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[2016] ZAGPJHC 30
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M v M (A3046/2015) [2016] ZAGPJHC 30 (12 February 2016)
SAFLII
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEAL CASE NO:
A3046/2015
DATE: 12 FEBRUARY
2016
In the matter between:
[L………] [E……….] [M……]
(born
[B……….])
.................................................................
Appellant
And
[M…….] [S……..]
[M……….]
..............................................................................................
Respondent
Appeal – From Regional Court
- Spousal maintenance – Insufficient evidence – Correct
approach - Relevant factors
in terms of section 7 (2) Of
Divorce Act
70 of 1979
incorrectly applied – Correct approach that
appellant entitled to spousal maintenance in principle and issue of
quantum to
be referred to maintenance court for determination
JUDGMENT
WEPENER
J AND CRUTCHFIELD AJ
[1]
This appeal arises from
a portion of a judgment granted in divorce proceedings between the
parties, in the Regional Court for the
Regional Division of Gauteng,
held at Johannesburg (“
the
regional court”
),
on 31 July 2014 under case number 11/879 (“
the
judgment”
).
[2]
The appellant in this
court was the defendant in the court
a
quo
. The parties
will be referred to herein as the appellant and the respondent
respectively.
[3]
Prior to the matter
being called at 10h00, we were approached in chambers by counsel for
both parties, whereupon the respondent’s
counsel, who was
recently appointed in the matter, requested that the matter stand
down in order for him to consult with his client.
We
accommodated the request and the matter stood down until 11h30.
[4]
Upon the matter being
called, the respondent’s counsel rose to request a postponement
of the appeal from the bar.
[5]
Prior to dealing with
the request for a postponement, the respondent’s counsel
recorded that the respondent was willing to
concede that:
5.1
In the first instance,
condonation for the appellant’s late filing of the notice of
appeal was no longer in issue; and
5.2
Secondly, the
respondent’s pension fund should be divided as at the date of
the parties’ divorce, and not backdated
to the date of their
separation.
[6]
These concessions left
only the question of spousal maintenance in issue between the
parties.
[7]
During the course of
the hearing, the respondent conceded that the appellant was entitled
to rehabilitative maintenance. This accorded
with the position in the
regional court, where the respondent only challenged the amount of
the claim for spousal maintenance and
not the principle of the
appellant’s need for maintenance.
[8]
As regards the request
that the appeal be postponed, the respondent’s counsel
submitted that the respondent had instructed
him during the course of
their earlier consultation, that he had information that the
appellant was a director of company, (which
he named), from which the
appellant was obtaining income (‘the new information’).
[9]
Assuming the new
information to be correct, the respondent’s counsel contended
that it ought to have been disclosed by the
appellant at the trial.
Hence, the respondent sought a postponement in order to lead new
evidence on appeal, that the opportunity
to investigate the new
information, the intention being to bring an application for lead
further evidence on appeal, to the effect
that the appellant is in a
position to maintain herself.
[10]
In support of the
request, the respondent’s counsel relied upon the potential
prejudice to the respondent, in the event of
a denial of the request
for a postponement.
[11]
The respondent’s
counsel was not certain when the new information was established by
the respondent but conceded that if it
had
come
to light
after the
magistrate granted the judgment, there would have been nothing for
the court to consider.
[12]
The respondent’s
counsel was uncertain whether the reference in the record of the
trial proceedings, that the appellant had
intended to start a
business operation, was the same business as that referred to in the
new information.
[13]
The respondent tendered
the costs of the postponement.
[14]
The appellant objected
to the request for the postponement, noting that the request was made
from the bar without recourse to formal
affidavits or a shred of
documentary evidence. Notwithstanding, upon the court’s
request, the appellant’s counsel
dealt with the merits of the
postponement application.
[15]
The appellant pointed
to the substantive application previously before the opposed motion
court, which arose out of the respondent’s
refusal to furnish
an answering affidavit to the appellant’s condonation
application.
[16]
Furthermore, a previous
appeal date, during October 2015, had to be abandoned pursuant to the
alleged refusal by the respondent
to co-operate. The appellant’s
taxed costs pursuant to that postponement, amounted to in excess of
R60 000.00, which
the respondent had not yet paid. Hence,
the appellant submitted, there was no consolation for the appellant
in yet another
postponement at the respondent’s cost.
[17]
Against that
background, we requested the parties to address us on the merits of
the appeal.
