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[2021] ZAGPJHC 364
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M.M.M v Z.M (895/19; A3129/19) [2021] ZAGPJHC 364 (31 May 2021)
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
CASE NO: 895/19
APPEAL NO: A3129/19
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
Date:
31 May 2021
In the matter between
M
M
M
Appellant
and
Z
M
Respondent
JUDGMENT
COWEN AJ
1.
This is an appeal against orders made on 2
August 2019 by Regional Magistrate Hoosen of the Regional Court in
Kempton Park in divorce
proceedings concerning the division of a
joint estate. In short, what is at issue is Magistrate Hoosen’s
dismissal of a claim
for forfeiture of the patrimonial benefits of
the parties’ marriage in terms of section 9(1) of the Divorce
Act 70 of 1979
(the
Divorce Act).
2.
The
appellant is M[....] M[....]2 M[....]3.
The respondent is Z[....] M[....]3. The appellant and the respondent
were married to each
other in community of property on 24 December
2005. Together, they have one minor child, a son who was born on 21
August 2006.
The parties were married for some 13 years but lived
apart for much of this time living separate lives.
3.
On 18 August 2016, the respondent (as
plaintiff) issued summons against the appellant seeking a decree of
divorce, division of the
joint estate and a direction that 50% of the
appellant’s pension interest be assigned to her. She also
sought further relief
relating to the minor child. On 19 September
2016, the appellant (as defendant) filed his plea and a
counter-claim. In his counterclaim
he pleaded that the respondent
should forfeit the benefits arising from the marriage in community of
property in terms of
section 9(1)
of the
Divorce Act.
4.
Section
9(1) provides:
‘
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.”
5.
The divorce action came before Regional
Magistrate Hoosen on 2 April 2019. At that stage, a Ms Ratjie
appeared for the respondent
(the plaintiff) and a Mr Mketsu appeared
for the appellant (the defendant). At the commencement of the
proceedings, and by consent
between the parties, the Court ordered
that the defendant’s counterclaim be amended to clarify,
amongst other things, that
he was seeking an order for forfeiture of
the patrimonial benefits arising from the marriage in community of
property. There was
no dispute that the marriage had broken down
irretrievably.
6.
As matters transpired, the appellant’s
claim for forfeiture was the only dispute ventilated at the trial. It
was common cause
during the trial that the ‘benefits’
that the defendant sought the plaintiff to forfeit were his pension
interest and
a house in Kempton Park, which is subject to a mortgage
bond and which for a period was the marital home.
7.
During the trial, only the appellant
testified in support of his case and only the respondent testified in
support of hers. Magistrate
Hoosen delivered his judgment on 2 August
2019 and dismissed the claim for forfeiture. He granted a decree of
divorce, division
of the joint estate, and orders pursuant to which
50% of the value at the date of divorce of the parties’
respective due
or assigned pension interests with the Government
Employees Pension Fund be paid to the other. Each party was ordered
to pay its
own costs.
8.
The appeal came before this Court on 26
April 2021. Advocate Dube appeared for the applicant. Ms Raji
appeared for the respondent.
The appeal was heard via videoconference
on Microsoft Teams in circumstances of the ongoing Covid-19 pandemic.
9.
In substance, the appeal is against the
Magistrate’s refusal to order a forfeiture of the benefits of
the joint estate against
the respondent. The appeal was noted late
and in the circumstances, the appellant applied for condonation,
which the respondent
opposed. At the commencement of the hearing,
however, Ms Raji confirmed that the respondent no longer opposed the
application for
condonation, and condonation was thereafter granted.
It was granted in circumstances where there was no prejudice to the
respondent
in its late filing, the merits of the appeal concerning
the manner in which the Magistrate exercised a discretion, the
interests
of justice demand finality of the dispute between the
parties. The delay was, in any event, relatively short and fully
explained.
The interests of justice clearly warranted the granting of
the condonation application and finalization of the dispute between
the parties.
10.
In his judgment, in evaluating the evidence
and making factual findings, Magistrate Hoosen found that the
respondent would benefit
from a division of the joint estate, noting
that it is usual in a marriage in community of property that one
party will benefit.
Further, Magistrate Hoosen concluded that it
could not be found that the respondent did not make any contribution
to the joint
estate. Rather, he found she did so contribute by way of
assisting with various expenses of the household and caring for the
minor
child.
11.
Magistrate Hoosen’s judgment focuses
on his consideration of whether any benefit was undue having regard
to the three considerations
mentioned in
section 9(1):
the duration
of the marriage, the circumstances that gave rise to the break-down
thereof and any substantial misconduct on the
part of either of the
parties. After evaluating the evidence, he concluded that there is no
reason to find that any benefit would
be undue if an order for
forfeiture is not granted. His reasons for doing so appear from his
judgment and in light of the conclusion
reached below, there is no
purpose summarizing or repeating these here.
