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[2020] ZAGPJHC 91
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B M v S M (29933/2017) [2020] ZAGPJHC 91 (26 March 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, PRETORIA
CASE NO: 29933/2017
In the
matter between:
B
M
Plaintiff
And
S
M
Defendant
JUDGMENT
SENYATSI
J:
[1]
The Plaintiff instituted divorce action against the Defendant during
24 April 2017in terms of which he claimed a decree
of divorce
and division of the joint estate and costs of this action only
when the action is defended.
[2] A
counter-claim was instituted by the Defendant and she claimed for a
decree of divorce; forfeiture of all patrimonial benefits
arising out
of the marriage in community of property, more specifically the
Defendant’s pension interest held and administered
by
Government Employee Pension Fund (GEPF) by virtue of her employment
with the Department of Telecommunication. The Defendant
also claimed
forfeiture by the Plaintiff of all policies and monetary investments
held in favour of the Defendant; all movable
assets including the
Defendant Kia motor car with registration No: […]GP and VW
Polo Classic motor car with registration
No: […]GP. As an
alternative, she claimed the division of the estate on the basis that
each party retains assets currently
in his/her possession and costs
of suit.
[3]
The parties were married to each other on the 4
th
December 1995 in community of property and the marriage still
subsists. Two children were born of the marriage and they are all
majors. None of the parties claims spousal maintenance.
[4] It
is common cause that the marriage has broken down irretrievably and
there are no prospects of reconciliation between the
parties.
[5] The only issues that
are in dispute are:
5.1.
Whether there are grounds for this Court to grant an order that the
Plaintiff forfeits all patrimonial benefits arising out
of the
marriage in community of property in favour of the Defendant and;
5.2.
The grounds that led to the breakdown of the marriage and the costs
of suit.
[6]
Both parties are employed and have not lived together since 25
February 2016. The Plaintiff is employed by Business Connexion
as a
customer engineer. The Defendant is employed by Department of
Telecommunication as a deputy director. She is a former teacher.
[7] Each party testified
in support of his/her case. The first to testify was the Plaintiff.
[8]
The Plaintiff testified that he was married to the Defendant for 23
years. He further stated that he contributed to the estate
and was
responsible for taking their children to school. He earned less than
the Defendant and for that matter conceded that the
Defendant was the
bread winner of the household.
[9] He
testified that he moved out of the common home and that this was by
agreement with the Defendant as they quarrelled continuously.
[10]
He admitted that he had an extra marital affair with one Ms. M M
(“M”) out of which one child known as P was born.
The
relationship continued after the Plaintiff left the common home.
[11]
The Plaintiff also conceded that the parties had two bonded houses
and that he was responsible for the repayment of the bond
for one of
the houses. He failed to pay for the bond as he could not afford it
as he relied on his travel claims to service the
bond repayment.
[12]
The Plaintiff conceded that his relationship with M continued during
the subsistence of the marriage and he abandoned the common
home to
live with her. The Plaintiff conceded further that he currently lives
with the said M.
[13]
The Plaintiff did not deny that due to the birth of P, the Defendant
suffered acute stress and depression and was treated by
Doctor
Mokhuane.
[14]
The Plaintiff also conceded that the fallout between the parties was
also caused by his failure to pay the mortgage bond as
agreed between
the parties.
[15]
The Defendant testified that the Plaintiff deserted her and their
children and went to live with M. She testified that she
was tested
HIV positive as a result of the Plaintiff’s adulterous
behaviour.
[16]
She testified that she prays for forfeiture of the benefits arising
from a marriage in community of property.
[17]
The issue to be determined is whether or not the Plaintiff is
entitled to division of the joint estate or whether forfeiture
of the
benefits arising out of the marriage in community of property should
be granted.
[18]
Section 9(1)
of the
Divorce Act 70 of 1979
provides as follows:
(1)
When a decree of divorce is granted on the grounds of irretrievable
breakdown of a marriage, the Court may make an order
that the
patrimonial benefits of the marriage be forfeited by one party in
favour of the other, either wholly or in part, if the
Court having
regard to the duration of the marriage the circumstances which gave
rise to the breakdown thereof and any substantial
misconduct on the
part of the parties, is satisfied that, if the order for forfeiture
is not made, the one party will in relation
to the other be unduly
benefitted.
[19]
In
Wijker
v Wijker
[1]
the Appeal Court said the following with regards to the approach to
be followed:
“
It
is obvious from the wording of the section that the first step is to
determine whether or not the party against whom the order
is sought
will in fact be benefitted. That will be purely a factual issue. Once
that has been established the trial court must
determine having
regard to the factors mentioned in the section, whether or not that
party will in relation to the other be unduly
benefited if a
forfeiture order is not made.”
[20]
It is only after the Court has concluded that a party would be unduly
benefited that it is empowered to order a forfeiture
of benefits and
in making this decision the Court is exercising a discretion in a
narrow sense.
