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2023
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[2023] ZAFSHC 68
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V.R v V.R (4939/2020) [2023] ZAFSHC 68 (1 March 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
FLYNOTES:
FORFEITURE OF BENEFITS
FAMILY
– Divorce – Forfeiture – Misconduct –
Relatively short marriage – Appearing that much
younger wife
married to advance her financial position and place in political
arena – Found that attitude of wife towards
the husband
caused the break-down of the marriage – Her disloyalty and
conduct consonant with that of misconduct and
substantially so –
Forfeiting benefits of marriage.
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 4939/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
B
[....] M [....] K [....]- V [....] R
[....]
Plaintiff
And
C
[....] J [....] V [....] R [....]
Defendant
JUDGMENT
BY:
AK RAMLAL, AJ
HEARD
ON:
20 SEPTEMBER 2022
DELIVERED
ON:
1 MARCH 2023
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 11H00 on 1 March 2023.
[1]
The plaintiff, Mrs B [....]
M [....] V [....] R [....] instituted a divorce
action against her husband,
C [....] J [....] V
[....] R [....], whom she married in of community of property,
on 11 October 2019,
at Kimberley in the Northern Cape. The parties
have one minor child, a boy, who was born out of their relationship
with each other
prior to their marriage. The child was born on 27
August 2015.
[2]
In this divorce action both the plaintiff and the defendant have
claimed dissolution
of the marriage.
[3]
It is common cause between the parties that:
3.1
the marriage relationship between the parties has irretrievably
broken down;
3.2
the parties share equal rights in terms of parental rights and
responsibilities regarding guardianship of
the minor child;
3.3
the
plaintiff must be awarded primary care and permanent residency of the
minor child; and
3.4
the
defendant’s contact rights be awarded in the manner as set out
in prayer 8.9 of the Plaintiff’s amended particulars
of claim
[4]
At issue are:
4.1
the reasons for the breakdown of the marriage;
4.2
the quantum of maintenance payable for the minor child;
4.3
division
of the joint estate of the parties/forfeiture of the benefits and
4.4
costs
of the trial
[5]
It is not necessary to recount all
the details of the relationship between the parties. I will confine
myself to the relevant facts
pertaining to the issues to be
determined.
Plaintiff’s
Evidence:
[6]
The Plaintiff testified in detail about the relationship between
herself and the defendant
before their marriage to each other in
2019. She explained that they met each other in the year 2012 whilst
she was a political
science student and the defendant was a
high-ranking member of the Provincial Legislature in the Free State.
During 2014 the parties
were engaged to each other and a few months
later their relationship ended. They resumed their relationship again
towards the end
of 2014. In early 2015 the parties leased premises in
an upmarket suburb in Bloemfontein. The defendant paid the deposit
for the
property and the plaintiff paid the monthly rental for the
duration of the lease. Their child was born in August 2015. The
defendant
paid all the birthing expenses and he maintained the child.
[7]
In April 2017, the plaintiff purchased a property in her own name.
The plaintiff explained
that although they were meant to be living
together at the property that she purchased, they were often
estranged from each other.
There was a mutual understanding between
them that whenever they did not live together, the defendant
contributed financially towards
the maintenance of the minor child.
When they lived together, the defendant took care of the needs of the
child without giving
a monetary contribution to the plaintiff. The
plaintiff was directly responsible for the bond payment of the
property that she
had purchased together with the costs for the
utilities and all incidental costs associated with the upkeep of the
property.
[8]
At the time when the plaintiff purchased the property in her name,
she was aware that
the defendant had at least three other properties
registered in his name.
[9]
At the end of June 2019, the plaintiff and the defendant were in a
more definite relationship
with each other. The plaintiff testified
that they had a short discussion about how they would get married
although they did not
specifically agree that they would be married
in community of property. As a result of her busy schedule, they
would register the
marriage and then have a marriage
ceremony/celebration at a later stage. The parties registered their
marriage in Kimberley on
the 11 October 2019. They then lived
separately until January 2020 when the plaintiff and the child moved
into property where the
defendant resided on the suggestion of the
defendant that they would be able to reduce their expenses if they
lived together. The
plaintiff was not happy to live at the premises
of the defendant as she owned a luxury stand-alone house and the
premises where
the defendant lived was a unit in a group of
residences. The plaintiff and the child moved back to the property
that the plaintiff
owned on 5 November 2020.
