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2024
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[2024] ZAFSHC 28
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N.E.M (born M) v R.L.D.M (2220/2021) [2024] ZAFSHC 28 (2 February 2024)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no: 2220/2021
In
the matter between:
N[…]
E[…] M[…] (BORN M[…])
Plaintiff
(ID
NO: 690[…])
And
R[…]
L[…] D[…] M[…]
Defendant
(ID
NO: 670[…])
CORAM:
MTHIMUNYE AJ
HEARD
ON:
31 OCTOBER,1
and 3 NOVEMBER 2023
DELIVERED
ON:
02 FEBRUARY 2024
[1]
In this divorce action, the Plaintiff prays for an order in the
following terms:
(a) A decree of
divorce;
(b) Division of the
joint estate, save for prayer (c) below.
(c) The
defendant to forfeit his right to 50% of the plaintiff’s
pension benefit held at the Government Employees
Pension Fund (GEPF).
[2]
It is apposite to state herein that during the trial, when evidence
was led to the effect that the defendant was
not a member of any
pension fund, the plaintiff brought an application to amend its
particulars of claim more particularly the
prayers. Save for the
manner and the timing in which the application was brought, the
defendant did not in essence oppose the application
and after I
considered the submissions, I granted it. In essence, the initial
prayers for the plaintiff to share 50% of the defendant’s
pension benefit were deleted as they would have no practical effect
and were replaced with the prayers reflected in para [1] above.
[3]
The plaintiff prays for the defendant to forfeit his 50% of the
plaintiff’s pension benefit on the basis that
at some point
during the subsistence of the marriage, the defendant withdrew his
own pension fund interests of about R500 000.00
and never shared
it with the Plaintiff or contribute to the joint estate. Further,
that the defendant had extra-marital affairs
from which two children
were born. The defendant, though agreeing on the decree of
divorce, opposes the application for forfeiture
on the basis that
when he received his pension fund, he spent all of it on the joint
estate and although he admits to the affairs,
he alleged that the
plaintiff also had two affairs during the subsistence of the
marriage.
[4]
The parties were married to each other in community of property on 31
May 1996. Marriage in community of property
entitles the parties to
50% of the joint estate on the dissolution of marriage. The only
exception to this principle is section
9 of the Divorce Act and which
enables the court to grant forfeiture when the court is satisfied
that the party against whom it
is sought, will benefit unduly if it
is granted.
[5]
The plaintiff testified that in 2003 they bought a site and started
building their marital home, in which they moved
in 2005. They took a
bond of R350 000.00 to pay for the finishes. In July 2007 they
took a second bond of R220 000.00.
They used that money to buy a
taxi for the Defendant and a Land Rover car for the Plaintiff. In
2009, they traded the Land
Rover in for a Dodge. Between 2005 until
the end of 2010 the Defendant was paying the bond, whilst the
Plaintiff took care of other
responsibilities groceries, clothes for
the family and paid for the funeral policies. At that time, she was
earning R4000.00 a
month.
[6]
She stated that in 2009 the defendant resigned from his employment
and in 2010 declared that he no longer had money
and the plaintiff
then took over the payment of the bond, medical aid, house insurance,
ADT insurance, school fees for the two
children as well as their
school fees up to this day. The defendant started a taxi business
which was not doing very well and at
times, she also helped him out
with money for petrol and other business needs.
[7]
She further testified that in 2020, she found out that the defendant
had an extra-marital girl child who was at
that stage 17 years old.
The child’s mother had died and she had no place to stay and
was staying with friends. The plaintiff
went to meet the child and
ended up taking her in. She treated her child like her own and she
stayed with them until she finished
matric.
[8]
During cross-examination, Counsel for the defendant referred the
plaintiff to her own bank statements where some
transfers from the
defendant were depicted and it became clear that post his resignation
from work, the defendant contributed from
time to time when he was
able to. The plaintiff admitted that at times the defendant would
even contribute the children’s
school fees, even though it was
not consistent. She further stated that the first 14 years of
their marriage was a bliss
up until 2010 when the defendant was no
longer employed.
[9]
The Defendant testified that he bought the stand where the house was
built with his own money which he made by buying
and selling cars.
The two bonds were then taken to finish off the house. When he
resigned from his job in April 2009, he got a
pension pay out of
R453 000.00 and the plaintiff knew about this because he gave
her the documents from work. With that
money, he said he bought
the plaintiff a Land Rover and a Golf 4 for himself and new
furniture. He disputed that the Land Rover
was bought in 2007 with
the second bond and said the bond money was used to finish off the
house. What was left of his pension,
he used to pay the bond by
transferring the money directly from his account to the bond account
until the money was finished in
2011 at which point the Plaintiff
took over. He also paid for rates and taxes.
