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[2010] ZAGPPHC 641
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C.A.W.S v P.J.S (32798/2007) [2010] ZAGPPHC 641 (21 June 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT,PRETORIA)
Case
No.32798/2007
Date: 21 June
2010
Not reportable
In the matter
between:-
C[...] A[...]
W[...] S[...]
….............................................................................................................
Plaintiff
and
P[...]
J[...]
S[...]
.............................................................................................................................
Defendant
JUDGMENT
Van der Byl, AJ:-
Introduction
[1] This is a
divorce action in which the parties were at the commencement of the
trial in agreement on all the issues raised in
the pleadings, except
for -
(a) the part of the
Defendant’s assets to be transferred to the Defendant as
envisaged in section 7(3) of the Divorce Act.
1984 (Act 70 of 1979);
(b) the question
whether the Plaintiff should be provided with full medical aid by the
Defendant;
(c) the question as
to who should pay the costs of suit.
[2] On these issues
-
(a) the Defendant
tendered one-third of his assets whilst the Plaintiff insists on a
transfer of one-half of his assets:
(b) the Defendant is
prepared to retain the Plaintiff on his medical aid, provided that
she pays that part of the premium payable
in respect of her as a
dependant as well as any excesses not covered by the medical aid,
being an offer which, as it appears from
the Plaintiffs evidence and
submissions made on her behalf, she seems to be prepared to accept;
(c) it would appear
to be the contention of the Defendant that the Plaintiff should not
have the benefit of an order of costs in
her favour.
[3]
In the circumstances, particularly, in view of the dispute between
the parties regarding the division of the Defendant's assets.
I am
called upon to determine what part of the Defendant’s assets I,
in the circumstances, deem it just and equitable to
be transferred to
the Plaintiff and then, of course, to make an appropriate order of
costs.
Relevant
facts of the matter
[4] It is common
cause -
(a) that the parties
were married out of community of property more than 30 years ago on
15 March 1980;
(b) that one child,
K[...], who is now 22 years of age and has since married, was born
out of the marriage;
(c) that the
marriage relationship has irretrievably broken down with no
reasonable prospect of restoration of a normal marriage
relationship;
and
(d) that the
Defendant left the common home on 13 July 2007 consequent,
apparently, upon a protection order obtained by the Plaintiff.
[5] I was at the
commencement of the trial informed by Mr. Culhane who appeared on
behalf of the Defendant, in elaboration of the
particulars contained
in paragraph 6.4 of the Defendant’s amended plea, that it is
acknowledged that the value of the Plaintiffs
estate is R1 386 769,15
of which he tendered one-third which translates into an amount of
R462 256,38.
[6] On the other
hand, it would appear, according to particulars furnished for
purposes of trial by the Plaintiff and confirmed
by the Plaintiff in
her evidence -
(a) that her assets
currently consist of a few household items with an estimated value of
R1 000; and
(b) that her
liabilities currently amount to about R244 200 consisting of -
(i) a bank overdraft
of about R15 000;
(ii) an amount owing
on her credit card of about R55 000;
(iii) legal costs in
an amount of R85 000;
(iv) moving costs in
an amount of R16 200 incurred in respect of her move after the
Defendant sold the communal home;
(v) arrear rental
payable in respect of her current accommodation in an amount of R30
000;
(vi) university fees
in respect of their daughter, K[...], in an amount of R15 000:
(viii) living
expenses of about R28 000.
[7]
It, furthermore, appears that the Plaintiff is entitled to an
inheritance of R483 205 from her mother’s estate who passed
away during July 2009 of which she already, by way of an advance,
received an amount of R92 000 which she utilized,
inter
alia
,
as part payment of K[...]’s university fees, legal fees payable
in respect of these divorce proceedings and on a holiday
after her
mother’s death.
[8] The Plaintiff is
currently employed by a charitable organization called Topsy
Foundation where she earns a net income of between
R21 000 and R23
000 per month with no pension or medical benefits.
[9] The Defendant’s
gross income, on the other hand, appears, according to his evidence,
to consist of R11 142,98, made up
as follows -
(a) pension under
one life policy, R5 965,22;
(b) pension under
another life policy, R677.76;
(c) salary from his
current employer, R4 500.
It is apparent that
the first two figures would be reduced by an amount proportionate to
an award that may be made by this Court.
