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[2011] ZAGPPHC 182
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B.O.O v N.N.O [2011] ZAGPPHC 182; 35432/2008, 42644/2010, 40419/201 (2 September 2011)
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NOT REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NO: 35432/2008,
42644/2010, 40419/2010
DATE:02/09/2011
In the matter between:
B O
O
................................................................................................
PLAINTIFF
And
N N
O
............................................................................................
DEFENDANT
JUDGMENT
MAKGOBA. J
[1]
This is an action for divorce instituted by the plaintiff against
the defendant. The plaintiff prays for an order that the
primary
residence of the parties' minor children be with him and that the
defendant shall forfeit the patrimonial benefits arising
out of the
marriage in community of property. The defendant in her counterclaim
prays for an order that
the
primary residence of the minor children be with her and for an order
of division of the joint estate.
[2] While the divorce action was still
pending and on 12 July 2010 the plaintiff obtained an interim order
against the defendant
under case number 40419/10 to the effect that
the defendant should vacate the residence situated at 723 Ilona
Street Rietvleiview
Country Estate Pretoria immediately and
prohibiting her from entering and/or occupying the said property.
[3] On 22 July 2010 the plaintiff
obtained another interim order under case number 42644/2010 against
the defendant which order
inter
alia
interdicted her form
entering the aforesaid residence and also interdicting her from
harassing, threatening and/or stalking the
plaintiff directly or
indirectly.
[4] The two applications have been
referred to this court for oral evidence.
[5] At a pre-trial conference held on
3 August 2011 the issues in the three matters were identified and set
out as follows:
1. The parties agree that the marriage
has irretrievably broken down and that a final decree of divorce
should be granted.
2.
2.1 The plaintiff contends that all
disputes relating to the minor children have been settled in terms of
the court order dated
20 May 2010.
2.2 The defendant is of the view that
the court order of 20 May was only
pendente
lite
the divorce action.
3. The issues still in dispute are:
3.1 The reasons for the breakdown of
the marriage and whether those reasons constitute grounds for
forfeiture.
3.2 Whether a forfeiture order as
prayed by the plaintiff against the defendant should be granted or
whether the joint estate should
be divided.
3.3 The costs of the action as well as
the wasted costs of the postponement of the matter on 20 May 2010
and the hearing
thereof on the same date.
3.4 The applications under case
numbers 40419/2010 and 42644/2010 which have been referred for
hearing of oral evidence simultaneously
with the divorce trial.
3.5 The reserved costs in both the
above applications need to be determined by the court hearing the
divorce action.
[6] The parties having agreed that the
marriage has broken down irretrievably it is therefore common cause
that a decree of divorce
should be granted. Before me the following
issues are to be decided as they appear form the pleadings:
6.1 Whether the defendant should
forfeit the patrimonial benefits of the marriage as a result of
6.1.1 the defendant’s
involvement in an extramarital relationship with a third person;
6.1.2 the defendant deserted the
plaintiff the minor children; and
6.1.3 that it will be just and
equitable for the court to make an order that the patrimonial
benefits of the marriage be forfeited
by the defendant in favour of
the plaintiff.
6.2 Whether the primary residence of
the three minor children born out of the marriage should remain with
the plaintiff; and
6.3 Whether the interim orders
obtained under case number 40419/2010 and 42644/2010 should be
confirmed for purposes of determining
the costs thereof.
[7] I shall proceed to deal with the
two applications whereafter I shall deal with the divorce proceedings
in so far as it relates
to the minor children and the joint estate of
the parties.
Eviction of the Defendant on 12
July 2010: Case Number 40419/2010
[8] On 12 July 2010 the plaintiff
obtained an interim order against the defendant and on the following
terms:
8.1 That the defendant be ordered to
vacate the residence situated at 723 Ilona Street, Rietvleiview
Country Estate, Pretoria immediately.
8.2 That should the defendant fail to
comply with the order referred to above the sheriff of this court is
hereby authorised and/or
mandated to take all the necessary steps to
execute the order and evict the respondent from the property, and if
necessary to obtain
the assistance of the South African Police
Services to assist him/her in this regard;
8.3 That the defendant is prohibited
form entering and/or occupying the property situated at 723 Ilona
Street, Rietvlei Country
Estate, Pretoria.
