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[2013] ZASCA 204
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Lenferna v Lenferna (120/13) [2013] ZASCA 204 (2 December 2013)
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Certain
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case No: 120/13 Reportable
In
the matter between:
P…………. F……… G……….
L……....
.........................................
Appellant
and
M….. L…… C………
L…….........
..................................................
Respondent
Neutral
citation: L…….. v L…….
(120/13)
[2013] ZASCA 204
(2 December 2013)
Coram:
NAVSA ADP, LEACH, PETSE, SALDULKER JJA and ZONDI AJA
Heard:
12 November 2013
Delivered:
2 December 2013
Summary:
Husband and wife - Divorce - Proprietary Rights — Parties
married in Mauritius under Separation of Goods Regime -
parties
domiciled in Mauritius at time of marriage - Wife claiming one half
of the value of certain immovable properties registered
in husband’s
name - Proprietary consequences of the marriage determined by lex
domicillii matrimonii
at
time of marriage.
ORDER
On appeal from: South Gauteng
High Court, Johannesburg (Victor J sitting as court of first
instance):
(a)
The appeal
succeeds with costs.
(b)
Paragraphs 1 and 2
of the order of the court below are set aside and substituted with
the following:
‘
1. The plaintiff’s
claim for 50 per cent of the value of the properties known as York
Road, Ferndale (Ferndale property) and
the Boathouse Garage at
Pecanwood Estate is dismissed.
2. The plaintiff is to pay the
defendant’s costs.’
JUDGMENT
ZONDI AJA
(NAVSA ADP, LEACH, PETSE and SALDULKER JJA
concurring):
[1
] Up until the present appeal, the primary issue between the parties
had been whether the law of Mauritius or of South Africa
governed
their proprietary rights upon divorce. Put simply, the proper law of
the marriage had to be determined. Thereafter it
was simply a matter
of applying the law to the facts. The background is set out
hereafter.
[2]
The parties were
married to each other on 29 June 1983 in Mauritius. A month later
they moved to South Africa and continued to live
here until their
divorce in November 2011. In about July 2006 the respondent, the wife
(plaintiff in the court below) sued the
appellant, the husband
(defendant in the court below) for divorce in the South Gauteng High
Court, Johannesburg, contending that
the marriage relationship
between her and the respondent had irretrievably broken down.
[3]
In her particulars
of claim the plaintiff, M…. L….. C…. L….
(M….), alleged that at the time of
her marriage to the
defendant, P….. F….. G…. L….. (P…….),
he was domiciled in Mauritius
and that the proprietary consequences
of
the marriage ‘are governed by the law of Mauritius’,
alternatively, that the parties were married to each other in
Mauritius
according to the laws of South Africa and that the
proprietary consequences of the marriage ‘are accordingly
governed by
the law of South Africa’. On either basis, M…
alleged that during the subsistence of the marriage she had
contributed
to the maintenance and or increase of P.....’s
estate by the rendering of services and the saving of expenses, which
otherwise
would have been incurred. She listed the contributions she
had made in cash and in kind. She claimed that it was just and
equitable
that P..... be directed to transfer to her such part of his
assets so as to effect an equal division between the parties of their
combined net asset values, alternatively, that he pay to her the
monetary equivalent thereof. In a further alternative she claimed
that the parties were married according to South African law in
community of property.
[4]
In his plea P..... pleaded that at the time of their
marriage he and M…. had agreed that their matrimonial regime
would be
governed in terms of the provisions of Mauritian law, and in
particular in terms of the provisions of the
regime
legal de separation de biens -
separation of goods, a concept
I intend to deal with in due course. P..... pleaded that at the time
of the marriage, he and M…
had made a declaration that their
marriage was to be governed by the
regime
legal de separation de biens
which was recorded by a marriage
officer. P..... pleaded further that in terms of the said regime each
party retains its separate
estate during the marriage and on
dissolution thereof, neither party has a claim against the estate of
the other party. Ultimately,
P..... denied that M… was
entitled to any part of his estate.
