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[2017] ZAECPEHC 9
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J.A.L (formerly V.D) v C.P.L (3146/2015) [2017] ZAECPEHC 9 (2 February 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No: 3146/2015
Date
Heard: 22 November 2016
Date
Delivered: 2 February 2017
In
the matter between:
J.
A. L.
(formerly
V.
D.)
Plaintiff
and
C.
P. L.
Defendant
JUDGMENT
EKSTEEN
J:
[1]
The
parties were married to one another in community of property on 5
December 2009. It is common cause that the marriage
has
irretrievably broken down and both parties seek an order of divorce.
The dispute in these proceedings relates to the
division of the
patrimonial benefits.
[2]
The
plaintiff claims a division of the joint estate and a further order
that she be entitled to approach this court for the appointment
of a
liquidator to attend to the division of the joint estate in the event
that the parties are unable to agree on the division
within 30 days
of the date of this judgment.
[3]
The
defendant in his claim in reconvention alleges that the parties
concluded a cohabitation agreement on 21 November 2013 regulating
the
proprietary consequences of their relationship upon the termination
thereof. He sought an order in terms of this agreement.
In addition, however, he sought an order that the plaintiff forfeit
the benefits arising from the marriage in community of property.
Although these prayers were not sought in the alternative they are
irreconcilable with one another. At the trial Mr
Jooste
,
who appeared on behalf of the defendant, recognising this difficulty,
did not seek an order in accordance with the alleged cohabitation
agreement. He sought only an order that the plaintiff forfeit
the benefits arising from certain identified immovable property.
Background
[4]
Both
parties have previously been married. The plaintiff is
currently 61 years of age and the defendant 64.
[5]
The
plaintiff and her late husband previously lived in Storms River.
At some stage, however, her husband fell terminally ill
and they
relocated to Port Elizabeth to enable him to obtain medical
treatment. She has two children who are both attorneys
in Port
Elizabeth and her daughter purchased a home for herself and her late
husband to reside in during his illness. The
plaintiff’s
children accordingly have precious memories of the last days of their
father which are associated with the house
in issue. Whilst
resident there the plaintiff’s late husband died and the
plaintiff continued to reside in the house.
[6]
The
defendant met the plaintiff approximately a year after her husband
had passed away and they formed a relationship. Whilst
the
defendant contends that he did not formally move in with the
plaintiff it is common cause that he slept over with the plaintiff
in
the house every night. The plaintiff’s children did not
take kindly to the defendant or the relationship with their
mother.
Ultimately the plaintiff’s daughter demanded that the plaintiff
terminate her relationship with the defendant,
alternatively, that
they vacate the house. The plaintiff chose for the defendant
and they vacated the house.
[7]
At
this time it was patently clear that there was a very poor
relationship between the plaintiff’s children and the
defendant.
The parties discussed the friction which existed and
the plaintiff advised the defendant that in her view her children may
never
accept the defendant. This prediction turned out to be
true. Notwithstanding this known tension the parties resolved
to be married.
[8]
The
plaintiff was employed at the time by a firm of attorneys where two
of her children are employed in Port Elizabeth. She
wished to
be married by antenuptial contract as her previous marriage had been
concluded on this basis. The defendant, however,
suggested that
the parties marry in community of property. This they duly did.
[9]
Subsequent
to the marriage the strained relationship between the defendant and
the plaintiff’s children continued and although
they did not
interfere in the marriage it clearly emerges from the evidence that
the defendant was at times frustrated by their
dislike for him.
[10]
The
marriage was not all plain sailing and by October 2012 the plaintiff
left the common home and issued summons for divorce.
She
alleged that the marriage had
irretrievably
broken down by virtue of the defendant’s excessive use of
alcohol. When under the influence of alcohol,
she alleged, that
he becomes extremely aggressive towards her, verbally abuses her and
uses extremely foul language when communicating
with her. She
contended that he insults and belittles her and her family and
continuously seeks confrontation.
[11]
It
is common cause that after receipt of the summons the defendant
approached the plaintiff in tears and begged her to return to
him.
He apologised for his behaviour and promised to change his ways.
She succumbed to the plea and acknowledges in
evidence that she did
so as she loved him. Thus the parties were reconciled.
[12]
Little
came of his undertaking to change his ways and the plaintiff again
left the matrimonial home in April 2013. Again he
requested her
to return and again she succumbed. Approximately six months
thereafter she was again driven to leave the common
home and she
resolved to terminate the marriage. Yet again the parties were
reconciled and after the third reconciliation,
in November 2013 the
cohabitation agreement to which I referred earlier was allegedly
concluded. To the extent that it may
be material to the outcome
hereof I shall revert to the causes for each of these incidents later
herein. Suffice it to record that
the plaintiff finally left the
common home on 15 June 2015 and again issued summons for divorce.
Factual
findings
[13]
The
determination of the matter requires a consideration of the history
of the marriage and the properties in issue. I pause
to record
that there are a number of disputes relating to the factual history
which requires an assessment of the evidence.
In this regard
the defendant did not make a favourable impression in the witness
box. He was a conceited, evasive and argumentative
witness who
sought to simply dismiss the plaintiff’s evidence of his
conduct during the marriage as deliberate lies.
He
resorted to lengthy replies which often had little or no bearing on
the question put to him. I refer to only
one example of his
disingenuity. The plaintiff testified as to the events which
gave rise to her finally leaving the common
home on 15 June 2015.
She gave a detailed account of the events of the evening which
included an assault upon her.