[9] The application, having been on
urgent basis was served on the defendant at 13:39 and set down for
15:00 on 12 July 2010. Given
the short notice of 1 hour and 20
minutes the defendant could not file any opposing papers and the
plaintiff went on to obtain
the interim order unopposed. The return
date of the rule nisi was 24 August 2010. Subsequent to the
defendant filing her opposing
affidavit the matter was postponed to 1
November 2010 and on the latter date the matter was referred for oral
evidence to be heard
together with the divorce action.
[10] The plaintiff testified that he
instituted this proceedings after being informed by his attorney that
the defendant was occupying
the property situated at 723 Ilona
Street, Rietvlei Country Estate, Pretoria while he was in jail. The
founding affidavit in this
application was deposed to by his
attorney. It is evident that the plaintiff relied on hearsay
evidence of his attorney and did
not have personal knowledge of the
defendant’s alleged occupation of the property on 12 July 2010.
The defendant denies that she
occupied the property on 12 July 2010 or at any time alleged by the
plaintiff in his papers. On
11 July 2010 she arrived at the premises
with the children and called the plaintiff on his cellphone. She
went into the premises
after the security guards opened for her and
the children. Soon after the plaintiff came home he screamed and
shouted to the children
and the defendant. He assaulted the
defendant and dragged her out of the house. The defendant went to
Welbekend Police Station
to open a charge of assault against the
plaintiff, hence the plaintiff was arrested and detained as at 12
July 2010.
On 11 July 2010 upon the arrest of
the plaintiff for assaulting the defendant, the defendant spent the
night with her children
at her sister’s residence in Thokoza
Gardens. She never came back to occupy the property as alleged by
the plaintiff and/or
his attorney in the founding affidavit.
[11] It is trite law that in order to
succeed with an application for a final interdict the plaintiff
should satisfy the court that:
(1) he has a clear right; (2) an
injury is actually committed or reasonably apprehended and (3) the
absence of any other remedy
available to him.
[12] On the evidence it has not been
shown that the defendant had deprived the plaintiff of the possession
or occupation of the
property forcibly or wrongfully against his
consent.
[13] Even if it were to be found that
the defendant took occupation of the property (it being the
matrimonial home of the parties)
her conduct would not amount to an
unlawful deprivation of the plaintiff of his possession of the
property.
It is a fact that the parties are
still married to each other in community of property. The plaintiff
is not entitled to the exclusive
use of the property situated at 723
Ilona Street, Rietvlei Country Estate, Pretoria.
[14] Mr Mphahlele, counsel for the
defendant referred me to the case of
Badenhorst
v Badenhorst
1964 2
SA 676
(T) at 679
where it
was held that a wife has no right to seek to eject her husband from
the matrimonial home merely because the property belongs
to her.
Because she and her husband have rights flowing from the marriage
which in relation to that property put him in a category
differing
toto coeli
from a stranger.
The same holds true for the husband
in this case.
[16] It is legally incorrect for the
plaintiff to submit that he was in an undisturbed occupation and
possession of the property
of the matrimonial home to the exclusion
of the defendant.
Under the circumstances the plaintiff
has failed to establish a clear right and consequently the interim
interdict obtained by
the plaintiff on 12 July 2010 should be
discharged on this ground alone.
Furthermore the plaintiff has failed
to establish a reasonable apprehension of harm or that the defendant
has committed any harm.
The interim order obtained by the plaintiff
is not a competent order under the circumstances because the
defendant has not unlawfully
dispossessed the plaintiff bearing in
mind that the defendant has never attended the matrimonial home upon
the arrest of the plaintiff
on 11 July 2010 but was at all times in
Thokoza Gardens.
[17] In the circumstances the interim
order obtained by the plaintiff on 12 July 2010 is discharged and the
plaintiff is liable
to pay the costs thereof, including the costs of
12 July 2010, 24 August 2010 and 1 November 2010.
Interdict of the Defendant on 22
July 2010: Case Number 42644/2010
[18] The plaintiff obtained a further
interim order against the defendant on 22 July 2010. The application
was not served on the
defendant before the hearing. The order was
obtained
ex parte
.
