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[2023] ZAFSHC 46
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K.P v N.C.P (840/2018) [2023] ZAFSHC 46 (14 February 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
Number 840/2018
Reportable:
yes/no
Circulate
to other Judges: yes/no
Circulate
to Magistrates: yes/no
In
the matter between:
K
[....] P [....]
Plaintiff
and
N
[....] C [....] P [....]
Defendant
CORAM:
BERRY, AJ
HEARD
ON:
17 JANUARY 2023
DELIVERED
ON:
This
judgment was handed down electronically by email to the parties'
representatives and by release to SAFLII. The date and time
for
hand-down is deemed to be 15h00 on 14 February 2023.
JUDGEMENT
BY:
BERRY,
AJ
JUDGEMENT
[1]
In this divorce action the only dispute is whether there should be a
forfeiture order
under
Sec 9(1)
of the
Divorce Act 70 of 1979
in
favour of the Defendant.
[2]
In the claim in reconvention the Defendant makes the following
allegations:
“
6.1
The
Plaintiff is misusing and abusing the funds of the joint estate, is
using the money without the knowledge of the Defendant.
6.2 Plaintiff is not
keeping his marital obligations, not paying the bond. The bond is in
arrears without proper
explanation.
6.3 The plaintiff is
putting the joint estate at financial risk.
6.4 The Plaintiff is
emotional and verbally abusive towards the Defendant.
6.5 Defendant has
lost all love and affection as a result of the Plaintiff’s
dishonesty.”
[3]
The Plaintiff denied these allegations in his plea to the claim in
reconvention.
[4]
In the claim in reconvention the Defendant claims that it would be
just and equitable that the Plaintiff forfeits the
benefits of the marriage in community of property, to the extent that
he forfeits
his share in the Defendant’s pension fund held by
the Government Employee Pension Fund.
[5]
The Parties were married in community of property on 17 April 2004
and separated during
July 2019, when the Defendant left the communal
home.
[6]
There are two children born from the marriage. The one is 16 years
and the other one
is 14 years old.
[7]
The children currently reside with the Defendant.
[8]
The Defendant testified that the Plaintiff is
putting the joint estate at financial risk.
[9]
The Plaintiff was employed from 2003 to 2008,
where he contributed towards a pension fund.
[10] The
Plaintiff resigned from his employment to start his own business.
[11] On
resignation the Plaintiff received a pension pay-out of R39 400.00.
[12] The
Defendant testified that the Plaintiff used his pension money for his
own benefit, and she
did not receive any benefit from this money.
[13] The
Plaintiff testified that he used some of the money to start his new
business, that he paid
arrear school fees, and the house bond.
[14] The
Defendant testified that it would be unfair if the Plaintiff receive
half of her pension,
as she did not receive any part of his pension
when he resigned.
[15] The
Defendant testified that during the marriage she paid for the
pre-paid water, a Hyundai Getz,
her clothing accounts and bought
groceries for the common household.
[16] The
Plaintiff paid for the town house bond, as well as the bond on the
communal home and the
levies and taxes associated with the
properties. He also paid all other expenses associated with the
household such as DSTV, electricity,
family holidays, the Isuzu
vehicle, and the insurance on both vehicles.
[17] The
Plaintiff also paid the school fees and bus fare of the two children.
[18] The
Plaintiff testified that he bought the town house as an investment
during 2006, with a view
to rent the property.
[19] The
Defendant testified that she was upset about the property being
rented out at a rate which
was lower than the monthly instalment on
the bond. She told the Plaintiff that she wanted nothing to do with
this property.
[20] The
Plaintiff testified that the townhouse was repossessed by the bank
during October 2009.
[21]
There was a dispute with the State Department that rented the
property on behalf of one of its
employees and the Department did not
pay the rent. He could not afford to pay the bond without the rental
income, as his business
was not doing as well.
[22] The
parties bought communal property in Mandela View during 2007. This
property was also re-possessed
by the bank.
[23] The
Defendant blames the Plaintiff for the loss of their property and
accuse the Plaintiff of
not managing his finances well.