[5]
At the time of the trial M..... moderated her claim and
sought only a 50 per cent share in two properties registered in
P.....’s
name and referred to as the York Road, Ferndale
property and the Boathouse at Pecanwood Estate. A trial ensued before
Victor J.
Both M..... and P..... testified as well as an expert on
Mauritian law, a barrister, Narghis Bundhan (Bundhan). It was agreed
by
the parties that a divorce order should be granted before a
decision was made in respect of M.....’s proprietary claims.
That was done.
[6]
In adjudicating M.....’s claims, Victor J
considered the evidence of Bundhan and somewhat confusingly, under
the heading The
Separation of Goods Matrimonial Regime Does Not
Preclude the Application of the Logical Rules of Evidence’,
concluded that
it had been the intention of the parties at the time
of the marriage that any property acquired after the marriage would
be common
property. The learned judge then went on to consider under
the heading, ‘Domicile of Choice’, where P..... was
domiciled
at the time of the marriage. She accepted M.....’s
evidence that P..... had intended to move to South Africa permanently
even before the marriage. She rejected his evidence that he had
always considered Mauritius to be his permanent home and that he
was
never domiciled in South Africa. She took into account, against
P....., that he had applied for a permanent residence permit
prior to
the marriage. She concluded that P.....’s domicile at the time
of the marriage was South Africa and that in the
absence of an
ante-nuptial contract, they would have been married in community of
property.
[7]
Victor J made an order in terms of which she declared
M..... to be entitled to 50 per cent of the value of each of the
properties
mentioned above. She appears to have arrived at that
conclusion on the dual basis that, Mauritian law, even under the
separation
of goods regime, allowed a party to claim ownership of
assets in proportion to which he or she made a contribution and, that
M.....
was entitled to such a division on the basis of community of
property. P..... was ordered to pay M.....’s costs of trial.
It
is these orders that are before us with the leave of this court.
[8]
It is necessary to turn to exam ine the evidence
adduced in the court below in order to determine whether the order
made by Victor
J, in relation to the properties in question, was
correct. At the time of the marriage the appellant was resident in
Mauritius,
which is his domicile of origin. While it is correct that
prior to coming to South Africa he already had a job offer by the
South
African Broadcasting Corporation (the SABC), such offer was
subject to him obtaining a permanent residence permit and the fact
that he had applied for, and obtained, a South African permanent
residence permit does not in itself constitute a sufficient basis
for
the finding that the appellant abandoned his domicile of origin
(Eilon v Eilon
1965 (1)
SA 703
(A) at 723A). It was the appellant’s evidence that he
had not given up his domicile of origin and that he did not intend to
remain in South Africa indefinitely or permanently. His evidence was
further, that whilst he wanted to work for the SABC because
it would
provide him with experience he needed in his field, he also wanted to
continue his studies in South Africa. If his application
for
permanent residence permit had not been approved, he would have
remained in Mauritius and taken up further employment which
he had
already been offered by various Mauritian companies arising out of
his employment in Diego Garcia. He emphasised that his
ultimate
intention was to return to Mauritius once he had achieved his
ambitions in South Africa. Even if this intention to return
to
Mauritius had been overcome by events, including his initial
commercial success in South Africa, it is highly unlikely that
before
he had settled into a career here and was more secure financially and
had finally adapted to this country, that he would,
even before he
took up his new post, have formed the intention to remain here
permanently. In any event, in order for South Africa
to have become
his domicile of choice, it would have been necessary for him to have
moved to this country. (
Clayton
v Clayton
1922 CPD 125).
This he had not done before the
parties were married. In my view it is clear that the learned judge
in the court below erred in
concluding otherwise.
[9]
Before us counsel on behalf of M..... accepted that at
the time of the conclusion of the marriage the parties were both
domiciled
in Mauritius. She also indicated that a claim for
redistribution in terms of
s 7(3)
of the
Divorce Act 70 of 1979
had
been abandoned even before trial.