[19] The interim order obtained by the
plaintiff is in the following terms:
(1) That the defendant is interdicted
from entering the residence in 723 Ilona Street, Rietvlei Country
Estate, Pretoria and not
to approach such residence within a radius
of 100 metres;
(2) That the defendant is interdicted
from entering the workplace of the plaintiff situated at 1033 Louis
Pasteur Building 374 Schoeman
Street, Pretoria;
(3) That the defendant is interdicted
from harassing, threatening and/or stalking the plaintiff directly or
indirectly;
(4) That the defendant is interdicted
from communicating with the plaintiff in any manner whatsoever other
than via the parties’
respective attorneys of record;
(5) That the defendant is interdicted
from making use of third parties in order to circumvent the orders in
(1) up to and including
(3) above.
(6) That should the defendant in
person, alternatively with the assistance of a party/parties
contravene the provisions of the interim
order, the plaintiff is
entitled to approach the court on the same papers, as amplified, if
necessary, for the necessary relief.
[20] The return date of the rule nisi
was on 24 August 2010. The defendant had duly filed her opposing
papers and the matter not
being property enrolled, was postponed to 1
November 2010. On the latter date the matter was referred for oral
evidence to be
heard together with the divorce action.
[21] During the present trial
proceedings the plaintiff has said nothing in his testimony about the
alleged fear for his safety
or that of the couple’s minor
children. Even in his founding affidavit the plaintiff has tendered
no evidence relating to
the factual basis for which he obtained the
interim order in the first place. In her answering affidavit and
testimony in the
trial the defendant refuted the plaintiff’s
baseless allegations.
[22] Suffice to state that during
argument at the trial Mr Smith SC, counsel for the plaintiff was not
able to argue for the confirmation
of the interim order but instead
argued that the interim order be discharged but that each party
should pay his or her own legal
costs.
[23] I accordingly order that the
interim order obtained by the plaintiff on 22 July 2010 be and is
hereby discharged and that the
plaintiff is liable to pay costs
thereof including the costs of 24 August 2010 and 1November 2010.
Divorce Proceedings
[24] Both parties gave evidence during
the trial and were extensively cross examined by their
respective legal representatives.
Each party was in the witness box
for at least three court days. It will be practically impossible to
state all what was said
by each party in this judgment but I shall
only summarise their versions in so far as same is relevant to the
issues regarding
the breakdown of their marriage and the forfeiture
of patrimonial benefits or division of the joint estate as well as
the primary
residence of their minor children.
[25] The plaintiff is presently a
specialist neurosurgeon by profession whilst the defendant is a
clinical psychologist. Both are
in private practice.
They met in 1996 when the plaintiff
was still a registrar and the defendant an intern psychologist. They
married in community
of property on 14 June 1997 and have three
children presently aged 14 years, 12 years and 7 years. The
plaintiff qualified as
a neurosurgeon in 2000 and the defendant
qualified as a psychologist in 1998. They stayed together in
Sunnyside, Pretoria and
in 1998 moved to the married quarters at Ga
Rankuwa Hospital.
[26] The defendant having qualified as
a psychologist in 1998 was capable of raising a deposit and the
parties bought a residential
property at Amandasig, Pretoria. She
paid a deposit of R84 000.00 for the purchase price of the house.
The plaintiff later paid
back half of the deposit to the defendant.
The monthly instalment of R6 000.00 in respect of the bond on the
house was paid by
the plaintiff and the defendant would pay half of
the amount (R3 000.00) per month to the plaintiff. The bond in
respect of the
Amandasig house is paid off and the value of the
property is presently R1 250 000.00.
[27] The plaintiff testified that
during early 2002 the defendant left the common home. This was after
he had confronted her with
allegations that she was conducting an
extramarital love affair with another man. The defendant went to
stay at her sister’s
place at Thokoza for three months. The
parties reconciled through counselling by one Dr Lubisi who was their
acquaintance.
[28] During June 2008 the plaintiff
again confronted the defendant with further allegations that she was
involved in an extramarital
love affair with another man after he
discovered pictures of the said man in her cellphone and laptop.
According to the plaintiff
the defendant confessed to the love affair
and said the affair had started in November 2007.
[29] The parties obtained an empty
stand at 723 Ilona Street, Rietvleiview Country Estate, Pretoria,
during November 2004 and in
2006 a residential house was built on the
said stand. Plaintiff maintains that the purchase price of the stand
and the costs of
the building were paid by him without any
contribution by the defendant. He said that the defendant made some
contributions towards
the purchase of the furniture, fittings and
curtaining of this house. He said that at that time the defendant
was earning an income
of between R180 000.00 and R200 000.00 per
month. The present value of the Rietvleiview property is R3 100
000.00.