[18]
Counsel for the
appellant submitted that the magistrate had dealt correctly with the
factors to be considered in terms of s 7(2)
of the Divorce Act, 70 of
1979 (‘the Act’), various of which were found by the
magistrate to support the appellant’s
claim for spousal
maintenance.
[19]
Notwithstanding, the
appellant submitted that in the light of the magistrate’s
findings, the evidence before the court was
insufficient to determine
the quantum of spousal maintenance.
[20]
Thus, the correct
approach would have been for the magistrate to find that the
appellant was entitled to spousal maintenance in
principle and refer
the question of the amount thereof to the maintenance court for
determination of the quantum.
[21]
As regards the question
of whether the appellant was entitled to rehabilitative or spousal
maintenance, the appellant’s counsel
submitted that
rehabilitative maintenance presupposed an ability on the part of the
appellant to earn sufficient with which to
maintain herself, at some
stage in the future. The appellant argued that the appellant was
entitled to spousal maintenance as a
matter of principle and not only
to rehabilitative maintenance.
[22]
Turning to the
Magistrate’s findings in respect of the factors to be
considered in respect of spousal maintenance, the Magistrate
pointed
to:
22.1
The duration of the
marriage: In the light of the parties spending the last three years
separately, the duration reduced from thirteen
to ten years.
Hence the magistrate considered it to be a marriage of
above
average
duration, a
factor that
tended
to support
the
appellant’s claim for spousal maintenance;
22.2
The reasons for the
breakdown of the marriage: The Magistrate found that those alleged by
the respondent did not attribute misconduct
to the appellant, and,
were inconsistent with the respondent’s evidence to the court,
pursuant to which the evidence was
inadmissible.
22.3
The appellant’s
averments as to the reasons for the breakdown of the marriage, tended
to support her claim, and, the Magistrate
found that her evidence
accorded with the pleaded grounds of the breakdown and were more
probable.
22.4
The magistrate accepted
the appellant’s evidence that it was the respondent’s
adultery that caused the breakdown and,
given the prevailing societal
views, the averred adultery amounted to misconduct on a balance of
probabilities.
22.5
The existing and
prospective means and needs of each of the parties: The evidence
before the court was insufficient to deal with
these factors.
22.6
The parties’
earning capacities, their financial needs and obligations: Again, the
evidence was insufficient, and the appellant
failed to justify the
amount of R3 000.00 which she claimed as spousal maintenance.
Nor did the appellant establish
that the plaintiff was able to pay
that amount.
22.7
The age of the parties.
The marriage certificate revealed that the appellant was forty-nine
(49) years of age. The magistrate considered
that the appellant’s
age supported her claim.
22.8
The appellant’s
qualifications: Whilst these should enable the appellant to earn an
income, the extent of that income earning
ability was not explored
with sufficient precision.
22.9
The parties’
standard of living: Insufficient evidence was furnished in this
regard and it was only the financial contribution
of the appellant’s
eldest daughter (of a previous relationship), to the appellant’s
household that indicated a deterioration
in the appellant’s
standard of living. Furthermore, whilst the appellant continued
living in the erstwhile marital home,
certain charges fell into
arrears but the reasons in respect thereof were not detailed in
evidence.
22.10
The magistrate found
that certain factors tended to support the appellant’s claim.
These included the duration of the marriage
and the appellant’s
unemployed status during the last four years of the marriage, which
rendered her dependent on the respondent
for support.
22.11
Any other factor to be
taken into account by the court: The appellant’s envisaged
receipt of the proceeds of the division
of the joint estate,
including the endorsement of the pension fund which was immediately
payable, did not support the claim for
spousal maintenance.
22.12
A further factor was
that the respondent failed to maintain the appellant after the
parties’ separated, as a result of which
the appellant accessed
the bond registered over the marital home.
22.13
The court found as a
fact, that the appellant had transferred funds for her own use, thus
permitting her a degree of support from
the joint estate. Moreover,
the respondent conceded that he drew funds himself.
[23]
The regional court
concluded that if the parties had not separated for the four-year
period prior to the trial, the appellant ‘would
have been
entitled to an award of spousal maintenance’, albeit that the
duration and amount thereof would have required careful
consideration.
[24]
However, the appellant
had survived the respondent’s absence and earned ‘some
meagre income’, pursuant to which
the regional court favoured a
clean break principle.
[25]
No evidence was led in
respect of any ‘large liabilities or loans’, other than
the mortgage bond. The magistrate concluded
as a result that the
appellant’s financial position would improve after the divorce,
albeit that she would need to obtain
appropriate accommodation for
herself and the child, which would entail the payment of rent or a
bond.