[10]
He also confirmed that from time to time he would transfer money to
the plaintiff
as depicted on the plaintiff’s bank statements.
The plaintiff conceded to this. He also stated that since he was
running
a taxi business, some of the monies he would give to the
plaintiff in cash. This was also not disputed by the plaintiff. He
admitted
that his contribution was not consistent but would
contribute each time he was able to.
[11]
The defendant further testified that the biggest problem was that the
Plaintiff
would take money from the household to the church and that
she had extra-marital affairs, first with a soldier and thereafter
with
the pastor of the church which is what contributed to the
irretrievable breakdown of the marriage and the reason why the
defendant
ended up leaving the church. He said the plaintiff even
bought a car for the pastor, after which the pastor ordained her
without
the defendant. The plaintiff denied these allegations
vehemently and clarified that the only monies she took to the church
were
offerings and tithes which they had agreed to do as a family.
[12]
The defendant stated that at some point during the subsistence of the
marriage,
the plaintiff threw boiling water at him. When this was put
to the plaintiff during her cross-examination, she said it was in
self-defence.
The defendant subsequently left the marital home
in November 2021. It also came out that the Defendant was also paying
for
the family’s medical aid before the Plaintiff took over in
2010. It was also argued on behalf of the defendant that since
the
plaintiff only got to know about the child she ended up taking in
only in 2020 when she was 17 years old and the mother had
died, she
could not claim that the Defendant’s affair with her mother was
the cause to the breakdown of the marriage.
[13]
Both parties agree that the marriage has irretrievably broken and
that they
both seek a decree of divorce. What is in dispute and what
this court is called upon to determine is whether or not the
defendant
should forfeit the pension benefits of the plaintiff as
prayed for by the plaintiff.
[14]
Despite the plaintiff’s contention in her papers that the
defendant never
contributed to the joint estate post 2011 when she
took over the bond, medical aid and other household expenses, both
oral and
documentary evidence before this court rebutted this
averment. In the face of this rebuttal, to which the plaintiff
conceded, the
plaintiff changed her argument to that, although the
defendant was contributing when he could, he was not consistent and
she contributed
more. It was also undisputed that prior to the
defendant resigning from work, he took care of most of the household
and children
expenses including medical aid from the institution of
the marriage until 2011 when the plaintiff took over. All these,
pointed
to one fact that the Defendant had contributed to the joint
estate and continued to do so in accordance with his means after he
resigned from work.
[15]
The Plaintiff seeks an order directing the Defendant to forfeit his
50% share
of the Plaintiff’s pension in terms of section
9 of the Divorce Act as stated above.
Section 9(1) of the
Divorce Act
provides:
“
9(1) When a
decree of divorce is granted on the ground of the irretrievable
break-down of a marriage the court may make an order
that the
patrimonial benefits of the marriage be forfeited by one party in
favour of the other, either wholly or in part, if the
court, having
regard to the duration of the marriage, the circumstances which gave
rise to the break-down thereof and any substantial
misconduct on the
part of either of the parties, is satisfied that, if the order of
forfeiture is not made, the one party will,
in relation to the other
be unduly benefited.”
[16]
The entitlement to 50% of a spouse’s pension benefit is
governed by
section 7(7) of the Divorce Act
which provides as
follows:
“
7(a)
In the determination of the patrimonial benefits to which parties to
any divorce action may be entitled,
the pension interest of a
party shall, subject to paragraphs (b) and
(c), be deemed to be part of his assets.”
[17]
The onus to
prove that the party against whom forfeiture is sought will be unduly
benefited rests on the party who seeks it. In
Engelbrecht
v Engelbrecht
[1]
,
the court held that:
“
the court
has a discretion when granting a divorce on the grounds of
irretrievably breakdown of the marriage or civil union to order
that
the patrimonial benefits of the marriage or civil union be forfeited
by one party in favour of the other. The court may order
forfeiture
only if it is satisfied that the one party will, in relation to the
other, be unduly benefited. The court has a wide
discretion, and it
may order forfeiture in respect of the whole or part only of the
benefits”.