[30] The defendant stayed hardly five
months in this property and left the common home on 10 July 2008. It
is common cause that
since this date the parties never reconciled and
the plaintiff instituted the divorce action on 25 July 2008. After
the departure
of the defendant the plaintiff during 2008 allowed one
Esther to stay with him and the children in the house. The plaintiff
admits
that he fell in love with Esther early in 2009 and they stayed
together as husband and wife in the house.
[31] The defendant’s version is
that she supported the plaintiff for four years while he was still
studying as a registrar
in the neurosurgery department at Ga Rankuwa
Hospital. She raised money and contributed towards the purchase of
the house at Amandasig
as well as the purchase of the contents
thereof. That she also contributed towards the building of the house
at Rietvleiview and
the purchase of the contents thereof. That her
contribution in their marriage was not only financial but also in the
form of emotional
support. She stated that when the plaintiff
qualified and became a successful neurosurgeon he worked long hours
and that she single
handedly looked after the children.
[32] According to the defendant their
marital problems started early in the marriage and came to a head in
2002. She states that
the plaintiff was obsessively jealous and
overly controlling and always accused her of having extramarital love
affairs. Early
in 2002 the plaintiff exploded and threatened to kill
her. She left the common home with her children and moved back after
they
had consulted a psychologist, Dr Lubisi.
[33] The defendant testified further
that on 10 July 2008 after being subjected to emotional and physical
abuse by the plaintiff
she left the marital home. At the time she
was contemplating suicide and did not want the applicant to know her
whereabouts.
She eventually arrived in East London where she was
admitted at St Marks Clinic on 14 July 2008 until 23 July 2008 after
being
diagnosed with a major depression disorder of approximately
four months duration occasioned by stress related to her marital
problems.
A medical report by Dr Schaffer to this effect was handed
in as an exhibit at the trial.
[34] On 24 July 2008 she went back to
the matrimonial home and discovered that the plaintiff was cohabiting
with Esther in the matrimonial
home at Rietvlei Country Estate,
Pretoria. She was served with divorce summons on 25 July 2008.
[35] From the totality of the evidence
presented at the trial, the details of which may not appear in my
summary of the evidence
above, I make the following findings:
35.1 That the defendant was indeed
involved in an extramarital love affair with one Stephen Nembulu and
that the plaintiff discovered
this affair during 2008;
35.2 That the plaintiff was involved
in an extramarital love affair with one Esther and the defendant
discovered this affair also
in 2008;
35.3 That both parties are equally
guilty of conducting adulterous relationships outside their marriage
and that such relationships
have led to the irretrievable breakdown
of their marriage.
35.4 That each party has contributed
(even if not equally) towards the building of their joint estate in
the form of the property
at Amandasig and Rietvleiview and the
contents thereof.
[36] The question as to whether there
should be an order for forfeiture of the patrimonial benefit or
division of the joint estate
is dealt with later hereunder.
The Issue Relating to the Minor
Children
[37] Prior to the parties’
marriage on 14 June 1997, a minor son, O was born on 7 June 1997.
During the course of the marriage
two children were born namely E, a
boy, born on 5 February 1999 and O, a girl, born on 4 April 2004. At
present the children are
14 years, 12 years and 7 years respectively.
[38] The divorce summons was issued
and served together with a rule 43 application on the defendant on 25
July 2008. The defendant
opposed the divorce action but not the rule
43 application and on 2 September 2008 and by agreement between the
parties a draft
order was made an order of court between the parties
and on the following terms:
(1) All three minor children would
reside with the plaintiff
pendente
lite
;
(2) The plaintiff would maintain the
children fully without any contribution from the defendant;
(3) The defendant would have rights of
reasonable contact to the minor children which
inter
alia
included every
alternate weekend from Friday evening at 19:00 until Sunday at 16:00,
removal of the children twice per week for
a period of two hours on
each occasion, every alternate short and long school holiday with the
rotation of the Christmas holiday
and that the matter be referred to
the Family Advocate for investigation and the bringing out of a
report containing recommendations
with regard to the primary
residence of the children and the contact rights to be enjoyed by the
non resident parent.