12.
The appellant appeals against the judgment
on multiple grounds. Importantly each of the grounds raised in the
notice of appeal relate
to the correctness or otherwise of Magistrate
Hoosen’s findings or evaluation of the three considerations
referred to above.
Again, in light of the conclusion reached below,
it is not necessary to summarise these grounds.
13.
The appeal can be disposed of without
considering the three considerations referred to above. This is
because the appellant failed
to discharge the onus of proof that
rested on him to demonstrate the extent of the benefit the respondent
would derive from a division
of the joint estate. In turn, this means
that there is no evidence that enables the Court properly to evaluate
whether such benefit
is undue in light of the three considerations
stated in
section 9
of the
Divorce Act.
AN>
14.
The
fact that a spouse married in community of property is entitled to
share in the joint estate of her spouse is a consequence
of the
marital property regime that governs the marriage. Such benefit, even
if substantial, cannot be regarded as
per
se
undue:
rather it is an inevitable consequence of the marital property
regime.
[1]
Under South African
law, community of property is the default marital property regime and
parties to a marriage must opt out of
it by mutual consent should
they wish to. This legal position protects gender equality.
[2]
15.
In
Engelbrecht,
Conradie J of the Cape High Court held,
for a full bench:
‘
Tensy
bewys word – en dit is myns insiens duidelik dat die bewyslas
rus op die gade wat the verbeurigbevel aanvra –
wat die aard en
omvang van die bevoordeling was, kan ‘n Hof nie beslis of the
bevoordeling onbehoorlik was of nie. Eers as
die aard en omvang van
die bevoordeling bewys is, word dit nodig om te kyk na die faktore
wat by the beoordeling van die onbehoorlikheid
daavan in aanmerking
geneem moet word.’
16.
The
benefit in issue in
Engelbrecht
was,
similar to this case, a marital home which was not fully paid off,
and was thus both an asset and a liability in the joint
estate.
[3]
As in this case, no evidence was led as to the value of the asset or
the liability at the date of summons or divorce. The court
concluded
that in those circumstances, the aggrieved spouse had not established
the extent of the benefit: “
a
fortiori
het
hy nie bewys dat daardie bevoordeling onder die omstandighede
onbehoorlik, met ander woorde, ontstellend onbillik was nie
.
’
[4]
17.
The
Court followed a similar approach in
JW
v SW,
[5]
to
which Ms Raji referred the Court. In that case the plaintiff had
proved the value of the house in question only when the divorce
proceedings were instituted and not when the parties entered into the
marriage. After considering
Engelbrecht,,
Makgoka
J concluded that the plaintiff had not proved the extent of the
defendant’s benefit on the dissolution of the marriage
and that
in those circumstances it could not be concluded that any such
benefit was undue.
18.
In this case, there is no evidence
regarding the value of the house (and the extent of the associated
liability) either at the commencement
or at the dissolution of the
marriage. There is similarly no evidence on the value of either of
the pension benefits and the extent
to which the respondent would be
benefited if an order of forfeiture is not granted. In these
circumstances, the appellant has
failed to discharge the onus that
rests on him to make out a case for forfeiture of benefits arising
out of the marriage in community
of property. In the circumstances,
and on the facts of this case, this Court is unable to give any
proper regard to the question
whether the benefit that the respondent
would derive from a division of the joint estate is undue having
regard to the three considerations
referred to in
s9
of the
Divorce
Act.
19.
In
the result the appeal must be dismissed.
There is no reason why costs should not follow the result.
20.
The following order is made:
20.1.1.
The appeal is dismissed.
20.1.2.
The appellant shall pay the respondent’s
costs.
Cowen AJ
I agree.
Tsoka J
Heard: 26 April 2021
Delivered: 31 May 2021
APPEARANCES:
For the appellant:
Mr
Dube instructed by Mketsu
and Associates Inc
For the
Respondent:
Ms Raji instructed by Matojane Malungana Inc.
[1]
Wijker
v Wijker
1993(4)
SA 720 (A) at 731 E-G;
Engelbrecht
v Engelbrecht
1989(1)
SA 597 (K) (
Engelbrecht
)
at 601F-G.
[2]
Gumede
(born Shange) v President of the Republic of South Africa and Others
2009
(3) BCLR 243 (CC) ; 2009 (3) SA 152 (CC);
Sithole
and Another v Sithole and Another
(CCT 23/20) [2021] ZACC 7 (14 April 2021).
[3]
See
602A-E
[4]
See
602E-F
[5]
2011(1)
SA 545 (GNP) at paragraphs 16 to 24.