This he branded as a deliberate
lie when he testified. The plaintiff had, however, taken a
series of photographs after the
event depicting a number of bruises
on her body. When these were presented to the defendant in
cross-examination he first
postulated that the photographs were taken
two days later and that the injuries may have occurred after she had
left. Later
he suggested that the injuries may have been
self-inflicted and, still later, he proposed that the plaintiff may
have affected
the discolouration reflected on the photographs using
mascara so as to fake the bruising. When the plaintiff
testified to
these events, however, her evidence was not challenged
at all.
[14]
The
plaintiff on the other hand impressed me as a honest witness who
readily conceded her own errors. By way of example, she
admitted in her evidence-in-chief, with visible embarrassment, that
she had once, under extreme provocation, struck the defendant
with a
clenched fist. Not a single aspect of her evidence was
seriously challenged in cross-examination.
[15]
In
these circumstances where the evidence of the plaintiff conflicts
with that of the defendant I accept the evidence of the plaintiff
in
every respect.
Claim
for forfeiture
[16]
At
the trial the defendant sought an order for partial forfeiture.
As alluded to earlier Mr
Jooste
sought an order that the plaintiff forfeit the benefits of the
marriage in community of property with reference only to certain
immovable properties to which I shall refer more fully below.
Although reference is made in the defendant’s particulars
of
his claim in reconvention to an order for total forfeiture, including
the proceeds of the sale of a motor vehicle and certain
insurance
policies and pension benefits no evidence was presented in respect of
these assets and Mr
Jooste
did not seek an order in respect thereof. I shall therefore not
deal with these assets herein.
[17]
The
order sought relates to two properties situated in Cape Town and two
properties in Port Elizabeth.
[18]
The
first property which is situated in San Rock, in Sunningdale,
Milnerton (the Sunningdale property) was acquired by the defendant
in
2002 at a purchase price of R437 000. There is no evidence
as to the value of this property at the time of the marriage
in
2009. No reliable evidence was presented as to its value at
present. It was suggested to the defendant, who is an
estate
agent by trade, during cross-examination that the property is
presently worth about R1,4 million, however, the defendant
was unable
to confirm this value. He states that he has no idea of its
value.
[19]
The
second property is situated at Hantamberg Street, Kamma Heights, in
Port Elizabeth (the Hantamberg property). There is
some
uncertainty in the evidence as to the precise date of the purchase of
this property. The defendant contended that the
property was
acquired prior to the marriage, however, it is common cause that it
was registered in their names jointly. It
is further common
cause that the property was purchased by the plaintiff for a purchase
sum of R325 000 derived from her own
personal funds which she
states came from her inheritance from her late husband.
The property was, however, a vacant
erf. After the marriage the
parties resolved to develop the property which later became the
matrimonial home.
[20]
The
Sunningdale property was bonded at the time of the marriage in favour
of First National Bank (FNB). In order to develop
the
Hantamberg property the parties raised a fresh loan in the sum of R1
million from Absa Bank and a bond was registered in favour
of Absa
Bank over the Sunningdale property for the said amount.
R317 000 of the R1 million was utilised to cancel the
existing
bond with FNB and the remainder was used to develop the Hantamberg
property. The bond for R1 million was registered
in the name of
both parties and they undertook joint liability to Absa Bank.
At all material times the Sunningdale property
was tenanted and the
rental received covered approximately 85% of the bond repayment.
[21]
The
money raised on the loan from Absa Bank was however not sufficient
for the development of the Hantamberg property and a further
bond was
later registered over the Hantamberg property. The evidence
does not disclose when this occurred nor the amount
of the bond.
At the time of the trial, however, there was an amount of
approximately R240 000 outstanding on the bond.
In respect
of the Hantamberg property the bond too was in the name of both
parties as spouses in community of property. The
Hantamberg property is currently worth R1,5 million.
[22]
The
second property in Cape Town is situated in Jansens Avenue, Table
View (the Table View property). This property was purchased
by
the defendant in February 2008, prior to the marriage. The
evidence does not disclose the original purchase price nor
the value
of the property either at the time of the marriage or the issue of
summons. The defendant estimates that the property
is probably
worth about R880 000 today. No valuation was presented in
evidence and the said value is no more than the
defendant’s
unsubstantiated estimate. A bond of R700 000 was
registered over the property at the time of the purchase
and there is
currently an amount of R598 000 outstanding on this bond.
This property too has at all material times been
let and the rental
received covers approximately 60% of the bond instalments.
[23]
Finally,
during the subsistence of the marriage and in March 2013 the parties
purchased a further property in Chardonnay, Lorraine,
Port Elizabeth
(the Chardonnay property). The purchase price at the time was
R750 000 and R600 000 was raised by
a mortgage loan and a
corresponding bond was registered against the property. There
is a dispute between the parties in respect
of the source of the
remaining R150 000 which was paid in cash. The defendant
contends that he paid the amount of R150 000
from “his
own” sources whilst the plaintiff contends that each party paid
R75 000 therefore contributing equally
to the property. In
cross-examination of the defendant he boldly declared that he had
documentation to prove that he had
paid the R150 000 from his
personal account, however, notwithstanding an invitation to produce
such documentation none was
forthcoming. I accept the
plaintiff’s account in this regard and find that each party
contributed R75 000.
The Chardonnay property is currently
valued at R995 000.
[24]
The
Chardonnay property has at all material times been let and the rental
generated is used to service the bond and pay the expenses
related to
the property. It is not clear from the evidence whether the
rental is sufficient to cover all the expenses related
to the
property.
[25]
During
the evidence presented at the trial there was much debate as to who
had paid the bond instalments, levies, rates and taxes,
maintenance
and other expenses in respect of the various properties.