[10]
At common law, the proprietary rights of spouses are
governed, in the absence of express agreement, by the law of the
husband’s
domicile at the time of the marriage (
lex
domicilii matrimonii
or the law of the matrimonial domicile)
(
Frankel’s Estate &
another v The Master & another
1950 (1) SA 220
(A) at 241;
Sperling v Sperling
1975
(3) SA 707
(A) at 716F-G;
Esterhuizen
v Esterhuizen
1999 (1) SA 492
(C) at 494C-D; C F Forsyth
Private International Law: The
Modern Roman-Dutch Law Including the Jurisdiction of the High Courts
5 ed 2012 at 295). The rationale for this rule, according to the
Roman Dutch and Civilian authorities, is that the parties are
assumed
in the absence of any indication to the contrary, to have intended to
establish their matrimonial home in the country where
the husband was
domiciled at the time of the marriage and to have submitted
themselves to the matrimonial regime obtaining in that
country.
Whether this statement can still be regarded as acceptable in our
Constitutional democracy needs not be considered in
the light of what
is set out in the preceding paragraph, namely that at the time of the
marriage, the domicile of both P..... and
M..... was in Mauritius.
[11]
What is now left to do is to consider what the law is
in relation to the separation of goods regime under Mauritian law.
Counsel
on behalf of M..... accepted that essentially that regime
meant that each party to a marriage retained its separate estate
during
the marriage and that on dissolution thereof neither party had
a claim against the estate of the other.
Before us, it was common cause that
even under a separation of goods regime a party could claim ownership
of assets on the basis
of having funded their acquisition. This would
not discount a claim in proportion to funding.
[12]
It is so that the parties operated a joint account and
that household needs were met by both of them from monies earned by
each.
In respect of the Sundowner property, a house in which the
parties resided before they moved to another address, it appears to
be clear that it was purchased in 1986. It was financed by P.....,
partly using his own savings accumulated from earnings in Diego
Garcia before he came to South Africa, a subsidy from the SABC and a
home loan from the bank. He sold the Sundowner property in
July 1991
and used a substantial portion of those proceeds to fund the York
Road property, Ferndale. At that stage the respondent
was not
gainfully employed. Her evidence was that although she started
working for the appellant’s company in 1991 she did
not receive
a salary until 1993. She conceded that she did not pay for the bond
of the Ferndale property. The appellant’s
company did.
Similarly the respondent did not contribute to the purchase of the
Boathouse. The appellant paid R60 000 for it.
[13]
Before us the claim for one half of the Ferndale
property and the Boathouse appears to have been premised on the idea
of a universal
partnership which had not been pleaded. In any event
there was no evidence to substantiate a claim in this regard. In my
view,
for the reasons set out above, the court below erred in
declaring that M..... was entitled to one half of the properties in
question.
[14]
Counsel for the appellant submitted that the costs of
appeal should include the costs of two counsel. He argued that the
complexity
of the legal issues justifies the employment of two
counsel. I disagree. While it is correct that the dispute in this
matter was
about the choice of law according to which the parties’
proprietary rights were to be determined and that an expert witness
on the Mauritian law had to be flown in to testify, I am not
convinced that the nature of the issues to be determined is such that
it justifies the employment of two counsel. In the result costs to be
awarded in favour of the appellant will not include costs
of two
counsel.
[15]
In the result the order in the following terms is made:
(a)
The appeal succeeds with costs.
(b)
Paragraphs 1 and 2
of the order of the court below are set aside and substituted with
the following:
‘
1. The plaintiff’s
claim for 50 per cent of the value of the properties known as York
Road, Ferndale (Ferndale property) and
the Boathouse Garage at
Pecanwood Estate is dismissed.
2. The plaintiff is to pay the
defendant’s costs.’
D H ZONDI
ACTING
JUDGE OF APPEAL
APPEARANCES
For
Appellant: L M Hodes SC (with him M Feinstein)
Instructed
by:
Wertheim
Becker Inc, Johannesburg
Phatshoane
Henney Inc, Bloemfontein
For
Respondent: S A Nathan SC
Instructed
by:
Karen
Davis-Hannibal, Magaliessig
Honey
Attorneys, Bloemfontein