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[2020] ZAGPJHC 281
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P P v J P (A3007/20) [2020] ZAGPJHC 281 (2 November 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A3007/20
COURT
A QUO
CASE NO
:
GAU/VRG/RC643/17(D)
DATE
:
2
nd
NOVEMBER 2020
In
the matter between:
P
,
P
Appellant
and
P
,
J
Respondent
Coram:
Adams J
et
Khumalo AJ
Heard
:
29 and 30 October 2020
Delivered:
2 November 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 11:00 on 2 November 2020
Summary:
Marriage – divorce – marriage in
community of property – forfeiture of patrimonial benefits –
trial Court
having ordered partial forfeiture of patrimonial benefits
in terms of s 9(1) of Act 70 of 1979 – appellant contending
that
trial Court should have ordered total forfeiture – appeal
court may interfere with the exercise of a discretionary power by
a
lower court only if that power had not been properly exercised –
whether the period during which the parties were customarily
married
immediately prior to their civil marriage should be taken into
account when determining duration of marriage
ORDER
On
appeal from:
The
Gauteng Regional Court, Vereeniging (Regional Magistrate S P Morwane
sitting as Court of first instance):
(1)
The appellant’s appeal is dismissed
with costs.
JUDGMENT
Khumalo
AJ (Adams J concurring):
Background
[1].
The issue in this appeal is whether this
court, sitting as a court of appeal, can interfere with the exercise
of the trial Court’s
discretion wherein it ordered a partial
forfeiture of patrimonial benefits in circumstances where the
plaintiff in divorce proceedings
had sought a total forfeiture of
patrimonial benefits.
[2].
The appellant (plaintiff
a
quo
) instituted divorce proceedings
against the respondent (defendant
a quo
)
in the Gauteng Regional Court, held at Vereeniging (‘trial
Court’). In addition to a decree of divorce, the appellant
had
sought an order that the respondent forfeit certain patrimonial
benefits arising from the marriage in community of property.
[3].
In the original particulars of claim the
appellant had sought a total forfeiture of all the patrimonial
benefits but subsequently
amended her particulars of claim and sought
only a total forfeiture of (i) a share in her pension interest and
(ii) the respondent’s
share in the immovable property situated
at Three Rivers, Vereeniging.
[4].
The following facts appear from the record
and were common cause between the parties: The parties entered into a
civil marriage
on 16 July 2015. They had two children born in March
2012 and April 2015 respectively. The respondent left the matrimonial
home
in February 2017 and never returned. The appellant launched
divorce proceedings in July 2017; and the parties agreed in their
pleadings
that the marriage relationship between them had broken down
irretrievably and that it should be dissolved by a decree of divorce.
[5].
In the trial Court the appellant contended
that she was entitled to an order that the patrimonial benefits of
the marriage be forfeited
by the respondent for
inter
alia
the reason that the marriage was
of short duration. Also, so the appellant contended, the respondent
had not made any contributions
(financial or otherwise) towards the
immovable property in respect of which a forfeiture order was sought
and the respondent’s
misconduct gave rise to the break-down of
the marriage. Lastly, the appellant submitted that, if the order for
forfeiture was not
made, the respondent will in relation to the
appellant be unduly benefited.
[6].
The respondent denied the alleged
misconduct and pleaded that he was entitled to an equal share of the
joint estate inclusive of
the pension interest and the property in
Three Rivers, Vereeniging, as a party to a marriage in community of
property. The respondent’s
evidence regarding his financial
contribution during the parties’ marriage was less than
impressive, but nothing turns on
this issue.
[7].
The circumstances under which a Court can
grant an order for the forfeiture of patrimonial benefits are laid
down in s 9(1) of the
Divorce Act 70 of 1979 (‘the Act’),
which provides as follows:
‘
When
a decree of divorce is granted on the ground of the irretrievable
break-down 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 break-down 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’.
[8].
The trial Court delivered its Judgment on 6
December 2019.
[9].
Having considered the evidence before it as
well as the factors mentioned in s 9(1) of the Act, the trial Court
concluded that the
respondent would indeed be unduly benefited if a
forfeiture order was not made.