Initially the defendant contended that he had borne
all these
expenses and that the plaintiff had made no contribution whatsoever
towards the immovable properties. It is trite
that in a
marriage in community of property the rental received in respect of a
property vesting in the joint estate accrues to
the joint estate and
the portion of the costs covered by the rental therefore derived in
each case from the joint estate.
In these circumstances I
consider that the bond repayments which were paid from the rental are
contributed equally by the parties
during the subsistence of the
marriage.
[26]
Notwithstanding
that the parties were married in community of property, the evidence
establishes that the parties each controlled
their own separate bank
accounts and that all their respective earnings were deposited into
these accounts. There was therefore
no real merger of their
finances. Hence the debate as to who paid what. The
evidence reveals that at the end of each
month the plaintiff drew up
a list of all expenses incurred during that month and the account
from which such expenses were paid.
She then prepared a
reconciliation which the parties debated. Where one party had
paid more than 50% of the total monthly
expenses, including bond
repayments and other expenses related to the properties, the other
reimbursed that party so as to ensure
that each contributed 50% from
his or her resources.
[27]
Whilst
the defendant was ultimately constrained in cross-examination to
concede that the expense sharing arrangement existed and
was
implemented he later contended that this arrangement ceased in
November 2013, after the plaintiff had returned to him following
her
third desertion. This she denied and states that the
arrangement persisted until her ultimate departure in June 2015.
The defendant’s concession is contrary to the position he took
during his evidence-in-chief and he did not produce any documentary
proof to support his ultimate assertion that the plaintiff’s
contribution to the expenses relating to the properties ceased
in
November 2013. The plaintiff’s evidence, on the other
hand, remained untainted by cross-examination.
Legal
principles relating to forfeiture
[28]
Section
9(1) of the Divorce Act, 70 of 1979 (the Act), empowers a court which
grants a decree of divorce on the ground of an irretrievable
breakdown of the marriage to make an order that the patrimonial
benefits of the marriage be forfeited, wholly or in part, by one
of
the spouses in favour of the other if the court, having regard to the
duration of the marriage, the circumstances which gave
rise to the
breakdown thereof and any substantial misconduct of either of the
parties, is satisfied that, unless the order
for forfeiture is
made, one party will in relation to the other be unduly benefited.
The section confers a discretion on
the court which is to be
exercised with regard to the three factors enumerated in the section.
[29]
In
considering a prayer for forfeiture the court’s point of
departure should generally be to hold the parties to their
antenuptial
agreement. When the parties in the present instance
were married it was on the basis of their express, alternatively
implied,
agreement that each will become co-owner of the property of
the other. Co-ownership of the property of the other spouse is
an entitlement which each of the spouses acquired at the conclusion
of their marriage. Unless the parties make precisely
the same
contribution to the joint estate, whether prior to the marriage or
during the subsistence of the marriage, the one who
has contributed
less at the termination of the marriage will necessarily be benefited
unless an order for forfeiture is made.
That is the inevitable
consequence of their marital regime. The Act does not afford
the spouse who has made the greater contribution
an opportunity to
bewail himself thereof. He may only complain about an undue
benefit. Unless it is proved what the
nature and extent of the
benefit was the court cannot determine whether the benefit was undue
or not. Only when the nature
and extent of the benefit has been
proved does it become necessary for the court to consider the factors
which determine whether
the benefit is undue or not. (See
Engelbrecht
v Engelbrecht
1989 (1) SA 597
(C) at 601F-H.) The party alleging that his/her
spouse would acquire an undue benefit bears the onus of proving the
nature
and extent of the alleged benefit which is to be forfeited.
[30]
The
first step is therefore to determine whether the spouse concerned
will in fact be benefited. This determination relates
to a
purely factual issue. (See
Wijker
v Wijker
1993 (4) SA 720
(A).) In the present instance the alleged undue
benefit which the defendant contends for is limited to four immovable
properties.
On behalf of the defendant it is argued that the
plaintiff will be unduly benefited if she were to share in the value
of the these
immovable properties. I turn therefore to consider
whether any benefit arises.
[31]
The
Table View property was owned by the defendant prior to the
conclusion of the marriage. There is no evidence as to the
value of the property at the time of the conclusion of the marriage.
There was, however, a bond registered over the property
in the amount
of R700 000. The defendant accordingly brought an asset and a
corresponding liability to the joint estate at
the conclusion of the
marriage. In the event that the value of the property equated
to the outstanding bond, which may conceivably
be the case, then the
asset and the liability would necessarily cancel each other out so
that no net asset was brought to the joint
estate at all. Since
the conclusion of the marriage the property has been let and the
rental received, which accrues to the
joint estate, covered the bulk
of the instalment on the outstanding bond. The remainder of the
expenses in respect of this
property were paid in equal amounts by
the plaintiff and the defendant. In the circumstances I find
that the defendant has
failed to prove the nature and extent of any
benefit which may accrue to the plaintiff in respect of the Table
View property;
a
forticori
he has failed to prove an undue benefit.
[32]
The
Chardonnay property was purchased during the subsistence of the
marriage. The purchase price was funded primarily from
a bond
registered against the property. The remaining R150 000
was contributed in equal shares by the plaintiff and
the defendant.
This property too was let and the rentals received by the joint
estate were utilised to pay the instalments
on the bond. All
additional expenses in respect of this property were paid in equal
shares by the plaintiff and the defendant.
I am therefore
satisfied that in the case of the Chardonnay property too the
defendant has not established the nature and extent
of any benefit
which the plaintiff would derive if the joint estate were divided in
the ordinary course.