[10] According to
the Defendant his monthly expenses amount to R12 228.
[11] This brings me
to the evidence adduced by the Plaintiff and the Defendant relevant
to the dispute between the parties on the
extent of the assets to be
transferred from the Defendant to the Plaintiff.
[12] According to
the Plaintiff, who is currently 52 years old, they were, when they
got married, both employed. Since their marriage
their respective
earnings were paid into a joint account from which the joint
household expenses were paid. She stopped working
at some stage after
she fell pregnant some seven years after they go married, but again
commenced working during her pregnancy
and worked until her baby was
about three months old. Thereafter she was a housewife and attended
to their child (who was at the
time very ill) and to the normal
household functions with the assistance, once a week, of a housemaid.
When K[...] was about three
years old the Plaintiffs mother moved in
with them and contributed liberally to the household expenses by, for
example, having
sold some of her paintings. This continued until
K[...] was six years old when she obtained, initially temporarily and
later permanently,
employment and her earnings were then once again
paid into their joint account until she opened her own account during
2001 when
she started to feel insecure as the marriage started to
break down.
The Defendant seems
to have been discharged from his employment early in December 2001.
Whilst he was unemployed his father contributed
about R5 000 towards
the household expenses and she paid for expenses, including K[...]’s
school fees, in excess of those
expenses. The Defendant again
obtained employment in February 2002 at Nedbank where he was employed
until February 2007 when he
decided to take early pension.
Until 2001 and
apparently thereafter the Defendant obtained shares and insurance
policies that were paid for out of the joint account
and the pension
paid out after he took early retirement.
After the Defendant
left the matrimonial home the Plaintiff, K[...] and her mother
remained in the house until approximately April
2009 when the
Defendant sold the house.
Before the house was
sold the Defendant paid the bond, telephone, water and electricity,
insurance and medical aid and contributed
towards the maintenance of
K[...] and the Plaintiff paid the expenses necessary to maintain the
property.
As far as K[...]'s
studies at the University of Johannesburg are concerned the Defendant
has over a period of about five years paid
an amount between R400 000
and R500 000.
After the house was
sold she, together with K[...] and her mother, moved to a cottage
where she is currently living at a rental
of R5 000 per month.
[13] The Defendant,
who is 60 years old, largely confirmed the evidence adduced by the
Plaintiff.
It, furthermore,
appears from his evidence -
(a) that until the
house was sold in April 2009 he paid the bond on the house, the
rates, water, refuse removal and electricity
payable to the
Municipality in respect of the communal home and the amounts payable
to Telkom in respect of the home telephone;
(b) that he paid the
premiums on the policies, I assume, from which he is currently
receiving an income, and the premiums payable
to the medical aid
scheme in respect of the three of them;
(c) that he at all
times contributed about R500 per week to the joint household
expenses;
(d) that he did
contribute an amount of R13 500 towards the maintenance of the
Plaintiff during the period 27 July 2007 to 3 March
2008;
(e) that he is
currently driving a 1988 model Mercedes Benz with an estimate value
of R19 000.
He conceded that
after he left the communal home on 13 July 2007 he did not make any
contribution to K[...]’s studies as he
was never approached,
but that he offered to make a contribution of R30 000, but never paid
the amount as his offer was not accepted
[14] It is against
this factual background that I am now called upon to pronounce upon
the extent of the part of Defendant’s
assets which I deem to be
just and equitable to be transferred to the Plaintiff.
Considerations
relevant to transfer of part of Defendant’s assets to the
Plaintiff
[15] In terms of
section 7(3)
of the
Divorce Act, 1979
, a court granting a decree of
divorce is empowered, in the case of, as in this case, a marriage out
of community of property entered
into before the commencement of the
Matrimonial Property Act, 1984
, to order that such part of the assets
of the one party as the court may deem just be transferred to the
other party.
[16] In considering
such an order the court is enjoined -
(a)
to determine, as provided in subsection (4) of that section, whether
it would be equitable and just by reason of the fact,
inter
alia,
that
the party in whose favour the order is granted, contributed directly
or indirectly to the maintenance or increase of the estate
of the
other party during the subsistence of the marriage, either by the
rendering of services or the saving of expenses which
would otherwise
have been incurred;
(b)
in determining the part of the assets to be transferred as provided
in subsection (3), I am called upon to take into account,
as provided
in subsection (5),
inter
alia -
(i) the existing
means and obligations of the parties;
(ii) any other
factor which should in the opinion of the court be taken into
account.