[10]
The plaintiff’s account of what led to the breakdown of the
marriage is that there was
a lack of communication and intimacy
between them. The plaintiff believes that the defendant made
unilateral financial decisions
in that he continued to maintain his
ex-wife and he assisted his children and grandchildren as and when
they requested him so to
do. The plaintiff feels that the defendant
failed to honour promises that he made to her, amongst others, to
have a second child.
[11]
In respect of the maintenance award claimed by the plaintiff for the
minor child, the plaintiff
claims an amount of thirteen thousand rand
(R13000-00) per month as she believes that this an amount that the
defendant can afford.
Defendants’
Evidence
[12]
The defendant testified that although he intended to have an ante
nuptial contract registered
no such marital contract was ever entered
into between him and the plaintiff. He confirms that their marriage
is one that is in
community of property. Despite this, both parties
administered their own estates, but the defendant supported the
plaintiff and
the child financially.
[13]
The age difference between the plaintiff and the defendant and their
differing interests are
cited as factors that contributed to the
breakdown of the marriage according to the testimony of the
defendant. He maintains that
immediately after the conclusion of his
marriage to the plaintiff, she failed to be intimate with him.
[14]
His further testimony is that he believes that the plaintiff entered
a marriage relationship
with him to enhance her financial position.
The demands made on him by the plaintiff were extravagant and beyond
his financial
capability.
[15]
The evidence of the defendant in respect of the duration of the
relationship between the parties
is as stated by the plaintiff. It is
therefore not necessary to repeat the timeline of their relationship.
[16]
With regard to the maintenance of the minor child, the defendant
testified that he has always
maintained the child financially and he
devoted his time and he continues to spend time and interacts
meaningfully with the minor
child. The defendant is willing and able
to continue to maintain the minor child financially in accordance
with the needs of the
child as determined by the court. He currently
pays an amount of six thousand and seven hundred rand (R6700-00)
towards the maintenance
of his child.
[17]
The defendant does not deny that he supports his ex-wife as he is
obliged to do so in terms of
a divorce order. He also assists his son
and his grandchild as and when they require his assistance and if it
is within his means.
The defendant further explained that he has
strong family ties and he used to get assistance from his sister who
prepared meals
for him when he was living on his own.
[18]
The defendant declared that he built up his estate before the parties
got married to each other
and that even in the short duration of
their marriage, the plaintiff did not contribute towards the joint
estate, thus if the plaintiff’s
benefit is not forfeited, she
will unduly benefit therefrom.
The
defendant’s claim for a forfeiture of patrimonial benefits:
[19]
The law relating to a claim for a forfeiture of patrimonial benefits
of a marriage in community
of property upon divorce is settled. In
brief, the position is as follows:
[19.1]
Section 9(1) of the Divorce Act, 70 of 1979 (the
Divorce Act)
provides
as follows:
“
When a decree
of divorce is granted on the ground of the irretrievable breakdown 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, it is satisfied that, if the order for forfeiture is not
made, the one party will
in relation to the other be unduly
benefitted.”
[19.2]
In the seminal authority on the issue,
Wijker v Wijker
1993 (4) SA 720
(A)
, at
727E,
the court said the following
of
Section 9
of the
Divorce Act:
“
It
is obvious
from the wording of the section that the first step is to determine
whether or not the party against whom the order
is sought will in
fact be benefited. That will be purely a factual issue. Once that has
been established the trial court must determine,
having regard to the
factors mentioned in the section, whether or not that party will in
relation to the other be unduly benefited
if a forfeiture order is
not made. Although the second determination is a value judgment, it
is made by the Court after having
considered the facts falling within
the compass of the three factors mentioned in the section.”
[19.3]
The enquiry is, accordingly, a two-stage process. The first entails
an assessment of the nature and extent of the alleged
benefit, whilst
the second entails an assessment of whether the benefit is undue. It
follows that the second enquiry is only necessary
if the first one
has been positively established. The value judgment that is entailed
by the assessment of whether or not the benefit
is undue may not be
clouded by considerations of fairness. The matter is not about
achieving fairness between the parties, it is
about the application
of a legal principle.
