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[2020] ZAGPJHC 251
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G R v S R (A3108/2018) [2020] ZAGPJHC 251 (14 October 2020)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A3108/2018
COURT
A QUO
CASE NO
:
KP/RC/286/2013
DATE
:
14
th
October
2020
In
the matter between:
R
,
G
Appellant
and
R
,
S
Respondent
Coram:
Adams J
et
Majavu AJ
Heard
:
14 October 2020
Delivered:
14 October 2020 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by
being uploaded to the
CaseLines
digital system of
the GLD and by release to SAFLII. The date and time for hand-down is
deemed to be 15h00 on 14 October 2020
Summary:
Marriage – Divorce – marriage in
Community of Property – forfeiture of benefits of marriage –
order to that
effect only competent in terms of
section 9
of the
Divorce Act 70 of 1979
.
ORDER
On
appeal from:
The
Gauteng Regional Court, Kempton Park (Regional Magistrate F Hoosen
sitting as Court of first instance):
(1)
The appellant’s application for
condonation of her non-compliance with the Rules of the Magistrates
Court and the Uniform
Rules of this Court and for the reinstatement
of her appeal is granted.
(2)
There shall be no order as to costs
relative to the appellant’s application for condonation.
(3)
The appeal is upheld with costs.
(4)
The order of the Kempton Park Regional
Court is set aside and in its place the following order is
substituted:
‘
a)
A decree of divorce is granted.
b)
The
joint estate of the parties shall be divided in equal shares.
c)
A
receiver and liquidator of the joint estate of the plaintiff and the
defendant with the powers
inter
alia
to realise the whole of the joint estate assets, shall be appointed
to give effect to order (b) above in the event of the parties
being
unable to reach agreement on the division of the joint estate.
d)
It
is declared that the defendant is entitled to an amount equal to
fifty per cent of the plaintiff’s net pension interest
in the
Sanlam
Glacier
Living Annuity / Pension Fund calculated as at the 7
th
of May 2018.
e)
Sanlam
is ordered to endorse the Living Annuity to the effect that the
appellant is entitled to fifty per cent of the value of the
annuity
as and at the 7
th
of May 2018.
f)
The
plaintiff shall pay the defendant’s costs of the divorce
action.’
(5)
The respondent shall pay the appellant’s
costs of this appeal.
JUDGMENT
Adams
J (Majavu AJ concurring):
[1].
The central question in this appeal is
under what circumstances a party to a marriage in community of
property can be ordered to
forfeit the benefits arising from such a
marriage. That issue arises against the following backdrop.
[2].
On the 3
rd
of January 1985 the parties were married to each other in community
of property. There were three children born of the marriage,
all of
whom had attained the age of majority by the time the Kempton Park
Regional Court dissolved the marriage between the parties
on the 7
th
of May 2018. The court
a quo
also ordered a division of the joint estate, ‘including the
pension funds, up until the 30
th
of June 2007, when the [appellant] left the joint estate’.
Furthermore, so the court below ordered, the appellant was to
forfeit
all the benefits of the marriage in community of property accumulated
after the 30
th
of June 2007, and each party was ordered to pay his / her own costs
of the divorce action.
[3].
In the trial court the parties were in
agreement that the marriage relationship had broken down
irretrievably and that the marriage
should be dissolved. In his
evidence the respondent, who was the plaintiff in the court
a
quo
, testified that the break down in
the marriage was as a direct result of the appellant, the defendant
a
quo
, leaving the matrimonial home
during 2007 and not returning. Additionally, so the respondent’s
testimony went, the appellant
abused alcohol and mismanaged the
finances of the community estate. He also claimed that the appellant
did not make any contribution
to the joint estate for the period from
1985 to 2007, whilst he had to ensure that the bond on their house
and the instalments
payable in respect of the cars were paid. He also
claimed that he was solely responsible for payment of most of the
other household
expenses. Even more so, so the respondent testified,
after the appellant abandoned the matrimonial home during December
2007.
[4].