[33]
The
Sunningdale property was, like the Table View property, owned by the
defendant prior to the conclusion of the marriage.
In this case
too the defendant brought both an asset and a corresponding liability
to the joint estate. There is no evidence
as to the value of
the property at the time of the conclusion of the marriage and there
was an amount of R317 000 outstanding
on the bond. Shortly
after the conclusion of the marriage, however, this property was
recapitalised and a bond was registered
over the property in the
amount of R1 million. I shall accordingly accept, for purposes
of the present judgment and in the
absence of any proof to the
contrary, that the property had a value of R1 million at the time.
The parties accepted joint liability
for the bond with Absa Bank and
portion of the bond was utilised to pay off and cancel the
pre-existing bond in favour of FNB.
The effect hereof was that the
value of the property was cancelled out by the corresponding bond
raised against the property and
the parties jointly accepted
liability for the full value of the property. This property too
was let out and the rental received
by the joint estate covered 85%
of the bond repayment. The remaining expenses, as in the case
of the other properties, were
shared equally between the plaintiff
and the defendant. On a consideration of the facts set out
herein I do not consider
that the defendant has established the
nature and extent of any benefit which the plaintiff would derive in
respect of this property
if the joint estate were divided in the
ordinary course. It is accordingly not necessary to consider
whether any benefit
will be undue.
[34]
The
Hantamberg property was purchased by the plaintiff utilising her own
personal funds. The improvements were funded
partly by a
bond raised against the property in respect of which the parties
accepted joint liability. The remaining R670 000
utilised
in the improvement of the property was obtained from the bond
registered over the Sunningdale property. Any further
expenses
relating to the property were shared equally between the plaintiff
and the defendant.
[35]
The
R670 000 which was derived from the bond on the Sunningdale
property represents the free residue after settlement of the
outstanding bond which existed in the value of the Sunningdale
property prior to the conclusion of the marriage. This was
an
asset in the estate of the defendant at the time of the marriage.
Leaving aside for the moment the bond raised on the
Hantamberg
property, for which the parties accepted equal responsibility, it
seems to me that the plaintiff contributed an amount
of R325 000
to this property whilst the defendant contributed an amount of
R670 000. In respect of the Hantamberg
property the
defendant accordingly made a greater contribution than the plaintiff.
Of the funds contributed from the
pre-existing means of
the parties the defendant contributed approximately two thirds.
The remaining cost and expenses were
shared equally. In
my view this is the extent of the benefit which the defendant has
established that the plaintiff
would acquire if the joint estate were
to be divided equally.
[36]
By
virtue of my conclusion that a benefit has been established in
respect of the Hantamberg property it is necessary to exercise
a
discretion having regard to the factors set out in section 9(1) of
the Act. Whilst the court is required to consider all
three
factors set out therein it does not follow that if one of these
factors is not established that an order for forfeiture cannot
be
made. (Compare
Klerck
v Klerck
1991 (1) SA 265
(W) at 269D-G; and
Wijker
v Wijker
supra
at 729.) These factors are not to be considered cumulatively.
[37]
In
the particulars of his claim in reconvention the defendant relies for
the order for forfeiture on the following:
“
15.1
The short duration of the marriage;
15.2 The
Plaintiff has over time left the matrimonial home on various
occasions and has threatened the Defendant
with divorce (to the
extent that she has even in the past sued for divorce, which
proceedings are simply discontinued by the Plaintiff)
only to return
to the Defendant. In acting in this fashion the Plaintiff
exerted emotional pressure upon the Defendant, in
an attempt to
obtain an undue financial benefit over the Defendant; and
15.3 The
Plaintiff has spread vicious rumours in respect of the Defendant
during the subsistence of the
marriage to the effect that the
Defendant is verbally, emotionally and physically abusive to the
Plaintiff and abuses alcohol.
15.4
The Plaintiff has incurred liabilities arising from the purchase of a
motor vehicle and has stood surety
in respect of the purchasing of
immovable property, without informing and/or obtaining the consent of
the Defendant.”
[38]
Whilst
the defendant testified that the plaintiff informed her children and
family that the defendant abused alcohol this evidence
is clearly of
a hearsay nature and totally unsubstantiated. No
other foundation was laid for alleged rumours
and I accordingly do
not think that it is necessary to deal with this allegation further.
[39]
In
argument Mr
Jooste
relied solely on the brief duration of the marriage. He
contends that it would be incorrect to consider the marriage
to have
endured until June 2015, when the plaintiff finally left the common
home. Mr
Jooste
argues that the marriage was effectively over by October 2012 when
the plaintiff first issued summons for divorce. This,
it is
argued, is borne out by the plaintiff’s subsequent desertion of
the defendant. I think that this is an over-simplification
of
the history of the marriage. It is clear from the evidence that
the plaintiff returned to the matrimonial home each time
and the
parties were reconciled because the plaintiff loved the defendant and
she remained committed to the marriage.
[40]
It
is undoubtedly so that the marriage is of relatively short duration
and it cannot be gainsaid that there may be circumstances
where such
a brief duration of the marriage might of its own be sufficient, in
the absence of any findings relating to the other
two factors, to
justify an order for forfeiture. The fact that it is not
necessary to establish all three factors set out
in section 9(1) does
not necessarily lead to the conclusion that the satisfaction of one
of the three factors entitles a party
to an order for forfeiture.
A court is required to have regard to all three factors to the extent
that they are applicable
and then to exercise a discretion (see
Engelbrecht
v Engelbrecht
supra
at 602G-H). It is accordingly necessary to have regard to the
factors which gave rise to the breakdown of the marriage and
to any
substantial misconduct on the part of either of the parties.
