About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 168
|
|
M.D.M v M.J.M (122/2021) [2023] ZAFSHC 168 (12 May 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
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case No.: 122/2021
In the matter between: -
M[…]
D[…] M[…]
Plaintiff
(ID: 6[…])
and
M[…] J[…]
M[…] (Nee: R[…])
Defendant
(ID: 6[…])
CORAM:
N. M.
MBHELE,
DJP
HEARD
ON:
25 &
26 OCTOBER 2022 & 31 JANUARY 2023
DELIVERED
ON:
12 MAY
2023
[1]
Plaintiff and Defendant got married to each other in community of
property on 21 September
1990. The plaintiff instituted an action
against the defendant seeking a decree of divorce and an order for
the division of the
parties’ joint estate including an order
that the Government Employees Pension Fund, of which the defendant is
a member,
be ordered to pay to the plaintiff an assigned portion of
the interest held by the Defendant in the said pension fund scheme.
[2]
The parties are in agreement that their marriage has broken down
irretrievably with
no prospects of restoring same to a normal
marriage relationship albeit for different reasons. The defendant, in
her counterclaim,
prays that the plaintiff forfeit his share in
specific properties forming part of the joint estate. Owing to the
defendant’s
claim of patrimonial benefits, I ruled that the
defendant had a duty to begin in as far as the presentation of
evidence is concerned.
[3]
I am asked to determine whether the
defendant has made out a case for forfeiture of patrimonial
benefits.
In the counterclaim the defendant sets out the reasons for the
breakdown of the parties’ marriage as follows:
3.1
The parties no longer consort or enjoy conjugal rights in terms of
the marital relationship;
3.2
The parties are no longer able to communicate with one another
constructively;
3.3
The Plaintiff abused the Defendant psychologically, spiritually and
physically to such
an extent that she has had a protection order;
3.4
The Plaintiff entered into adulterous relationships and squandered
money, which conduct
the Defendant finds unacceptable and
humiliating;
3.5
Before instituting the divorce, the Plaintiff had become cold,
distant and aloof
towards the Defendant;
3.6
The Plaintiff has, during the subsistence of the party’s
marriage, utilized his salary
and the proceeds from his taxi
operations for his own benefit, to the detriment of the joint
estate, and in particular, of the
Defendant;
3.7
The Plaintiff has relinquished assets belonging to the joint estate
without the Defendant’s
knowledge and consent; and
3.8
The Plaintiff has failed over the years to adequately maintain the
Defendant and to contribute
meaningfully to the establishment and
creation of the estate of the parties.
[4]
The reasons for the
breakdown of their marriage as set out by the plaintiff
are as
follows in his particulars of claim:
4.1 The Plaintiff and
Defendant have started living their own lives without including
each other respectively therein;
4.2
The Plaintiff and Defendant have no more care for each other and
agree to proceed with a
decree of divorce;
4.3
The Plaintiff and Defendant cannot communicate effectively anymore;
4.4
The Plaintiff and Defendant have attempted at restoring a normal
marital relationship, however
all such attempts have been
unsuccessful.
4.5
The Defendant does not support the Plaintiff emotionally and
financially.
[5]
The defendant testified as follows: When the
parties got married the plaintiff was not employed.
Early in their
marriage the plaintiff resorted to violence whenever they had
quarrels. He would physically assault her and use
profane language
towards her. She could remember about 5 occasions in which she was
physically assaulted by the plaintiff.
[6]
During the subsistence of the parties’
marriage the defendant purchased a motor vehicle,
Audi A4 with
registration letters and numbers CZV 5[…] (Audi CZV)
through vehicle finance. She later replaced it with
a new model of
Audi which bears registration letters and numbers F[…].
The plaintiff sold Audi CZV without the knowledge
and consent of the
defendant. The plaintiff simply took the vehicle and never returned
it home. The defendant discovered later
that the vehicle was actually
sold to someone residing in Kimberley. She later bought an Audi A5
bearing registration letters and
numbers H[…]. The vehicle is
still under vehicle finance.
