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[2016] ZAGPJHC 49
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B v B (18251/2015) [2016] ZAGPJHC 49 (4 March 2016)
SAFLII
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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
NUMBER: 18251/2015
DATE:
04 MARCH 2016
In the matter
between:
[B………],
[G……..]
..................................................................................................................
Applicant
And
[B……..],
[J……..]
.................................................................................................................
Respondent
(formerly [M…….])
JUDGMENT
OPPERMAN AJ
INTRODUCTION
[1] The Applicant
(Mr B……) and the Respondent (Mrs B…..) were
married to each other on 27 February 2007 out
of community of
property with the exclusion of the Accrual System as provided for in
terms of Chapter 1 of the
Matrimonial Property Act 88 of 1984
. It
was a second marriage for both of the parties and they are still
married. No children were born of this marriage. The marriage
relationship between the parties has irretrievably broken down and a
divorce action is pending.
[2] Mr B…….
is a self-employed businessman, currently residing in B…….,
Gauteng. Mrs B…….
is employed as a media strategist and
resides at 6……. Fifth Street, H…….. E…….,
Gauteng
(‘the former matrimonial home’).
[3] Mr B………
vacated the former matrimonial home during April 2014. The former
matrimonial home is co-owned
by the parties in equal shares.
[4] This is an
application by Mr B…….., for the return of movable
property allegedly belonging to him consisting mostly
of furniture
and artwork (‘the goods’). The goods are described in an
annexure to the founding affidavit (‘annexure
A’). By
virtue of the nature of the defences raised, it is necessary to
reproduce the content of such annexure:
‘ ANNEXURE “A”
The list of my
assets/furniture is as follows:
1. Entrance Hall
1x painting of Paris
Bistro Restaurant;
1x rectangular Red
Persian Carpet.
2. Dining Room
1x wall clock;
1x painting/Litho
print of Chassidic Rabbi;
1x dining room
mirror/large/ hanging above the sideboard;
2x upholstered
dining room chairs with armrests - either side of sideboard.
3. Kitchen
1x
large painting of
Leopard in Gilt frame (Edmund Barton Cheetah study);
2 x small paintings
of birds on south end wall of the kitchen;
1x large rectangular
painting of birds in gilt frame (Edmund Barton);
1x round black
granite table, including 6x black wrought iron chairs;
1x Caffe de Pino
coffee machine (Juraena 9) with 1x milk container and 10x cappuccino
cups and saucers;
1x Sunbeam bread
maker;
1x LG Microwave
oven;
50 % of the day to
day white china crockery (purchased from Adams in Fourways)
consisting of meat plates, fish plates, soup plates
and dessert
bowls;
7x various sizes
Coastal Blue Le Creuset pots;
1x Water Purifier;
1x LG white
refrigerator.
4. Wooden floor
atrium
2 x M J de Beer /
Tina paintings;
1x Oil painting of
Tiger Lilies;
1x Oil painting of
Rhododendrons which hangs to the rear of the coffee table;
1x round glass
topped wooden based coffee table.
5. Top of staircase
1x painting called
‘Emerald Eyes’ by Otto Aguiar.
6. Main bedroom
small lilac
hand-woven carpet lying next to the fridge cabinet;
1x wooden fridge
cabinet;
1x mirror hanging on
wall.
7. Downstairs
passage
1x Perspex based
rectangular table with glass top.
8. Godfrey’s
lounge (with all the wildlife pictures)
1x black leather
lounge suite comprising a 3, 2 and 1 piece sofa’s;
2 x upholstered
orange wingback chairs;
1x Kim Hun oil
painting called ‘Lion Head Study’;
1x Fuz Cafario oil
painting called ‘Snow Tiger’;
1x Kim Hun oil
painting called ‘Leopard Study’;
1x Kim Hun oil
painting called ‘Buffalo’;
1x Fuz Cafario oil
painting called ‘Leopard Study’;
1x medium print of a
Lion’s Head;
1x Scott Dawkins oil
painting called ‘Elephant Study’;
1x Scott Dawkins oil
painting called ‘Leopard Study’;
1x Wall clock in
glassed wooden frame;
1x Brown rectangular
carpet.
