance.
[108]
The defendant contends for maintenance
until her death or remarriage. She is presently 47 years of age and
was 40 when the parties
separated. The defendant thus has a
conceptual economic life span of at least 18 years until the normal
retirement age of 65. There
was no evidence that she is presently in
a romantic relationship or is likely to be married in the foreseeable
future.
[109]
Due
consideration must be given to the so-called ‘clean break’
principle and the parties should become economically
independent of
each other as soon as possible after the divorce.
[40]
Despite the modern trend to accept marriage as being a partnership
between two economically independent individuals, the facts
of any
particular matter must justify such conclusion. In the present
matter, such conclusion cannot be readily drawn in light
of the
defendant’s lack of assets and her relative economic activity
during the past 13 years.
[110]
It does not in my view appear appropriate
that the defendant obtain a maintenance order which endures for the
rest of her life or
until remarriage. The defendant is not elderly
and it is probable that the defendant will be able to procure
appropriate gainful
employment in order to maintain herself in due
course. It would be manifestly unjust to the plaintiff to be
financially responsible
for the welfare of the defendant for such an
extended and indefinite period.
[111]
It
is appropriate to award rehabilitative maintenance where a spouse who
had been disadvantaged or disabled in some way by the marriage
was
enabled, through training or therapy or other opportunities, to be
restored either to the economic position vìs-a-vìs

employment which she enjoyed prior to the marriage or to be
reintroduced to the ability to participate effectively and profitably

in normal economic life
[41]
.
[112]
Although the defendant has not been
proactive in seeking to enhance her employment opportunities, it is
in the interests of justice
that she be afforded a proper opportunity
to do so. In my view she has been disadvantaged in the marriage. It
is necessary to afford
her the necessary protection but
simultaneously to incentivise the defendant to use her best
endeavours to effectively and profitably
participate in commercial
life.
[113]
In
order to do so, the defendant must at least have the security of
suitable accommodation and sufficient funds to ensure that her
basic
needs are met. The payment of instalments in respect of a mortgage
bond over an immovable property constitutes periodic payments
of
maintenance and does not constitute a lumpsum
[42]
.
On the other hand, the defendant must be incentivised to adopt a
realistic and practical approach and to fully embrace a new chapter

of her life and the plaintiff cannot be burdened with catering for
her every need.
[114]
No evidence was presented supporting
defendant’s claims for resettlement and furniture and I am not
satisfied that the defendant
has proved any entitlement thereto in
the circumstances and pursuant to the substantial period the parties
have been separated.
[115]
The defendant has no meaningful assets
which can be employed or invested to ensure a dignified lifestyle and
her present financial
means are, absent any contribution from the
plaintiff, precarious.
[116]
Considering the basic needs of housing and
medical care, it would be just to direct the plaintiff to contribute
to the provision
of such needs.
[117]
At present the defendant further requires
some financial assistance from the plaintiff in order to assist her
throughout the period
of enhancing her skills and alleviating the
disadvantages of her limited economic activity during the marriage.
Thus far the plaintiff
had focussed on enhancing his own interests,
to the detriment of the defendant, a scale which must now be
balanced, so that its
result is equitable to both parties. The
plaintiff’s obligations to his major daughters will reduce in
future, more so as
C[...] is now married and E[...]’s studies
are not indefinite.
[118]
Both parties in argument adopted diverging
approaches to the issues of gender equality. The plaintiff has argued
that it is insulting
to treat women as incapable of carving their own
way in the world, whereas the defendant has pointed out that the
reality exists
that women are often disadvantaged in their careers by
adopting a supportive rather than a leading role in family life,
focussing
on creating a suitable environment for the rearing of
children rather than economic success. There is much to be said on
the issue
but it ultimately distills into a consideration of the
facts and what is “fair” in the circumstances and is
dependent
on the particular circumstances of each case.
[119]
Considering the training period referred to
in the report of Dr Kellerman and the possibility that in the present
economic environment
appropriate employment opportunities may not be
immediately available, I am of the view that a period of five years
would afford
the defendant sufficient time and opportunity to enhance
her skills in whatever field she is able to and to commence earning
an
income on which she can lead a dignified existence and to meet her
financial needs.
[120]
The only remaining issue is costs. The
plaintiff argues that there is no basis to deviate from the normal
rule that costs should
follow the event. The defendant on the other
hand contends that, even if unsuccessful in any of her relief, no
costs order should
be made in favour of the plaintiff in light of the
defendant’s precarious financial position as it would lead to
her complete
financial ruin.
[121]
Having regard to all the relevant
considerations and the findings on the various claims, I am of the
view that the interests of
justice will be best served if each party
is directed to pay his or her own costs.
[122]
I accordingly make the following order:
[122.1]
A decree of divorce is granted;
[122.2]
The plaintiff is directed to make the
understated contributions to the maintenance of the defendant and to:
[122.2.1]
make payment of an amount of R15 000.00 per
month, into an account designated by the defendant for a period of
five years commencing
on 1 May 2015 and thereafter at the 1
st
day of each consecutive month, subject to an annual increase
commencing on 1 May 2016 in accordance with the Consumer Price Index