[26]
The magistrate’s
statement in terms of Rule 51(8) of the Magistrate’s Court
rules, repeated the factors which supported
the appellant’s
claim for spousal maintenance. In particular, the duration of
the marriage, and the fact of the appellant’s
unemployment for
some three to four years prior to the separation together with her
unemployment thereafter, during which time
she had been dependent
upon the respondent who had failed to support her.
[27]
The appellant’s
supplementary notice of appeal averred that in assessing the
appellant’s claim for spousal maintenance,
the court
a
quo
failed to take
account, alternatively sufficient account, of the following: the age
of the appellant. her limited tertiary qualifications,
the
appellant’s dismissal from employment with the South
African Revenue Services during 2008, the appellant’s
unemployed status for the four years prior to the parties’
separation, the meagre income generated by the appellant, which
amounted to no more than R1 200 per month, that the appellant
had been financially dependent on her elder daughter from a
previous
marriage who contributed between R3 000 and R5 000 per
month, since the respondent vacated the former home.
[28]
In addition, the
appellant had applied for employment but without success, and she had
premised her claim of R3 000 on the
basis that she would derive
a substantial amount from the division of the joint estate.
[29]
The record revealed
that the respondent paid for a number of insurance/retirement
policies, most of which were seemingly unnecessary.
[30]
The court
a
quo
incorrectly
found that the appellant was not entitled to spousal maintenance due
to the fact of the parties’ separation.
[31]
It appears to us that
there is merit in the appellant’s submissions regarding the
factors to be considered in respect of spousal
maintenance.
[32]
It was established as a
fact that the appellant relied upon her elder daughter, born of a
previous relationship, to contribute a
reasonably significant amount,
towards the support of the appellant and the parties’ child.
That factor alone, establishes
in our view that the appellant is in
financial need.
[33]
The obligation to
contribute towards the appellant’s upkeep, falls in the first
instance upon the respondent, and not the
appellant’s
daughter. It must be borne in mind that the respondent enjoys a
reasonable monthly financial package and
would seem to be able to
make some contribution towards the appellant’s financial needs.
[34]
In the light of the
appellant’s approach to this appeal, that the quantum be
referred to the maintenance court, (which would
allow the respondent
to pursue his investigation of the new information without the
necessity of a postponement of the appeal),
it is not necessary for
this court to determine the quantum of the appellant’s claim,
or indeed the duration for which that
claim operates.
[35]
This court is called
upon to deal only with the principal of the appellant’s
entitlement to spousal maintenance, or otherwise.
[36]
Indeed, it appears to
us that given the necessity for the appellant’s elder daughter
to contribute towards the appellant’s
support, together with
the various factors found by the magistrate to support the
appellant’s claim, the appellant is entitled
in principle to
spousal maintenance, and we intend to make such an order.
[37]
In addition, upon a
cursory consideration of the limited evidence before the court, the
respondent appears able for the interim,
to pay at least R1 000.00
per month to the appellant with effect from 1 March 2016, and monthly
thereafter on the first day of
each consecutive month, as a means to
tide the appellant over until such time as the quantum is determined
by the Maintenance Court.
[38]
In this regard, the
respondent’s gross monthly salary is R20
594.05
as at 31 January 2014, which he conceded at the trial had increased
by approximately R800 per month.
[39]
After payment of his
deductions of R13 115.19 which include the mortgage bond
instalment and a host of insurance/retirement
policies, the
respondent is left with a net monthly salary of R7 478.86 which
would have increased at this stage.
[40]
In the circumstances,
the respondent has some financial capacity to assist the appellant
pending the matter being determined in
the Maintenance Court as
aforementioned.
[41]
The following order is
granted:
41.1
The
application for a postponement is refused.
41.2
The
appeal succeeds with costs.
41.3
The respondent’s
pension fund is to be divided as at the date of the parties’
divorce.
41.4
The appellant is
entitled to spousal maintenance.
41.5
The quantum of the
spousal maintenance falls to be determined by the maintenance court.
41.6
Pending the
determination by the maintenance court, the Respondent is ordered to
pay R1 000.00 per month to the appellant with effect
from 1 March
2016, and monthly thereafter on the first day of each consecutive
month.
W
L WEPENER
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
A
A CRUTCHFIELD
ACING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR APPLICANT
INSTRUCTED
BY
COUNSEL
FOR RESPONDENT
INSTRUCTED
BY
DATE
OF HEARING: 9 FEBRUARY 2016
DATE
OF JUDGMENT: 12 FEBRUARY 2016