9. Second family
room / lounge
1x G-Boys oil
painting called ‘Floral Study’.
10. Outside patio
1x leather grey
patio suite consisting of 2x single chairs, 6 seater L-shaped
extension with beige cushions;
1x glass topped
coffee table;
1x wrought iron with
glass top patio dining table with 12x chairs and orange cushions.
11. Bar Area:
1x ice Machine
(Scotsman);
1x water purifier.’
[5] Mrs Burstein
resists the application on the following grounds:
5.1. She contends
that an agreement was concluded in terms of which the goods would
remain in the former matrimonial home until
such property has been
sold;
5.2. Mr Burstein
does not need the goods;
5.3. In respect of a
Juraena 9 coffee machine, with 10 cups and saucers and a milk
container (‘the coffee machine’),
she contends it was
donated to her;
5.4. In respect of
the LG Microwave oven (‘the LG Microwave’), she claims
that it was purchased as a replacement to
the one she previously
owned;
5.5. In respect of
an ice machine (‘the ice machine’) and a coffee table
under the chandelier (‘coffee table’),
she alleges that
it was purchased jointly;
5.6. By removing the
goods, Mr Burstein would be stripping the former matrimonial home and
thus nullifying her right to remain there
so long as Mr Burstein does
not offer suitable accommodation elsewhere or the means of obtaining
this;
5.7. The true
motivation of the application is not to obtain the return of the
goods, but rather to reduce the value of the former
matrimonial home
and to ensure Mrs Burstein’s discomfort pendente lite in an
attempt to coerce her into an unfavourable settlement
of the pending
divorce action.
COMMON CAUSE
FACTS
[6] Commencing
September 2013, the former matrimonial home was, by agreement between
the parties, marketed for a period of 3 months
for R13 200 000. They
had decided that it had become too big for them.
[7] The former
matrimonial home has, amongst other things, two formal lounges, a
study, a dining room and a kitchen. Such rooms,
with the exception of
Mr Burstein’s lounge, are all furnished with Mrs Burstein’s
furniture, which furniture is to
remain in the house. Mrs Burstein
has, and to which Mr Burstein is not laying claim, a full lounge
suite (with a coffee table),
a ten seater dining room table, chairs
and a sideboard, a large gunmetal Hitachi refrigerator, half of all
crockery, cutlery and
stemware, other kitchen utensils including pots
and pans, a Kenwood Chef, a desk and drawers in the study, a washing
machine and
tumble dryer, two dishwashers, all of the pewter gifts,
her own artwork in the dining room, passage, stair case and guest
toilet,
and four bedroom suites.
[8] After vacating
the former matrimonial home and on or about 2 May 2014, Mr Burstein
collected his personal belongings, his son’s
towel, a blanket,
his koi fish, the DSTV decoder, speakers, the contents of the lounge
cupboard, a television from the lounge,
two passports and a
Krugerrand coin. These items were all listed in a mail sent by Mrs
Burstein to Mr Burstein on 2 May 2014 recording
that these goods had
been removed without notification to Mrs Burstein and without her
consent. She further recorded that the big
truck which had been
despatched to the former matrimonial home to collect other items
belonging to Mr Burstein, would not be allowed
access to the
property. She concluded the mail with the following :
’Please submit a list of any further items
that are required
and I will revert to you as to when any agreed items should be
collected’.
[9] Mr Burstein
responded to such mail and advised that he still needed to collect
the following items: his lounge furniture, all
his paintings, the
outside bar fridge with ice machine, the cabinet fridge in the
bedroom, the patio lounge suite with small glass
table, his three
wall safes, the coffee machine, his bronze elephant statue, odds and
ends in the swimming pool filter room, two
Persian carpets ie a large
red carpet in the entrance hall and a blue Persian outside his son’s
bedroom, his dinner set,
the white large LG fridge, the freezer in
the domestic worker’s room, odds and ends in the storeroom,
some white chairs for
the garden and a tresses table.
[10] Mrs Burstein
agreed that some, but not all, could be taken. She created two
categories of goods:
10.1 She stated that
the furniture in the lounge and all Mr Burstein’s paintings
were to remain until they had received and
accepted an offer on the
former matrimonial home.
