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[2019] ZAECPEHC 38
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A.A v L.A (707/2018) [2019] ZAECPEHC 38 (18 June 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE
NO:
707/2018
Date
heard
:
03 June 2019
to
06 June 2019
Date
delivered
:
18 June 2019
In
the matter between:
A[...]
A[...]
Plaintiff
and
L[…]
A[...]
Defendant
JUDGMENT
LOWE,
J
:
INTRODUCTION
[1]
In this matter A[…] A[…] in an action, seeks a decree
of
divorce, division of the joint estate, primary care of the
parties’ minor child, I[..] (seven years of age), maintenance
for herself until death or remarriage, maintenance for I[…],
50% of Defendant’s pension retirement fund and costs.
[2]
Defendant places in issue only Plaintiff’s claim for life
maintenance
(tendering rehabilitative maintenance for 24 months at
R4,000.00 per month and medical aid expenses (counterclaim prayer
(e));
the question of the quantum of maintenance for ILKE (tendering
R4,000.00 per month and medical aid expenses) and costs.
[3]
Each blame the other for the breakdown of their marriage which they
agree
has occurred.
BACKGROUND
[4]
In essence then at the trial the issues were:
[4.1]
Whether Plaintiff is entitled to lifelong maintenance or only
rehabilitative maintenance;
[4.2]
The quantum of Plaintiff’s claim whether lifelong or
rehabilitative;
[4.3]
The quantum of I[…]’s maintenance;
[4.4]
The fault issue as to the marital breakdown; and
[4.5]
Costs.
[5]
In her evidence Plaintiff reduced her maintenance claim somewhat from
the pleaded claim of R20,000.00 per month (together with medical
expenses), with R6,000.00 per month for I[…] (plus medical
expenses and school expenses), to R9,000.00 per month for herself and
R5,000.00 per month for I[…] together with the retention
of
both on his medical aid at his expense, any top up on medical
expenses required and I[..]’s school fees and related school
expenses including clothes, stationery and extra mural expenses.
It appears to be common cause that at least I[…]’s
expenses and maintenance will increase annually by the Consumer Price
Index.
[6]
The division of the estate as agreed will render a return to
Plaintiff
of between R600,000.00 and R650,000.00 (at best), being her
portion of Defendant’s Pension Fund after tax (R460,000.00) and
her portion of the parties’ jointly owned property in Dispatch,
if sold (the sum of approximately R200,000.00 less expenses).
Defendant in turn retaining his share of the fund not yet realisable,
and his half interest in the Dispatch property.
[7]
Neither of the parties have any other appreciable assets which bear
significantly
on the issues.
[8]
Whether the Dispatch property is to be sold is not yet agreed.
It
is presently rented to Defendant’s parents with whom
Defendant now lives at a rental of R7,500.00 per month accruing to
the
parties as a matter of law in equal shares, although presently
collected and kept entirely by Defendant to which Plaintiff has no
objection, providing he meets her maintenance claim.
[9]
Plaintiff is unemployed. She has no appreciable assets (other
than
as set out above) and no income (apart from the half rental
referred to above in theory). She has a matric qualification
and nothing else and has worked for a total of eight months in her
life, six as a Butchery cashier and two as a childminder.
[10]
She has no qualifications other than the above and in essence having
married at 21 years
of age devoted the remainder of her time and
effort to the parties three children, home and family. It
should be said that
it is uncontested that she did this in an
outstanding way without any paid or unpaid help. She held the
family together and
saw to their comfort and sustenance. She
did all the household and garden chores single handed, cooked, washed
and did the
home improvements and repairs herself. On an
occasion she painted the family home inside and out. None of
this
was challenged and it must be accepted that she put herself
second, her family first, and did an admirable job of supporting all
including Defendant, a Construction foreman, away from home a good
deal of the time. They lived well and wanted for nothing
having
a good standard of living and occupying a desirable home, they also
each having a good quality motor vehicle.
[11]
To his credit Defendant acknowledged her effort and success in this
regard saying in summary
she had made it possible for him to do what
he needed to.
[12]
The parties have three children, the two older children being girls,
majors and still not
self-supporting. All three live with
Plaintiff in an extremely small two bedroom flat. The parties
sensibly co-operate
in respect of sharing I[…] between them at
weekends and the like. To both their credit they show
care and understanding
in respect of their parental responsibilities
towards I[…].
[13]
It transpired during the evidence that there was not, nor could there
be, any real criticism
of Plaintiff as a wife or mother over the 21
years of marriage.
[14]
Defendant’s anger, resentment and frustration, vigorously
expressed in his evidence,
was simply that in late 2017 Plaintiff
informed him that she wanted a divorce. This, he said, pulled
the carpet from under
his feet and his view is that the divorce,
being her idea, is thus her fault and that this being so she must
literally pay the
price financially and otherwise.