[7]
In 2009 the parties bought a Toyota Quantum
mini bus which was operated as a taxi. Defendant paid a
deposit
towards the purchase of this vehicle. The aim was to help plaintiff
start his own business as a taxi operator. They
later purchased
a Volkswagen caravelle microbus which the plaintiff used as scholar
transport.
[8]
Sometime in 2019 the Toyota Quantum disappeared and upon inquiry of
its whereabouts the plaintiff told the
defendant that it went for
repairs. The vehicle never returned home until the defendant saw it
carrying passengers somewhere in
Botshabelo. When the defendant
asked the plaintiff whether the vehicle had started operating
the plaintiff responded
that he allowed one Mr. Nthapo to keep it
with him for some time. The vehicle never returned home. It emerged
under cross examination
that the plaintiff sold it to Mr. Nthapo.
[9]
Later on he informed the defendant that he
intends selling the Volkswagen Caravelle microbus.
He sold the
vehicle for R80 000. 00 and the defendant does not know what he
did with the proceeds of the said sale.
[10]
He later bought another Toyota Quantum minibus.
It, like the first one, disappeared and the defendant learned from
their neighbour
that the vehicle was no longer operating as a taxi.
She enquired from the plaintiff of its whereabouts and the plaintiff
informed
her that one of his drivers transported passengers to
Queenstown and it was impounded by traffic authorities for
transporting
passengers without a valid permit.
[11]
The plaintiff had multiple extra marital affairs, some with Church
members. The two Church members
that he had love affairs with were
one Sonja from Kimberly and one Emily from Gauteng. He
openly had another love affair
with one Nthabiseng whom he was
transporting daily to work with the corsa bakkie that the
defendant bought and paid
for. The corsa bakkie was initially
intended to be used for a business of transporting goods for people
at Botshabelo Industrial
area. The plaintiff failed to
contribute financially towards the day to day basic needs of the
common household. He instead
used his money to buy clothes and
Brazilian hair extensions for his girlfriends.
[12]
He did not contribute towards the education of their daughter
from grade 1 until she attained PHD. The plaintiff
utilized his
salary and proceeds from his taxi operations for his own
benefit with total disregard for the growth of the
joint estate. He
never paid school fees nor paid for her transport to school. She
single - handedly contributed towards their
daughter’s
education. The plaintiff moved out of the parties’ shared
bedroom in 2020 and they have not been communicating
ever since. She
admits that the plaintiff made a minimal contributions towards the
building of their matrimonial home way back
when he started
working as a taxi driver.
[13]
When the defendant got tired of seeing the
plaintiff ferrying his many girlfriends with the vehicles that
she
bought and paid for single- handedly she stopped him from further
driving the other vehicles except the corsa bakkie. The plaintiff
reacted by saying that the only way he can have access to money
is if he filed for divorce so he can claim form the
defendant’s
pension and have sole control of some assets in the estate.
[14]
The plaintiff confirmed that they were married in
community of property. He confirmed that they bought a
Toyota Quantum
and Caravelle minibuses operating a taxi business. He attributes the
breakdown of their marriage to the defendant’s
cheating habit.
A matter that was not raised in the summons. He agreed
that he had an extramarital affair with Nthabiseng.
He is unemployed
and dependent on the social security grant and the income generated
from renting out his taxi operating licence
to Mr. Nthapo
[15]
The defendant submits that the plaintiff will be unduly benefitted
should I not order that the latter
forfeits the benefits arising from
the joint estate in respect of the following assets:
15.1 His claim to 50% of
the Defendant’s pension interest held in the GEPF;
15.2.
His interest in an immovable property situated at
Erf 1[…],
B[…]-T, D[…] Thaba Nchu, Province Free State
as
held under Deed of Grant
G0[…]/1988;
15.3.
His share in all the moveable assets kept at
Erf 2[…],
Section H, B[…];
and
15.4.
His share in the following motor vehicles:
(I)
An Audi A4 bearing registration number:
C[…]
;
(II)
An Audi A5 bearing registration number:
H[…]
;
(III)
A Kia Rio bearing registration number:
F[…]
;
(IV)
An Opel Corsa bearing registration number:
D[…]
.