10.2 She announced
that a dispute (the nature of which was not disclosed) existed in
respect of the ice machine, the outside patio
lounge furniture, the
coffee machine and the red Persian carpet, which dispute would have
to be resolved in the divorce proceedings.
[11] Other than the
large white LG fridge in the kitchen and his furniture in the lounge
and paintings, Mr Burstein collected everything.
[12] On 4 August
2014, Mr Gavin Hartog, of Gavin Hartog Attorneys (‘Mr Hartog’),
representing Mr Burstein, addressed
correspondence to Ms Deanne Kahn,
of Deanne Kahn Attorneys (‘Ms Kahn’), representing Mrs
Burstein, requesting a convenient
time for Mr Burstein to collect Mr
Burstein’s lounge suite, coffee table, all his paintings,
fridge and Persian carpets.
No response was received. The request was
repeated on 8 August 2014.
[13] In response,
and on 11 August 2014, Ms Kahn indicated that Mrs Burstein would not
agree to the removal of such items until
such time as the former
matrimonial home had been sold. Ms Kahn concluded her correspondence
as follows “As your client
is aware, it is in the interests of
both parties that the maximum purchase price be received in respect
of the matrimonial home.
In such circumstances, and particularly
given that your client’s fully furnished property in Benmore
and his financial position,
your client’s request appears to be
punitively motivated and your client is again respectfully requested
to desist from such
conduct”.
[14] Mr Hartog
responded on 13 August 2014, inter alia contending that “Our
client’s request is not unreasonable in
that our client is
mindful of the fact that an empty house does not sell as easily and
for that reason notwithstanding that he
is legally entitled to remove
all his furniture he has only requested a few pertinent items.”
He also advised that Mr Burstein’s
house in Benmore was not
fully furnished and that ‘our client does not even have a
lounge suite’. Mr Hartog discussed
the situation with Ms Kahn
on 18 August 2014 who had suggested that Mr Burstein request specific
items.
[15] On 12 September
2014 Mr Burstein requested the following paintings: Eve of Creation,
Colours of Paradise, Touched by Heaven,
Horse Study, Leopard study,
Buffalo, Snow Tiger and Floral Study. He also requested the lounge
suite, coffee table, fridge and
Persian carpets, thus essentially the
same items he had requested on 4 August 2014 except that he was
seeking fewer paintings.
Mr Hartog recorded that ‘Our client is
mindful of the fact that not all his furniture can be removed at this
stage as selling
the house is paramount’.
[16] In response
thereto and on 19 September 2014, Mrs Burstein permitted Mr Burstein
to remove four of his paintings (Eve of Creation,
Colour of Paradise,
Touched by Heaven and Horse Study), the blue Persian carpet and the
coffee table but only after a show day,
which was scheduled for 5
October 2015. Mr Burstein collected the items tendered on 14 October
2014.
[17] On 23 October
2014 Mr Burstein, through Mr Hartog, requested 50% of the cutlery and
crockery which Mr Burstein had purchased
from Adams in Fourways, the
microwave oven, the coffee machine, the red Persian carpet, the
coffee table standing under the chandelier
and 50% of the pewter
gifts.
[18] Ms Kahn, in her
response on 24 October 2014, indicated that, with the exception of a
portion of the crockery and cutlery, Mr
Burstein was not entitled to
remove the balance of items requested as:
18.1 the microwave
was purchased to replace Mrs Burstein’s microwave;
18.2 the coffee
machine was a gift from Mr Burstein to Mrs Burstein;
18.3 the red Persian
carpet would be given to Mr Burstein after the sale of the former
matrimonial home;
18.4 the coffee
table formed part of the furniture and household effects purchased
during the marriage to be taken into account
in discussions
pertaining to the division of movables;
18.5 the Pewter
gifts belonged exclusively to Mrs Burstein.
[19] On 27 October
2014, Mr Hartog addressed a further letter to Ms Kahn giving an
undertaking on behalf of Mr Burstein that he
would not enter the
former matrimonial home and that Mrs Burstein could place the
following items in the garage for collection
by Mr Burstein: 50% of
the cutlery and crockery which Mr Burstein had purchased from Adams
in Fourways, the microwave oven, the
coffee machine, the red Persian
carpet, the coffee table standing under the chandelier and 50% of the
pewter gifts, Mr Burstein’s
Le Creuset pots and pans, Mr
Burstein’s white LG fridge, a passage table and large mirror.