[15]
Attempting to step into my shoes as Judge, he pronounced with fervour
that she would get
no more than twenty-four months rehabilitative
maintenance, or as he put it “
not one day more”
.
[16]
As to Defendant’s contributions to this breakdown, Plaintiff
said that in the last
few years of the marriage, after they had moved
to a new home which needed considerable repairs and refurbishment for
which she
was solely responsible, Defendant began to make
unreasonable intimate demands on her in exchange for consenting to
and providing
financially for the house refurbishment. She said
this caused her to want a divorce allied to her previously, finding
Defendant
communicating intimately with a friend of hers. She
later trapping him again in this (having overlooked the earlier
transgression).
In essence her evidence, again not
significantly challenged on this, was simply that she felt intimately
used for Defendant’s
own pleasure and not as a loving husband.
[17]
As is apparent hereafter this is all that need be said in respect of
both relevant to the
breakdown.
[18]
Plaintiff’s earning capacity can be simply dealt with.
Against her eight month
employment more than twenty years ago and her
lack of qualification she is, though theoretically employable, but in
reality in
the modern workplace in a position in which her chances of
finding any employment are remote in the extreme. She may
indeed
be able, given time, to take some courses in computer use and
software programs to give her computer literacy but even then will
only place herself as a competitor in the “
lower level
occupational echelons”,
which will inevitably on the
probabilities be filled by what was referred to as “
equity
candidates”
and most probably she would not then gain
employment. Even were she to obtain employment, against all
odds, this would at
best be an entry level position earning R2,000.00
to R3,000.00 per month.
[19]
This factual position was set out by expert David Williams of
Executive Recruitment clearly
well versed in the relevant
employability assessment of Plaintiff. His evidence went
effectively unchallenged by Defendant
as it was in fact
unchallengeable.
[20]
In the result for all intents and purposes in this matter, Plaintiff
must be treated on
the probabilities as being extremely unlikely to
gain employment, and if she did, this would render a return of at
most R2,000.00
to R3,000.00 per month.
[21]
That this is in fact so, is borne out by her unsuccessful attempts to
gain employment on
several occasions – this no surprise.
[22]
What remained in dispute against this background was simply the
question as to whether
or not maintenance for Plaintiff should be
limited to rehabilitative maintenance; the quantum of her maintenance
claim and that
of I[…], as adjusted (which was persisted in);
as also the question of the costs of the action.
[23]
I must say that on the facts I should make it clear that the sums
claimed above will
not serve to maintain Plaintiff in the same
style or to the standard she enjoyed during the marriage, by any
means.
THE
RELEVANT FURTHER FACTS
Defendant’s
financial position, earning capacity and income
[24]
Defendant, so it transpires, holds a 50% members interest in
Anderson’s Process Instrumentation
CC (“API”)
formed in 1996, the other member being his father Leon (Snr).
He became a 50% member in 2006.
[25]
On the discovered documentation Defendant attempted to lay the basis
for an argument that
this holding was in a family business for
“
estate purposes”
and that he did not share “
in
profit or losses”.
[26]
In an API document, admittedly signed by Defendant, it was said that
on 3 April 2018 (one
month after summons) he resigned as member and
that he had not benefited from any profit “
unless paid from
specific vendor of....” (sic)
API – this all
supported by an API resolution to the same effect concerning his
resignation of the same date.
[27]
In his evidence however Defendant admitting his signature, improbably
said he had no knowledge
of this document and vigorously maintained
that he was still a 50% member of API.
[28]
This was extraordinary evidence to say the least having regard to the
documentation and
lays the basis for Plaintiff’s argument that
Defendant, and his now employer API, were attempting to paint a false
picture
of his position and holding in API, which fell apart in
cross-examination.
[29]
It was clear that API was a profitable business and one which there
can be no real doubt
benefits Defendant as member and employee.
The fact that his interest therein was obfuscated redounds to his
prejudice –
and it can only be so that his financial position
was more advantageous than he would have this Court believe.
[30]
Apart from this the only remaining asset the parties have is their
jointly owned house
in Dispatch already referred to above worth at
most R500,000.00 (and which is debt free) rendering a rental of
R7,500.00 per month.
[31]
For the rest there is simply furniture and personal effects and in
Defendant’s case
a Ford Ranger LDV which has been held out
unconvincingly to have effectively been taken over by API.
[32]
This itself was a deeply flawed unconvincing piece of evidence from
Defendant.
[33]
He said that as he could not afford the vehicle repayments due to the
bank monthly, API
was making these, as a loan to him, and had taken
over the vehicle for its business use and that as he still used it
privately
from time to time his API salary was debited as to
R1,280.00 per month.
