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[2022] ZAECQBHC 38
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K.N v B.A.N (1513/2020) [2022] ZAECQBHC 38 (18 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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FLYNOTES:
MAINTENANCE – ABILITY TO WORK
Divorce
– Maintenance – Employment prospects of ex-wife –
Aged 46 and was married for 22 years – Little
work
experience and lacking qualifications or training –
Prospects slim – Realities of divorce and available
funds of
ex-husband – Monthly maintenance of R6,000 awarded.
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
Case
No.: 1513/2020
Date
Heard: 12-14 September 2022
Date
Delivered: 18 October 2022
In
the matter between:
K[....]
N[....]
Plaintiff
and
B[....]
A[....]
N[....]
Defendant
JUDGMENT
EKSTEEN
J:
[1]
The
parties were married to one another, out of community of property and
with the application of the accrual system
[1]
,
on 3 February 2000. The marriage relationship has broken down
irretrievably and, accordingly, the plaintiff sought a decree of
divorce and certain ancillary relief. It was common ground, and the
evidence established, that there is no reasonable prospect
of the
restoration of a normal marriage relationship. There is one minor
son, J[....], currently 16 years old, and one major daughter,
E[....], who was still dependent on the parties at the time of the
trial, born of the marriage.
[2]
At the start of the trial it was agreed
that the primary care of J[....] should be entrusted to the
plaintiff, with the defendant
to have reasonable access to him.
E[....], as I have said, is an adult woman, 21 years of age, and in
her final year of tertiary
study. She is expected to qualify and
obtain employment at the end of 2022, whereafter it is anticipated
that she would not require
maintenance.
[3]
The
accrual was, to an extent, distributed prior to the trial and it was
agreed at the hearing that the plaintiff is entitled to
a further
amount of R1 501 401,00, after tax, which would be sourced from the
defendant’s pension interest in the Massmart
Provident Fund.
[2]
In this regard, it is common cause that he is a member of the
Massmart Provident Fund, managed by Sanlam, with membership number
[....] and that he has acquired a pension interest in the Fund, as
envisaged in the Divorce Act
[3]
,
as amended. The agreements are reflected in the order which is
recorded at the conclusion of this judgment.
[4]
What remained in issue at the trial, was,
first, the extent of the defendant’s liability for the
maintenance of J[....] and,
second, the issue of spousal maintenance
for the plaintiff. The defendant contended that she had means of her
own which, together
with the distribution of the accrual, was
sufficient for her to maintain herself and to contribute to the
maintenance of J[....].
On behalf of the plaintiff, on the other
hand, it was argued that her prospects of gainful employment were
slim and that she reasonably
required some supplementation of her
resources. Neither party contended for rehabilitative maintenance to
be paid for a limited
period.
[5]
Spousal maintenance after divorce is
regulated by s 7 of the Divorce Act, which sets out the
considerations to be taken into account
in making maintenance orders.
Section 7(2) stipulates that:
“…
the
court may, having regard to the existing or prospective means of each
of the parties, their respective earning capacities, financial
needs
and obligations, the age of each of the parties, the duration of the
marriage, the standard of living of the parties prior
to the divorce,
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 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 to the other for any period
until the death or remarriage of the party
in whose favour the order
is given, whichever event may first occur.”
[6]
In
Van
Wyk
[4]
this court observed that a proper application of the section involves
a balanced assessment of maintenance needs and ability to
pay and
that the starting point was the existing and prospective means of the
plaintiff and her earning capacity, because, if she
has the ability
to support herself, she is not entitled to maintenance from the
defendant.
[5]
[7]
In consequence of the agreements reached in
respect of the remaining distribution of the accrual, and the
division of certain joint
assets which have previously been
distributed, the plaintiff reduced her maintenance demands from the
proportions claimed in the
pleadings. In respect of J[....] she
sought an order that the defendant contribute as follows to his
maintenance, until such time
as he becomes self-supporting:
(i)
by payment of an amount of R8 000 per month, payable on the 25
th
day of each consecutive month;
(ii)
by retaining J[....] on his medical scheme, at his expense, and by
covE[....]g the
costs of all J[....]’s reasonable and necessary
medical expenses that are not covered by the medical aid, and
(iii)
by payment of J[....]’s scholastic expenses in full, including,
but not limited
to school fees, school uniform, school stationery,
text books, extramural activities, sporting activities, school tours,
sports
tours and sporting equipment.