[10].
The trial Court then ruled that the
respondent, instead of forfeiting the whole fifty percent interest in
the property in the joint
estate, should forfeit only twenty percent
in the immovable property and the pension interest, resulting in the
respondent being
awarded only thirty percent of the immovable
property and appellant’s pension interest. Put another way, the
trial Court
granted a partial forfeiture of the patrimonial benefits
in respect of the property and the pension interest.
The
issue in this appeal
[11].
The appellant’s appeal to this Court
is against the order that the respondent should forfeit only a
certain percentage of
the patrimonial benefits in respect of the
property and the pension interest and not the entire portion.
[12].
In argument before this Court, Mr
Hlatshwayo, who appeared on behalf of the appellant, made three
submissions in support of the
grounds of appeal. The first was that
once the trial Court had concluded that the respondent would be
unduly benefitted in relation
to the appellant if a forfeiture order
was not made, then the trial Court was obliged to grant total
forfeiture. The second was
that the trial Court did not take into
account the short duration of the marriage between the parties –
which the appellant
contends includes only the period of the civil
marriage – and that the trial Court should have ordered a total
forfeiture
in respect of both the immovable property and the pension
interest. The third was that the Trial Court did not give reasons for
its decision that the respondent should only forfeit what is
effectively a 20% share in the immovable property and the pension
interest.
[13].
There was no appeal or cross-appeal noted
by the respondent against the order that he should forfeit a portion
of his share of the
immovable property and the appellant’s
pension interest. In argument before this Court, Ms Mzizi, who
appeared for the respondent,
attempted to persuade us from the bar to
set aside the trial Court’s finding that the respondent would
be unduly benefitted
if a forfeiture order were not granted, and
asked us to set aside the forfeiture order and to substitute it for
an order that there
should be no forfeiture at all.
[14].
This Court declines to entertain the
request from respondent’s counsel for the simple reason that no
cross-appeal had been
noted as contemplated in rule 51(6) and (7) of
the Rules Regulating the Conduct of Proceedings of Magistrates Court
of South Africa.
There was therefore no competent cross-appeal before
us and there was no application for condonation of failure to comply
with
rule 51. The appellant was entitled to assume that there was no
such cross-appeal and her counsel was clearly not prepared to argue
such cross-appeal. The appellant would clearly be prejudiced if we
entertained the request from respondent’s counsel.
Interpretation
and application of s 9(1) of the Act
[15].
In
Wijker v
Wijker
1993 (4) SA 720
(A) at 727D –
G, the Appellate Division said the following regarding the
interpretation and application of s9(1) of the Act:
‘
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 benefited. 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. Although the second determination is a
value judgment, it is made by the trial Court after having
considered
the facts falling within the compass of the three factors mentioned
in the section’.
[16].
At page 278 paras A-B, the AD pointed out
that when determining whether one party would be unduly benefited, a
trial Court does
not exercise a discretion since that is a factual
issue. It went on to say that in considering an appeal on that
factual issue,
it (and by extension any appeal court) may differ from
a trial Court on the merits.
[17].
In the present appeal before this Court,
the appellant does not take issue with the trial Court’s
factual finding that the
respondent would indeed be unduly benefitted
at the expense of the appellant if a forfeiture order was not
granted.
[18].
This Court is therefore not called upon to
interfere with that factual finding. The appellant takes issue only
with the trial Court
having granted a partial forfeiture of
patrimonial benefits instead of a complete forfeiture.
[19].
The appellant is therefore asking this
Court, sitting as a court of appeal, to interfere with the trial
Court’s exercise of
its discretion in terms of s9(1) of the
Act.
[20].
In
Wijker
(supra
)
at 728B-C, the AD pointed out that when a trial Court makes an order
for a forfeiture of benefits following upon a factual finding
that a
party would be unduly benefited, the trial Court exercises a
discretion in the narrower sense. That would by extension be
the case
when the court declines to grant a forfeiture order.
[21].