[39] The divorce action was enrolled
initially for 20 May 2010. On this date the parties concluded a
settlement agreement, which
settlement agreement was included as an
order of court. Save for the settlement agreement being incorporated
as an order of court,
the divorce action was postponed
sine
die
and once again enrolled
for hearing on 8 August 2011.
[40] In terms of the settlement
agreement entered into between the parties, the issues in dispute
with regard to the minor children
was settled, the relevant terms of
the settlement agreement being
inter
alia
the following:
(1) Both parents shall have parental
responsibilities and rights over the said minor children;
(2) The primary place of care and
residence of the minor children shall be with the plaintiff.
(3) The defendant shall have rights of
reasonable contact to the minor children which shall include the
rights to have the children
with her for alternative weekends and for
purposes of definition, a weekend shall commence on Friday after
school and end on Monday
morning when school commences and to give
effect hereto, the defendant shall collect the children at school on
Friday and return
them to school on a Monday morning;
(4) The defendant shall have the right
to have the minor children with her for alternate short school
holidays and one half of the
long school holidays on the
understanding the December/January school holidays shall be divided
in such a fashion that the children
will spend alternate Christmas’
and New Years with alternative parents;
(5) The defendant shall be entitled to
have the children with her for alternate long weekends and have the
right to telephonic contact
at all reasonable times;
(6) The plaintiff shall be responsible
for all the maintenance requirements of the minor children, save that
the defendant shall
ensure that the minor children are placed on a
comprehensive medical aid scheme at her cost and she will be
responsible for paying
all medical expenses reasonably incurred for
and on behalf of the minor children not covered by the said medical
aid.
[41] Ever since the defendant left the
common home on 10 July 2008 the three minor children have resided
with the plaintiff and
he has exercised care and primary residence
over them, except that O, the eldest child, returned to the defendant
on 26 November
2010 and is presently residing with the defendant.
[42] I have already alluded to the
minutes of the pre-trial conference held by the parties’ legal
representatives on 3 August
2011 in paragraph [5] above. It is
significant to note that the issue relating to the primary residence
of the minor children
was never canvassed or noted in the minutes.
However, at the commencement of the
trial counsel for the defendant raised a further issue that he
contended had to be decided
by the court. According to counsel the
settlement agreement concluded between the parties and incorporated
as an order of court
on 20 May 2010 was not a final order but simply
an order
pendente lite
pending the finalisation of the divorce action. According to him the
issue pertaining to the primary residence of the minor children
and
the non resident parent’s contact rights to them was an issue
which still had to be determined by the court.
[43] There is absolutely no merit in
counsel’s contention.
On perusing the said court order
which was handed in at the trial as “exhibit B” it is
clear that the said order constitutes
a final order in respect of the
primary residence of the minor children. More so that together with
“exhibit B” a
letter from the defendant’s attorneys
was handed to the court which letter is dated 14 May 2010. The
following paragraph
is found in the letter:
“
1. Our client no longer
contends for the primary residence of the children. Your client can
have the primary residence, subject
to reasonable access of our
client. The reasonable access may be agreed upon by the parties.
”
[44] In any event during
cross-examination the defendant conceded that the order of 20 May
2010 was indeed a “
final
”
order and that same disposed of the dispute pertaining to the minor
children. The defendant specifically confirmed that
the order was
“
final
”
to the court as well in reaction to a question put to her by the
court.
I therefor make a finding that the
issue relating to the primary residence of the minor children was
disposed of by virtue of the
court order of 20 May 2010.
[45] It is trite law that the issue
relating to the primary residence and contact rights of the minor
children is never final in
the sense that it cannot be varied when
circumstances permit. It is not cast in stone.
To a certain extent the situation has
changed in the sense that the eldest child, O, has since 26 November
2010 returned to the
defendant and he is presently residing with the
defendant. A situation has developed where the three children are
staying separately,
two are staying with the plaintiff and one is
staying with the defendant.
[46] The eldest child, O, gave
evidence in court. In response to questions by the court he
indicated that he is happy to stay with
his mother and that he is not
willing to return to the plaintiff. He, however, expressed his wish
to be with his siblings. The
court is satisfied and inclined to
respect this child’s preference in the light of the decision in
McCall v McCall
1994 3 SA 201
(CPD) at 207
where it was said:
“
If the Court is satisfied
that the child has the necessary intellectual and emotional maturity
to give his expression of a preference,
a genuine and accurate
reflection of his feelings towards the relationship with each of his
parents, in other words to make an
informed and intelligent judgment,
weight should be given to his expressed preference.