[8]
She further sought an order that the
defendant pay to her an amount of R12 000,00 per month on the 25
th
day of each consecutive month as and for maintenance. In support of
these claims she handed in a schedule reflecting her anticipated
monthly expenditure after divorce, which amounted to R25 861,03 per
month. She said that the figures contained in the schedule
were based
primarily on actual expenses incurred in the last 12 months and she
contended that it represented her reasonable need.
A similar schedule
was prepared in respect of J[....]’s expenses. It was compiled
on a similar basis and amounted to R10
455,19 per month. The schedule
excludes medical or educational expenses, which had been paid thus
far by the defendant.
[9]
The plaintiff is 46 years old and she has
been married to the defendant for 22 years. She is not a wealthy
woman in her own right.
As I have said, the parties had divided some
of their joint assets prior to the action. Thus, the plaintiff has
some furniture.
The common home was sold and the proceeds equally
divided between them. She received and amount of R420 000,00 from
this transaction.
They also had a herd of cattle which was kindly
managed by her brother on his farm in Maclear. The herd was sold and
the proceeds
thereof divided with each receiving R73 566,66. She has
spent some of her share of these distributions to meet necessary
expenses
subsequent to the separation and retains an amount of R380
000,00, which is invested.
[10]
She said that she had received an estimate
of legal expenses due to her attorney in the amount of R150 000,00 in
respect of the
divorce proceedings. In addition, her parents have
advanced money to her on loan in the amount of R175 700,00 in the
period leading
up to the action. She has rented accommodation from
her brother, where she and J[....] reside, and currently owes him an
amount
of R102 000,00 in arrear rental. These debts were not
challenged during evidence. Thus, after the redistribution of the
accrual
has been effected, she will have available the amount of R1
453 701,00.
[11]
The plaintiff currently drives a Toyota
Hilux vehicle which is the property of the defendant and he has
indicated that he requires
the return of the vehicle. She said that
she would be obliged to obtain a reasonable secondhand vehicle which
was essential to
her,
inter alia
,
to convey J[....] to school and back and to other extramural
activities which he is required to perform. Ms
Gagiano
,
for the plaintiff, suggested that an amount of R300 000,00 should be
provided for this purpose. While no market based evidence
was
provided for this figure, I am satisfied that it represents a
sensible conservative estimate for a reasonable purchase, and
Mr
Jooste
,
for the defendant, did not challenge it. The plaintiff would
therefore have at her disposal an amount of R1 153 701,00 to invest
and the parties have agreed that she could obtain a return of 9% from
it, which equates to R8 652,75 per month. I do not consider
this to
be sufficient for her maintenance.
[12]
That brings me to her earning capacity. She
has no formal qualification or training subsequent to matriculating
in 1994. From the
inception of the marriage until August 2019 she was
not engaged in any form of employment. She testified that she had
considered
seeking employment when J[....] proceeded to primary
school, but in consultation with the defendant they decided that she
should
not do so as she had no work experience and, as she put it,
“the cost of the wardrobe required would be more than (her)
earnings”.
Throughout the marriage she had dedicated herself to
the housekeeping, homemaking and cooking, most of the time without
domestic
assistance.
[13]
In August 2019 she decided to take up the
position of an administrative assistant at the “Unity in Africa
Foundation”,
initially for three mornings in a week, which was
later expanded to five mornings per week. It was a part-time position
as a backup
administrative assistant to tertiary educational students
to assist in needs such as applications for bursaries. In January
2020
she became a permanent employee and her role was expanded to a
student co-ordinator offering guidance, advice, support and events
planning. She earned R13 304,90 per month before she eventually
resigned with effect from 1 December 2021. She explained that the
environment at the work had become toxic and hostile and the home
situation was difficult as a result of the disintegration of
her
marriage, and she was struggling to manage her own emotions. It was
at this time that her parents agreed to advance money to
her, in lieu
of her salary, which was being lost, for a period of one year in
order to stabilise her life. Hence the indebtedness
to her parents to
which I have referred.
[14]
Prior to her resignation she did attempt to
obtain alternative employment with Capstone School as a secretary.