The respondent left his employment at
Telkom during 2013 and cashed in his Pension Fund by receiving in
cash an amount of just over
R500 000, which equated to one third
of the total proceeds of the pension fund. The balance of the
proceeds of the pension
fund was reinvested in a living annuity with
Sanlam which presumably renders on a monthly or yearly basis proceeds
which the respondent
appropriates to himself and lives of. The
respondent also bought himself two vehicles – one during 2009,
a Mercedes Benz,
which he financed by a credit agreement and the
other one during 2013, a Toyota, which he had bought for cash from
the one third
proceeds of his pension fund at Telkom, which he also
used to pay off the bond on the house. Incidentally, the divorce
summons
was issued out of the Regional Court on the 12
th
of February 2013.
[5].
The appellant, when giving evidence, denied
the respondent’s version that she did not contribute to the
community estate.
She readily conceded that the respondent serviced
the bond on their house, which they had acquired as a couple and a
family during
1997 at a purchase price of R230 000, and the
other major debts. However, so she testified, she was the one who
attended to
the other household expenses, such as buying groceries
for the family and paying the electricity and other utility accounts,
and
the needs of the children, including paying their school fees.
The maintenance and well-being of the children were her
responsibility.
[6].
The appellant therefore paid on a monthly
basis during the twenty two year period between 1985 and 2007, when
the parties were living
together as husband and wife, the electricity
charges levied by the Local Authority for their matrimonial house, in
addition to
the other utilities bills, which she regarded as her
responsibility. In any event, the appellant’s direct financial
contributions
were relative and proportionate to her income. Her
evidence was also that during the marriage the respondent was abusive
towards
her and had engaged in extra-marital affairs, which caused
her to leave the matrimonial home during 2007. Shortly thereafter, so
the evidence of the appellant went, the respondent in fact continued
with a relationship with one of these women and entertained
her in
the common home in the absence of the appellant. This fact appears to
be conceded by the respondent, but more telling is
his admission that
during the subsistence of the marriage he had what he referred to as
his ‘girlfriend’ with whom
the appellant had an
altercation, which landed the appellant in trouble and with a
criminal charge against her for assault. The
respondent in fact
funded the appellant’s legal representation in resisting the
criminal charges.
[7].
It is common cause that during 1997, some
twelve years after they got married, the parties bought a house in
Polokwane for R230 000.
This house was their matrimonial home
and is presently valued at about R1 500 000. The vehicle
which the respondent bought
during 2009 was a Mercedes Benz, which he
bought for R365 000 – the purchase price was financed by a
credit agreement.
During 2013 the respondent bought a Toyota Corolla
for about R215 000 for cash, which came from the proceeds of the
pension
fund, a portion of which was also used by the respondent to
settle the outstanding balance on the bond registered over their
house.
[8].
Only the parties testified and, in my
judgment, not much turns on the evidence. Resolution of the dispute
between the parties depends
mainly on the facts which are common
cause and the applicable law. It is not necessary to evaluate the
evidence in detail. Suffice
to state that, in my judgment, the
probabilities indicate that the respondent is the one who
misconducted himself in that he engaged
in extra-marital affairs
during the subsistence of their marriage, which in the end probably
caused the disintegration of the marriage.
[9].
The respondent’s evidence relating to
the cause of the breakdown of the marriage relationship went as
follows:
‘
I
would say breakdown in communication, disrespect, ill-discipline and
financial activities that I did not approve.’
[10].
When asked to elaborate, the respondent
gave the following explanation:
‘
Ja,
I could determine that there were finances coming to my house which I
did not know. Knowing the budget that we had within the
family, but
there were some finances that were coming inside my house that I did
not know.’
[11].
And then later on in his evidence in chief
on a question from his attorney as to the reasons why he was seeking
a forfeiture order
against the appellant, the respondent gave the
following very telling answer:
‘
Well
one of the reasons that I seek that is for the fact that there was no
contribution from my partner with regard to the house,
you know, and
everything else – totally no contribution.’