[34]
This all makes no sense at all. If the vehicle was taken over
for business use there
can be no sense in an allegation that he still
had to repay payments as a loan and still also had to pay for the
private use thereof.
In cross-examination he could not explain
this at all.
[35]
Again the only conclusion that can be reached is that this was a
further attempt to mislead
as to his true financial position as a
joint effort between himself and API, of which his mother is
responsible for accounts and
salary slips.
[36]
His API April 2019 salary slip shows a gross salary of R20,000.00 per
month with deductions
of R4,472.00 giving a net salary after tax of
R15,528.00. This includes the LDV deduction and R325.00 for
cellphone, tax
and UIF.
[37]
Against the API documents and clear intention to mislead this salary
slip is hardly convincing.
Further from the evidence I accept
that Defendant earned substantial cash sums monthly from his father
by supplying piping to the
business paid in cash which suddenly
allegedly dried up after summons.
[38]
Defendant is a construction foreman apparently expert in concrete.
He had worked
as such for many years earning a substantial income
which kept the family in fine style all through the years, they
enjoying a
high standard of living. This was not contested in
any way.
[39]
At the time of the issue of the summons he worked for WBHO in
construction as a foreman.
To round out the numbers he earned a
net income of approximately some R46,000.00, a gross income of
R58,616.75 per month.
Prior to this he had more than this since
2014 when working for Haw and Inglis Civils.
[40]
He resigned from WBHO on 28 February 2018 as a result he said, mainly
of the issue of divorce
summons, he wanting to work on his marriage
and suffering from stress and depression.
[41]
He then took up his current position with API.
[42]
Plaintiff says credibly which was hardly contested, that Defendant,
when she told him she
was to divorce him, said she would suffer
financially as a result and that he would see to it she did so.
Indeed this has
come to pass.
[43]
Defendant in his evidence made it very clear, as I have said, that as
Plaintiff wanted
a divorce, and not he, that she would and should
gain no financial benefit as maintenance beyond 24 months
rehabilitated maintenance.
[44]
I have no doubt whatsoever that Defendant set out to do all in his
power to make good on
his threat to the extent of being complicit in
reducing his income (or holding out falsely that it is less than in
fact it is)
and effectively failing to be either forthcoming or
honest about his true financial position and real income.
[45]
Not only did he dramatically reduce his income by resigning but then
was complicit in failing
to honestly disclose his real earnings from
API and his interest and financial gain therefrom.
[46]
Apart from what I have pointed out above counsel for Plaintiff in her
heads correctly
pointed out that:
“
17.3
He was unable to explain why he stated in his first Rule 43
affidavit, dated 14 August 2018, that he was
earning a gross income
of R20 500 per month from his employment with API and that deductions
were made in respect of a medical
aid and pension, whereas his salary
advices of June to August 2018 all show that he earned a gross income
of R20 000 and that deductions
were made in respect of a cellphone
and the use of his bakkie (and not in respect of a medical aid or
pension).
17.4
He was unable to adequately explain why he completed a list of income
and expenditure, which he signed
on 25 April 2018, on which he stated
that he earned a gross salary of R20 500 and that deductions were
made in respect of a medical
aid, pension and “
other”
when, on his version in court, he only commenced working for API
on 1 June 2018 and at a gross salary of R20 000.
17.5
He was unable to explain why his first, pre-amended plea (dated 18
April 2018), state that “
he has been employed by Anderson
Process Instrumentation CC from the 1
st
of
April 2018 at a salary of R24 000 per month)”.
His
explanation that the amount of R24 000 could have referred to his
nett salary and the rent which he receives, is nonsensical
because
his nett monthly income from these two sources is R23 028 and not R24
000 and the plea does not refer to rental income
at all.
17.6
He was unable to explain why his amended plea (dated 31 July 2018)
states that “
he would be employed by Anderson Process
Instrumentation CC from the 23
rd
of April
2018 at a salary of not more than R24 000 per month”.
17.7
He was unable to explained why he stated during the evidence in chief
that he received “
nothing”
from the proceeds of
the sale of the Framesby home, when an amount of R26 333.12 was paid
into his account on 5 February 2019 from
the proceeds and he was
entitled to receive a further R105 481 from the proceeds, which he
used to pay his former attorneys.
17.8
During evidence in chief, he testified that the cash deposits that
were made into his account were
in respect of two loans which he had
made to his father. During cross-examination, he stated that
both loans had been settled
fully in 2017 already. He was
unable to explain what the source was of the R2000 that was deposited
in cash into his account
on 5 February 2018 or the R17 500 that was
deposited in cash into his account on 10 February 2018.
...
18.