The exercise of a narrow discretion
necessarily involves a
'choice between
permissible alternatives'
, and,
accordingly,
'different judicial
officers, acting reasonably, could legitimately come to different
conclusions on identical facts'
(see
Ganes and Another v Telecom Namibia Ltd
2004 (3) SA 615
(SCA)
at para 21.
Whether this Court can interfere
with the trial Court’s discretion
[22].
The test for interference with the narrow
exercise of judicial discretion by a lower court is that formulated
in
Ex parte Neethling and Others
1951
(4) SA 331
(A) at 335C – F.
[23].
Circumstances under which a court of appeal
may interfere with a lower court’s exercise of a narrow
discretion were restated
as follows in
Ferris
and another v FirstRand Bank Ltd
2014
(3) SA 39
(CC
)
at para [28]:
‘
28
An appeal court may interfere with the exercise of a discretionary
power by a lower court only if that power had not been properly
exercised. This would be so if the court has exercised the
discretionary power capriciously, was moved by a wrong principle of
law or an incorrect appreciation of the facts, had not brought its
unbiased judgment to bear on the issue, or had not acted for
substantial reasons.’
[24].
In instances where a lower court exercises
a narrow discretion, the ordinary approach on appeal is that the ‘the
appellate
court will not consider whether the decision reached by the
court at first instance was correct, but will only interfere in
limited
circumstances; for example, if it is shown that the
discretion has not been exercised judicially . . .’
(
see
Trencon Construction (Pty) Ltd v
Industrial Development Corporation of South Africa
2015
(5) SA 245
(CC) at para 85
)
.
[25].
It would therefore not be competent for
this Court to interfere with and set aside the exercise of the trial
Court’s discretion
merely because this Court would have
preferred the trial Court to have followed a different course among
those available to it.
It would equally not be competent for this
Court to alter the percentage of the benefits that should be
forfeited by the respondent
merely because this Court believes that
its preferred percentage is the appropriate percentage.
[26].
The appellant must therefore satisfy this
Court that the trial Court has exercised its discretion capriciously
or upon a wrong principle,
that it has not brought its unbiased
judgment to bear on the question that was before it or has not acted
for substantial reasons.
[27].
That is the hurdle which the appellant must
overcome.
Consideration
of the Appellant’s three submissions
[28].
The first submission on behalf of the
appellant that the finding that the respondent would indeed be unduly
benefitted should have
been followed by an order of total forfeiture
is not supported by the interpretation of
s 9(1)
of the
Divorce Act.
As
I have pointed out above, following a finding that one party would
be unduly benefitted if a forfeiture order was not made, the
trial
Court has a choice between two alternatives, being a partial
forfeiture and a total forfeiture. In this case, the trial Court
opted for the former and not the latter. It was competent for the
trial Court to do so. There is therefore no merit in the first
submission.
[29].
In terms of the second submission, it was
contended that the parties were only married for less than three
years which ‘by
legal prescription is a short marriage’
and that the trial Court ‘erred in considering the number of
years the parties
stayed together’.
[30].
Having considered the record in the
proceedings before the trial Court as well as the trial Court’s
written judgment, I am
not persuaded that the trial Court did not
properly consider (or did not give due weight to the) duration of the
marriage between
the parties.
[31].
That the trial Court considered the
duration of the marriage is evident from its judgment. It said the
following at paragraph 22
of its Judgment:
‘
22.
The parties were married in 2015, and by calculation they have been
married for four years. They both confirmed that they were
customarily married in 2009. They both confirmed that they parted
ways and only reconciled in 2011. It appears that they do not
regard
the period that they were customarily married as the duration of
their marriage, added to their civil marriage. It can be
argued
either way but clearly the parties were not married for a short time.
Their evidence did not assist the court to assess
the type of
marriage they were in’.
[32].
It is clear from its judgment that the
trial Court did not only take into account the period from 16 July
2015 during which the
parties were in a civil marriage, but also
considered that prior to the civil marriage the parties were married
in terms of customary
law. It then concluded that the entire period
(during the subsistence of the customary marriage and the civil
marriage) did not
constitute a short marriage justifying a total
forfeiture of patrimonial benefits.