She was afforded
a final interview but did not secure the position.
She has since applied for at least 45 different working opportunities
which
she considered to be relatively compatible with her very
limited work experience. She has not been invited to a single
interview.
[15]
Although the plaintiff said that she would
like to be employed and portrayed a positive self-image, optimistic
of obtaining some
form of employment, I am satisfied that her
prospects of securing a rewarding position are very slim indeed. As I
have said, she
has very limited working experience and she is no
longer young. She has no post school qualification nor formal
training in any
field of employment. She has made numerous
applications, without success, and the conclusion to which one is
ineluctably driven
is that she will be at a significant disadvantage
against an oversupply of younger applicants in the labour market.
[16]
This is not to say that she is
unemployable. She is a presentable, intelligent, healthy, well-spoken
woman and, as adumbrated earlier,
portrays a positive self-image. Her
own evidence suggests that she may be able to find some form of
employment in future, but,
realistically, the expectation is that it
would yield a modest income. I have accordingly come to the
conclusion that she will
require maintenance until her death or
remarriage. If her circumstances change significantly, the
maintenance order which I make
may then be reassessed and, if
necessary, varied.
[17]
The defendant has been in steady employment
with the same company for 25 years. The shareholding in the company,
and its name, changed
from time to time and it is currently known as
Finro’s Cash and Carry, owned by Massmart. The defendant holds
the position
of a store manager at a large outlet in North End,
Gqeberha. He earns a basic salary, together with allowances, of R76
000,00,
which translates to a net salary, after deductions and tax,
of approximately R44 000,00. In addition, he explained that since he
joined the company, approximately 25 years ago, he had received an
annual incentive bonus in March of each year. The bonus paid
in 2022
amounted to R56 800,00.
[18]
He said that the structure for the
calculation of bonuses has been amended and ventured to suggest,
initially, that no further bonuses
will be paid. However, when
pressed on this issue, he was constrained to acknowledge that he had
not been advised of such a development,
but he said that he perceived
it to be unlikely that he would receive an incentive bonus in 2023.
This, he said, was for reasons
which he suggested that I would not
understand. Again, when pressed, he advanced two reasons for this
perception of the future
prospects of bonuses. One, he said, could be
ascribed to the implementation of a new IT system which has resulted
in what he described
as a massive customer defection from the company
stores. The second, he ascribed to inflation on food stuffs and the
Ukrainian
war which has resulted in a scarcity of certain products.
While I understand that retail business in South Africa and, indeed,
across the world, currently experience considerable financial
constraints, I am unable to find any foundation for the anticipation
that no future incentive bonuses will be paid to senior management
staff. I am satisfied that it is fair to assume that future
bonuses
will continue to accrue, as they have done in every year, through the
past 25 years of employment, albeit that the extent
thereof may vary
from time to time, depending on trade conditions. I, accordingly,
take into consideration the expectation of an
annual incentive bonus
in evaluating the defendant’s prospective means.
[19]
The defendant produced in evidence a
schedule of his monthly expenses which he said were mostly based on
estimates, as opposed to
actual invoices. He reflects his monthly
expenses in an amount of R45 107,56, which includes provision of R6
000,00 as maintenance
for J[....] and R4 700,00 as school fees, as
well as provision for J[....] on his medical aid. It also includes an
allowance of
R1 200,00 for E[....], R628,99 as a telephone expense,
due to Vodacom, in respect of the plaintiff’s telephone
account. As
adumbrated earlier, it is contemplated that E[....] will
be self-supportive from the end of the current year and the expenses
in
respect of the plaintiff’s telephone would fall away. The
expenses reflected in the schedule reflect his current expenses,
rather than his anticipated post-divorce expenses.
[20]
Self-evidently
the available funds are insufficient to maintain the plaintiff and
the defendant at the standard at which they have
lived thus far. That
brings me to the sad reality of divorce proceedings. In
Kroon
[6]
at 637C-H, Baker J articulated the reality thus:
‘
The
parties are no doubt aware that in most cases persons who have become
divorced will be compelled by necessity to reduce their
standards of
living, for where the available means of support are not
adequate to maintain both according to their former
scale of living,
each must of necessity scale down his or her budget. In the case of
most of us divorce brings a measure of hardship
or at least some
degree of deprivation. To say that two can live as cheaply as one is
not true. The fact of the matter is that
two living together can
live more cheaply than two living apart, for obvious reasons such as
the need for two residences plus
rates, maintenance, service charges
and all the rest of it; two cars plus the concomitant expenses; two
lots of household goods
to buy and maintain; and so forth. The
problem of "indivisible household expenses" is a real one:
... The fact that
each former spouse now has to pay for things
formerly enjoyed in common places a heavier burden on the finances
than was formerly
the case. It is therefore clear that in most
cases both parties will have to reduce their standard of living to
some extent.’