In the letter in which the defendant tendered his resignation as a
member of API and which
he signed, he stated that he did not benefit
from any profit of API “
unless paid from a specific vendor
of Andersons Process Instrumentation...”.
On his
version, he is again a member of API and it is submitted that he is
benefitting from its profit, at least to some
extent, based on this
letter.
19.
According to the defendant’s trial particulars, he earned a
nett monthly salary of
R17 300 from his employment with API when he
was employed with them in the same position from February 2016 to May
2016.
The plaintiff testified that she does not believe that
the defendant would be paid a lower salary by API now than what he
was paid
by them three years ago.
...
22.
Considering:
22.1
the plaintiff’s evidence that the defendant receives an
additional income
in cash (which cash deposits he
was unable to explain);
22.2
the fact that the defendant pleaded that he receives a gross income
of R24 000;
22.3
the fact that the defendant received an income of approximately R2000
more from the same employer three
years ago;
22.4
the fact that the defendant’s resignation letter from API’s
membership states that he shares
in some of API’s profit;
and
22.5
the fact the defendant is clearly being untruthful about his true
income it is submitted that this
Honourable Court can reasonably find
that the defendant receives a nett income of at least R20 000 per
month, as well as a rental
income of R7 500.”
[47]
I can only but agree with the above. Whilst I must deal with
the reality of Defendant’s
reduced income from his days as
construction foreman, it is clear that he has been complicit in
attempting to mislead and it clearly
must be accepted that his actual
income is considerably more than he has disclosed and clearly as
counsel for Plaintiff has suggested,
at least R20,000.00 per month
net with rental income of R7,500.00, a total net of R27,500.00 of
which technically Plaintiff is
due half rental of R3,750.00, though
it seems all except that this should be treated as part of his
income.
[48]
In short Defendant, unlike Plaintiff, was a poor witness to say the
least, clearly angry
and determined Plaintiff must suffer financially
and prepared to tailor his evidence to see to it that this happens.
[49]
I should say that I accept his version of stress and anxiety, but
formed the view that
even this is somewhat exaggerated and used in an
attempt to bolster his alleged limited financial means.
[50]
Again in summary the parties’ respective financial position and
circumstances are
set out below, but it must be said that it is
essentially common cause that Plaintiff is at least currently unable
to support herself
either in the same style as previously was the
case, nor even in a style approximating this, she having a
substantial shortfall
between her limited claim and her reasonable
needs.
[51]
Plaintiff earns a rental income of R3,750.00 per month as set out
above, and has an essentially
admitted need of R14,000.00 per month
for herself and I[..] together with medical aid, school expenses and
the like. She
owns no assets of any description, save the
furniture in the home and the motor vehicle, and the proceeds from
the pension fund
which is a relatively small sum and which will
assist her for a limited time into the future.
[52]
In marked contradiction Defendant is in a far better financial
position.
[53]
He has a 50% members interest in a close corporation which was not
valued.
[54]
It was alleged, and not successfully contested, that his member’s
interest in the
close corporation remains so.
[55]
It should be said immediately that against this background, it was
clearly Plaintiff’s
case that she was unlikely to improve her
income earning ability in the future, nor was it seriously contested
that this was the
case, it not being put or challenged in any
meaningful way, nor was it suggested in what form or how she would
ever become self-supporting
– even at the reduced style in
which she now lives.
[56]
Whilst there can be no doubt that the Defendant is a hard worker and
more than competent
construction foreman, his suggestion that he had
a limited net income of R15,500.00 per month did not stand careful
scrutiny.
He certainly has the real ability to earn more even
though he downplays his ability to secure such employment in the
future.
[57]
In summary, against this background, Plaintiff’s financial
monthly needs are as set
out hereafter, there being no evidence to
suggest, even remotely, that she would be able to earn anything like
this herself at
any time in the future. This was established in
my view, and I find accordingly she has a continuing reasonable need
that
she would be unable to meet herself at anytime in the future, on
the probabilities. Indeed I do not understand this to have
been
seriously contested and the contrary was certainly not put to
Plaintiff.
[58]
Whilst, as I have said, Defendant contended unconvincingly for a
limited net income of
R15,500.00 per month and no recourse to other
sources, he clearly has the ability to grow his income, and probably
access to funds
from the business.
[59]
It was not suggested that Plaintiff would reasonably be able to
reduce her monthly needs,
and indeed it cannot be gainsaid that she
lives at a standard considerably less than she used to do so.
THE
FAULT ISSUE
[60]
A detailed
analysis was made of conduct as a factor in the award of maintenance
under the Divorce Act in
Swart
v Swart
[1]
. In his judgment
Flemming J made the following important observations:
[60.1] As far
as marriage is concerned, an overall picture must be formed.