[24]
When the Defendant left the communal house, she removed the build-in
cupboards from the kitchen.
[25]
When Nedbank offered to assist with selling the property in Mandela
View, the Defendant was un-cooperative
and only signed the approval
for the assist programme, after the Court declared the property
executable.
[26]
According to the Defendant, the Plaintiff proposed that they should
get divorced so that half
of her pension can be paid to him, which he
said they can use to pay the bond on the communal home. She declined
this proposal.
[27] The
Plaintiff testified that his businesses manage events.
[28] The
Defendant hid the Plaintiff’s computer on 27 November 2016
whilst he was busy with
a tender for the Local Authority.
[29]
This prevented him from submitting a tender for a three-year
contract, which was the root cause
for his business failure.
[30]
Prior to this incident, the company was doing so well that the bank
financed a BMW X6 bought
in the company’s name.
[31] The
Defendant only handed computer back to the Plaintiff when he
approached the police.
[32] The
Plaintiff testified that during June 2017 he wrote a long WhatsApp
message to the Defendant
wherein he explained the things that made
him unhappy in their marriage.
[33] He
hoped the WhatsApp would make the Defendant do some introspection and
that she would try to
address the cause of conflict in their
marriage.
[34] The
Defendant however responded that it is a sad day and that they should
try and reach a settlement.
[35] The
Plaintiff contemplated this response and finally decided during
December 2017 to proceed
with the divorce.
[36] The
Plaintiff saw an attorney during January 2018 and the summons was
issued during February
2018.
[37] The
Plaintiff testified that his mother passed away during June 2019. He
had to attend to his
parental home as he is the eldest son, to make
all the arrangement and take care of the logistics.
[38]
During July 2019 the Plaintiff returned to their communal and found
that the Defendant has moved
out of the communal home and left him a
bed, headboard, two couches, cutlery and gardening tools.
[39] It
was with this move that the Defendant removed the cupboards from the
kitchen.
[40]
This is the extend of the evidence placed before Court.
[41] The
Defendant did not allege any misconduct by the Plaintiff, other than
the alleged mismanagement
of his income, which the Defendant argues
constitutes misconduct and the circumstances that lead to the
breakdown of the marriage.
[42]
According to the Defendant the financial mismanagement of his
finances by the Plaintiff, constitutes
sufficient grounds to declare
that the Plaintiff must forfeit his interest in her pension fund.
[43]
Section 9(1)
of the
Divorce Act 70 of 1979
reads:
“
(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 for forfeiture is not made, the one
party will
in relation to the other be unduly benefited.”
[44]
The parties separated during 2019 and the divorce did not settle
because of the dispute about
forfeiture.
[45]
This resulted in the Defendant contributing towards her pension fund
for four years, whilst the
parties did not share a communal home.
[46]
The Plaintiff will benefit from the Defendant’s pension
benefit. The question is whether
the benefit is undue?
[47]
The reality is that financial strain often causes conflict in
relationships, but does the fact
that the Plaintiff’s business
struggle, constitute financial misconduct?
[48]
The Plaintiff’s uncontested testimony is that the Defendant hid
his computer, which caused
him to miss the deadline to file for a
three-year tender.
[49]
His business has not recovered.
[50]
The Defendant earns a good salary as a teacher. Yet, for some
inexplicable reason, she elected
not to pay the bond on the communal
home and allowed the property to be re-possessed.
[51]
Yet the Defendant blames the Plaintiff for the loss of their communal
home and regards the loss
as a risk to the joint estate, because of
the Plaintiff’s financial failures.
[52]
The parties have been married for 19 years, of which they lived apart
for the last 4 years. The
duration of the marriage is thus not a
factor which carries great weight in determining whether there should
be forfeiture or not.
THE
LAW ON FORFEITURE OF BENEFITS
[53]
The starting point when dealing with a marriage in community of
property is that the parties
agreed before the marriage that they
would share in the proceeds of the marriage equally. The principle is
pacta sunt servanda
, agreements must be honoured.
[54]
The legislature in the 1979
Divorce Act determined
that guilt is no
longer determinative in divorce proceedings.
