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[2010] ZAGPPHC 115
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M.R.R v J.M.R (45713/2009) [2010] ZAGPPHC 115 (14 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
Not
reportable
DATE:
14 SEPTEMBER 2010
CASE
NO: 45713/2009
In
the matter between:
M
R R PLAINTIFF
And
J
M R RESPONDENT
JUDGMENT
PHATUDI,
J
[1]
The parties are married in community of property to each other on 15
November 1999. There are no children born of the marriage.
[2]
I am satisfied that the marriage relationship between the parties is
irretrievably broken down with no prospects of the restoration
of a
normal relationship.
[3]
Mr Van Tonder, the plaintiff's counsel, submits in his opening
statement that the plaintiff seeks
•
Decree
of divorce
•
Division
of Joint Estate
•
Costs
of suit.
[4]
On the other hand, Ms Ferreira submits that the defendant filed
counterclaim in which the following order is sought;
•
Decree
of divorce
•
Forfeiture
of the defendant pension benefits paid out by City of Tshwane
Metropolitan Municipality or
•
Division
of the joint estate in that each party to take what is in each
possession.
[5]
M R R testifies that she lived with the defendant immediately after
lobola was paid for during 1995. She has since lived with
the
defendant as husband and wife. They married each other by civil on
the 15 November 1999.
[6]
They continued to live together as husband and wife together with her
son from her previous marriage and the defendant's two
daughters from
his previous marriage.
[7]
She sets out what the Joint Estate is constituted of including two
fully paid up immovable properties situated in Atteridgeville.
[8]
She further testifies that one Sunday during September 2004, the
defendant constructively chased her out of the common home.
She has
since lived with her son in her house.
[9]
It transpired during cross examination that the parties agreed that
each will maintain the house that each brought into the
Joint Estate.
They further agreed that each party be responsible for maintenance of
children from their previous marriages.
[10]
She testifies that the defendant promised her at the time she was
"chased" out of the common home that they will
build a
house for themselves and leave the two houses for their children
respectively.
[11]
She testifies further that she advised defendant to pay off the
houses and to build a wall fence around the house with the
lump sum
he received some time after 2004. She further advised him to buy MTN
shares. The defendant complied.
[12]
M J R testifies that he resigned, later changed to "retired"
as Deputy Director in September 2009 from his employment
with City of
Tshwane Metropolitan Municipality.
[13]
He retired at the instance of his doctor due to his highpertention
and sugar diabetes conditions.
[14]
He says he received a nett payout of R1, 020,000.00. He settled some
of his liabilities and donated a portion to his daughters.
An amount
of R650, 000.00 is still available.
[15]
He further testifies that the plaintiff decided on her own to leave
the "common home" on the reason that she cannot
live with
two other women
1
under the same roof. She preferred to have a "third" house
as theirs. She even requested him to bring her clothes to
her house.
He denies having ever agreed to buy a third house. The Plaintiff
suggested that but he never agreed thereto.
[16]
He further says that he maintained the municipal accounts of two
houses. He maintained that until these divorce summons were
issued in
2009.
[17]
He testifies that he visited the plaintiff regularly and even ate the
food she prepared until the latest by November 2009.
They at
irregular intervals went out to Morula Sun. They ate out, entertained
themselves and slept together overnight at the said
Morula sun. The
last such outing was undertaken in 2007,
[18]
He acquired MTN shares at the instance and advises of the plaintiff
during September 2007. He tried to reconcile from September
2007 up
to and until 13 November 2009. He realised that the plaintiff was no
longer interested in the relationship when she refused
to be
accompanied to a party scheduled to be held at Moreletta Park.
[19]
He concedes under cross examination that:
19.1
He visited the plaintiff every day at her house and ate each time he
found them eating.
19.2
She was with him every weekend when she was not working.
19.3
She contributed to the Joint Estate and saved him some money.
19.4
He knew that she received some lump sum which was used towards
settlement of the house bond.
[20]
He further concedes that the medical condition he is in made them to
opt for the usage of Viagra.
[21]
He testifies that he does not want to share his pension benefits with
her. He intends to use the said funds for his own maintenance
and
once depleted, he will resort to the government's social grants.
[22]
It is trite law that a marriage concluded in the absence of an ante
nuptial contract providing otherwise, creates community
of property
and profit and loss. Such community comes into being as soon as the
marriage is concluded.
2
This is effected not only of the first but also of the second and any
further marriage of a person, irrespective of whether or
not there
are children of a previous marriage.
[23]
The basic concept of a marriage in 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 their financial contributions
hold equal
shares
3
[24
All assets that belonged to the spouse before marriage and those
acquired by them during marriage, form part of the Joint Estate
unless excluded by a third party who bequeaths to one of the spouses
with that specific provisions.
4
[25]
It is appropriate to order equal division of Joint Estate on
dissolution of the marriage in community of property or 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
is satisfied that if the order for forfeiture is not made, the one
party will in relation to the other be unduly
benefited."