[17] It is, bearing
in mind the tender made by the Defendant that one-third of his assets
be transferred as provided in
section 7(3)
of the
Divorce Act, 1979
,
in effect not in dispute that the Plaintiff contributed directly or
indirectly to the increase of the estate of the Defendant
during the
subsistence of the marriage.
[18] Having regard
to the dispute as to the part of Defendant’s assets that should
be so transferred, I am enjoined, in determining
the part to be so
transferred, to take into account the existing means and obligations
of the parties.
[19] It is in this
regard that the inheritance which is vested in the Plaintiff from the
estate of her late mother has been raised
on behalf of the Defendant
as part of the existing means of the Plaintiff which raises the
question whether an inheritance should
for purposes of the
application of the said
section 7(3)
be taken into account when
considering the existing means of the Plaintiff.
[20] I have in this
regard been referred to two reported decisions by Ms. Feinstein who
appeared on behalf of the Plaintiff.
[21]
The first of these decisions is the decision in
Beira
v Beira
1990 (3) SA 802
(W)
in
which the Court was concerned with the question whether in the
application of subsection (3), read with subsection (5), of
section 7
of the
Divorce Act, 1979
, the value of assets donated to a trust of
which the plaintiff was a beneficiary was relevant in determining
"the wealth
of the plaintiff in her own right, which might have the effect of
causing the amount to be redistributed to be
lower than might
otherwise have been the case".
At
807I-808B
the
learned Judge, in comparing the provisions of
section 7(3)
of the
Divorce Act, 1979
, with the provisions of
section 5(1)
of the
Matrimonial Property Act, 1984
, in terms of which an inheritance,
legacy or donation does not, for purposes of determining the accrual
of the estate of a spouse,
form part of such accrual and the
circumstances under which these provisions were enacted, held that
also in the case of a redistribution
under the said
section 7(3)
an
inheritance, legacy or donation should be excluded from consideration
for purposes of a redistribution.
[22]
The second of the decisions I have been referred to is the decision
in
Jordaan v
Jordaan
2001 (3) SA 288
(C)
in
which the Court was also concerned with the question whether a farm
the husband inherited should be taken into account in determining
the
extent of his estate for purposes of a redistribution of his estate.
At
297H, para [22]
the
learned Judge held as follows:
"[22]
Daar moet voorts 'n onderskeid getref word tussen die aanwasbedeling
en 'n herverdelingsbevel ingevolge die bepalings
van art 7. Artikel 5
van die Wet op Huweiiksgoedere 88 van 1984. wat met die
aanwasbedeling handel, sluit spesifiek 'n erflating,
legaat o
f
'n
skenking wat 'n
gade gedurende die bestaan van 'n huwelik toegeval het uit as deeI
van die aanwas van die boedel. Artikel 7(3) bevat
geen sodanige
uitsluiting nie en gevolglik beoog die Wetgewer na my mening dat
erflatings en diesmeer wel in ag geneem kan word
by 'n
herverdelingsbevel mits dit reg en billik is”.
The learned Judge
then proceeded and held that in the circumstances of that case where
the wife, having attended to the household
functions and,
particularly, to care for their disabled child, made it possible for
her husband to fully oversee the farming operations.
[23]
On the principles enunciated in either of these cases, this is a case
where the Plaintiffs inheritance should in my opinion,
for at least
two reasons, not be regarded as part of the Plaintiffs estate for
purposes of determining the part of the Defendant’s
estate to
be transferred to her estate.
Firstly
,
the inheritance became vested in her during July 2009, ie., almost
two years after the Plaintiff left the communal home and,
secondly
,
more importantly, bearing in mind that the Plaintiffs existing
liabilities amount to more than R244 000, the majority of which
seems
to have accumulated after the parties separated in July 2007. The
major part of the balance of the inheritance will obviously
be
absorbed by the Plaintiffs liabilities. Furthermore, the Plaintiff
expended more than R400 000 towards K[...]’s education
which
should have been shared by the Plaintiff and the Defendant. In view
of these considerations there is in my view simply no
good reason why
the Defendant should be entitled to the benefits derived from
Plaintiffs inheritance.
[24] This brings me
to the question as to the part of Defendant’s assets to be
transferred to the Plaintiff.