The
present case is a typical example of this reality.
[21]
As I have
explained earlier there was no significant dispute about J[....]’s
reasonable needs. The defendant contended, however,
that he should
not be required to pay all of J[....]’s expenses and that the
plaintiff should be required to make a contribution
to those expenses
in accordance with her means. The difficulty which arises from this
argument is that the greater the contribution
which is required from
the plaintiff is, the greater the need for her increased maintenance.
In the circumstances I consider that
it is fair that the claims in
respect of the education and medical needs of J[....] which I have
set out earlier must be accepted.
[22]
Finally, an
assessment must be done of the maintenance payable to the plaintiff.
I have recorded earlier that she would require
maintenance until her
death or remarriage, whichever occurs first. When due consideration
is given to the return which she is able
to generate from her
investment, after the deduction of a reasonable sum for the purchase
of a vehicle, and making some allowance
for the possibility of a
modest income from employment, I consider that an award of R6 000,00
per month represents a balanced assessment
of her maintenance needs
and the defendant’s ability to pay.
[23]
In the result,
I make the following order:
1.
A decree of
divorce is issued.
2.
By agreement
between the parties the plaintiff is entitled to receive payment of
the sum of R2 106 877,00, before tax, from the
defendant, being half
of the difference between the accrual of the parties’
respective estates, which payment shall be made
in the manner
stipulated in paragraph 3 below.
3.
The defendant
is ordered to ensure that the Massmart Provident Fund:
3.1
endorse its
records to reflect that the plaintiff is entitled to receive payment
of an amount of R2 106 877,00, before tax, from
the defendant’s
pension interest; and
3.2
make payment
to the plaintiff of an amount of R2 106 877,00 from the defendant’s
pension interest. The plaintiff shall be
liable for the income tax
levied on the aforementioned amount.
4.
The primary care of the minor child, J[....], born of the marriage is
awarded
to the plaintiff, subject to the defendant’s right to
reasonable contact.
5.
The defendant shall contribute as follows to the maintenance of the
parties’
minor child, until such time as the minor becomes
self-supporting:
5.1
By payment of an amount of R8 000,00 per month, with the first such
payment to be made to the plaintiff on
25 October 2022 and thereafter
on the 25
th
day of each consecutive month;
5.2
by retaining the minor on his medical scheme, at his expense, and by
covering the costs of all the minor’s
reasonable and necessary
medical expenses that are not covered by the medical aid; and
5.3
by the payment of the minor’s scholastic expenses in full,
including, but not limited to, school fees,
school uniforms,
reasonable and necessary school stationery, textbooks, extramural
activities, sporting activities, school tours,
sports tours and
sporting equipment.
6.
The defendant shall contribute R6 000,00 per month towards the
maintenance of
the plaintiff until her death or remarriage, whichever
occurs first, with the first such payment to be made on 25 October
2022,
and thereafter on the 25
th
day of each consecutive
month.
7.
The defendant shall pay the costs of the action.
J W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv L Gagiano instructed by Joyzel
Obbes Inc, Gqeberha
For
Defendant: Adv P Jooste
instructed by Gregory Clark and Associates Inc, Gqeberha
[1]
Section
3
of the
Matrimonial Property Act, 88 of 1984
.
[2]
After
completion of the trial the parties agreed that she would be
entitled to payment of R2 106 877,00, before tax, which would
be
taxable in her hands in the amount of R605 476,00. They jointly
requested, accordingly, that this agreement be reflected in
the
order I make.
[3]
Act
70 of 1979
[4]
Van
Wyk v Van Wyk
[2005] JOL17228 (SE)
[5]
Van
Wyk
para [6]
[6]
Kroon
v Kroon
1986 (4) SA 616
(E)