No response was received.
[20] At the end of
February 2015 an offer to purchase the property at R6 000 000 was
received which Mrs Burstein rejected.
[21] On 13 March
2015 Mr Burstein, through Mr Hartog, addressed a further letter
recording in paragraphs 3 and 4 the following:
‘2. The reason
for this request is that the immovable property and formal (sic)
matrimonial home of the parties has been on
the market for the past
16 months, namely November 2013. It has become clear that the
aforesaid property will not be sold pending
the finalisation of the
divorce action as your client refused the only viable offer made on
the property about 3 weeks ago. The
issue is further exacerbated by
the fact that the property has not been properly maintained resulting
in the declining value thereof.
3.It is indeed so
that our client thought it prudent to leave the bulk of his movable
assets at the property, as set out in annexure
‘A’, in
order for the property to sell faster as it was thought that having
an empty home would make the property unappealing.’
[22] The items
requested were those forming the subject matter of this application
as itemised and described in annexure A. On 20
March 2015 Ms Kahn,
responded advising that Mr Burstein may remove: the painting of Paris
Bistro Restaurant, the dining room wall
clock, two small paintings of
birds and a large painting of birds, a painting called Emerald Eyes,
a perspex based regular table
with glass top, a G-Boys painting
Floral Study, some of the wildlife pictures in the lounge, the clock
in the lounge and the painting
of the Rabbi. No reason appears from
the papers as to why these items were not collected.
[23] Prior to
launching this application, and on 28 April 2015 Mr Burstein, through
Mr Hartog, again requested the items contained
in annexure A (the
list attached to this request differed in minor respects from
annexure A) and undertook to be responsible for
the reasonable cost
to repair any of the walls that might require a touch up as a
consequence of the paintings being removed therefrom.
No response was
received.
THE PARTIES’
APPROACH TO THE FORMER MATRIMONIAL HOME IN THE DIVORCE ACTION
[24] The main issue
in dispute in the divorce action relates to Mr Burstein’s claim
for rectification of the parties’
antenuptual agreement. In a
nutshell, Mr Burstein contends that what had been agreed upon was
that in the event of the dissolution
of the marriage by way of
divorce, the parties would each retain 50% of the net value of the
former matrimonial home. What Mrs
Burstein is contending is that the
parties had agree that in the event of the dissolution of the
marriage by way of divorce, Mrs
Burstein would receive 50% of the
former matrimonial home by virtue of her joint ownership and 50% by
virtue of the provisions
of the antenuptual agreement ie Mr Burstein
would be obliged to gift his 50% share to Mrs Burstein.
[25] Mrs Burstein is
also claiming maintenance for herself.
THE TENDERED
GOODS
[26] Mrs Burstein
agreed, from time to time as appears from the summary of the
correspondence, that Mr Burstein could take certain
of his goods.
These concessions are contained in email correspondence between Mrs
Burstein and Mr Burstein and letters addressed
by Ms Kahn to Mr
Hartog. During argument, Ms Segal, counsel representing Mrs Burstein,
confirmed that these ‘tenders’
were still valid. Such
tenders were made in respect of the following goods reflected in
annexure A:
- 1x painting of
Paris Bistro Restaurant;
- 1x rectangular Red
Persian Carpet.
- 1x wall clock;
- 1x painting/Litho
print of Chassidic Rabbi;
- 2 x small
paintings of birds on south end wall of the kitchen;
- 1x large
rectangular painting of birds in gilt frame (Edmund Barton);
- 50 % of the day to
day white china crockery (purchased from Adams in Fourways)
consisting of meat plates, fish plates, soup plates
and dessert
bowls;
- 1x LG white
refrigerator.
- 1x painting called
‘Emerald Eyes’ by Otto Aguiar.
- 1x Perspex based
rectangular table with glass top.
- 1x Kim Hun oil
painting called ‘Lion Head Study’;
- 1x Fuz Cafario oil
painting called ‘Snow Tiger’;
- 1x Kim Hun oil
painting called ‘Leopard Study’;
- 1x Kim Hun oil
painting called ‘Buffalo’;
- 1x Wall clock in
glassed wooden frame;
- 1x G-Boys oil
painting called ‘Floral Study’.