”
[47] On the question of siblings
staying separately as a result of the divorce of their parents, the
learned authors
Hoffman and
Pincus
:
The
Law of Custody
1989 at page
38 have this to say:
“
It is traumatic enough for
children to be exposed to the divorce of their parents. The process
of change is often a painful experience
and involves the
repositioning of individuals and the redefinition of role
relationships. To separate children from each other
as a result of
the divorce of their parents would merely add fuel to the fire and
further complicate matters. It would also add
to the burden the
children have to carry and fragment their sense of security and
stability. It would deny them free access to
their siblings, the
emotional support they might ordinarily require, and would alienate
them from their family. It would also
undermine their trust in
others, their perception of their future, and their ability to commit
themselves in a meaningful way to
the other.
”
[48] Suffice to say that this court
being the upper guardian of all minor children, everything possible
has to be done in recognition
of the best interest of the minor
children.
Irrespective of the existing court
order regarding the primary residence of the minor children
in
casu
it shall be in the
interests of the minor children that this issue be referred to the
Family Advocate for investigation and the
bringing out of a report
containing recommendations with regard to the primary residence of
the three children and the contact
rights to be enjoyed by the non
resident parent. My order in this regard will follow at the end of
this judgment.
[49] One disturbing and in fact
unfortunate issue arose during the trial when paternity of the eldest
child, O, aged 14 years, was
put in dispute. The plaintiff avers
that he is not the biological father of this child.
He testified that in late 2008 he got
a call from one of the defendant’s friends informing him that
he is not the biological
father of O. During September 2008 he took
Og for a paternity test and the result showed that he is not the
biological father
of the child. He kept this information as well as
the paternity test report to himself until on 21 November 2010 when
he wrote
a letter to the defendant to inform her of the paternity
tests results. He invited the defendant for a discussion but there
is
no indication as to her response.
[50] In an effort to resolve the
paternity issue the plaintiff called Dr Carolyn Wendy Ann Tsilimigras
to testify on the pathology
report which was handed in. She
testified that DNA samples were taken from the plaintiff and the
child, O, and given to her for
analysis. The defendant’s
samples were not taken and analyzed by her. She analyzed and
compared the DNA samples obtained
from the above individuals and
pursuant thereto her results were set out in her report dated 31
October 2008. The results showed
that the plaintiff is excluded from
being the biological father of O.
[51] Save for saying that she received
and analyzed the DNA samples Dr Tsilimigras said she was not present
when blood samples were
drawn from the individuals. She could not
say out of own person knowledge as to who drew the blood samples,
sealed them and dispatched
them to her laboratory for analysis. In
other words she could not testify on the chain of events from when
the blood samples were
drawn up to when she received same. No other
witness was called to testify on this aspect. This then leaves an
open question
as to what process was followed in drawing blood
samples, identification of same as that of the individuals drawn from
and the
sealing and dispatch thereof.
[52] The question now arises as to
whether the results arrived at the analysis of the blood/DNA samples
can be regarded as conclusive
proof of the paternity of the child.
Counsel for the defendant argued that
the results of paternity test as contained in the report handed in by
Dr Tsilimigras be rejected.
He referred the court to a decided case
of
Old Mutual Fire &
General Insurance Co of Rhodesia (PVT) Ltd v Smith NO
1977 4 SA 161
(R)
where it
was held that as there was no evidence as to identification of the
subject and no direct evidence as to who took the samples
or as to
how it had been taken, that the court was unable to say that there
was any balance of probabilities in plaintiff’s
favour.
[53] I am inclined to agree with
counsel’s submission in this regard. In my view the evidence
of Dr Tsilimigras and the pathology
report handed in cannot be
conclusive proof in favour of the plaintiff. The details of the
process of taking of the samples ought
to be properly proved in each
case. See
S v L
1992 3 SA 713
(ECD)
.
[54] The conduct of the plaintiff with
regard to the disputed paternity of O is astonishing. He took the
child for paternity test
without the involvement of the defendant who
is the mother of the child.
As early as October/November 2008 he
was in possession of the blood test results. He kept this to
himself. Two years later during
November 2010 was then that he wrote
a letter to the defendant raising the paternity issue.
When the divorce summons was issued
and served on the defendant on 25 July 2008 he already knew of the
paternity tests results.