[20]
In the present case, the defendant bears the onus of persuading the
court that there ought to
be a deviation from the legal consequences
that flow from a marriage in community of property in relation to the
division of the
estate on the terms that he suggests.
The
First Enquiry: Establishing Whether the Plaintiff will be Benefited
[21]
The factual enquiry here calls for an assessment of the respective
contributions made by the
parties at the commencement of the marriage
and during the course of the marriage. The purpose of the enquiry is
to determine ultimately
whether any commercial benefit is available
to the plaintiff. If, for instance, the joint estate is insolvent
there can be no benefit
that will be established in compliance with
the first requirement of
Section 9(1).
As the enquiry relates to that
of patrimonial benefits gained in the marriage, it is purely an
assessment of the commercial values
associated with these gains.
[22]
Although the plaintiff sought an order for the division of the joint
estate of the parties, much
of the focus was on the defendant’s
capital sum of his living annuity and there was scant mention of the
other three properties
that the defendant owns. The plaintiff
focussed on the value of the living annuity to the exclusion of the
rest of the estate.
Upon a narrow consideration of this asset alone,
clearly, it was established that the plaintiff would benefit by an
equal division
of this asset.
[23]
Upon a proper construction of the provisions of
Section 9
of the
Divorce Act, no distinction
is drawn between an assessment of whether
there will be a benefit, when a partial forfeiture is sought as
opposed to a total forfeiture.
The court
is not required to confine itself to the value of the asset being
sought to be forfeited in deciding whether there will
be a benefit,
it is required to consider the value of the estate as a whole.
[24]
Both parties to this marriage had immovable property registered in
their names at the time of
the commencement of this marriage and both
had motor vehicles registered in their names. The defendant also has
a capital sum of
five million rand (R5 000 000) which is
his living annuity. The plaintiff has investments, shares and savings
which total
approximately one hundred thousand rand (R100 000).
[25]
A proper consideration of forfeiture claims, nevertheless, requires
that account be taken not
only of the respective contributions made
at the commencement of a marriage, but also of the contributions made
to the joint estate
during the marriage as a result of a party’s
“
industry or thrift
”. (See
Smith v Smith
1937 WLD 126
). The respective parties’ contributions during
the marriage are, accordingly, relevant in the assessment of the
question
whether, in the present case, the plaintiff will be
benefited.
[26]
It is difficult to ascertain when the parties had a common household
as they both lived in separate
residences and the defendant has
always made a financial contribution towards the plaintiff and the
child when he did not live
with them. The plaintiff was gainfully
employed for the duration of the marriage. She retained full control
of her finances. The
defendant was not privy to how she spent her
money.
The plaintiff explained that
except for his basic personal expenses, most of his income was
directed towards the expenses of the
plaintiff and his minor child.
The plaintiff could offer nothing of substance to suggest otherwise.
[27]
There is nothing to gainsay the version of the defendant that the
plaintiff will benefit from
the division of the joint estate if the
forfeiture order is not granted. The defendant has thus discharged
this burden.
The
Second Enquiry: Whether the benefit to the Plaintiff will be Undue?
[28]
The second leg of the enquiry is whether the plaintiff will benefit
unduly if the forfeiture
order in relation to the capital sum of the
living annuity of the defendant is not granted. This enquiry entails
a consideration
of the three factors stated in
Section 9(1)
of the
Divorce Act.
(i
)
Duration of the Marriage:
[29]
The parties appear to have cohabited sporadically with each other
from 2014 to 2017 until they
were married on 11 October 2019. They
separated in early November 2020. As the marriage still subsists, it
is a three-year marriage.
Effectively, it was really a fourteen-month
marriage, having ended in November 2020 for all intents and purposes.
Even if the full
three years are considered, it can be inferred to be
a marriage of a short duration. A longer marriage generally entails a
greater
commitment and contributions to the joint estate by the
respective spouses.