(hereinafter ‘the
tendered goods’)
[27] Mrs Burstein
had tendered ‘some’ wildlife pictures. There are eight. I
have assumed that ‘some’ of
eight, would equate to four
and thus included the first four mentioned in annexure A.
[28] Mr Burstein is
entitled to return of the tendered goods. No claim is made to them on
any basis.
DISPUTES OF FACT
[29] In assessing
this matter this court is obliged to look at that which Mrs Burstein
says and that which Mr Burstein says that
Mrs Burstein cannot
dispute, and make a finding on that set of facts, save for those
which are manifestly far-fetched. (Plascon-Evans
Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)). In Wightman t/a JW
Construction v Headfour (Pty) Ltd,
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) At para
[13]
, Heher JA held as follows:
“[13] A real,
genuine and bona fide dispute of fact can exist only where the court
is satisfied that the party who purports
to raise the dispute has in
his affidavit seriously and unambiguously addressed the fact said to
be disputed. There will of course
be instances where a bare denial
meets the requirement because there is no other way open to the
disputing party and nothing more
can therefore be expected of him.
But even that may not be sufficient if the fact averred lies purely
within the knowledge of the
averring party and no basis is laid for
disputing the veracity or accuracy of the averment. When the facts
averred are such that
the disputing party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if
they be not true or accurate but, instead of doing so,
rests his case on a bare or ambiguous denial the court will generally
have
difficulty in finding that the test is satisfied. I say
'generally' because factual averments seldom stand apart from a
broader
matrix of circumstances all of which needs to be borne in
mind when arriving at a decision. A litigant may not necessarily
recognise
or understand the nuances of a bare or general denial as
against a real attempt to grapple with all relevant factual
allegations
made by the other party. But when he signs the answering
affidavit, he commits himself to its contents, inadequate as they may
be, and will only in exceptional circumstances be permitted to
disavow them. There is thus a serious duty imposed upon a legal
adviser who settles an answering affidavit to ascertain and engage
with facts which his client disputes and to reflect such disputes
fully and accurately in the answering affidavit. If that does not
happen it should come as no surprise that the court takes a robust
view of the matter”.
See too Grancy
Property Ltd v Manala and others,
2015 (3) SA 313
(SCA) at paragraph
[19].
[30] In respect of
the coffee machine, the LG microwave, the ice machine and the coffee
table, disputes exist, which in my view
are incapable of resolution
on paper.
[31] Mrs Burstein
contends that the coffee machine and the LG microwave, were donated
to her. She says that Mr Burstein’s
friends had cajoled him
into purchasing this gift for her.
[32] The ice machine
and coffee table, Mrs Burstein contends were bought for them jointly.
Ms Feinstein, counsel for Mr Burstein,
argued that this version ought
to be rejected as it is legally incompetent, the parties being
married out of community of property.
The former matrimonial home is
owned jointly by Mr and Mrs Burstein. It is unclear why it should be
legally competent to own immovable
property jointly but not movable
property. No authority for this proposition was advanced. I can find
nothing legally objectionable
in the defence itself.
[33] Ms Feinstein
requested that, in the event that I find that a dispute of fact
exists in respect of some of the items, I was
not to refer such
disputes to the hearing of oral evidence. Should Mr Burstein be so
advised, the pleadings in the pending divorce
action could be amended
to include a claim for such items. Ms Segal did not object to the
proposed procedure.
[34] Much reliance
was placed on the purchase receipts of the disputed goods. In my
view, such receipts do not take the resolution
of these disputes much
further as the parties appear to be in agreement that the disputed
goods were purchased by Mr Burstein.
The dispute exists in respect of
Mr Burstein’s intention at the time of the acquisition of the
goods and shortly thereafter
ie were the coffee machine and LG
microwave purchased as gifts for his wife? Was the ice machine and
coffee table bought as joint
assets (ie 50% gifted to Mrs Burstein)?
[35] The order I
intend granting will accordingly omit the coffee machine, the LG
microwave, the ice machine and “the coffee
table under the
chandelier” (collectively referred to as ‘the disputed
items’) and they will have to be determined
by the Court
hearing the divorce action.