[41]
I
turn to consider the factors which gave rise to the breakdown of the
marriage. I have recorded the background leading up
to the
marriage earlier herein. The plaintiff alleges that the
marriage was initially happy notwithstanding the fact that
the
standoff between her children and the defendant persisted. The
evidence clearly reveals that the defendant’s frustration
with
this situation led to arguments and the plaintiff testified that on
more than one occasion the defendant assaulted her.
This the
defendant denied. I find his denial unpersuasive and I have
referred earlier to the evidence relating to one such
incident which
occurred on the night of the final separation.
[42]
The
plaintiff was employed by various attorneys during the subsistence of
the marriage. She testified that throughout the
duration of the
marriage the defendant repeatedly accused her of having improper
liaisons,
inter
alia
,
with three well-known attorneys in Port Elizabeth. He
shamelessly accused her of being a harlot and, notwithstanding that
these accusations were entirely unfounded, he appeared to have an
obsession therewith.
[43]
During
2012 she was a member of the Women’s Agricultural Association
in Port Elizabeth and attended meetings during the evening.
She
related her recall of a particular evening when she arrived home at
approximately 22h30 to find the defendant intoxicated.
He
enquired from her what a married woman was seeking on the streets at
this time of night. When she protested that she had
been at the
meeting of the Women’s Agricultural Association he accused her
of dishonesty and asserted that she had been with
another man.
He approached her and smelt her body to determine whether aftershave
could be detected and later went to the
extraordinary lengths of
smelling her underclothes when she went to bed and then asserted that
he could detect from this exercise
that she had engaged in
intercourse. This, not surprisingly, led to an argument during
which the defendant assaulted her.
[44]
Again
the defendant simply denies that the event ever occurred and asserts
that he in fact encouraged the plaintiff to attend meetings
of the
Women’s Agricultural Association.
[45]
In
support of her assertion of the defendant’s obsession with the
notion of her infidelity she related a further incident
where she had
been shopping. When she returned to her motor vehicle she noted
numerous missed calls from the defendant.
Upon her return to
their home the defendant grabbed her handbag and sifted through her
wallet to find all invoices of her shopping.
The invoices
revealed the times of the purchases and he proceeded to interrogate
the plaintiff as to her conduct between purchases
and he again
accused her of being with another man. Again the accusation was
devoid of substance. The defendant does
not deny the
accusation. He states that he was angered by her lengthy
absence and her failure to answer her telephone.
He
acknowledges that he inspected her invoices but states that he cannot
recall what he may have said.
[46]
The
plaintiff testified that prior to her first departure from the common
home the defendant had frequently accused her of affairs
with other
men. The defendant does not testify to any event or
circumstance which could have justified such an accusation.
Frequently, when she returned home from work, she says, at half
past four in the afternoon the defendant was already drinking.
The defendant acknowledges that he does consume alcohol but protests
that the plaintiff was unreasonable in this regard as she
did not
consume alcohol at all and therefore found it improper for him to
have a glass or two glasses of wine before supper.
When he was
tested under cross-examination in respect of his abuse of alcohol he
was consistently evasive on each occasion putting
forward this
explanation for the plaintiff’s assertion. He did not
however, deny his excessive consumption of alcohol.
[47]
Shortly
before her initial departure from the common home the plaintiff
testifies that she noted a message on the defendant’s
cellphone
one evening whilst she was making coffee. The message said
simply:
“
Lekker
doeks” (sleep tight)
[48]
This
she found strange and enquired from the defendant who had sent such a
message to him. The defendant laughed and denied any
knowledge of the
identity of the sender. This the plaintiff found unpersuasive
and she dialled the number, however, there
was no reply. Two
days later she again dialled the number and a lady answered.
When she explained the reason for her
enquiry the lady acknowledged
that she had previously had an affair with the defendant and that she
had merely called to find out
how he was.
[49]
At
approximately the same time she noted pornography on the defendant’s
computer and found that he had been visiting a “dating
site”
where he represented that he was much younger than he in fact is and
invited women between the ages of 35 and 45 to
communicate with him.
This again led to an argument and gave rise directly to the plaintiff
initially leaving the common
home.
[50]
The
defendant, for his part, simply denies that there has ever been
pornography on his computer. Notwithstanding his denial
in the
witness box, the plaintiff’s evidence in this regard was not
challenged at all. Whilst the summons issued in
October 2012
does not specifically refer to pornography the averments contained in
the summons accord broadly with the plaintiff’s
account leading
up to her desertion. I pause to record that the defendant does
not testify to any conduct on the part of
the plaintiff which may
have prompted her departure.
[51]
I
have recorded earlier that following her desertion she returned to
the common home in consequence of the defendant pleading with
her to
do so and undertaking to change his ways. The plaintiff
testified that she forgave him and returned to the common
home. The
defendant, on the other hand, suggests in chief that the plaintiff
simply just arrived back at home, unannounced, as
if nothing had
happened. In cross-examination, however, he was constrained to admit
that he proceeded to plaintiff’s place
of employment early one
morning and begged her to return.
[52]
The
defendant was not true to his promise to mend his ways and the
plaintiff again left the common home in April 2013. This
again
followed a most unpleasant experience. The parties had retired
to bed that evening. The defendant proceeded,
dressed only in
his underwear, to stand out on the deck in front of their house and
scream out obscene insults relating to the
plaintiff, her daughter
and her parents. He screamed out repeatedly into the silence of
the night that the plaintiff and
her daughter were harlots and her
father, who had been an alcoholic, was a rubbish. The plaintiff
was deeply embarrassed
and humilated by these events and pleaded with
him to come inside, but, to no avail. In these circumstances
the plaintiff
states that she realised that she had to terminate the
marriage. She again left.