as published from time to time and applicable at that specific time;
[122.2.2]
retain the defendant as a beneficiary on
the existing comprehensive medical aid scheme and to make payment of
the monthly premiums
thereof directly to the service provider for a
period of 5 years commencing on 1 May 2015;
[122.2.3]
pay the outstanding monthly instalments and
insurance in respect of the Hyundai I20 motor vehicle presently in
possession of the
defendant until such time as the outstanding
balance has been settled in full after which the defendant shall be
liable for the
insurance in respect of the vehicle;
[122.2.4]
purchase a house or townhouse of the
defendant’s choice with a value of no more than R1.7 million
and to have the property
registered in the name of the defendant, to
cause a mortgage bond to be registered over the said property and to
make payment of
the costs and the monthly payments on the said bond
until the mortgage bond has been settled in full and thereafter to
cause the
mortgage bond to be cancelled at his costs;
[122.2.5]
take out and maintain a life insurance or
other appropriate insurance policy to secure his obligations in
respect of the mortgage
bond referred to in [122.2.4] above and to
pay the  premiums in respect of such policy until the mortgage
bond referred to
in [122.2.4] has been cancelled;
[122.3]
Each party is directed to pay his/her own
costs.
________________________________
E
F DIPPENAAR
ACTING
JUDGE OF THE HIGH COURT
DATE
OF HEARING : 26-30 January 2015 and 5 February 2015
DATE
OF JUDGMENT: 17 April 2015
FOR
PLAINTIFF :Adv L Segal
:Marston
& Taljaard Attorneys
FOR
DEFENDANT: Adv T Engelbrecht
:Tim
Fourie Attorneys
[1]
Exhibit
C
[2]
70
of 1979 as amended
[3]
Plea
para 5
[4]
Plea
para 5.2
[5]
Plea
paras 5.8 to 5.17
[6]
Paras
10-12
[7]
Patel
v Rabie
1974 (1) SA 532
(A); Gerolomou Construction (Pty) Ltd v Van
Wyk 2011 (4) SA 500 (GNP)
[8]
It
is not necessary to prove that the influence was such as would have
induced a reasonable person in the position of the defendant
and it
is sufficient to show that it in fact induced her. Preller v Jordaan
1956 (1) SA 483
(A) at 493G referring to a dictum of Lindley LJ in
Alcard v Skinner
(1887) 57 LT 61
72: ‘Court of equity have
never set aside gifts on the ground of the folly, imprudence or want
of foresight on the form
part of the donors. If the influence has
been exercised in an unscrupulous manner it will not avail the
influencer to say it
would not have affected a reasonable person,
but if the contract was due to the folly, imprudence or lack of
foresight of the
party seeking relief is claimed to set it aside
will fail for lack of causation as the influence did not induce the
contract.
Lest it be thought that this limitation of the doctrine is
insufficient to prevent the undue influence getting out of hand.’

Fagan JA said immediately before the above quotation: ‘Ek sien
geen gevaar dat die regsbronne waarna ek hierbo verwys het
en die
vertolking wat ek daaraan gegee het, n Hof daartoe mag lei om bv.
die oorredingsvermoe van n vernuftige verkoper. ‘n

geesdriftige kollektant of ‘n welsprekende prediker as
“onbehoorlike” beinvloeding te bestempel.’
[9]
Katzenellenbogen
v Katzenellenbogen and Joseph
1947 (2) SA 528
(W) at 541
[10]
Preller
v Jordaan supra at 496
[11]
Stellenbosch
Farmers Winery Group Ltd and Another v Martell et Cie and Others
2003 (1) SA 11
(SCA), 14I-15E, para [5]
[12]
2000
(3) SA 741
(C), decided as an objection on the ground of
excipiability to a proposed amendment launched by the wife to
introduce, inter
alia, a claim similar in nature to the defendant’s
present claim
[13]
In
Barnard, supra, various other issues arose which are not relevant to
the current proceedings
[14]
1950
(2) SA 538 (D)
[15]
1939
NPD294
[16]
(1905)
19 EDC237
[17]
Para
[30], 752B-D
[18]
Barnard,
paras [18] and [19], 748G-749B
[19]
Para
[32], 753A-B
[20]
Supra
fn7
[21]
‘
vernuftige
verkoopsman’ in the words of Fagan JA in Preller v Jordaan
supra at 493E-F
[22]
70
of 1979 as amended
[23]
Strauss
v Strauss 1974 (3) SA 79 (A)
[24]
Beaumont
v Beaumont
1987 (1) SA 967
(A) at 987E; Katz v Katz
1989 (3) SA 1
(A) at 11A-C
[25]
AV
v CV
2011 (6) SA 189
(KZP)  para [9]
[26]
Zwiegelaar
v Zwiegelaar
2001 (1) SA 1208
(SCA) 1212I-1213A, para [14]
[27]
Botha
v Botha
2009 (3) SA 89
(W) at 97 para [43]; Kroon v Kroon
1986 (4)
SA 616
(E) and Rousalis v Riousalis 1980 (3) SA 446 (C)
[28]
Botha
supra, fn27
[29]
Nilson
v Nilson
1984 (2) SA 294
(C) at 297
[30]
2009
(3) SA 89
(W) at 97
[31]
Thomson
v Thomson 2010 (3) SA 211 (W)
[32]
Sinclair,
Law of Marriage Vol 1 at 443
[33]
Rubenstein
v Rubenstein
1992 (2) SA 709
(T) at 712F
[34]
Grasso
v Grasso 1987(1) SA 48 (C); Van Wyk v Van Wyk
[2005] JOL 17228
(SE),
Swart v Swart
1980 (4) SA 364
(O); Section 7(2) par [59] supra
[35]
Exhibit
H
[36]
“
A”
was updated to “B” as attached to plaintiff’s
heads of argument
[37]
Second
rule 43 application, “X”, p58
[38]
Exhibit
D, (exh A, p219V)
[39]
Notices
bundle Vol 4, p469
[40]
Beaumont
v Beaumont
1987 (1) SA 48
(C) at 53
[41]
Botha
v Botha
2009 (3) SA 89
(W) at 107F, para [106]
[42]
Zwiegelaar
supra para [13] 1212H-J,  para [16] 1213C-D