THE AGREEMENT NOT
TO SELL UNTIL PROPERTY SOLD
[36] Mrs Burstein
contends that the remainder of the goods, ie Annexure A minus the
tendered goods and the disputed items, are governed
by an agreement
between her and Mr Burstein in terms of which such goods would remain
in the former matrimonial home until the
sale of it. She does thus
not dispute his title to the goods, but his right to immediate
possession of same. Her defence in respect
of the goods that she
admits are his is that he agreed not to take his goods until the
occurrence of a future uncertain event,
the sale of the former
matrimonial home.
[37] It is unclear
when such agreement was concluded or, for that matter, what the terms
were including for how long it would endure.
Would the sale of the
matrimonial home take place on the acceptance of an offer to
purchase? Would it take place on transfer? Such
details are of some
consequence but not dealt with in the alleged agreement. What price
would the matrimonial home have to be sold
for so that Mr Burstein
could insist that the sale take place? That too seems to me to be a
troubling uncertainty in the alleged
agreement.
[38] Having regard
to the letters written, in particular, from June 2014 to October
2014, there appears to have been an understanding
that it would be
easier to sell the former matrimonial home fully furnished, and to
this end Mr Burstein would leave some of his
possessions in the
former matrimonial home. What is similarly clear is that Mr Burstein
did not undertake to do this indefinitely.
From Mrs Burstein’s
perspective as reflected in her pleadings in the divorce she would
get 100% of the former matrimonial
home, why then would Mr Burstein
want to assist her in increasing the value? It seems highly
improbable on Mrs Burstein’s
version that he would have
concluded such agreement. Why too would he have concluded an
agreement which may endure beyond the divorce
- if the property is
sold after the dissolution of the marriage?
[39] It is further
not at all clear that Mrs Burstein intends selling the former
matrimonial home with any alacrity, if at all.
She says ‘In
the event that the Applicant launches an application in terms of the
actio communi dividundo, this action will
be opposed.” This
contention seems to undermine the statements that she is desirous of
selling the former matrimonial home.
Mr Burstein, as at 30 July 2015
when he deposed to the replying affidavit stated that: ’The
respondent has not held a show
day for a period in excess of 3
months’. Thus, from April 2015 there have been no show days.
[40] Even if I am
wrong that there was no such agreement concluded as contended for by
Mrs Burstein, if it were, such agreement
was cancelled on 13 March
2015, in writing, when Mr Hartog communicated with Ms Kahn and
advised her that Mrs Burstein had failed
to accept the only viable
offer to purchase the former matrimonial home and that Mr Burstein
now wanted the goods as per annexure
A. If such letter does not
constitute cancellation of the agreement then service of this
application certainly constitutes communication
of cancellation and
in those circumstances the owner of the goods is entitled, as an
incident of his right of ownership, to be
restored to the possession
of his goods.
[41] I therefore
find that, insofar as such agreement was concluded, and of course my
principal finding on this issue is that there
was no such agreement
but if I am wrong in this, I find that it was cancelled.
NEW DEFENCE
[42] Ms Segal raised
on behalf of Mrs Burstein a defence in argument which had not been
raised on the papers. It is the principle
embodied in Whittingham v
Whittingham,
1974 (2) SA 636
(RS) at 637 A – G where Macaulay J
held as follows:
Relying upon Cattle
Breeders' Farm (Pvt.), Ltd. v Veldman,
1974 (1) SA 169
(RAD), and the
line of cases therein referred to, the respondent opposes the return
of the applicant's movables, save for certain
personal items, on the
grounds that by removing the furniture he would be stripping the
matrimonial home and thus nullifying her
right to remain there so
long as the applicant does not offer suitable accommodation elsewhere
or the means of obtaining this.
An order to deliver the furniture
would, so the argument runs, be tantamount to evicting her or at
least to a substantial reduction
of her right. The applicant had made
no such offer and in effect contends that the respondent's salary is
sufficient for her to
provide whatever she needs.
It seems to me that
there is substance in Mr. Mercer's submission. The wife's right
cannot be reduced to the empty shell of the
matrimonial home, without
reference to the husband's obligation and ability to support her in
accordance with their social standing
and mode of living. It must
surely be measured, inter alia, by reference to the accommodation
enjoyed in it at the time of separation.