In his particulars of claim in the summons
he put an allegation that the defendant is involved in an
extramarital love affair
with a third person. He did not put in a
crucial allegation that as a result of the extramarital affair with a
third person a
child was born.
[55] An inescapable inference can be
drawn that this issue of paternity of O was raised and used as an
after thought and as a weapon
to fight for the forfeiture of benefits
arising out of the marriage in community of property.
I accordingly reject the paternity
test report and make a finding that the plaintiff has failed to prove
on a balance of probabilities
that he is not a biological father of
O.
[56] The trial in this divorce action
was protracted. It took seven court days of leading evidence and
cross-examination of the
parties until the matter was finally argued
on the eighth day. Much court time was spent unnecessarily debating
as to whether
the settlement agreement of 20 May 2010 was final or
interim in nature. The wasted time occasioned by the defendant’s
argument
with regard to the status of the settlement agreement and an
after thought denial of paternity of one child by the plaintiff are
factors that should be taken into account by this court when making
an order as to the costs of the divorce action.
Forfeiture of Patrimonial Benefits
[57] It has long been accepted that
when parties enter into a marriage in community of property one joint
estate will be formed.
As such, entering into a marriage in
community of property is a risk each spouse takes. The spouses will,
on the date the joint
estate is created, become joint owners of all
the assets brought into the estate and will also share each other’s
liabilities.
It has been stated that:
“
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.
”
H R Hahlo:
The
South African Law of Husband and Wife
5
th
Edition at p 157-8
[58] On divorce the court is empowered
to order forfeiture of all or only some of the patrimonial benefits
derived from the marriage.
The courts do not have the power to order
forfeiture merely because this might seem equitable.
“
While the court has a wide
discretion in that it may order forfeiture in relation to the whole
or part only of the benefits, it
is not empowered to award a ‘portion
of an errant husband’s separate estate’ to his wife, for
example, merely
because this might seem equitable in the
circumstances. Nor may a forfeiture order be granted simply to
balance the fact that
one of the spouses or partners has made a
greater contribution than the other to the joint estate. The
forfeiture order relates
only to the benefits of the marriage …
The precise nature of these benefits depends on the particular
matrimonial regime.
”
See
Schäfer:
Family Law Service:
Issue
54 October 2010, 26-27.
[59] Counsel for the plaintiff in this
case laid great emphasis on the contributions each party made into
the joint estate. He
submitted that the respective contributions of
the parties to the joint estate is an important factor in arriving at
an equitable
judgment which would be fair to both parties and based
on the
boni mores
of society in the light of what society generally would consider to
be fair, given the contributions made by each of the parties
to the
joint estate.
[60] I do not agree with the above
submission by counsel. Counsel seems to rely on the “size of
contributions” and
the “fairness” to the parties.
The court is not called upon to decide what is fair and equitable in
the circumstances,
but rather to decide whether or not the party
against whom forfeiture is sought would be unduly benefited if such
an order is not
granted. The fairness principle was rejected by the
Supreme Court of Appeal in
Wijker
v Wijker
1993 4 SA
720
(A) 731
…
[61] Section 9 of the Divorce Act 70
of 1977 reads as follows:
“
9.
Forfeiture
of patrimonial benefits of marriage
(1) 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
break-down
thereof
and any
substantial
misconduct on the part of either of the parties
,
it is satisfied that, if the order for forfeiture is not made, the
one party will in relation to the other be unduly benefitted.
”
(My underlining)
[62] Section 9(1) quoted above has
been the subject matter of many reported cases. Counsel for the
plaintiff has referred me to
the following:
Khoza
v Khoza
1982 3 SA 462
(T);
Singh v Singh
1983 1 SA 781
(C);
Klerck v Klerck
1991 1 SA 265
(W);
Binda v Binda
1993 2 SA 123
(W);
Botha v Botha
[2006] ZASCA 6
;
2006 4 SA 144
(SCA)
I took the liberty to study the cases
referred to and of importance I will deal with the case of
Klerck
v Klerck
(
supra
)
.
In this case KRIEGLER J decided that all factors mentioned in
section 9(1) need not be present, for example misconduct on
the part
of the parties. At page 267G-H he stated that the principal factor
to be considered by the court is if one party will
be unduly
benefitted if forfeiture is not granted. Whether one party will be
unduly benefited at the expense of another is a value
judgment to be
made by the court. The learned judge further went on to state that
in determining whether the one party will be
unduly benefitted at the
expense of the other party, the three factors referred to in section
9(1) should be considered individually
or collectively in coming to a
decision.