[12].
I do not accept the respondent’s
convoluted explanation that the marriage broke down as a result of
‘ill-discipline’
and financial mismanagement on the part
of the appellant. The real reason why the marriage relationship fell
apart was due to the
respondent’s misconduct – he
undermined the appellant by engaging in extra-marital affairs. This
in turn caused the
appellant to leave the matrimonial home;
whereafter the respondent openly had an affair whilst the marriage
was still in existence.
[13].
The respondent also made much of the fact
that the appellant, after she left the matrimonial home during
December 2007, made no
further contributions – none whatsoever
– to the joint estate. She, for example, stopped buying
groceries for the common
household and she obviously did not continue
paying the electricity and other utilities bills. This is
understandable, bearing
in mind that outside of the warmth and
comfort of the matrimonial home, she then had to fend for herself.
She had no choice and,
as I indicated, it is understandable that her
contributions to the household expenses had ceased.
[14].
In that regard, it was the respondent’s
contention that, after the appellant left the common home during
December 2007, whatever
property he acquired was procured and paid
for by him with the appellant making no contributions to these
acquisitions. So, for
instance, the respondent bought the Mercedes
Benz during 2009 and the Toyota Corolla during 2013, and he also paid
off the bond
on their house – all of this supposedly with no
assistance or contributions from the appellant. This contention
persuaded
the learned Magistrate, hence her order. I’m not
convinced. The court
a quo
misdirected itself. It was not the respondent who acquired these
assets, but the joint estate of the parties, which was able to
make
these acquisitions from and on the strength of what had been
accumulated by the parties as a couple over the extended period
of
twenty two years between 1985 and 2007.
[15].
Thus far the thumbnail facts and the issues
to be decided by us in the appeal.
[16].
There is a preliminary issue which requires
our attention and that relates to non-compliance by the appellant
with certain time
limits applicable to the prosecution of a civil
appeal from the Magistrates Court to the High Court. I now turn to
that issue
The
Appellant’s Application for Condonation
[17].
The appellant applies for condonation for
her failure to have complied with the time periods laid down by the
Magistrates Court
Rules and by Uniform Rule of Court 50 resulting in
the appeal lapsing, for reinstatement of the appeal, and for costs in
the event
of it being opposed.
[18].
Magistrates Court Rule 51(3) provides that
an appeal may be noted within twenty days after the date the clerk of
the court has supplied
a copy of the judgment in writing to the party
applying therefor.
In casu
,
the copy of the judgment was evidently supplied by the Registrar of
the Kempton Park Regional Court on the 16
th
of May 2018, which means that the appellant was required to deliver
her notice of appeal by about the 13
th
of June 2018. Factually, the appellant delivered her notice of appeal
on the 4
th
of June 2018, therefore well within the time limit imposed by the
Rule.
[19].
However, Rule 51(4) provides that the
appeal shall be noted by the delivery of notice, and by giving
security for the respondent's
costs of appeal to the amount of R1000:
This latter step of paying security for the costs of the appeal the
appellant only complied
with over one year late on the 6
th
of August 2019, and only after the Registrar of the High Court
pointed out to the appellant’s attorneys that a date would
not
be allocated for the hearing of the appeal unless and until the
security had been posted. The sum total of the appellant’s
explanation for this non-compliance is simply that it was an
oversight on the part of her attorney.
[20].
As far as the prosecution of the appeal is
concerned, Uniform Rule of Court 50(1) requires the appeal to be
‘prosecuted’
within sixty days after the noting of such
appeal, and unless so prosecuted it shall be deemed to have lapsed.
This means that
the appellant
in casu
should have prosecuted the appeal on or before the 27
th
of August 2018. The appellant only ‘prosecuted’ her
appeal, by applying for a date for the hearing of the appeal and
simultaneously lodging with the registrar copies of the appeal
record, or about the 18
th
of September 2019 – therefore again over one year late.
[21].
It is in respect of these procedural
non-compliances which the applicant is applying, rather belatedly I
might add, for condonation.