[30]
For the duration of the time that the parties lived together and
whilst they were married to
each other, the evidence placed before
the court demonstrates that the only shared expenses that they had
was in relation to the
minor child. They acted independently of each
other and managed their separate estates. This factor, therefore,
tends to support
the defendant in the assessment.
(ii)
Factors that Led to the Breakdown of the Marriage:
[31]
The defendant stated that the reasons for the breakdown of the
marriage was the age gap between
him and the plaintiff. There is a
thirty-nine-year age gap between them. In addition, he felt that the
plaintiff married him to
secure financial wealth for herself, advance
herself in political arena by using his influence and to benefit from
his estate.
[32]
He further elaborated that once they were married, the plaintiff only
engaged in intimate intercourse
once with him during the duration of
the marriage and not even on their so-called honeymoon.
[33]
The defendant testified that the plaintiff’s showed no love or
respect towards him and
he got the distinct impression that she was
embarrassed to be seen with him in public.
[34]
Although the plaintiff claims that the defendant failed to honour his
promises, for example,
to have a second child with her, the defendant
testified that they never agreed to this. He always maintained that
he was too old
and not in a financial position to raise more
children.
[35]
The defendant states that he was unable to maintain the extravagant
lifestyle that the plaintiff
wanted to live. The plaintiff was under
the mistaken impression that he had a lifestyle of luxury because he
travelled overseas,
ate at restaurants and owned several properties.
The factual position is that his overseas travel and going out to
eateries where
he met influential people were as a result of the work
that he did, and those expenses were covered by his employer. Not all
the
properties that he owns are registered solely in his name as some
form part of a family trust in which he has a nominal share.
[36]
The court, having observed the parties when they testified and having
considered the content
of their testimony, must agree that the
plaintiff was young and impressionable. She appeared to be image
conscious and ambitious
and wanted to assert herself as being
financially and emotionally independent, whilst utilising the
resource that she had in the
defendant to assist her to accelerate
her progress. The defendant was candid in his testimony and he
portrayed himself as being
a doting father who has the best interests
of his minor child always at the forefront.
[37]
This factor, therefore, supports the defendant.
(iii)
Any Substantial Misconduct on the part of either Party:
[38]
The reasons for the breakdown of the marriage are inextricably linked
to the substantial misconduct
enquiry.
The
attitude of the plaintiff towards the defendant in my view caused the
break-down of the marriage. This court is satisfied that
the
defendant gave his testimony in a clear and direct manner. The
evidence of the defendant was not challenged under cross-examination.
The court accepts his testimony as the truth. The plaintiff’s
testimony is unreliable and riddled with improbabilities and
inconsistencies. The disloyalty of the plaintiff and her conduct
is
consonant with that of misconduct and substantially so.
[39]
This factor, therefore, also supports the defendant.
Determination
in Relation to the Defendant’s claim for a Forfeiture of
Patrimonial Benefits:
[40]
All three factors in relation to the second stage of the enquiry
favour the defendant. The defendant
succeeded in establishing the
existence of the benefit envisaged in the first stage of the enquiry.
The defendant’s counterclaim
must succeed.
Maintenance
for the Minor Child
[41]
The plaintiff claims an amount of thirteen thousand rand (R13 000-00)
per month as maintenance
for the minor child. Her assertion is that
since the defendant has generally contributed Ten Thousand Rand
(R10 000-00) per
month towards the maintenance of the child, he
should be ordered to continue.
[42]
Section 15
of the
Maintenance Act, 99 of 1998
provides:
“
(3)(a) Without
derogating from the law relating to the support of children, the
maintenance court shall, in determining the amount
to be paid as
maintenance in respect of a child, take into consideration-
(i)
that the duty of supporting a child is an
obligation which the parents have incurred jointly;
(ii)
that the parents’ respective shares
of such obligation are apportioned between them according to their
respective means; and
(iii)
that the duty exists irrespective of
whether a child is born in or out of wedlock or is born of a first or
subsequent marriage.
(b) Any amount so
determined shall be such amount as the maintenance court may consider
fair in all the circumstances of the case”
[43]
Both parties hereto accept and appreciate that they have an
obligation to maintain the minor
child and that that duty to maintain
the minor child extends beyond a financial contribution. The
apportionment of that financial
obligation, however, is what is in
dispute.