This decision was followed in
Binda
v Binda
(
supra
)
and
Botha v Botha
(
supra
)
.
[63] In the present case I take into
consideration the fact that the parties’ marriage was
substantially of a long duration
(11 years) and during this period
the parties brought up the joint estate together, each of the parties
making own contributions
to build up the estate. I do not take into
consideration the defendant’s “desertion” of the
common home on 10
July 2008 as a factor leading to the breakdown of
the marriage. By the time she left the common home the marriage had
already
broken down due to the marital problems she endured some
years earlier. With regard to extramarital love affairs I have
already
made a finding that the parties are equally guilty.
[64] It may be so that the plaintiff
might have contributed more in terms of money but this is not the
test. The defendant too
made her own contribution over and above the
money she might have spent on building the joint estate. She looked
after the children
when they needed being looked after, kept the
house, helped built it in the first place and contributed some
uncertain sums of
money at various times towards food. Her emotional
support of her husband and children cannot be quantified in terms of
money
bearing in mind that she met and married the plaintiff while he
was still a registrar. She stood by him and gave him moral support
until he qualified and became a successful neurosurgeon.
[65] In
Bezuidenhout
v Bezuidenhout
2005
2 SA 187
(SCA) 198
it was
decided that the traditional role of a housewife, mother and
homemaker should not be undervalued because it is not measurable
in
terms of money. That obviously the defendant’s contribution as
mother and homemaker must be afforded due weight.
[66] A discretion is clearly conferred
upon the court in terms of section 9(1) whether or not to order
forfeiture of the patrimonial
benefits of the marriage. That
discretion may be exercised in favour of either of the spouses and
may relate to the whole or only
a portion of the patrimonial
benefits. Moreover, the court is enjoined to have regard to various
factors specified in the said
section, in the exercise of that
discretion in order to determine whether one party will in relation
to the other be unduly benefited
if the order for forfeiture is not
made.
See
Khoza
v Khoza
1982 3 SA
462
(TPD) 465F-G
[67] In exercising my discretion in
this matter and given the circumstances of this case I make a finding
that an order for forfeiture
of patrimonial benefits is not
appropriate in this case. The appropriate order will be that of
division of the joint estate.
Costs
[68] The issue of costs is in the
discretion of court.
Section 10
of the
Divorce Act 70 of 1979
provides that:
“
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 the parties.
”
This plainly gives the court a wide
discretion on the issue of costs in this matter. Once again the
conduct of the parties must
be taken into account. I have already in
paragraph [56] of this judgment expressed my displeasure in the
manner in which the trial
proceedings were protracted by unnecessary
argument in this matter. This will have an effect on the costs order
as I have indicated
earlier.
The costs of this action will
therefore be apportioned equally between the parties.
Orders
[69] The following orders are made in
respects of all matters and/or issues before court:
1. A decree of divorce is granted.
2. There shall be division of the
joint estate.
3. The
status
quo
in respect of the
primary residence of the minor children as per court order dated 20
May 2010 shall remain.
4. It is further ordered that the
issue of the primary residence of the children and contact rights to
be enjoyed by the non resident
parent
be and is hereby referred to the Family Advocate for investigation
and the bringing out of a report containing recommendations
with
regard to the primary residence of the three minor children and the
contacts rights of the non resident parent.
5. The interim order of
12 July 2010 issued under case number 40419/2010 is set aside and the
applicant is ordered to pay the costs
thereof, such costs to include
the costs of 12 July 2010, 24 August 2010 and 1 November 2010.
6. The interim order of
22 July 2010 issued under case number 42644/2010 is set aside and the
applicant is ordered to pay the costs
thereof such costs to include
the costs of 24 August 2010 and 1 November 2010.
7.
Each
party shall pay his or her own costs of the divorce action.
E
M MAKG
OBA
JUDGE OF THE NORTH
GAUTENG HIGH COURT
35432/2008/sg
Heard
on
:
8,
10, 11, 12, 17, 18, 19 & 22 August 2011
For
the Plaintiff
:
Adv
D
A
Smith
SC
Instructed
by
:
Schoeman
& Associates, Pretoria