[2]
[21] The factors stated
in
Section 9(1)
of the
Divorce Act, are
three fold; namely:
(a)
the circumstances giving rise to the breakdown;
(b)
misconduct of the party;
(c)
the duration of the marriage.
[22]
The Defendant bears the onus of proving that the Plaintiff will be
unduly benefitted if forfeiture is not granted. The Court
can only
order forfeiture if the factual evidence is led on the nature and
extent of the undue benefit.
[3]
[23]
In
Engelbrecht
v Engelbrecht
[4]
Conradie J said the following on the consequences of marriage in
community of property:
“
Joint
ownership of another party’s property is a right which each of
the spouses acquires on concluding a marriage in community
of
property. Unless the parties (either before or during the marriage)
make precisely equal contributions the one that contributed
less
shall on dissolution of the marriage be benefited above the other if
forfeiture is not ordered. This is the inevitable consequence
of the
partys’ matrimonial regime. The legislature (in
section 9
of
the
Divorce Act 70 of 1979
) does not give the greater contributor the
opportunity to complain about this. He can only complain if the
benefit was undue. Unless
it is proved (and the burden of proof rests
on the party who seeks the forfeiture order) what the nature and
extent of the benefit
was, the Court cannot decide if the benefit was
undue or not. Only if the nature and ambit of the benefit is proved
is it necessary
to look to the factors which may be brought into
consideration in deciding on the inequity thereof. In this
connection, it should
be borne in mind that misconduct and gross
unreasonableness do not always go hand in hand. Although it appears
as if the Legislature
wanted limit the Court’s discretion as to
the granting of a forfeiture order and did not intend to authorise
the Court to
take cognisance of the same wide-ranging considerations
as those which
section 7(3)
;(4);(5) and (6) (where parties are
married out of community of property), with reference to the transfer
of assets from one party
to the other, permits the Legislature did
not intend to elevate fault, in the granting of forfeiture order so
prominently above
other considerations. It could lead to the
advantages of a no-fault divorce system being eroded by disputes over
fault on the division
of the estate.”
[24] I
now consider the evidence led by the Defendant on whether or not the
Plaintiff will be unduly benefited. I have not heard
the nature and
ambit of undue benefit that the Plaintiff will have if forfeiture is
not ordered.
[25]
The only evidence led is that the Defendant is a member of Government
Employees Pension Fund. I have not been informed of what
size of the
Defendant’s contribution or value of this pension is. I have
also not heard any evidence on what other assets
either than the cars
and immovable properties mentioned and what values of these assets
are and who contributed more than the other.
[26]
Having regard to the evidence led by the Defendant to prove that she
is entitled to a forfeiture order, I am not persuaded
that she has
discharged the onus of showing factual undue benefit by the Plaintiff
if the forfeiture order is not granted. She
failed to lay a factual
basis of what she has contributed to the joint estate and what value
that contribution amounted to as compared
to the Plaintiff.
[27] Consequently, the
prayer for a forfeiture order must fail.
ORDER:
[28] The following order
is made:
(a)
The
decree of divorce is granted.
(b)
The
joint estate shall be divided equally between the parties including
the parties’ respective pension funds.
(c)
The
Defendant’s pension administrator, the Government Employers
pension Fund is ordered to pay the Plaintiff an amount of
50% of the
Defendant’s pension interest held and will accrue to the
Defendant at the date of this order.
(d)
The
Defendant’s pension fund administrator is ordered to make the
said 50% of the Defendant’s pension interest thereof
to the
Plaintiff within sixty (60) days from the date of this order. The
Defendants pension details are:
Pension
No: […]
Salary
No: […]
Pension
Administrator: GEPF/GPAA
(e)
The
Plaintiff’s pension administrator, Alexander Forbes Pension
Fund is ordered to pay to the Defendant 50% provident interest
of the
Plaintiff pension interest held and administered by Alexander
Forbes the Plaintiff’s pension benefits will accrue
to the
Plaintiff to him the date of this order.
(f)
The
Plaintiff’s pension fund administrator is ordered to make
payment of the 50% of the Plaintiff’s pension interest
thereof
to the Defendant within sixty (60) days from the date of this order.
Plaintiff’s pension
details are:
Pension No: […]
Pension Administrator:
Alexander Forbes
(g)
Each party shall pay their own costs.
__________________________________
SENYATSI
ML
Judge of the High
Court of South Africa
Gauteng Local
Division, Johannesburg
Date matter heard: 18
November 2019
Date of Judgment: 26
March 2020
Plaintiff’s
Counsel: Mr. V. Mabe
Instructed by: Victor
Mabe Inc. Attorneys
Defendant’s
Counsel: Miss N. Matlhatji
Instructed by: Naledi
Matlhatji Attorneys
[1]
1993
(4) SA 720
(A) at 727 E-F
[2]
See
Wijker v Wijker supra at 728B
[3]
See
JWv SW 2011(1)SA 545
[4]
1989
(1) SA 597
at 601F-G