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[2010] ZAGPPHC 188
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J.W v A.O.W (2784/2006) [2010] ZAGPPHC 188; 2011 (1) SA 545 (GNP) (28 October 2010)
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REPORTABLE
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
NORTH,
PRETORIA)
CASE
NO:
2784/2006
DATE:
28/10/2010
In
the matter between:
J
W
.........................................................................................................................
Plaintiff
and
A
O
W
................................................................................................................
Defendant
JUDGMENT
MAKGOKA,
J
:
[1]
The central question in this divorce action is whether a party to a
marriage in community of property can be ordered to forfeit
an asset
she/he has brought into the joint estate. The answer should, in my
view be in the negative. The essence and nature of
the twin concepts
of marriage in community of property and forfeiture of benefits
arising from such marriage is this: a party can
only benefit from an
asset brought into the estate by the other party, not from his own: a
fortiori
such
a party cannot be ordered to forfeit her/his own asset. This is the
primary basis on which I conclude in this judgment that
forfeiture
should not be ordered.
[2]
On 19 June 1989 the parties were married to each other in community
of property. There are no children born of the marriage
but the
plaintiff has a major child born on 15 October 1983 from another
relationship.
[3]
The plaintiff seeks an order of forfeiture of benefits while the
defendant seeks as order that the joint estate be divided equally
and
an order that half of the plaintiff's pension be paid to himself. The
parties agreed that the marriage relationship has broken
down
irretrievably and that the marriage should be dissolved.
THE
PLEADINGS.
[4]
In her particulars of claim the plaintiff alleged the following
grounds for forfeiture: (a) the defendant assaulted her on numerous
occasions; (b) the parties had not lived as man and wife for
approximately 3 months; (c) the defendant failed or neglected to make
any contribution to the joint estate over the past 10 years and was
unemployed; (d) the plaintiff maintained the defendant financially
while the defendant verbally abused the plaintiff and threatened her
life; (e) the defendant engaged in numerous extra-marital
affairs and
entertained the other women in the common home in the absence of the
plaintiff.
[5]
In his plea the defendant generally denied these allegations, and
specifically joined issue with the allegation that he did
not work
during the marriage and that he did not contribute to the
accumulation of the joint estate. He however, conceded that
at times
he was retrenched, but alleged that he was gainfully employed on a
contractual basis on a number of occasions, and that
he used his
resources to maintain the common home.
[6]
In his counter-claim the defendant alleged that the marriage
relationship broke down because the plaintiff misled him into
believing that he was the biological father of the child born on 15
October 1983; that he married the plaintiff as a result of this
misrepresentation, and that when he discovered the truth in 2005 the
relationship became strained.
COMMON
CAUSE ISSUES
[7]
It is common cause that after their marriage, the parties moved into
a property situated at erf 1219 Atteridgeville, also known
as 17
Maleka Street, Atteridgeville (the property), which was owned by the
defendant's father (who died shortly afterwards). On
23 July 1992,
the property was registered in the names of the parties and it has
been the common home of the parties since then.
[8]
It is also common cause that after the property was registered in the
names of the parties it was renovated and that as at February
2009
the property was valued at R580 000.00 (see the relevant valuation
certificate admitted into evidence).
[9]
Finally it is common cause that the plaintiff is a registered nursing
sister who has been continuously employed since 1985 and
built up a
pension fund. She is presently a member of the Government Employees
Pension Fund (GEPF).
THE
EVIDENCE,
[10]
Only the parties testified and, save for a few matters to be referred
to later, 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.
[11]
The plaintiff testified about the marriage's history, the management
of finances, the defendant's assaults upon her , the defendant's
erratic employment history, the renovations to the house, which she
carried out with her own resources, with no meaningful contribution
from the defendant, and the defendant's abuse of alcohol.
[12]
In his evidence, the defendant denied most of the plaintiff's
evidence, although he conceded that he was not always employed
which,
he said was not due to any fault on his part. He also conceded that
he assaulted the plaintiff. It emerged that he was convicted
for
assaulting the plaintiff and was sentenced to 15 months imprisonment
of which he served 4 months.
[13]
It is not necessary to evaluate the evidence in detail. The following
conclusions and findings will suffice. The plaintiff
testified in a
forthright manner. There are no inherent improbabilities or material
contradictions in her evidence. She was steadfast
in
cross-examination and did not deviate from her evidence in any
material respect. I was impressed by the manner in which she
spontaneously answered questions. She maintained her composure
despite testifying in English, which is not her mother-tongue. There
is no reason to doubt any of her evidence material to the issues.
[14]
The same cannot be said of the defendant. His evidence was sketchy.
He was shifty and evasive and was unable to answer simple,
direct
questions. He also sought to shift blame to others and contradicted a
version put by his counsel in cross- examination.