[33].
I mention in passing that the said
customary marriage, having been concluded after the commencement of
the Recognition of Customary
Marriages Act, Act 120 of 1998
(commencement date is 15 November 2000) would have been a marriage in
community of property in terms
of s 8 of that statute.
[34].
The appellant in her own evidence in chief
testified that the respondent twice paid
lobola
for her, first in 2007 and again in 2011. She also testified that the
parties had a traditional wedding ceremony in 2014 and that
between
2014 and 2015 – which is the period immediately preceding the
civil wedding – they lived together as husband
and wife.
[35].
The respondent’s evidence, which was
not challenged or disputed during cross-examination, was that the
parties moved in together
and lived together during 2011 after he had
paid
lobola
.
[36].
The parties were clearly married in terms
of customary law well before the civil marriage in July 2015.
[37].
I can think of no reason why the period
during which the parties were married in terms of customary law
should not be taken into
account for the purposes of applying the
provisions of s 9(1) of the Act. The parties were after all married
to each other during
that period and such a marriage could only be
dissolved by a decree of divorce granted by a Court.
[38].
Their conversion of that customary marriage
regime into a civil marriage – something which s 10(1) of the
Recognition of Customary
Marriages Act contemplates – did not
alter the legal position that they were already married to each other
prior to their
entering into a civil marriage. That being the case,
the duration of the parties’ marriage was at least six years at
the
commencement of the divorce proceedings, and not less than three
years, as suggested by the appellant in the notice of appeal and
heads of argument filed on her behalf. As and at the date of divorce,
the parties had been married for at least eight years.
[39].
That is by no means a very short marriage.
[40].
In oral argument before this Court, Mr
Hlatshwayo for the appellant conceded that the parties were
customarily married in 2007 but
attempted to persuade us to disregard
that fact by arguing that the said customary marriage was dissolved
by the parties’
parents. I find that there is no merit in this
argument because a customary marriage can only be dissolved by a
Court in terms
of s 8 of the Recognition of Customary Marriages Act.
[41].
I therefore find that the trial Court did
consider and properly apply its mind to the duration of the parties’
marriage.
[42].
The third submission made on behalf of the
appellant was that the trial Court did not explain why it ordered
that the respondent
should only forfeit 20% of his share of the
immovable property and pension interest. I find that this submission,
although compelling
at first blush, amounts to no more than
nit-picking. It is clear from the judgment of the trial Court that it
favoured a partial
forfeiture instead of a total forfeiture. Having
done so, it then fell to the trial Court to determine what it
considered to be
an appropriate portion of the benefit to be
forfeited. It determined that the appropriate portion was 20%. It
could have made a
different determination, such as 25%, 30% up to
49%. Any of them would have been appropriate. It was not necessary
for the trial
Court to have to explain why it chose 20% and not 25,
30, or 35%. The phrase, ‘how long is a piece of string?’
comes
to mind.
[43].
There is accordingly no merit in the
criticism of the approach of the trial Court.
[44].
It is clear from the record and the
judgment of the trial Court that it exercised its discretion in this
regard judicially and not
capriciously, or upon any wrong principle,
but for substantial reasons. There is accordingly no basis for
interfering with the
trial Court’s judgment.
[45].
The appeal accordingly falls to be
dismissed.
Order
In the result, I make the following
order.
(1)
The
appellant’s appeal is dismissed with costs.
__________________________
S KHUMALO AJ
Acting Judge of the High Court
Gauteng Local Division,
Johannesburg
I
agree
__________________________
L R ADAMS
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
29
th
and 30
th
October 2020 – on the Microsoft digital platform
JUDGMENT DATE:
2
nd
November 2020 –
judgment handed down electronically
FOR
THE APPELLANT:
Adv
MD Hlatshwayo
INSTRUCTED
BY:
Hlatshwayo-Mhayise
Inc, Vereeniging
FOR
THE RESPONDENT:
Adv
T Mzizi
INSTRUCTED
BY::
Malefo
Attorneys, Pretoria