5
[26]
Section 9(1)
of the
Divorce Act 70 of 1979
states that; "when a
decree of divorce is granted on the grounds 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 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
other be unduly benefited:'
[27]
Mr Van Tonder submits that there is no gross misconduct on the part
of the plaintiff that warrants forfeiture of matrimonial
benefits in
favour of the defendant. He further submits that with no evidence led
as to the value of the Joint Estate, it will
not be equitable to
order that each party to keep what each is in possession. He further
thereto refers me to Wijker v Wijker
6
and placed on record what the court set out.
7
[28]
Mrs Ferreira submits that the test applied in terms of
Section 9(1)
is not "gross-misconduct" but "substantial
misconduct". When I analyse
Section 9(1)
, I find the wording
"the court may..." if the court... is satisfied..."
grants the court with discretionary power
to order forfeiture of
matrimonial benefits.
[29]
Either of the following may however be considered in exercising the
said discretion;
29.1
The duration of the marriage
29.2
Circumstances which gave rise to its breakdown
29.3
Any substantial misconduct on the part of either of the parties
[30]
These factors have been considered in Wijker v Wijker
8
and followed in Botha v Botha
9
where the court held that these factors are not intended to be
considered cumulatively.
10
[31]
On the plaintiff's version the defendant paid lobola in 1995 and has
since then lived together as husband and wife at the defendant's
house. This was not contested. The defendant concede save for payment
of lobola. Subsequent thereto a civil marriage was concluded
in
1999.They continued to live together under one roof until one Sunday
in September 2004.
[32]
Mrs Ferreira submits that a 5 year
11
period of parties' marriage is to an extent so short warranting an
order of partial forfeiture in favour of the defendant. She
further
submits that even if the period is calculated up to the year 2009,
12
the period is still short justifying an order of partial forfeiture
in favour of the defendant.
[33]
In evaluating the evidence tendered and the submissions made, I find
the parties being married since 1995 when they lived together
as
husband and wife. The marriage was putative if accepted that lobola
was not paid. The marriage still subsists. I, in the result,
find
their marriage as being that of 15 years. The said period cannot be
said to be so "short" justifying forfeiture
as submitted by
Mrs Ferreira.
[34]
On the issue of circumstances which gave rise to the break-down of
the marriage, the plaintiff testified that one Sunday during
September 2004, the defendant approached her while at work and
informed her not to come back to the common home after work. She
says
the defendant advanced "not going along with his daughters"
as reasons to let her go. On the other hand, the defendant
testified
that the plaintiff requested to move out of the common home on the
same point.
[35]
In evaluating the said evidence, I am of the view, notwithstanding
how the plaintiff left the common home that the "not
going along
with the daughters" is not one of the elements that led to the
irretrievable break down of the marriage.
[36]
I find the challenge the plaintiff had with the defendants' daughters
fits like a glove in the hand with a Northern Sotho proverb
that
state:
“Kqomo ga e amushi namane ya
kqomo
ye nnqwe"
.
13
It is however, an unusual situation where the woman would leave her
house to live with a man and his children. There is no evidence
as to
what happened to the mother of the defendant daughters.
[37]
There is no evidence led to prove that the challenge the plaintiff
had with the defendants' daughters or vice versa, is a substantial
misconduct that led to the breakdown of the marriage.
[38]
The circumstances that led to the break down of the marriage are in
fact, in my view, the sexual impairment due to defendants'
medical
condition.
[39]
The plaintiff testified that she was always there for the defendant.
She as a nurse, knows that a person with such medical
condition often
have difficulty with erection. She informed the defendant and
supported him all the time. When testifying, the
defendant kept on
saying "she suggested..." and would immediately change to
"we suggested to the usage of Viagra"
to overcome the
erection problem. It is difficult for the parties to come out on this
issue.
[40]
I understand their predicament of hanging their sexual impairment
freely and openly in this court room. This conduct cannot,
in my
view, be attributed to the plaintiff. I accept her testimony of being
there for him. The plaintiff impressed on me as a credible
witness.
The defendant, on his version, "visited" the plaintiff
everyday and would even eat with her if food was at that
time
prepared.
[41]
Considering both the circumstances which gave rise to the break down
and substantial misconduct on the part of either of the
parties, I
find neither parties' state of health as a factor to be considered
when determining whether either party will be unduly
benefited if no
forfeiture order is made.
[42]
Hahlo & Sinclair in The Reform of the South African Law of
Divorce- 4th Edition states that: "No mention is made of
misconduct which has, directly or indirectly, substantially
diminished the family fortunes, such as extravagance on the part of
the wife or reckless gambling by the husband."
14
The learned author refers to the New Zealand Matrimonial Property Act
166 of 1976 which set out the type of misconduct to be considered
as
the one that "significantly affects the extent or value of the
matrimonial property."
15
[43]
In assessing the conduct of the plaintiff, I find no misconduct that
"significantly affects the extent or value of the
matrimonial
property".