Most importantly
admitted that he assaulted the plaintiff and that he was convicted
and sentenced to imprisonment for 15 months.
FACTUAL
FINDINGS.
[15]
Weighing the evidence of the parties, I have no hesitation in
preferring the evidence of the plaintiff to that of the defendant.
Accordingly, I find that the plaintiff renovated the property on her
own; that the defendant was, during the relevant period, erratically
employed; that the defendant lost jobs because of lack of application
and a care-free attitude; and that the plaintiff was the
effective
breadwinner in the household. I also find that the defendant started
to assault the plaintiff in 2005 after he discovered
that the
plaintiff had been receiving maintenance for her son from the
latter's biological father. This is consistent with the
probabilities.
APPLICABLE
LAW
[16]
In the light of these findings, I must now determine whether an order
of forfeiture should be granted in favour of the plaintiff
against
the defendant. In this regard section 9 of the Divorce Act 70 of 1979
('the Act') provides that:
"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."
[17]
The nature and essence of community of property is described in
The
South African Law of Husband and Wife
HR
Hahlo 5 ed at 157-8 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."
[18]
The head-note in
Engelbrecht
v Engelbrecht
1989
(1) SA 597
(C) reads in part as follows:
"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 was undue..."
[19]
In
Wijker
v Wijker
1993
(4) SA 720
(A) the proper approach was stated in determining whether
an order of forfeiture should be made. 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.
[20]
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
[21]
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
(respondent on appeal) and the defendant (appellant) 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 respondent had
not proved the nature
and extent of the appellant's benefit at the
dissolution of the marriage: a
fortiori
he
had not proved that such benefit was undue, in the circumstances.
[22]
The facts in
Engelbrecht
are
similar
to the facts of present case. The value of the property at the date
of the marriage and at the date of dissolution has not
been
established. In
Engelbrecht
the
value at dissolution of the marriage was not proved whereas in the
present case no value was proved as at the commencement of
the
marriage. The plaintiff has only proved the value of the house when
the divorce proceedings were instituted. She has not proved
what the
house was worth when the parties entered into the marriage. The
plaintiff has therefore not proved the extent of the defendant's
benefit on the dissolution of the marriage.
[23]
Having failed to prove that, it follows that the plaintiff has not
proved that any benefit receivable by the defendant would
be undue.
Accordingly, I cannot conclude that the defendant would be unduly
benefitted if forfeiture was not ordered and I cannot,
therefore,
grant the plaintiffs claim for forfeiture.
[24]
If this conclusion is wrong, I am in any event not persuaded that
forfeiture should be ordered if the factors mentioned in
section 9(1)
of the Act are taken into account.
Duration
of the marriage
[25]
The marriage was of a fairly long duration, lasting for approximately
17 years, (when summons was issued).
Factors
that led to the break-down of the marriage.
[26]
A marriage relationship seldom breaks down as a result of the conduct
of only one spouse. The parties' marriage is no different.
In this
regard I accept the defendant's version that during 2005 he found out
that the plaintiff was receiving maintenance for
her son from the
latter's biological father. While he may have known about the boy's
paternity he did not know about the maintenance.
Not only was the
plaintiff receiving maintenance from her ex-boyfriend, but she kept
it a secret from him,
[27]
From the evidence, it appears that that was the turning point in the
break-down of the marriage. Until then, the parties marriage
was a
normal" one with its own challenges However, from 2005 violence
crept into the marriage. The defendant started assaulting
the
plaintiff and this resulted in the plaintiff and her son obtaining
protection orders in January and December 2005, respectively.
[28]
To summarise: I find that the marriage broke down during 2005 as a
result of the assault by the defendant on the plaintiff.
Despite the
erratic employment history of the defendant, there is no suggestion
that that factor induced the plaintiff to end the
marriage. It was
only when the relationship turned violent that the plaintiff
commenced divorce proceedings.
Any
substantial misconduct on the part of either party.
[29]
I have already found that the defendant assaulted the plaintiff. That
constitutes substantial misconduct on the part of the
defendant.
Domestic violence, in particular against women, strikes at the
foundation and premise of a non-sexist and democratic
order. It is a
repulsive phenomenon which has no place in a society founded on the
values of freedom, dignity, honour and security.
[30]
That I have found substantial misconduct on the part of the
defendant, does not on its own, justify a forfeiture order: See
Engelbrecht
(supra)
at 602J - 603A.
ANALYSIS
AND CONCLUSION.
[31]
It must be remembered that when the parties entered into the
marriage, the defendant brought into the estate an immovable property
with improvements in the form of a house. The plaintiff brought
nothing, but effected renovations to the property. In my view there
can be no better illustration of 'universal partnership' referred to
by the learned author Hahlo, cited in paragraph 17 above.
