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[2017] ZAECPEHC 37
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L.S v L.S (2511/2015) [2017] ZAECPEHC 37 (25 July 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case
No.: 2511/2015
In
the matter between:
L
S (born …)
Plaintiff
and
L
S
Defendant
JUDGMENT
REVELAS
J
:
[1]
The
plaintiff instituted an action for divorce against the defendant in
June 2015. The parties married each other on 28 June
1996 in
community of property. Three children were born of the
marriage. The youngest daughter aged 14, is still at
school.
The eldest son (26 years old) is a candidate attorney, and the 19
year old daughter is a university student.
All three children
live with the defendant in the former family home in Summerstrand and
he takes care of their financial and other
material needs at
present. The plaintiff is a teacher by profession and the
defendant is a medical doctor. The
parties met while the
plaintiff was still a scholar. The 63 year old defendant is
fifteen years older than the plaintiff.
[2]
It
is common cause between the parties that their marriage relationship
had broken down irretrievably and the result was that the
plaintiff
left the common home in September 2014. The marriage relationship
between the parties began to deteriorate after the
plaintiff
sustained multiple injuries in a motor vehicle accident during 2008.
She spent four months in hospital and after her
release struggled to
regain her mobility and suffered from pain for a long time
thereafter. During this period she became addicted
to subscription
painkillers,
inter
alia
pethidine, which is a highly addictive drug. The defendant, a
medical doctor who first qualified as a pharmacist, testified
that
the plaintiff was in so much pain after the accident that he, out of
“
kindness”
gave
her pethidine injections every third day for a period of two months,
and did so against the advice of his colleagues. The plaintiff
did
not use any drugs or consume alcohol before the accident. According
to the defendant, since her addiction manifested itself,
the
plaintiff also began abusing alcohol. Medical records
discovered by the plaintiff and which formed part of the court
record, show that the plaintiff was admitted on five occasions to
mental health facilities (
inter
alia
,
the Elizabeth Donkin Hospital, Hunter’s Craig Mental Health
Facility and Dora Nginza Hospital). A substance abuse problem
on her
part, was noted by the personnel who attended to her.
[3]
As
is often the case in matters of this nature, each party blames the
other for the breakdown of the marriage but that is hardly
relevant
since neither party pursued forfeiture of their joint estate against
the other. The parties agreed to a division
of their joint
estate and to this end, they came to an agreement which was made an
order of court on 18 November 2016. In
terms of the order, the
issue of the division of the joint estate was separated from the
other issues (the question of maintenance
for the plaintiff) which
was postponed and are to be determined in the present proceedings.
Mr Roland Meyer was appointed
by agreement as the receiver and
liquidator in the joint estate, tasked with investigating the
existent extent and value of all
the assets comprising the joint
estate, with him being granted several extensive powers.
[4]
Mr
Meyer was required to deliver a comprehensive inventory and valuation
of the assets in the joint estate to the parties and the
Court by 7
February 2017, but he was only able to provide a preliminary report
since the accountants for both parties were not
able to provide him
the necessary financial statements particularly with regard to their
liabilities and income. The
following was listed in his
provisional report as the assets of the joint estate:
“
8.1
Immovable
Property being
Erf
[…] Ibhayi with
Improvements,
held under
Deed
of Transfer No. T1940/96PE
Market
Value
R420
000.00
8.2
Immovable
Property being
Erf
[…] Amsterdamhoek with
improvements
held under Deed
of
Transfer No. T11278/2014
Market
Value
R895
000.00
8.3
Immovable
Property being
Erf
[…] Summerstrand with
improvements
held under Deed
of
Transfer No. T16800/2014
Market
Value
R1
850 000.00
8.4
33.3%
Member’s Interest in
a
property owing Close
Corporation,
Sombeka CC
with
Erf […] Ibhayi
Market
Value of Property
R450
000.00
(UNENCUMBERED
ASSET)
R150
000.00
8.5
Loan
Account – Lunga
Soga
Trust, IT730/2000
(As
at 28
th
February 2012)
R1
171 324.00
8.6
Capital
Account – Dr.
L.N
Soga (As at 28
th
February
2012
– Surgery)
R75
550.00
8.7
Bophelo
Setshaba – Health
Care
– Shares Value
R126
110.80
8.8
PPS
– Policy No.
2013287266331
R232
317.78
8.9
Furniture
and Personal
Effects
at […] G. Road,
Summerstrand,
Port Elizabeth
R87
340.00
8.10
Furniture
and Personal
Effects
at […] H. Driver,
Bluewater
Bay
R28
500.00
8.11
Chev
Corsa
R60
000.00
8.12
2014
Chev Spark
R75
000.00
TOTAL
R5
621 142.58
”
[5]
The
only issue to be decided in this matter is whether or not to award
maintenance to the plaintiff in terms of the discretion conferred
upon courts by section 7(2) of the
Divorce Act, 70 of 1979
and
whether she should pay the costs of the divorce action. The
plaintiff claims R8,000.00 per month as and for maintenance
(in her
particulars of claim she claimed R30,000.00 per month).