The court must not try to assess the
moral blameworthiness of the
parties’ conduct but try to identify that conduct which has
really caused the breakdown.
Thereafter considerations of
justice must prevail in the determination of maintenance;
[60.2] The
Court rejected the argument that only serious conduct was a factor
which the Court should consider, stating
that this was not indicated
by the relevant clause. He pointed out that the legislature has
not prescribed how much weight
any factor was to carry;
[60.3] It
would be regrettable if conduct, which was no longer the determining
factor in granting a divorce, was nevertheless
to play an important
role in,
inter alia
, the determination of maintenance, and
that the court should not engage in a close analysis of the parties’
conduct during
a long period prior to the divorce, but this does not
justify the premise that conduct is now irrelevant. The view that
both are
usually to blame for the breakdown, leads to a more fluid
and therefore more equitable approach;
[60.4] In the
English case of
Wachtel
v Wachtel
[2]
it was held, with reference to analogous legislation, that only
“gross and obvious” conduct should be taken into account.
In
Swart
(supra)
,
however, the learned Judge found that the legislature had not
indicated such a restriction; and he preferred to apply the test
of
what would be just, but conceded that frequently the two approaches
would lead to similar results.
[61]
See also
Grasso
v Grasso
[3]
with regards to misconduct, where the Court stated that where
misconduct was gross, fault assumed a greater relevance.
[62]
I have
carefully considered
Botha
v Botha
[4]
.
The
matter is easily distinguishable on the facts and is not analogous.
Of course I accept what is set out therein as to neither
spouse
having a right to maintenance
[5]
;
that the Court has a general discretion
[6]
in this regard; that a just result must be achieved
[7]
.
I have some difficulty with the proposition at paragraph [46]
that what is just carries a moral component, though I accept
completely that fairness and justice must be achieved as best
possible. In this matter I have avoided moral judgment on the
breakdown issue as opposed to simply identifying conduct which really
led to the breakdown – then applying considerations
of justice
in the determination of maintenance. I also accept that there
is no entitlement, without the facts justifying
same, for a spouse to
be maintained at the same standard as during the marriage
[8]
.
[63]
In short, in this matter, I have no intention, on the evidence before
me, of attempting
to assess the moral blameworthiness of the parties’
conduct, but rather look at the conduct itself to establish if there
was any substantial conduct on either side which was a substantial
reason for the breakdown. From what I have already said
above,
it becomes apparent that at this stage in the marriage between the
parties, which had been happy for some time, the marriage
relationship and their previous friendship had broken down.
[64]
In my view however, it would be entirely wrong to lay any particular
emphasis on the conduct
of either of the parties as the primary or
main reason for the breakdown of the marriage (as opposed to the
decision to end same).
They were both parties to what caused
the breakdown of the marriage, and in my view, the considerations of
justice which must prevail
in the determination of maintenance should
not be affected either way in this regard. Both were to blame
for the breakdown,
for different reasons and I would err if I were to
find that one or other solely caused this.
MAINTENANCE
[65]
Section 7(1) of the Divorce Act, 70 of 1979
(“the Act”)
determines as follows:
“
(1)
A Court granting a decree of divorce may in accordance with a written
agreement between the parties
make an order with regard to the
division of assets of the parties or
the payment of maintenance by
the one party to the other.
” (Own emphasis)
[66]
Accordingly, in the absence of an order for payment of maintenance in
terms of subsection
(1) the provisions of Section 7(2) of the Act
becomes relevant:
“
(2)
In the absence of an order made in terms of subsection (1) with
regard to the payment of maintenance
by the one party to the other,
the court may, having regard to (a) the existing or prospective means
of each of the parties, (b)
their respective earning capacities, (c)
financial needs and obligations, (d) the age of each of the parties,
(e) the duration
of the marriages, (f) the standard of living of the
parties prior to the divorce, (g) their conduct in so far as it may
be relevant
to the break-down of the marriage, an order in terms of
subsection (3) and (h) any other factor which in the opinion of the
court
should be taken into account, make an order which the court
finds just in respect of the payment of maintenance by the one party
in whose favour the order is given whichever event may first occur.”
[67]
In the
matter of
Grasso
(supra)
[9]
the Court held that
not one factor is more important than the others, as follows:
“
In setting forth,
in
s 7(2)
of the
Divorce Act 1979
, the various factors to which the
Court is to have regard when considering the payment of maintenance
upon divorce, no particular
stress was laid on any one or more of
these factors, and they are not listed in any particular order of
importance or of greater
or lesser relevance. The proper
approach, it seems to me, is to consider each case on its own merits
in the light of the
facts and circumstances peculiar to it and with
regard to those factors set out in this particular section of the
Divorce Act – which
list of factors is clearly not exhaustive
of what the Court is to have regard to in deciding what maintenance
(if any) is to be
paid upon divorce by one spouse to the other, for
the Court is free to have regard to any other factor which, in it
opinion, ought
to be taken into account in coming to a fair and just
decision.”