This is implicit in the
husband's obligation - if he wishes her to leave - to offer suitable
alternative accommodation. This is
not to say that the conditions of
living in that home - namely, the appurtenances and amenities
surrounding her - are immutably
fixed at the time of separation. The
wife has no right to occupy any particular property owned or leased
by her husband. As Lord
UPJOHN remarked in National Provincial Bank v
Ainsworth,
[1965] UKHL 1
;
(1965) 2 All E.R. 472
at p. 483E - H:
"But the law
has never adjudicated between the parties where or how they are to
live. It is for the spouses to decide where
and in what state they
and the family are to live, be it in the Ritz or a caravan. The
choice from time to time of the matrimonial
home is entirely a matter
for decision within the domestic forum; though, no doubt, as PILCHER,
J., once pointed out (in Dunn
v Dunn), where there is a difference
of opinion between the spouses as to the place of the matrimonial
home someone must have the
casting vote. A wife on entering a
matrimonial home, the property of her husband, has no rights even
inchoate in that home which
the law will recognise or protect: see
Lloyds Bank, Ltd. v Oliver's Trustee. But, on the other hand, having
regard to the duty
of the spouses to live together the Court does
not, during the subsistence of the marriage, merely give effect to
the strict legal
and equitable rights of a spouse qua owner of the
property as though the spouses were strangers. Recognising the
obligations of
the spouses to live together, the Court will only make
orders with regard to the occupation of the matrimonial home subject
to
those obligations."
I would, with
respect, add to this the observation that since the obligation of the
spouses to live together imports also the obligation
of mutual
support and contribution towards the upkeep of the matrimonial
household, any decision on occupation of the matrimonial
home and the
conditions of that occupation must be governed by these obligations.
Consequently,
whether the respondent is entitled to retain the furniture in a
situation where the husband is not seeking her eviction
from the
matrimonial home owned or hired by him, is a matter which ultimately
resolves itself into the question whether it is right
and proper that
his duty to support her should continue in this form, due regard
being had to their social position and mode of
living, his financial
ability to allow her to continue in the use of the furniture in the
matrimonial home and her own means of
contributing to her maintenance
in that home. It is on this principle I propose to decide the case.”
[43] Ms Segal
conceded that nowhere on the papers did Mrs Burstein contend that by
seeking return of the goods, Mr Burstein was
nullifying her right to
remain there. The facts of the present case are manifestly
distinguishable from the facts in Whittingham
(supra). The former
matrimonial home has, amongst other things, two formal lounges, a
study, a dining room and a kitchen. Such
rooms, with the exception of
Mr Burstein’s lounge, are all furnished with Mrs Burstein’s
furniture, which furniture
is to remain in the house. Mrs Burstein
has, and to which Mr Burstein is not laying claim, a full lounge
suite (with a coffee table),
a ten seater dining room table, chairs
and a sideboard, a large gunmetal Hitachi refrigerator, half of all
crockery, cutlery and
stemware, other kitchen utensils including pots
and pans, a Kenwood Chef, a desk and drawers in the study, a washing
machine and
tumble dryer, two dishwashers, all of the pewter gifts,
her own artwork in the dining room, passage, stair case and guest
toilet,
and four bedroom suites.
[44] It can hardly
be argued that the return of the goods would nullify Mrs Burstein’s
right to occupation. That this is not
the case is also born out by
the fact that the parties are both in second marriages. They both
came into the marriage with what
might loosely be described as two
complete sets of household furniture. In addition, almost half of the
goods sought in this application
has been tendered at some stage. On
Mrs Burstein’s own version, the return of such goods would not
nullify her right to occupation
because if that were so, she would
clearly not have tendered the goods.
[45] A party in
motion proceedings may advance legal argument in support of the
relief or defence claimed by it even where such
arguments are not
specifically mentioned in the papers, provided they arise from the
facts alleged (Swissborough Diamond Mines
v Government of the RSA,
1999 (2) SA 279
(TPD) at 324I). The difficulty in this matter is that
this defence does not arise from the facts. Quite the contrary is
shown.