The respondent gave notice on the 12
th
of October 2020 that he opposes this application. In the founding
affidavit in support of the condonation application, deposed
to by
her attorney, the appellant explained the steps that he had taken to
obtain a proper appeal record. Initially there were
‘financial
constraints’ and subsequently there were miscommunications
between the attorney and the transcribers, which
resulted in the
transcript only being received by the attorneys during August 2019.
It is so that the application is somewhat scant
on the details
relating to the delay in obtaining the transcript of the Magistrates
Court proceedings. There is very little explanation
as to what
transpired during the period from August 2018 to August 2019. On its
own the explanation for the non-compliance may
very well have been
wholly inadequate and would probably have been of little assistance
to the appellant in getting condonation.
[22].
The respondent filed an affidavit opposing
the condonation application. The affidavit fundamentally makes two
points. The first
is that in a letter from the respondent’s
attorneys to the appellant’s attorneys dated the 19
th
of September 2019 the respondent’s attorneys pointed out that
the appeal had lapsed. In a subsequent communiqué the
appellant’s attorneys disputed this and advised that an
application for a date for the hearing of the appeal had been filed
with the registrar of this Court on the 20
th
of September 2018 and that the allocation of a date was being
awaited. Secondly, the respondent’s answering affidavit makes
the point that the appellant’s prospects of success on appeal
were, according to the respondent, not good and therefore the
application for condonation should be refused.
[23].
Applications for condonation for appeals
lapsing are not uncommon and the principles relating to them well
established. The factors
usually weighed by a court of appeal in
considering these include the degree of non-compliance, the
explanation for it, the importance
of the case, the prospects of
success, a respondent’s interest in the finality of the
judgment of the court below, the convenience
of the court of appeal,
and the avoidance of unnecessary delay in the administration of
justice.
[24].
Often the delay is caused by missing files,
or incomplete records, or missing recordings, and such-like
singularly irritating gremlins
on the way to preparing a good appeal
record, so indispensable for the proper hearing of an appeal. But
ultimately, condonation
applications fail when the appeal should not
succeed on the merits. Conversely, if the appeal is good, and if the
appellant intended
throughout to prosecute the appeal, condonation is
usually granted. So too here. The appellant’s affidavit
explained the
frustrations experienced in securing a proper
transcript and preparation of a record. One cannot infer from that
explanation anything
of relevance other than a serious intent to
prosecute the appeal.
[25].
That brings one to the prospects of success
on appeal in this matter. This is not a case of flagrant
breaches of the rules
of this court without any acceptable
explanation therefor where condonation may be refused irrespective of
the prospects of success
on appeal. We conclude below that the appeal
should succeed on the merits. It follows that the condonation should
be granted, and
the appeal, insofar as it has lapsed if regard is had
to the provision of Uniform Rule of Court 50(1) supra, ought to be
reinstated.
[26].
In view of the lightness of the explanation
by the appellant for the non-compliance with the rules, we believe it
is appropriate
that no costs order should be granted in relation to
the said application.
The
Merits of the Appeal and the Applicable Law
[27].
The question to be answered is this: should
an order of forfeiture have been granted in favour of the respondent
against the appellant?
In that regard, section 9 of the Divorce Act
70 of 1979 ('the Act') provides as follows:
‘
When
a decree of divorce is granted on the ground of the 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 either 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 benefited.’
[28].
Community of property is described in
The
South African Law of Husband and Wife
by HR Hahlo, 5
th
edition, as follows:
‘
Community
of property is a universal economic partnership of the spouses. All
their assets and liabilities are merged in a joint
estate, in which
both spouses, irrespective of the value of the financial
contributions, hold equal shares.’
[29].
As was said in
Engelbrecht
v Engelbrecht
1989 (1) SA 597
(C),
joint ownership of another'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
parties’ 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 is undue.
[30].