[68]
Taking into
account the factors referred to above in respect of those issues
which must be considered in ordering maintenance, it
is clear from
the authorities that none of the factors relevant are dominant.
Essentially it is the question of requirement
and need on the one
hand and the ability to pay on the other which are two important
considerations which must be considered together
with other factors
relevant. It is in essence
section 7
of the
Divorce Act should
be seen in the context of ensuring fairness between the parties.
See
Nilsson
v Nilsson
[10]
.
I refer also to what I said about
Botha
(supra).
[69]
Insofar as
Plaintiff’s financial needs are concerned she will be using her
household budget to run a family home albeit for
herself, the minor
I[…] and two adult but dependent children. In my view,
Plaintiff in this regard incurs an obligation
as envisaged in
Section
7(2)
, even though the major daughters have an independent claim to
maintenance from Defendant. The cost of providing for
dependents
can and should, in my view, be brought into account
[11]
.
In this matter only one of the major two children will earn any
income at all, presently this a very small sum.
Plaintiff
will effectively maintain them and her claim could legitimately have
included this as an obligation for the purposes
of
Section 7(2).
[70]
It does not, but the evidence nevertheless establishes that at least
part of her rental
claim should be apportioned to the major children
as she reduced this accordingly. Also it is clear she provides
a home and
sustenance. In the result this makes her claims even
more reasonable than they already are.
[71]
As to the
consequences of not being frank about one’s financial position,
as was Defendant, this is certainly relevant to
the overall decision
in favour of Plaintiff
[12]
.
[72]
In this matter, it cannot be said that Plaintiff, a wife of
long-standing, had merely shared
Defendant’s bed and kept
house. She cared for the children and did everything required
for the family contributing,
quite apart from her having maintained
the joint home, by supporting the ability of her husband to do what
he did at work, when
away from home for long periods. It should
be said, in my view, that the facts of this matter in no way bring
Plaintiff within
an argument that a wife who has not worked during
the marriage is entitled to no more than rehabilitative maintenance.
Cf
Grasso
(supra)
.
[73]
Not only is the Plaintiff relatively far from being young, but she
has a young child and
previously enjoyed a high standard of living.
There can be no reasonable prospect that she is able to
meaningfully retrain,
or has the ability to do so nor is there, on
the probabilities, a prospect of a greater earning capacity. In
reality in the
trial, and for good reason, this was not seriously
even put to her. Her financial need is more than established on
a reasonable
basis, and is not such as to place her in nearly the
same standard of living as was previously the case.
[74]
I have
fully considered the existing and prospective means of each of the
parties, their respective earning capacity, their financial
needs and
obligations, their age, the duration of the marriage and the standard
of living prior to the divorce as also all other
relevant factors.
I have considered their conduct and expressed my view on such as it
may be relevant to the breakdown
of the marriage, and have traversed
the parties’ current financial situation. This is
relevant both to the principle
of an award of maintenance as opposed
to rehabilitative maintenance only, and the quantum thereof. In
this matter there will
be no really meaningful transfer of assets
between the parties, Plaintiff remaining in straitened circumstances
with no capital
assets of any description, save the pension fund and
say R225,000.00 interest in the Dispatch property. I have not
treated
any of the factors above as dominant, and taking all the
above into consideration have also had regard to the reasonable need
of
the Plaintiff and the ability of the Defendant to meet same
[13]
.
[75]
In my view, taking all these factors into account, and to effect
fairness and justice between
the parties, there can be no question
but that Plaintiff has established an entitlement to maintenance
until her death or remarriage.
THE
PARTIES FINANCIAL NEEDS AND OBLIGATIONS
[76]
Defendant’s claimed personal monthly expenses:
Discovery
Medical
R4,564.00
Momentum
Retirement Annuity
R605.00
Electricity
R400.00
Cape
Union Mart Clothing Account
R450.00
Church
Offerings
R400.00
Gym
on Doctors recommendation
R260.00
Absa
funeral plan
R42.00
Building
Insurance
R145.40
Minor
Daughter Future Plan Policy
R350.00
Pills
for 2x Major daughters
R400.00
Fuel
R1
000.00
Phone
R300.00
Food,
Toiletries
R1 000.00
Total
R9 916.40
[77]
Of this I intend to disallow the following as non-essential expenses
in the light of Plaintiff’s
and I[…]’s needs:
Momentum
Retirement Annuity
R605.00
Church
offerings
R400.00
Gym
R260.00
Phone
(already deducted from his salary)
R300.00
Total
R1 565.00
Defendant’s
Needs Total
R8 351.40
[78]
Of the medical aid a sum of R1,790.00 should further be deducted as
I[…]’s
part of medical aid giving total need of
R6,561.00 as claimed in his evidence.