[53]
It
is not in dispute that the incident occurred, however, the defendant
denies that he uttered any obscenity and suggests that he
merely
shouted he was fed up (gatvol). He denies too that he was
dressed only in his underwear. When asked in cross-examination
why he thought that the defendant left on the second occasion he was
unable to provide any logical reply thereto. When pressed
he
suggests that he may have done something wrong as no person is
perfect, however, he was unable to suggest what it might
have been.
This evidence was most unpersuasive.
[54]
The
third departure by the plaintiff from the common home occurred late
in September 2014. The plaintiff states that the defendant
was
again intoxicated when she arrived home. She proceeded to the
kitchen where she prepared food and attempted to conduct
a normal
conversation with the defendant. He was seated at the table
near the braai when he suddenly exclaimed: “Those
f…..
children of yours”. Her enquiry as to what he meant led
to a tirade of accusations against her children.
The plaintiff
states that she wished to avoid a confrontation and accordingly took
a cup of coffee and proceeded down the passage
towards the bedroom.
She had a small old Dachshund which was always by her side. The
defendant, she says, was frustrated
by her refusal to engage and he
accordingly kicked the little Dachshund with such force that it sent
the dog flying through the
air. It was on this occasion that
she impulsively struck the defendant with a clenched fist. When
he sat down on the
ground she followed this up with a kick. She
thereafter again left the common home.
[55]
Again
the defendant simply denies that the event every occurred. It
was suggested to him in cross-examination that this was
the occasion
that the plaintiff had struck him with clenched fist. Although
the defendant had previously acknowledged that
the complainant had,
on occasion, struck him with a clenched fist he persists that he does
not even recall this occasion.
He explains that he considered
that her striking him with a clenched fist was insignificant.
So insignificant in fact that
he denies that such conduct on the part
of the plaintiff contributed at all to the breakdown of the marriage.
[56]
The
final straw came on 15 June 2015. The parties experienced an
electrical problem with their geyser which repeatedly tripped
the
electricity supply. Plaintiff had not bathed for three days as
a result of this problem. She wished to bath this evening
and
therefore turned the geyser on. Whilst it warmed up it tripped
the electricity supply repeatedly and she proceeded through
the
lounge to the garage to turn it on again. This occurred several
times. When she did so the last time she was already
undressed and
had only a towel around her body. As she passed the defendant
seated in the lounge he enquired why she had
such an obsession with
bathing and again suggested that she had been with another man. At
the time he was listening to romantic
music and the plaintiff noted
that his cellphone was lying on the speaker and that a call was in
progress. Prompted by the
defendant’s accusation she
enquired which harlot of his was on the phone. As she uttered
these words she saw that the
call was terminated. A struggle
ensued for possession of the phone and defendant again assaulted
her. She eventually
fled to her bedroom and locked the door.
She called the police for assistance, however, by the time they
arrived the defendant
had left the home. Plaintiff finally left
the matrimonial home that evening.
[57]
In
the defendant’s plea he raises two incidents of financial
misconduct by the plaintiff as causes for the breakdown of the
marriage. I shall revert to these when considering any
substantial misconduct.
[58]
The
reasons leading to the breakdown of a marriage are necessarily
complex and it is seldom possible to identify a particular event
as
being decisive. It clearly emerges from the evidence that the
parties argued frequently and that the plaintiff on occasion
reacted
inappropriately as emerges from her own evidence. I have not
under this section dealt with the alleged financial
misconduct.
Suffice it for present purposes to record that the defendant did not
testify to any impact which these events
may have had on the marriage
relationship at the time. I am satisfied that the
evidence establishes that predominant
factor giving rise to the
breakdown of the marriage was the defendant’s consumption of
alcohol over an extended period and
his conduct towards the plaintiff
whilst under the influence of alcohol. His repeated and
unfounded accusations of infidelity
and the unseemly manner in which
he expressed it was deeply humiliating and could only have left an
indelible scar on their relationship.
Whilst it is undoubtedly
true that he experienced great frustration by the refusal of the
plaintiff’s children to accept
him into their family it is
clear that the children never interfered in the marriage
relationship, rather it seems that the defendant
took out his
frustrations on the plaintiff. Significantly there is no
reference to the role of the plaintiff’s children
in the
grounds for the breakdown of the marriage set out in defendant’s
plea. Whilst it is common cause that the plaintiff
left the
common home on a number of occasions her conduct has fully been
explained in evidence and there can be no merit in the
suggestion
that she did so in order to exert emotional pressure upon the
defendant in an attempt to obtain an undue financial benefit
over the
defendant.
[59]
I
turn to consider the alleged financial misconduct. I have
recorded earlier that the parties each conducted and controlled
their
own bank accounts in which their earnings were deposited and that
there was, for practical purposes, no real merger of their
finances.
Their monthly expenses were balanced at the end of each month and a
reconciliation done. During or about
2011 the plaintiff entered
into a credit agreement in terms of which she purchased a vehicle for
her son. She admits that
she entered into the agreement of
sale, however, it is not clear from the evidence that plaintiff in
fact paid any instalments,
and if so what the amounts were. In
entering into the credit agreement she did not disclose to the bank
that she was married
in community of property and she did not obtain
the consent of the defendant.