In
Wijker v
Wijker
1993 (4) SA 720
(A) it was held
that the court should first determine whether or not the party
against whom the order of forfeiture is sought will
in fact be
benefited if the order is not made. Once it is determined that that
party will benefit, the next enquiry is whether
such benefit will be
an undue one.
[31].
In
Engelbrecht
(supra) the Full Court emphasised that a party who seeks a forfeiture
order must first establish what the nature and extent of
the benefit
was. Unless that is proved 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 three factors which may be brought
into consideration in deciding on the inequity
thereof.
[32].
The trial court in
Engelbrecht
was satisfied that, if forfeiture order was not made, the defendant
would be unduly benefited in comparison to the plaintiff. The
plaintiff and the defendant were married in community of property in
1980. The plaintiff brought into the joint estate an erf which
he
bought for R3000 in 1975. He used the proceeds of a life policy on
the life of his first wife to pay for it. He took a bond
of R14000
and built a house on the erf. The parties thereafter married. There
was no proof of what the house was worth when summons
was issued. On
appeal the Full Court found that the plainitff had not proved the
nature and extent of the defendant’s benefit
at the dissolution
of the marriage:
A fortiori
he had not proved that such benefit was undue.
[33].
In the present case the appellant and the
respondent started off with nothing – both of them owned no
property of significant
value and together they built up for
themselves and their children an asset base, consisting in the main
of the matrimonial home
and the respondent’s interest in his
provident fund. The value of their property at the date of the
dissolution of their
marriage was approximately R1.5 million. It
cannot be said that this amount or any portion thereof proves the
extent of the appellant’s
benefit on the dissolution of the
marriage. The point is that the property was acquired and owned by
the parties as a married couple.
It cannot possibly be said that this
was a benefit, let alone an undue one. The same applied to the
interest of the respondent
in his pension fund.
[34].
I am therefore of the view that respondent
had failed to prove that any benefit receivable by the appellant
would have been undue
– it arose from her marriage in community
of property to the respondent. Accordingly, I cannot conclude that
the appellant
would have been unduly benefitted if forfeiture was not
ordered. Therefore, the respondent’s claim for forfeiture
should
not have been granted.
[35].
Even if this conclusion is wrong, I am in
any event not persuaded that forfeiture should have been ordered if
the factors mentioned
in section 9(1) of the Act are taken into
account.
[36].
As regards the duration of the marriage,
which, in my view, should in the circumstances of this matter, be the
most important consideration,
was of a very long duration, lasting
for approximately twenty two years until they stopped living together
as husband and wife.
Until the date on which the divorce summons was
issued on the 12
th
of February 2013 the marriage had endured for twenty eight years and
to the date of the dissolution of the marriage that period
was thirty
three years. Howsoever one views this consideration, there can be no
doubt that it favours the appellant and militates
against a
forfeiture order. If regard is had to the very long duration of the
marriage, it seems innately unjust that a forfeiture
order had been
granted against the appellant.
[37].
As for factors that led to the break-down
of the marriage, a marriage relationship seldom breaks down as a
result of the conduct
of only one spouse. The marriage of the
appellant and the respondent is no different. As indicated above, I
accept the appellant’s
version that during the subsistence of
the marriage the respondent engaged in extra-marital affairs, which
probably resulted in
the respondent becoming confrontational and
possibly abusive towards the appellant. I also have difficulty in
accepting that the
appellant, as alleged by the respondent, abused
alcohol. If that was so, how is it possible that the marriage endured
for twenty
two years – the parties’ marriage appears to
have been a normal one with its own challenges. The appellant was
also
able to rear three children seemingly without any difficulty.
[38].
I am of the view that there is no evidence
that the marriage broke down as a result of any misconduct on the
part of the appellant.
On the contrary, I think that from the
evidence the breakdown of the marriage resulted from the respondent’s
misconduct.
The aforegoing also relates to the last consideration of
substantial misconduct on the part of either party. If anything,
substantial
misconduct on the part of the respondent counts against a
forfeiture order.
[39].