[25] One is, taking
into consideration the position in which the Parties now find
themselves, struck by the fact that at the end
of a marriage of 30
years -
(a) the Defendant
has, on the one hand, amassed an estate in excess of R1,3 million;
and
(b) the Plaintiff,
on the other hand, possesses only a few movable items to the value of
about R1 000 and is burdened with liabilities
of R244 000.
[26] It is in my
view apparent from the evidence that we are here concerned with a
husband and wife who during the subsistence of
their marriage both
made contributions to the household expenses from a joint banking
account until 2001 and thereafter from separate
joint accounts. As
far as the Plaintiff is concerned it is clear that she devoted her
whole life and earnings to her family. As
far as the Defendant is
concerned he was, although he also contributed to the joint
household, however, able to amass some personal
assets by way of
policies and has, having made payments to the bond held over their
communal home, obtained the benefit of immovable
property registered
in his name. Currently he is earning an income from those policies
and received a nett amount of R900 000 from
the sale of the house of
which he invested R600 000 in an interest bearing account. The
interest earned from this investment has
not been disclosed as part f
his income, apparently because the interest accumulated as part of
the capital amount invested.
[26] All this in
itself obviously justify a significant redistribution of the
Defendant’s estate, but the Court must, as far
as is possible,
balance the scales.
[27] In an attempt
to do so, I must take into account, as I have already indicated, the
existing means and obligations of the parties.
[28] As far as the
Plaintiff is concerned she is currently employed earning a net income
of between R21 000 and R23 000 per month.
[29] As far as the
Defendant is concerned, he disclosed, apart from interest earned on
the R600 000 investment, a gross monthly
income of slightly more than
R11 000 which will be reduced proportionate to the award I may make
in this matter.
[30] Taking into
consideration these facts, I am satisfied that the parties have at
all times during their marriage primarily shared
the household
expenses to such an extent that the Defendant was enabled to invest
in the policies from which he is currently earning
an income and to
make payments towards the communal home the sale of which rendered a
net amount of R900 000, part of which seems
to have been utilized
towards some mutual debts, leaving R600 000 which he invested.
[31] It seems to me
that the R600 000 investment and the value of the policies form the
major part of the Defendant's assets and
I can see no reason why I
should hold that the Plaintiff is entitled to less than half of those
assets.
[32] This brings me
to the question of costs. In view of the fact that the assets
accumulated between the parties during their marriage
will, if half
of the Defendant’s estate is awarded to the Plaintiff, in
effect be divided into two. Furthermore, bearing
in mind the relative
modest value of the estate and the costs involved in persisting with
their respective claims, this is in my
view a matter where the
parties should have considered their risks instead of reducing their
estates by incurring unnecessary legal
costs. They are to be equally
blamed that this matter has taken almost three years to be brought to
finality on issues which are
not particularly complicated.
Where the aim is to
balance the scales an order that any party should pay the costs of
the other would upset the balance.
I accordingly regard
it just and fair that each party should pay his or her own costs.
[33] In the premises
I make the following order:-
1. A decree of
divorce is granted.
2. The Defendant is
ordered to retain the Plaintiff on his medical scheme, provided that
she pays her share of the premium payable
in respect of her as a
dependant as well as any excesses not covered by the medical aid.
3. The Defendant is
ordered to transfer half of his estate, calculated on the basis that
his estate amounts to R1 386 769,15, to
the Plaintiff.
4.
No
order is made as to costs.
P
C VAN DER BYL
ACTING JUDGE OF
THE HIGH COURT
ON BEHALF OF THE PLAINTIFF: ADV M FEINSTEIN
On the instructions of: JENNIFER MYNHARDT
c/o VAN DYK HORN ATTORNEYS
240 Orient Street
Arcadia
PRETORIA
Ref: C van Dyk
Tel: (012) 342 3507
ON BEHALF OF THE
DEFENDANT: MR.G. CULHANE
GERARD CULHANE ATTORNEY
c/o THE DOCUMENT EXCHANGE
Saambou Boulevard
Shop No.2, Lower Ground
Level
227 Andries Street
PRETORIA
Ref: G Culhane/Liza/GAS
(012) 760 1090
DATE OF HEARING: 27 MAY
2010
JUDGMENT DELIVERED ON: 21
JUNE 2010