PLAINTIFF’S
AND I[…]’S NEEDS
:
[79]
These have been very modestly stated.
Rental
R1
285.00
Lights
and water
R171.42
Groceries
R3,000.00
Petrol
R1,000.00
Hair
Care
R200.00
Toiletries
and Cosmetics
R750.00
Household
Cleaners
R200.00
Casual
Clothing and Shoes
R600.00
Entertainment
R600.00
Motor
Vehicle Insurance
R335.00
Motor
Vehicle Maintenance
R200.00
Additional
Medical Expenses not covered by Medical Aid
R200.00
Cell
Phone
R100.00
DSTV
R250.00
Reading
Materials
R100.00
Replacement
of Household Items
R200.00
Total
R9,191.42
[80]
From Plaintiff’s list of monthly expenditure, the amount of
R200.00 in respect of
additional medical expenses must be deducted,
as a separate order is prayed for in respect thereof. This
reduces Plaintiff’s
monthly expenses to R8,991.42 (excluding
her medical aid and medical expenses not covered by the medical aid),
which should be
rounded off to R9,000.00.
[81]
Plaintiff is claiming an amount of only R1,285.00 in respect of
herself for rental and
an amount of R642.50 for rental in respect of
the minor. This amounts to a total of R1,927.50, even though
the monthly rental
is R5,500.00.
[82]
The parties’ dependent children reside with Plaintiff and are
not contributing to
the rent. Plaintiff’s undisputed
evidence was that Defendant is not contributing anything towards the
dependent children’s
expenses, other than paying for their
medical aid and R400.00 towards their medical expenses and that she
has been maintaining
them. The parties’ eldest daughter
has not obtained employment where she will earn R25.00 an hour and
work eight hours
a day on four days a week. She will thus earn
roughly R3,200.00 per month.
[83]
From the minor’s child’s list of expenses, the following
amounts must be deducted
because Plaintiff seeks a separate order in
respect of these expenses:
Additional
medical expenses
R200.00
Hip
Hop
R116.00
School
outings
R300.00
School
extras
R150.00
School
clothing
R200.00
Total
R966.00
[84]
This reduces the minor child’s monthly expenses (excluding her
scholastic expenses,
medical aid and medical expenses not covered by
medical aid) to R5,321.37, which Plaintiff rounded off to R5,000.00.
This
claim for I[…] as set out in the evidence is very
reasonable.
[85]
The claim in respect of Plaintiff and I[…] is thus moderately
placed as follows:
Per
month
Plaintiff
R9,000.00
I[..]
R5,000.00
Plaintiff
Medical Aid
R1,190.00
I[…]
Medical Aid
R1,760.00
Additional
Medical Expenses Plaintiff
R200.00
Additional
Medical Expenses I[…]
R200,00
I[…]
Estimated School Expenses
R760.00
School
fees
R1,300.00
Total
Needs I[…] and Plaintiff
R19,410.00
[86]
The school fees have been paid for 2019, thus until January 2020 the
sum needed is thus
reduced to R18,110.00 and will be R19,410.00 from
January 2020.
[87]
The result for Defendant is as follows:
Estimated
Real Net Income at least
(including
the full R7,500.00 rental income)
R27,500.00
Less
Plaintiff & I[…] Needs (to December 2019)
R18,110.00
Less
Defendant’s Needs
R8,351.40
Surplus
(Defendant)
R1,038.60
From
January 2020 with the addition of school fees
a
notional shortfall
-R261.00
COSTS
[88]
As to costs, there can be no doubt that the Defendant put Plaintiff
in the position where
she had to proceed with the trial in order to
succeed in her substantial maintenance claim as to its principle, and
the quantum
thereof for both herself and I[..]. The trial
proceeded, notwithstanding that I urged upon the parties to spend the
litigation
costs more sensibly on the family, which sadly bore no
fruit.
[89]
At the end of the day, I consider Plaintiff to have been
substantially successful in all
her claims – this was a
substantial matter hard fought by experienced counsel and justifiably
brought in the High Court.
The Plaintiff was met with an
angry, intransigent, uncooperative and in respects deceitful
Defendant and sadly had no choice but
to proceed in the face hereof.
Whilst I have a wide discretion as to costs especially, in
matrimonial litigation, there can
be no doubt in this matter that
justice and equity greatly favour a costs order in Plaintiff’s
favour.
[90]
In the result, I make the following order:
1.
A decree of divorce dissolving the marriage between the parties is
granted.
2.
A division of the joint estate is ordered.
3.