[18]
In
Wijker
v Wijker
[2]
the
court held that factors listed in Section 9(1) of the Divorce
Act need to be considered cumulatively. The presence of
any one of
them is sufficient for the court to make an order for forfeiture. In
other words, the party claiming forfeiture does
not have to prove the
present of all three factors in Section 9(1). For purposes of
clarity, these factors are the duration of
the marriage, the
circumstances that gave rise to the irretrievable breakdown of the
marriage and any substantial misconduct on
the part of the person
against whom forfeiture is sought. The court will grant
forfeiture if it is satisfied that the party
against whom it is
sought will be unduly benefitted i.e. if the conduct of the guilty
party is gross that it would be unjust to
let the said spouse get
away with marriage spoils.
[19]
The parties had been married to each other for 25 years when the
defendant
left the marital home. Since the inception of the marriage
in 1996, he took care of the family and contributed to the joint
estate
more than equally for approximately 15 years. At the onset, he
bought and sold cars and used that money to buy building material.
He
paid for the bond, insurance, rates and taxes and medical aid for the
whole family. Throughout this period, the plaintiff, who
was only
earning R4 000.00 per month, was only buying food and clothes
for the children. At some stage, he bought cars for
the plaintiff.
After he resigned, the roles changed and the plaintiff was in the
lead financially for 10 years until the defendant
left the marital
home. With regards to the circumstances that gave rise to the
breakdown of the marriage, the plaintiff cited
that the defendant
withdrew his pension and did not contribute to the joint estate. It
was unrebutted evidence that after his resignation
in 2009, he
continued to pay the bond until the plaintiff took over in 2011.
Again, under cross-examination the plaintiff conceded.
[20]
The
plaintiff’s second basis to seek forfeiture is the defendant’s
adultery. This in my view, is based on an old forfeiture
rule in
terms of common law, that the person who caused the marriage to be
irretrievably broken down cannot share or benefit in
the joint
estate. In
Swart
v Swart
[3]
, the court held that adultery and desertion might, in certain
instances, merely be the symptoms and not the cause of a marriage
breakdown and that the conduct of the parties cannot be considered to
be blameworthy. In
Wijker
(supra), it was held that adultery may support the allegation that
the marriage has broken down, but it is not necessarily ‘substantial
misconduct’ for purposes of a forfeiture order. In
Engelbrecht
v Engelbrecht
(supra), the Constitutional Court held that it could never have been
the intention of the legislature that the wife, who had for
20 years
assisted her husband faithfully should, because of her adultery,
forfeit the benefits of the marriage in community of
property. This
confirms that a finding of a substantial misconduct does not on its
own, justify forfeiture. In my view, the
plaintiff failed to make a
case for forfeiture and as such her prayer in this regard has to be
rejected.
[21]
It also bears to mention that the defendant impressed me as a candid
witness
and I found his evidence credible and reliable. Not even once
did he contradict himself or appear to be unsure about his evidence.
The plaintiff on the other hand, though candid, tended to exaggerate
her evidence. She made a number of averments which, when the
contrary
was put to her, conceded to the truthfulness of the defendant’s
version. As an example, first she said the defendant
never spent his
pension on the joint estate and she did not know what he did with the
money. During cross-examination she conceded
that the defendant used
the pension money to buy the two cars and to pay for the bond between
2009 (post resignation) to 2011 when
she finally took over. The
second example was when she said post 2009, the defendant never
contributed to the children’s
school fees and maintenance. When
shown the transfers from the defendant into her bank account, she
conceded and sought to change
her version to be that the defendant’s
contribution was not consistent.
[22]
I now turn to deal with the issue of costs. The granting and refusal
of costs
by the courts is governed by two principles: first that
unless expressly otherwise enacted, costs fall within the discretion
of
the court and secondly that generally, costs follow the results
i.e. they are awarded in favour of the successful litigant.
Section 10 of the Divorce Act however provides that in a divorce
action, a court is not bound to make an order for costs in favour
of
a successful party, but having regard to the means of the parties and
their conduct in so far as it may be relevant make such
order as it
considers just, which may even be that costs be apportioned between
the parties.
Consequently,
I make the following
Order
:
1.
The decree of divorce is granted and the marriage is dissolved.
2.
Division of the joint estate in terms of marriage in community of
property including the plaintiff’s
pension benefits.
3.
Each party to pay his / her own costs.
D.P.
MTHIMUNYE
Appearances:
For
the Plaintiff
Adv G
Steenkamp
Instructed
by
O J
Van Schalkwyk Attorneys
Bloemfontein
For
the Respondent
Adv T
Mogwera
Instructed
by
Fixane
Attorneys
Bloemfontein
[1]
1989 (1) SA 597 (C)
[2]
1983(4)SA 720 (A) at 727 D-F
[3]
1980 (4) SA 364
(O)