[6]
In
order to succeed with a claim for maintenance, the plaintiff must
firstly establish a need for maintenance with reference to
the list
of factors set out in
section 7(2)
of the
Divorce Act. These
include the existing means of the parties, their respective earning
capacities, financial needs and obligations, their ages, the
duration
of the marriage, the standard of living prior to their divorce, their
conduct in so far as it may be relevant to the breakdown
of the
marriage, and any other factor which in the opinion of the court
ought to be taken into account.
[7]
The
defendant argued that since the plaintiff produced no evidence in the
form of receipts, bank statements or any documentation
to prove what
her expenses were, she failed to prove a need for maintenance as
foreseen in
section 7(2)
of the
Divorce Act and
therefore her claim
ought to be dismissed with costs on this basis alone.
[8]
With
reference to
section 7(2)
of the
Divorce Act, I
take into account the
following factors: The parties enjoyed a very comfortable lifestyle,
living in Summerstrand, Port Elizabeth.
The plaintiff testified that
she shopped at upmarket stores (Woolworths) and had her own car. The
family, who wanted for nothing,
also enjoyed travelling and one can
say they maintained a fairly high standard of living.
[9]
When
the plaintiff left the common home, she did so in a taxi. She
went to live with her mother and still lives there. She
finds this
arrangement unsuitable as it compares poorly with her previous
standard of living in the common home. The plaintiff
testified that
she now drives her mother’s vehicle (an unreliable Ford Fiesta)
and she is responsible for its maintenance.
She also testified that
she needed a vehicle. It is common cause that the plaintiff was
involved in at least four motor vehicle
accidents in a relatively
short period. In the last accident she wrote off her Mercedes
Benz. The defendant attributed the
accidents to the plaintiff’s
present substance abuse problems.
[10]
Both
parties contributed to the joint household. The defendant had his
medical practice and the plaintiff ran a catering business
and a
guesthouse until 2008. With the proceeds of the plaintiff’s
damages claim against the Road Accident Fund
(“the
Fund”)
,
which was settled, two houses were purchased and these form part of
the joint estate. The Fund accepted 80% liability and undertook
to
pay 80% of the plaintiff’s future medical expenses which
included physiotherapy. The plaintiff also holds a 22% share
in a
close corporation called Yonke Installations CC. She still earns
R24,000.00 per month from this business which has an asset
value of
R14 million. Her tax returns, however, show her monthly income as
R32,000.00. The defendant earns about R52,000.00
per month
nett.
[11]
During
their marriage the parties did not have medical insurance. They were
both reliant on the advice and assistance of the defendant’s
associates in the medical field. The defendant has a hospital
plan for himself. According to the plaintiff she needs
maintenance to pay for her physiotherapy as she lacks the necessary
cash to pay for it upfront in order to claim later. Apart from
a need
for a vehicle of her own, the plaintiff has not presented any
evidence as to how she arrived at the figure of R8,000.00
per month
as post-divorce maintenance.
[12]
Unfortunately,
the plaintiff and her attorney conducted the plaintiff’s case
as if the trial was concerned with forfeiture
of the joint estate by
concentrating on the fault principle, whereas the issue of the joint
estate had already been dealt with
in the manner referred to above.
The defendant was portrayed by the plaintiff as a man bent on
destroying the plaintiff emotionally
and physically.
[13]
The
plaintiff denied on the one hand that she has a substance abuse
problem, but on the other hand she accused the defendant of
giving
her drugs to render her unconscious in order to visit his paramours.
The defendant maintains that these utterances
are the result of
substance induced paranoia.
[14]
During
his testimony, the defendant described how, even after the plaintiff
left the common home, the plaintiff would be invited
home to spend
Christmas with them, just to make her feel that she was still part of
the family. However, these events would
always end in acrimony
and even violent outbursts on the part of the plaintiff. On the last
occasion the assistance of the police
had to be called. The plaintiff
also sought a protection order against the defendants whilst they
were living together. The plaintiff
claimed that she had been
assaulted by the defendant, who denied her claim. According to the
defendant the children corroborated
the defendant’s version of
the incident in question, and when all five of them had to submit to
polygraph tests regarding
the events that took place, she was the
only one of the family who failed the test. According to the
defendant, it was the
plaintiff who assaulted him during her
outbursts. The defendant described at length what the family
went through as a result
of the plaintiff’s substance abuse.