The facts of this case do not support the argument that by
taking the things that are admittedly his property Mr Burstein is
nullifying
Mrs Burstein’s occupation of the matrimonial home
pending the divorce, there is simply too much furniture and other
household
effects left in the house for this proposition to stand.
BONA FIDES OF
APPLICATION AND REQUIREMENT OF NEED
[46] Ms Segal argued
that Mr Burstein does not need the goods sought by him and that he is
claiming it merely to reduce the purchase
consideration of the former
matrimonial home. Although showing ‘a need’ to one’s
own goods is not a requirement
for the successful reliance on the rei
vindicatio, Ms Segal argued that the absence of ‘need’ in
these circumstances
is indicative of the fact that this application
is brought mala fide and in an attempt to secure a favourable
settlement.
[47] It is true that
in matrimonial matters a Court should not be too clinical about the
application of the relevant legal principles
and should, within their
confines, temper those principles’ harsher effects where
justice demands it. However, if ownership
is conceded, as has been in
this matter, there is little scope for judicial indulgence. To
demonstrate that Mr Burstein is abusing
the process of this Court to
achieve an illicit advantage in the divorce would require that the
lack of bona fides should shine
through the papers. A court is in a
suitable case empowered to non-suit a litigant who abuses its
process.This case, however, is
not such a one.
[48] Mr Hartog wrote
two letters of demand calling for the items forming the subject
matter of this application (there were some
minor differences). It
does not appear from the papers why a date and time for collection of
the tendered goods was not set.
[49] I have very
little doubt that there is much acrimony between the parties. They
have been separated for almost two years with
no attempts to sell the
former matrimonial home having been made since April 2015. The
allegation of mala fides might equally be
made by Mr Burstein in the
light of the delays in holding show days and the absence of any
alacrity in effecting the sale of what
is obviously a very
comfortable home for Mrs Burstein to occupy. On Mr Burstein’s
version of the ante-nuptual agreement,
he is to retain 50% of the
former matrimonial home on dissolution of their marriage. It would
thus be in Mr Burstein’s interests
to increase the value of the
former matrimonial home. An application motivated by malice to
diminish his own half share’s
value makes no commercial sense.
To this Ms Segal responded that Mr Burstein is very wealthy and is
doing this simply because he
can. He can wield his economic power and
thus secure a settlement to which he is not entitled.
[50] If this were
the purpose of the application one wonders why, upon receipt of the
final letter of demand, a date and time wasn’t
suggested as to
where the tendered goods could be collected? Why were no attempts
made to take the sting out of the allegedly underhanded
purpose of
this application? Why were certain items tendered on 2 May 2014 and
24 October 2014 but then omitted from the 20 March
2015 tender?
[51] I certainly do
not have sufficient facts before me which could persuade me that the
application was motivated by malice or
constituted an abuse of the
process of the Court.
COSTS
[52] The issue of
costs remains.
[53] The applicant
has been successful and in my view no argument has been presented as
to why the costs should not follow the result.
[54] Although a
punitive costs order has been sought, I do not consider it
appropriate to do so.
ORDER
[55] I accordingly
grant the following order:
55.1. Save for the
coffee machine, ice machine, LG microwave and coffee table under the
chandelier, the applicant is authorised
to collect the movable
property itemised in annexure “GB17 – A” to the
founding affidavit, from the immovable
property at 63A Fifth Street,
Houghton Estate, Gauteng (‘the property’) at a time and
date to be agreed upon between
the parties but no later than 10 days
from the date of the granting of this order, failing which the
sheriff of this court is authorised
and directed to remove such items
from the property and to deliver same to the applicant.
55.2. The applicant
will be responsible for the reasonable cost of repair to any of the
walls which may require repair as a consequence
of the applicants’
paintings being removed therefrom.
55.3. The respondent
is to pay the costs of this application.
I OPPERMAN
Acting Judge of
the High Court
Gauteng Local
Division, Johannesburg
Heard: 8 February
2016
Judgment
delivered: 4 March 2016
Appearances:
For Applicant:
Adv M Feinstein
Instructed by:
Gavin Hartog Attorneys
For Respondent:
Adv L Segal
Instructed by:
Deanne Kahn Attorneys