[55]
The factor of guilt cannot be smuggled back into the Act through the
backdoor with
Sec 9.
(
Klerck v Klerck
1991 (1) SA 265
(W) at
269C – D.
[56]
The first step is to determine whether the party against whom the
order is sought will benefit.
This is a factual issue. (
Wijker v
Wijker
1993 (4) SA 720
(A) at 727E).
[57]
The next step is a value judgment considering facts within the
compass of the three factors mentioned
in
Sec 9.
(
Wijker
727E
– F).
[58]
All the factors mentioned in
section 9
, namely (i) the duration of
the marriage, (ii) the circumstances which gave rise to the breakdown
thereof; and (iii) any substantial
misconduct on the part of either
of the parties must be considered. The court must look broadly at the
three categories. (
Klerck
269D – G confirmed in
Wijker
729A – G).
[59]
It is not a prerequisite that all three factors must be present.
(
Klerck
268B – 269G;
Binda v Binda
1993 (2) SA
123
(W) at 127C – D).
[60]
The Court can order that a percentage of the estate or an asset be
forfeited, as was done in
Singh v Singh
1983 (1) SA 781
(C).
[61]
The misconduct contemplated in
Sec 9(1)
is of a more serious nature
than what is contemplated in
section 7(2)
, where the court is dealing
with redistribution. (
Singh
at 788H).
[62]
The forfeiture order is confined to patrimonial benefits, under
Sec
9(1).
(
Singh
788E – F).
[63]
The facts and circumstances on which a party relies for a forfeiture
claim must be pleaded and
canvassed in evidence. (
Koza v Koza
1982 (3) SA 462
(T) at 465H).
[64]
The legislature did not give any direction on the relative importance
of the three factors. The
factors have been defined in a wide-ranging
and vague manner (
Klerck
268H).
[65]
To determine whether one spouse will benefit if the order is not
granted, the Court must determine
the contributions by the spouses to
the joint estate.
[66]
The Court held obiter that the benefit is “undue” if it
can be described as disturbingly
unfair (
Engelbrecht v Engelbrech
1989 (1) SA 597
(C) at 602F).
[67]
The purpose of a forfeiture order is not to punish the guilty spouse.
The element of fault has
been removed from our divorce law and exists
only in the limited extent provided in
Sec 9(1).
[68]
Courts are reluctant to make forfeiture orders because the fault
principle is no longer part
of our law.
[69]
Forfeiture orders made by trial Courts were set aside in
Wijker
and
Engelbrecht
. In
Klerck
the court refused to make a
forfeiture order. In
Koza
the trial Court’s refusal to
make a forfeiture order was confirmed on appeal.
[70]
In
Singh
(at 791E – F) a forfeiture of 20% was ordered.
[71]
The concept of “benefits” is explained in
Smith v
Smith
1937 WLD 126:
“
What the defendant forfeits is
not his share of the common property, but only the pecuniary benefit
that he would otherwise have
derived from the marriage. It is really
an order for division plus an order that the Defendant is not to
share in any excess that
the Plaintiff may have contributed over the
contributions of the Defendant.” A “benefit” as
envisaged in
Sec 9
of the
Divorce Act can
take various forms, inter
alia “contributions” made by one party towards the joint
estate during the existence of the
marriage. The Court considers the
salaries earned by the spouses, what they owned at the time of the
marriage. What they received
as inheritances, legacies, donations,
and so on.”
[72]
The Claimant in respect of a claim for the forfeiture of benefits in
a marriage in community
of property, must prove a contribution which
exceeds the contribution of the other party towards the joint estate.
[73]
The Defendant’s pension is currently worth R1 526 949.00. This
benefit accrued through
twenty-two years’ service with a single
employer. The Defendant started contributing towards her pension fund
on 01 July
2000.
[74]
The Plaintiff was a businessperson when the parties got married in
2004 and only obtained permanent
employment for a period of 5 years
from 2003 to 2008.
[75]
The Plaintiff received R39 400.00 from his pension fund. He
testified that he used the money
to start up his business, pay the
bond and pay school fees.