It must be remembered that both the parties
entered into the marriage empty handed. Twenty two years later, when
they separated,
they, as a couple, owned assets worth millions of
rands. During that period the respondent was the main breadwinner
with the appellant,
whilst also earning an income and seeing to the
payment of some of the household expenditures, had the duty to look
after the smooth
running of the household and the rearing of the
children.
[40].
The further point is that the increase in
the value of assets in the joint estate over the duration of the
marriage was a consequence
of the parties' marriage in community of
property. The fact that the appellant did not contribute financially
towards the increased
value of the assets does not necessarily follow
that the appellant would have been unduly benefited.
[41].
Furthermore, whatever benefit that might
have accrued to the appellant, must be considered having regard to
the factors mentioned
in section 9. I have already alluded to the
very long duration of the marriage. Also, as pointed out in
Bezuidenhout v Bezuidenhout
2005 (2) SA 187
(SCA), the traditional role of housewife, mother and
homemaker should not be undervalued because it is not measurable in
terms
of money. The respondent’s misconduct can certainly not
be ignored, but it must be assessed with all the other circumstances.
I therefore come to the conclusion that an order for forfeiture was
not appropriate in the circumstances.
[42].
In sum, the evidence in this matter and the
objective facts as applied to the applicable legal principles do not
support the learned
Magistrate’s conclusion that the appellant
should forfeit the benefits of the parties’ marriage in
community of property
accumulated after December 2007. There is no
legal basis for such conclusion. In any event, on the evidence before
the court
a quo
there is no proof in support of a finding that the benefits accrued
in the form of an increase in the net value of the joint estate
between 2007 and 2018, when the decree of divorce was granted. The
learned Magistrate misdirected herself in that regard –
as I
have already indicated, most of the acquisitions post 2007 were in
the place or on the strength of existing assets belonging
to the
joint estate, such as the proceeds from the respondent’s
Pension Fund. The value of these assets were then reduced
and the
consequent reduced value in the joint estate was then replaced by the
value of the newly acquired asset, such as the Toyota
Corolla and the
equity in the house, which was no longer bonded.
[43].
In the circumstances, I am of the view that
the appeal against the order of the Magistrates Court should be
upheld.
Order
In
the result, the following order is made:-
(1)
The appellant’s application for
condonation of her non-compliance with the Rules of the Magistrates
Court and the Uniform
Rules of this Court and for the reinstatement
of her appeal is granted.
(2)
There shall be no order as to costs
relative to the appellant’s application for condonation.
(3)
The appeal is upheld with costs.
(4)
The order of the Kempton Park Regional
Court is set aside and in its place the following order is
substituted:
‘
a)
A decree of divorce is granted.
b)
The
joint estate of the parties shall be divided in equal shares.
c)
A
receiver and liquidator of the joint estate of the plaintiff and the
defendant with the powers
inter
alia
to realise the whole of the joint estate assets, shall be appointed
to give effect to order (b) above in the event of the parties
being
unable to reach agreement on the division of the joint estate.
d)
It
is declared that the defendant is entitled to an amount equal to
fifty per cent of the plaintiff’s net pension interest
in the
Sanlam
Glacier
Living Annuity / Pension Fund calculated as at the 7
th
of May 2018.
e)
Sanlam
is ordered to endorse the Living Annuity to the effect that the
appellant is entitled to fifty per cent of the value of the
annuity
as and at the 7
th
of May 2018.
f)
The
plaintiff shall pay the defendant’s costs of the divorce
action.’
(5)
The respondent shall pay the appellant’s
costs of this appeal.
__________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
I agree
__________________________
Z M P MAJAVU
Acting Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
14
th
October 2020
JUDGMENT DATE:
14
th
October 2020
FOR
THE APPELLANT:
Adv
R Letsipa
INSTRUCTED
BY:
Ledwaba
Attorneys, Kempton Park
FOR
THE RESPONDENT:
Mr
Johan Moolman
INSTRUCTED
BY:
Pratt
Luyt & De Lange Attorneys, Polokwane