[44]
In Botha v Botha
16
the
court stated that " Conspicuously absent from Section 9 is a
catch-all phrase, permitting the court, in addition to the
factors
listed, to have regard to 'any other factor'. The court gives a
directive to compare the section with the wording of
Section 7(2)
of
the
Divorce Act.
17
[45]
Section 7(2)
provides for '...their conduct in so far as it may be
relevant to the break-down of the marriage' where as
Section 9(1)
provides for 'substantial
18
misconduct.
[46]
The misconduct on the part of a party against whom forfeiture of
matrimonial benefits is sought, must be of such a great magnitude.
The misconduct must be far more than an ordinary raking of minute
domestic grievance.
[47]
I do not agree with Mrs Ferreira submission that "not going
along" between the plaintiff and the defendant's daughters
as
misconduct that led to the break-down of the parties marriage, which,
if the order for forfeiture is not made, the plaintiff
will in
relation to the defendant pension benefits, be unduly benefited.
[48]
I, as a result, find the defendant's forfeiture claim stands to be
dismissed. Failing a forfeiture order, the joint estate,
as a matter
of law, must, after deducting the debts and or liabilities of the
joint estate, is divided equally between the parties.
[49]
Mrs Ferreira's contention that the joint estate be divided as at date
of marriage holds no water. I already have eluded that
as a matter of
law, all assets brought into marriage in community of property is
deemed to form part of the joint estate.
[50]
The defendant's pension benefit does not fall within any of the
exceptions to assets forming the joint estate. The pension
benefits
fall within the ambit of assets that form part of the joint estate.
Each party is entitled to half share of the pension
benefit of the
other. The defendant is entitled to claim the plaintiffs' pension
benefits which must be paid within 60 days of
this court order.
[51]
I, in my final analysis, find the division of the joint estate as an
appropriate order.
[52]
Section 10
19
anc" HREF="#sdfootnote19sym" SDFIXED>
19
provides that "in divorce action the court shall not be bound to
make an order for costs in favour of the successful party,
but the
court may, having regard to the means of the parties, and either
conduct in so far as it may be relevant, make such order
as it
considers just, and the court may order that the costs of the
proceedings be apportioned between the parties."
[53]
The costs in divorce action do not necessarily follow the event. The
costs order may be made in favour of an unsuccessful party
due to the
other party's conduct in so far as it may be relevant.
[54]
Mrs Ferreira submits that the plaintiff
54.1
Abandoned her claim for forfeiture on the day of trial by 'amending
orally' in court.
54.2
Has still not replied to the defendants notice in terms of
Rule 35
(3) of the Uniform rules of this court.
54.3
She further submits that there is no prayer for division of the joint
estate in the Plaintiffs pleadings.
[55]
She lastly submits that the Plaintiff be mulcted with costs.
[56]
Mr Van Tonder submits in rebuttal thereto that in the event I find
against the plaintiff in respect of costs, I must order
the plaintiff
to pay defendant's costs of 3 days from Friday 10 September 2010,
occasioned by "oral amendment" though
not opposed by the
defendant.
[57]
Considering counsel submissions, I find a no order as to costs to be
appropriate orders save for costs of 3 days from Friday
10 September
2010 to be borne by the plaintiff.
[58]
I in the result make the following order.
58.1
A decree of divorce is granted
58.2
The joint estate of the parties is divided equally
58.3
The defendant is entitled to payment of 50% of the plaintiff's nett
pension interest held at Mediclinic Pension Fund, calculated
as at
date of divorce and payable in terms of section 37D of the Pension
Fund Act.
58.4
The plaintiff pays the defendant taxed costs for the trial of 10, 13
and 14 September 2010
58.5
Save for sub paragraph 4 above, each party shall pay his or her own
costs in respect of the action.
AML
PHATUDI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Heard
on: 10-13 SEPTEMBER 2010
For
the Appellant: Adv VAN TONDER
Instructed
by: Messrs SHAPIRO & SHAPIRO INC
For
the Respondent- Adv FERREIRA
Instructed
by: Messrs CHARL LOCHNER ATTORNEYS
Date
of Judgment: 14 SEPTEMBER 2010
1
defendant's
daughters
2
Even under Recognition of Customary Marriage Act.
120
of
1998
3
Defendant's
HOA. Mrs Ferreira
4
P
164 Husband and Wife Hahlo
5
Section
9(1) of
Divorce Act 70 of 1979
6
1993
(4) SA 720
(A)
7
Head
note at page 721 —
I
—J
8
1993
(4) SA 720
A at 727 E_F
9
2006(4)
SA 144 SC A
10
Page
146 para [8]
11
Calculated
from 1999-2004
12
When
summons were issued
13
A cow does not breast feed a calf of other cow. Loosely translated
to mean; "No woman can breast feed another woman's baby."
14
Page 52
15
Page
52
16
Op
Cit para [ ] supra para 8
17
70
of 1979
18
Defined
as "of great size"
19
Divorce
Act 70 of 1979