[76]
The parties lived together for a further 11 years after the Plaintiff
started his business, when
the Defendant left the communal home.
[77]
The Plaintiff, being a businessperson, was always part of the deal
between the parties.
[78]
No doubt, when the Plaintiff’s business was doing well, the
Defendant shared in the spoils.
Now that they are divorcing, she
wishes the benefit in her pension fund be forfeited.
[79]
Singh v Singh
The
marriage lasted 20 years. The Defendant’s misconduct was
substantial. The duration of the marriage was 20 years. The
circumstances which gave rise to the breakdown were 50/50. A
forfeiture of 20% of the joint estate was ordered.
[80]
The Plaintiff will benefit if an order for forfeiture is not made.
The Defendant’s pension
fund is worth R1 526 949.00.
The Plaintiff will receive half of this if a forfeiture order is not
made.
[81]
The next enquiry involves a value judgment considering the three
factors mentioned in
Sec 9.
[82]
The principle of
pacta sunt servanda
entails that the
agreement to share equally between the parties must be honoured.
[83]
There are no substantial misconduct. The Plaintiff’s financial
problems gave rise to the
breakdown of the marriage.
[84]
The Plaintiff did not make any contribution towards the common
household since August 2019, after
the Defendant left the common
household during July 2019.
[85]
It will be just to order that the Plaintiff do not share in the
growth of the Defendant’s
pension fund from 01 August 2019 to
the date of this order.
[86]
The following order is made.
1. A decree of
divorce is issued.
2. The
Plaintiff forfeits any benefit in the growth of the Defendant’s
pension fund from 01 August
2019 to the date of this order.
3. Division of the
joint estate, excluding the benefit the Plaintiff forfeits in terms
of order 2, is ordered.
4. Both parties
shall have full parental responsibilities and rights with regard to
the minor children, as specified
in
Section 18(2)
of the Children’s
Act, 38 of 2005.
5. The
primary place of residence and care of the minor children is awarded
to the Defendant.
6.
Specific parental responsibilities and rights with regard to contact
with the minor children, as
contemplated in
Section 18(2)(b)
of the
Children’s Act, 38 of 2005, is awarded to the Defendant, in the
following manner:
6.1 The Plaintiff is
entitled to contact the minor children telephonically at all
reasonable times.
6.2 The
Plaintiff shall be entitled to take the minor children with him for:
6.2.1 Alternative
weekends, commencing on Friday at 14:00 and ending on Sunday at
17:00.
6.2.2 Short
school holidays which shall rotate between the parties and for half
of the long school holidays
which shall be divided equally between
the parties on such a basis that each party shall be entitled to have
the children with
him/her on every alternative Christmas.
6.2.3 Easter and
public holidays shall alternate between the parties.
6.2.4 At least
four hours contact with the children on his and the children’s’
birthdays.
6.2.5 Contact
with the children on fathers-day from 08:00 to 17:00 if fathers-day
does not fall on a contact
weekend.
6.2.6 The
Plaintiff shall be responsible for transport of the children to and
from school. The children
shall be returned to their maternal home
within one hour after school closure.
7. The
parental responsibilities and rights regarding guardianship of the
minor children, as contemplated
in
Section 18(2)(c)
and
18
(3) of the
Children’s Act, is awarded to the parties jointly.
8. The
Plaintiff shall pay maintenance in the amount of R2500.00 per child
per month, which shall
be payable before the 3
rd
day of
each month with the first payment to be made on or before 03 March
2023.
9. The
Plaintiff shall pay all reasonable expenses relating to school wear
including uniform and sport
clothing for both children.
10. The
Plaintiff shall pay for airtime and data for both children.
11. The
Plaintiff shall pay the school fees for the minor daughter S.
12.
The
Defendant shall pay the school fees for the minor son K.
13. Each
party is to pay its own costs.
AP
BERRY, AJ
APPEARANCES:
For
the Plaintiff:
Adv. D Hattingh-Boonzaaier
Instructed
by:
Phatsoane Henney Attorneys
Bloemfontein
For
the Defendant:
Mr M Khoale
Mpobole &
Ismael Attorneys
Bloemfontein