Based on the evidence before me, I have to accept that the plaintiff
struggles with an
addiction problem. Even though the defendant does
not wish to be married to the plaintiff any longer, he appeared to be
sympathetic
to her in that he tentatively conceded that “
she
needs assistance”
.
By this he did not mean maintenance. He was referring to her drug
addiction problem. The defendant testified that the plaintiff
used to
come to his practice, desperately looking for drugs (pethidine) and
that she also raided his doctor’s holdall (suitcase)
with the
purpose of finding drugs. He also testified that presently she has a
supplier who sells her drugs without a prescription.
[15]
I
considered, even though it was not argued or pleaded, whether the
plaintiff’s need for assistance (the defendant’s
words)
could justify an award for maintenance for a limited period, subject
to her entering a drug therapy programme. However,
this would
amount to penalizing the defendant for something the plaintiff must
take most of the responsibility for. In any
event, that was not
the relief sought by the plaintiff.
Discussion
[16]
A
divorce terminates the reciprocal duty of support that existed
between spouses.
[1]
No spouse in a divorce action has a right to post-divorce
maintenance.
[2]
The discretionary language of
section 7(2)
of the
Divorce Act confers
a judicial discretion on a court deciding upon whether to award
maintenance or not.
[3]
The purpose of the court’s enquiry in terms of
section 7(2)
is
to determine what award would be just. Therefor an award “
must
contain a moral component of what is thought to be ‘right’
and ‘fair’. Fairness envisages that
the order is
‘appropriate’ as between parties and when measured
against all the factors specified in
section 7(2)
and those others
which should also be taken into account.”
[4]
[17]
The
plaintiff has not been rendered indigent by the breakdown of the
marriage. The plaintiff has an existing income which she can
supplement by taking up her catering and guesthouse business. There
is no reason why she, if she attends psychotherapy and physiotherapy
on a consistent basis, could not manage that. In any event, the
plaintiff did not produce any evidence in the form of accounts
from,
or visits to, a physiotherapist or psychotherapist. In this
regard, I take into account that the Fund has undertaken
to pay 80%
of her future physiotherapy and medication. The plaintiff is also
much younger than the defendant (she is 48 years old)
and has several
economically active years ahead of her, given her abilities. She is
also about to receive an amount of R2,810,571.29
upon division of the
joint estate. If she utilizes this money wisely she could continue
her guesthouse and catering business.
[18]
Apart
from the fact that the plaintiff did not present sufficient evidence
to substantiate her claim for maintenance in the amount
of R8,000.00,
her testimony in court was unreliable. Whereas the defendant’s
testimony was supported by the probabilities,
the plaintiff’s
testimony was fraught with contradictions. For instance, the
plaintiff testified that the Ford Fiesta
she bought for her mother
was inoperative. Later it transpired that she drove the same vehicle
to court. She pleaded that the defendant
forced her out of the common
home. This is contradicted by her evidence in court that she left
home by her own volition. I also
gained the impression that the
plaintiff embellished her evidence about the defendant’s
conduct towards her. He was
also put through most unfair
cross-examination on her behalf.
[19]
For
all the aforesaid considerations I am unable to find that the
plaintiff has demonstrated a need for maintenance and her claim
in
this regard cannot succeed.
[20]
The
defendant argued that the plaintiff ought to pay the costs of the
trial in accordance with the usual rule that costs should
follow the
event. Several grounds were set out, in particular that she
persisted with her monetary claims for personal benefit.
This
is quite a common phenomena in divorce cases. In my view, there is no
reason to depart from the general rule in divorce matters
regarding
costs, i.e. that the parties to a divorce action should pay their own
costs.
[21]
In
the result the following order is made:
1.
A
decree of divorce is hereby granted.
2.
The
plaintiff’s claim for post-divorce maintenance is dismissed.
_____________________
E REVELAS
Judge
of the High Court
Appearances
:
For
the plaintiff: Mrs Ndlovu of D.N. Ndlovu & Associates, Port
Elizabeth
For the defendant: Adv Potgieter
instructed by Mark Rossouw Attorneys, Port Elizabeth
Date
heard: 31 May 2017 – 01 June 2017
Date
delivered: 25 July 2017
[1]
Hahlo : The
South African Law of Husband and Wife (5
th
ed) at 354.
[2]
Strauss v
Strauss
1974
(3) SA 79 (A).
[3]
Portinho v
Portinho
1981
(2) SA 595
T and
Botha
v Botha
[2008]
JOL 21900 (W).
[4]
Botha
para
[46]. See also Friedman JP’s definition of ‘
just’
in
Pienaar
v Thusano Foundation and Another
1992
(2) SA 552
(B) at 580 D – F (in the context of an insolvency
enquiry).