Plaintiff and Defendant shall be co-holders of parental
responsibilities and
rights in respect of the minor child, I[..]
A[…], as provided for in
Section 18(2)
and
Section 31(1)
of
the Children’s Act 38 of 2005, subject to the provisions set
out below:
3.1
The minor child shall have her primary place of residence with
Plaintiff, who shall be the
minor child’s primary caregiver.
3.2
Defendant shall have reasonable contact with the minor child, having
regard to her social,
school and extra-mural activities.
4.
Plaintiff and Defendant shall make joint decisions as to major
decisions regarding
the minor child’s schooling, mental and
medical healthcare, religious and spiritual upbringing and any
decisions as to their
residence likely to change her living
conditions significantly or have an adverse effect on her wellbeing,
as provided for in
Section 31
of the Children’s Act 38 of
2005.
5.
Defendant shall contribute as follows towards the maintenance of the
parties’
minor child I[…] A[…], until such time
as she becomes self-supporting:
5.1
payment of the sum of R5,000.00 per month, which shall be paid into
Plaintiff’s bank
account, nominated by her in writing from time
to time, by no later than the 1
st
day of every month,
commencing on 1 July 2019;
5.2
payment of 100% of the minor child’s school fees;
5.3
payment of 100% of the minor child’s reasonable scholastic
expenses, including but
not limited to her school uniform, school
stationery and textbooks, extra-mural, extra-curricular and sporting
activities and school
outings;
5.4
Defendant shall retain the minor child as a dependent member on his
current medical aid
scheme, or on a medical aid scheme with similar
benefits, at his costs; and
5.5
payment of the sum of 100% of the minor child’s reasonable and
necessary medical expenses
that are not covered by the medical aid.
6.
Defendant shall contribute as follows towards the maintenance of
Plaintiff, until
her death or remarriage, whichever may occur first:
6.1
payment of the sum of R9,000.00 per month, which amount shall be paid
into Plaintiff’s
bank account, nominated by her in writing from
time to time, by no later than the 1
st
day of every month,
commencing on 1 July 2019;
6.2
Defendant shall retain Plaintiff as a dependant member on his current
medical aid scheme,
or on a medical aid scheme with similar benefits,
at his costs; and
6.3
payment of 100% of Plaintiff’s reasonable and necessary medical
expenses that are
not covered by the medical aid.
7.
The amounts payable in terms of paragraphs 5.1 and 6.1 above shall
escalate yearly
on the anniversary date of the divorce order with an
amount commensurate with the Consumer Price Index for the previous
years
[14]
.
8.
Plaintiff is entitled to fifty percent of Defendant’s pension
interest
in the Momentum Retirement Annuity, policy no. MP90[..],
calculated as at date of this order, which is payable to Plaintiff at
her election. An endorsement to this effect is to be made in
the records of Momentum Group Limited.
9.
Defendant shall pay the costs of the action.
__________________________
M.J.
LOWE
JUDGE
OF THE HIGH COURT
Obo
Plaintiff
:
Adv
L Gagiano
Instructed
by
:
Joyzel
Obbes Incorporated, Port Elizabeth
Obo
the Defendant
: Adv
M Olivier
Instructed
by
: Eugene
Raymond Inc., Port Elizabeth
[1]
1980 (4) SA 364 (O)
[2]
1973
1All ER 829 (CA) 835
[3]
1987 (1) SA 48 (C)
[4]
2009 (3) SA 89 (WLD)
[5]
paragraph [29]
[6]
paragraph [31]
[7]
paragraphs [34] – [40] and [42] – [49]
[8]
Louis
v Louis
1973
(2) SA 597
(T).
A
V v C V
2011
(6) SA 189
(KZP) paragraph [9] and [17].
B
S v P S
2018
(4) SA 400
(SCA) 403 [5] – [10].
Kroon
v Kroon
1986
(4) SA 616
(ECD) 617 N – I and 637 C – F.
[9]
at p 52 E – G
[10]
1984 (2) SA 294
(C) 297 and
Swart
v Swart
1980
(4) SA 364
(O) 376;
Kroon
v Kroon
1986
(4) SA 616
(E);
Pommerel
v Pommerel
1990
(1) SA 998
(E) 1002;
Archer
v Archer
1989
(2) SA 885
(E) 895;
Beaumont
v Beaumont
1985
(4) SA 171 (W).
[11]
Butcher
v Butcher
2009
(2) SA 421
(C) [17] and
MB
v NB
2010
(3) SA 220 (GSJ).
[12]
Kooverjee
v Kooverjee
2006
(6) SA 127
(C) [11.8.2]
[13]
Swart
(supra)
at 377
[14]
(This was included in Defendant’s draft order handed up in
argument and is thus common cause.)