[60]
Furthermore,
during the subsistence of the marriage the plaintiff stood surety for
a mortgage loan which her son entered into in
order to purchase an
immovable property. Again she did not acquire the consent of
the defendant. The defendant contends
that his signature was
forged on the document and he alleges that the plaintiff forged the
said signature. This the plaintiff
denies and no evidence has
been presented to me upon which I am able to make any finding in this
regard. The immovable property
concerned has since been sold
and the mortgage loan repaid. The plaintiff’s suretyship
had no impact on the joint estate
and there is no evidence of any
conflict between the parties at the time as a result of the
plaintiff’s suretyship.
[61]
In
all the circumstances, to summarise, it seems to me that there is
evidence that the purchase and the development of the Hantamberg
property cost R1 235 000 (R670 000 from the
Sunningdale property, R325 000 from the plaintiff and R240 000
from the bond registered against the property). The parties
accepted joint responsibility in respect of the bond registered
against the property. In respect of the remainder of the costs
the defendant contributed R345 000 more than the plaintiff
did.
[62]
The
duration of the parties marriage, as recorded earlier, is relatively
brief and was categorised by volatility. That is
a factor which
militates in favour of a forfeiture order. On the other hand,
the evidence suggests that the conduct of the
defendant over an
extended period may have triggered the events leading to the ultimate
breakdown of the marriage. Although
the application of the
plaintiff’s signature as surety on a mortgage loan agreement
whilst she was married in community of
property may be categorised as
misconduct there is no evidence of the impact which it may have had
on the relationship between
the parties at the time and it has had no
effect on the joint estate at all. The plaintiff’s
conclusion of a credit
agreement during the subsistence of the
marriage in community of proper was equally improper. In this
instance too, however,
there is no evidence as to the impact which
this conduct had on the marriage at the time nor on the joint
estate. I do not
lose sight of the fact that “substantial
misconduct” as set out in section 9(1) of the Act, may include
conduct which
has nothing to do with the breakdown of the marriage.
On the other hand, too much importance should not be attached to
misconduct
which is not of a serious nature. (See
Wijker
v Wijker
supra
730B-C.) Where the parties conducted their financial affairs on
the basis of separate accounts and where no evidence has
been
presented of any effect which the transgressions may have had on the
joint estate I think that this aspect should not be overstated.
[63]
What
is required of the court is to consider the three issues set out in
section 9(1) of the Act in broad terms and to then make
a value
judgment whether the plaintiff would be unduly benefitted if a
forfeiture order is not made. An undue benefit, it has been
held, is
one which is disturbingly unfair (see
Engelbrecht
v Engelbrecht
supra
at 602F). On a careful consideration of all the facts I do not
think that the plaintiff would be unduly benefited if the
joint
estate were divided equally.
Co-habitation
agreement
[64]
I
referred earlier to the co-habitation agreement allegedly concluded
between the parties. The document was concluded on 21
November
2013. Although the document provides for witnesses to the
signatures no witnessing signatures appear on the document.
The
document was concluded shortly after the plaintiff returned to the
common home in November 2013. The material portion
of the
agreement records:
“
1.
Movable assets
Neels and Jackie agreed that should
one leave the current property of 58 Hantamber(g) Street, Kamma
Heights all movable assets remain
in the property and will remain the
property of the party not leaving the property.
2.
Immovable property
2.1 Jansens
Avenue, Milnerton, Cape Town is the property of Neels and will remain
in his name and Jackie
will not claim ownership should the
relationship terminate. Neels will be solely liable for the
payment of the bond, rates
and taxed etc as well he will be
responsible for the upkeep of the property. Any alterations to
the property will be for
his account.
2.2
Sunningdale, Milnerton, Cape Town is the property of Neels and will
remain in his name and
Jackie will not claim ownership should the
relationship terminate. Neels will be solely liable for the
payments of the bond,
rates and taxes etc as well he will be
responsible for the upkeep of the property. Any alterations to
the property will be
for his account.
2.3
Chardonnay, Lorraine, Port Elizabeth will remain in both Neels and
Jackie’s names
an both will be responsible for the upkeep
thereof as well as the payment of the bond and the levies, rates and
taxes etc.
2.4
58 Hantamberg Street, Kamma Heights, Port Elizabeth will remain in
both Neels and Jackie’s
names and both will be responsible for
the upkeep thereof as well the payment of the bond and the levies,
rates and taxes etc.”
[65]
There
is considerable dispute as to the manner in which this agreement came
into existence.
[66]
The
defendant testified that after the plaintiff had again left the
common home in October 2013 he approached an attorney, one Victor,
to
represent him. Victor, of his own accord, made an appointment
with Attorney Ungerer, who had previously acted on behalf
of the
plaintiff. Victor, so the defendant says, persuaded Ungerer
that the properties in Cape Town should not form part
of the joint
estate. I pause to record that neither Victor nor Ungerer testified.
[67]
Approximately
a week after this alleged meeting had occurred the defendant states
that the plaintiff contacted him and advised him
that she wished to
return to the marital home. The defendant was reluctant and
they first met one another on neutral grounds
in a restaurant.
There he advised the plaintiff that he did not wish to proceed with
the marriage. He advised her that
he could not proceed with the
marriage and run the risk of forfeiting the Cape Town properties.
It is in these circumstances,
he says, that the plaintiff advised him
that Victor had persuaded Ungerer that the Cape Town property should
fall outside of the
joint estate. The plaintiff undertook
to draw up a document which would record this position. In
these circumstances
the defendant agreed that the plaintiff could
return to the common home on condition that such an agreement was
prepared.