[32]
Even if it is assumed that the value of the renovations equals or
exceeds the value of the property pre- renovations, it is
a
consequence of the parties' marriage in community of property. From
the fact that the defendant did not contribute towards the
renovation
of the property, it does not necessarily follow that he will be
unduly benefited.
[33]
Furthermore, whatever benefit that might accrue to the defendant,
must be considered having regard to the factors mentioned
in section
9. I have already alluded to the fairly long duration of the
marriage. The defendant's gross misconduct (in assaulting
the
plaintiff) can certainly not be ignored, but it must be assessed with
all the other circumstances. One must also bear in mind
that the
final breakdown came as a result of the defendant discovering that
the plaintiff was receiving maintenance for her son
from an
ex-boyfriend. The plaintiff's conduct in this regard, (of receiving
maintenance for her son behind the defendant's back)
can also not be
ignored. I therefore come to the conclusion that an order for
forfeiture is not appropriate in the circumstances.
DEFENDANT'S
COUNTER-CLAIM
[34]
I turn now to consider the defendant's counter-claim in respect of
the plaintiff's pension interest. Section 7 (a) of the Act
provides
that the pension interest of a party shall be deemed to be part of
her/his assets in the determination of the patrimonial
benefits to
which the parties to a divorce action may be entitled.
[35]
Section 8 of the Act provides as follows:
"(8)
Notwithstanding the provisions of any other law or the rules of any
pension fund
(a)
the
court granting a decree of divorce in respect of a member of such a
fund, may make an order that -
(i)
any
part of the pension interest of that member which, by virtue of
subsection (7), is due or assigned to the other party to the
divorce
action concerned, shall be paid by that fund to the other party when
any pension benefits accrue in respect of that member
(ii)
.............
(b)
.............
[36]
It is clear from the wording of the section that the court has a
discretion in considering an order in terms of section 8(a).
Obviously such a discretion must be exercised judiciously, taking
into consideration relevant factors. Whereas in considering
forfeiture, considerations of fairness should not come into play (the
court being confined to the three factors mentioned in section
9)
such considerations would in my view, apply in considering an order
under section 8.
[37]
I take into account that the plaintiff has been in continuous
employment for the past 25 years during which she probably built
up a
fairly modest pension interest. On the other hand, the defendant, due
to his erratic employment history, has built no such
interest.
[38]
In considering what is fair and just, in the circumstances of the
case, I conclude that no order should be made in terms of
section
8(a) of the Act, In other words, the defendant is not entitled to any
part of the plaintiff's pension.
SUMMARY
[39]
To sum up: the plaintiff's claim for forfeiture of the benefits
arising from the marriage, and the defendant's counter-claim
for an
order in terms of section 8(a) of the Act should both be dismissed.
COSTS
[40]
Finally, the issue of costs. The award of costs in a divorce action
is governed by section 10 of the Act. which provides:
"In
a 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 their 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
them."
[41]
The parties have each been partially successful in their respective
claims. There is therefore no party who has been substantially
successful over the other. I consider however, that on 21 May 2010
the plaintiff made a written tender of settlement, which was
disclosed to the court at the commencement of the trial as a
"with
prejudice"
tender.
The defendant did not accept such tender.
[42]
Having been unable to prove no more than the plaintiff had offered,
the defendant should be ordered to pay the costs occasioned
from the
date of the tender.
[43]
There are also costs occasioned and reserved on 18 April 2008. On
that occasion the defendant was not ready to proceed and
the trial
had to be postponed at his instance. There is no reason why the
defendant should not be ordered to pay those costs.
ORDER
[44]
Having regard to all the factors in this matter, I make the
following order:
1.
A
decree of divorce is granted;
2.
The
joint estate of the parties shall be divided in equal shares;
3.
The
defendant's counter-claim for an order in terms of
section 8
(a) of
the
Divorce Act 70 of 1979
in respect of the plaintiffs pension
interest is dismissed;
4
The defendant is ordered to pay the costs of the action from 21 May
2010 to the date of trial, as well as the costs reserved on
18 April
2010.
T
m
W
kGOKA
JUDGE
OF
THE
HIGH
COURT
DATE
HEARD
2
JUNE
2010
JUDGMENT
DELIVERED
28
OCTOBER
2010
FOR
THE
PLAINTIFF
ADV
R.
FERREIRA
INSTRUCTED
BY
CHARL
LOCHNER ATTORNEYS,
CAPITAL
PARK,
PRETORIA.
FOR
THE
DEFENDANT
ADV
WIG
LEDWABA
INSTRUCTED
BY
MOLEFE
ATTORNEYS,
PRETORIA.