[44]
The plaintiff is of the view that the total
expenses in respect of the minor child amounts to eighteen thousand
rand (R18 000-00) and that the defendant should be responsible
for the payment of thirteen thousand rand (R13 000-00)
thereof
whilst the defendant is of the view that the defendant has been
contributing an amount of six thousand seven hundred rand
(R6700-00)
and since the plaintiff has not been able to show that this amount is
inadequate to maintain the minor child, the plaintiff
should be
ordered to continue to pay this amount.
[46]
The plaintiff provided a list of the minor child’s expenses,
mostly without any supporting
documentation. An in-depth
interrogation of these expenses was conducted during the trial. This
interrogation resulted in the determination
of the child’s
expenses being reduced by the defendant to an amount of R12 783.
[47]
It is difficult to determine the exact needs of the child without the
corresponding documentation
to support the claims. The list provided
by the plaintiff does however provide a guide from which to make the
determination. I
have factored in that both parents have incidental
expenses that have not been listed. For example, the defendant incurs
additional
expenditure in relation to travel and money spent on
outings with the child that has not been listed and the plaintiff has
unplanned
expenses that are called for
ad hoc
from school fund
raising events. These were mentioned during the enquiry, but no
amounts were suggested. The total needs of the
child are assessed to
be R13 900 per month.
[48]
Once the needs of the child have been determined the court must
consider the contribution of
the respective parents. The plaintiff is
employed and earns a nett income of R35 000-00 per month. The
Defendant is retired
and receives a nett amount of almost R35 00-00
per month from his living annuity. It is not necessary to conduct an
enquiry into
whether the defendant has the ability to pay his
pro
rata
contribution as it is his evidence that he is willing to pay
an amount that the court deems necessary for the maintenance of the
child.
[49]
In
the result the following order is made:
1.
A decree of divorce is
granted;
2.
The plaintiff forfeits
the benefits of the marriage in community of property;
3.
The Parental Rights and
Responsibilities of the primary care and permanent residency of the
minor child (as contemplated in
Section 18(2)(a)
of the Children’s
Act 38 of 2005), born of the relationship between the parties, is
awarded to the plaintiff;
4.
The specific Parental
Rights and Responsibilities with regard to contact of the minor child
is awarded as follows:
4.1
Short holidays to
alternate between the parties and long school holidays to be shared
equally;
4.2
Public holidays to
alternate between the parties;
4.3
Weekends to alternate
between the parties;
4.4
Contact with the minor
child on his birthdays between 17h00 and 19h00 if the birthday falls
on a weekday and between 09h00 and 13h00
if the birthday falls on a
weekend during which the defendant is not entitled to exercise
contact with the minor child;
4.5
Contact with the minor
child on the defendant’s birthday between 09h00 and 15h00 if it
falls on a weekend during which the
defendant is not entitled to
exercise contact with the minor child;
4.6
Contact with the minor
child on Father’s Day;
4.7
Reasonable telephonic
contact: subject to the minor child’s reasonable scholastic,
religious, sporting and cultural activities.
5.
The Parental Rights and
Responsibilities with regard to guardianship of the minor child born
prior to the marriage of the parties
(as contemplated in
Section
18(2)(c)
and
18
(3) of the Children’s Act 38 of 2005), is
awarded to the parties jointly.
6.
The defendant is
ordered to pay maintenance in respect of the minor child:
6.1
in the sum of Seven
thousand Rand (R7000-00) per month;
6.2
the
maintenance for the minor child is to be increased in accordance with
the inflation rate and the Consumer Price Index for the
average of
the preceding twelve months on annual basis, commencing on the
anniversary of the date of the divorce.
7.
Each party to pay his or her own costs.
A.K
RAMLAL, AJ
On
behalf of the Plaintiff : Adv. A Coetzee
Instructed
by
: Pedzisai-Pion Attorneys
BLOEMFONTEIN
On
behalf of the Respondent : Adv E G Lubbe
Instructed
by
: Honey Attorneys
BLOEMFONTEIN