[68]
Three
days after the plaintiff had returned to the common home no agreement
had been forthcoming and the defendant states that he
insisted that
such an agreement should now be drawn. The plaintiff, he says,
undertook to do so. Some days later he
again demanded the
signature of such an agreement. The plaintiff then produced the
document which was signed in his presence.
The document was stored in
his study and he states that the plaintiff was thereafter unemployed
for a period and accordingly worked
with him in his business.
The plaintiff, he says, removed the original from his study and he
was accordingly only able to
produce a copy. He states that a
relative had advised him that he should keep a copy of the agreement
at a different place
from the original and that he had then given a
copy to this relative for safe-keeping. Thus he fortunately had a
copy of the agreement.
This relative did not testify.
[69]
The
plaintiff’s version is somewhat different. She contends
that after she left the common home it was the defendant
who
contacted her and requested that they meet. She confirms that
they then met in a restaurant in Lorraine and had dinner
together.
During this meeting he requested her to return to the common home.
Although she did not immediately agree
and although she had
reservations about the wisdom thereof she states that she loved him
and that she truly believed that he would
now change. She therefore
returned to the common home.
[70]
Approximately
two weeks later after she had returned to the matrimonial home the
defendant approached her and advised her that an
agreement had now to
be signed in respect of the properties in Cape Town and the furniture
in the home. I pause to record that
the uncontested evidence is that
the plaintiff inherited a home full of furniture and that all her
furniture is currently still
in the Hantamberg property. The
plaintiff declined to sign the agreement and advised him that they
were married in community
of property. Approximately two or
three days later the parties were seated at the table near the
braai. The defendant
produced the document headed co-habitation
agreement, placed it before the plaintiff and instructed her to sign
the document.
Upon enquiry he advised her that the document
regulated the Cape Town properties. The plaintiff was defiant
and tore up the
document uttering an obscenity. She did not
sign. Shortly thereafter, the plaintiff states, that the
defendant again
approached her with a new copy of the same agreement
and placed it on the table before her. He grabbed her hair at
the back
of her head and threatened to bash her head into the table
if she did not sign. Plaintiff states that she truly believed
that he was capable of doing so and she feared that he would injure
her. She states, that in any event, she was of the opinion
that
the agreement would be void as no witnesses were present to sign and
no attorneys were involved. She accordingly applied
her
signature to the document. Once she had signed she states that
the defendant was satisfied.
[71]
Following
these events, the plaintiff states that there was no communication
between the parties for approximately two weeks.
She did not
prepare any food for the defendant and she did not eat at the common
home. She returned to the common home in
the evening, made a
cup of coffee and went to her bedroom. At times he followed her
to the bedroom, swore at her and scolded
her, however, she did not
respond. It was only after the lapse of approximately two weeks
that the defendant approached her.
He apologised to her and
acknowledged that he had a drinking problem and that he required
treatment. She was supportive of
him and offered to accompany
him to the Alcoholic Anonymous and to visit a marriage counsellor.
In these circumstances the
parties discussed their differences and
the plaintiff resolved to give the defendant one further
opportunity. The defendant
then produced the document and tore
it up in her presence, hence the reason for him being unable to
produce the original.
The plaintiff observed the destruction of
the original and noted that there were multiple signatures on the
last page. Whilst
she regarded the position as being resolved
she later retrieved the pieces from the dustbin and noted that the
defendant’s
mother and her carer had signed as witnesses to the
signatures on the original document.
[72]
I
have recorded earlier that I accept the plaintiff’s evidence of
the events. Again, notwithstanding the evidence of
the
defendant the plaintiff’s evidence in this regard was not
challenged in cross-examination. I have recorded too that Mr
Jooste
,
at the trial, did not seek the implementation of the contract but
argues that the conclusion of the contract, if freely and voluntarily
concluded as the defendant contends that it was, provides support for
the defendant’s claim for forfeiture.
[73]
In
order to avoid the consequences of a contract the party who seeks to
rely on duress must allege and prove: (a) a threat of considerable
evil to be the person concerned or to his/her family; (b) that
the fear was reasonable; (c) that the threat was of
an imminent
or inevitable evil and induced fear; (d) that the threat of
intimidation was unlawful or
contra
bonis mores
;
and (e) that the contract was concluded as a result of duress.
(See
Arend
and Another v Astra Furnishers
(Pty) Ltd
1974 (1) SA 298
(C) 360;
Savvides
v Savvides
and
Others
1986 (2) SA 325
(T) 330; and
BOE
Bank Ltd v Van Zyl
2002 (5) SA 165
(C) para [36].) It cannot be gainsaid that the
threat to bash a woman’s face into a table constitutes a threat
of considerable
evil to her. Her evidence that she believed
that the defendant would do so and that she was afraid has not been
challenged.
I consider such fear to be reasonable. I have
equal clarity as to the imminence of the danger which she described
and, in
the context of the present matter, the threat was clearly
contrary to public morals. (Compare
BOE
Bank Limited v Van Zyl
supra
at para [52].) In the circumstances I find that the agreement
is void.
[74]
In
the result, I make the following order:
1.
A
decree of divorce will issue.
2.
A
division of the joint estate is to be effected.
3.
The
plaintiff is granted leave to approach this court for the appointment
of a liquidator to attend to the division of the joint
estate in the
event that the parties have not reached agreement in respect of the
manner of the division of the joint estate within
30 days from the
date of this judgment.
4.
The
defendant is ordered to pay the plaintiff’s costs of suit.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv Pretorius instructed by Greyvensteins
Inc, Port Elizabeth
For
Defendant: Adv Jooste
instructed by Strombeck Pieterse Inc, Port Elizabeth