[16]
The general rule governing marriage in community
of property is that it is an agreement in terms
of which
parties undertook to share equally in the proceeds of
their marriage. The point of departure would be for
parties to share
assets of the joint estate equally upon divorce. This stems
from the doctrine of
pacta sunt servanda
which protects the
sanctity of contracts.
[17]
Courts are however empowered to deviate from the general rule
applicable to matrimonial property upon divorce
where the court is
satisfied that the enforcement of the rule would result in a party
against whom an order of forfeiture is sought
being unduly benefited
in relation to the other. Section 9(1) of
The
Divorce Act
[1]
provides as follows:
‘
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.’
[18]
In
Wijker
v Wijker
[2]
the court held as follows when it dealt with the question of
forfeiture of benefits
‘
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 trial
Court after having considered the facts falling within
the compass of
the three factors mentioned in the section. In dealing with the
manner in which an appeal in an unfair
labour practice dispute should be
approached, E M Grosskopf JA made the following remarks in
Media
Workers Association of South Africa and Others v Press Corporation of
South Africa Ltd ('Perskor')
[1992] ZASCA 149
;
1992
(4) SA 791
(A) at 800CG:
'However,
as I stated above, the word discretion is used here in a wide G
sense. Henning "Diskresieuitoefening" in 1968
THRHR
155
at 158 quotes the following observation concerning discretionary
powers:
"'(A)
truly discretionary power is characterised by the fact that a number
of courses are available to the repository of the
power' (Rubinstein
Jurisdiction and Illegality
(1956) at 16)."
The
essence of a discretion in this narrower sense is that, if the H
repository of the power follows any one of the available courses,
he
would be acting within his powers, and his exercise of power could
not be set aside merely because a Court would have preferred
him to
have followed a different course among those available to him. I do
not think the power to determine that certain facts
constitute an
unfair labour practice is discretionary in that sense. Such a
determination is a judgment made by a I Court in the
light of all
relevant considerations. It does not involve a choice between
permissible alternatives. In respect of such a judgment
a Court of
appeal may, in principle, well come to a different conclusion from
that reached by the Court
a quo
on the merits of the matter.'
These
remarks are in my view of equal application in this matter. To
determine whether a party would be unduly benefited, a trial
Court
would certainly not be exercising a discretion in the
narrower sense. Here too no choice between permissible
alternatives
is involved. In considering the appeal this Court is therefore not
limited by the principles set out in
Ex parte Neethling (supra)
and it may differ from the Court
a quo
on the merits. It
is only after the Court has concluded that a party would be unduly
benefited that it is empowered to order a forfeiture
of benefits, and
in making this decision it exercises a discretion in the narrower
sense. It is difficult to visualise circumstances
where a Court would
then decide not to grant a forfeiture order. This discretionary power
may be more apparent than real but it
is not an issue in this appeal
and no more need be said about it.’
[19]
The Court has to ask itself whether one party would be
unduly benefited if an order of forfeiture is not made
and in order
to answer that question regard should be had to the duration of the
marriage, the circumstances in which it broke
up and, if present,
substantial misconduct on the part of one or both parties. It is not
a pre requisite that all factors must
be present. See
Klerck
v Klerck
[3]
[20]
The forfeiture order is restricted to
patrimonial benefits, under section 9(1) the court cannot order a
redistribution of capital
and property. See (
Singh
788E –
F; Hahlo,
The South African Law of Husband and Wife
, 5th
Ed (1985) 376.) The benefits that the other party must forfeit
are those that flow from the marriage between the parties
not those
that the party contributed to the joint estate.
[21]
The plaintiff failed to adduce evidence that would
support the grounds set out in his particulars of claim.
He tried to
strengthen his case by advancing new grounds for divorce during his
testimony wherein he said that the defendant’s
extra marital
affair was the direct cause of the breakdown of their marriage and
that he was verbally abused and assaulted by the
defendant. These
were never pleaded, they came as an afterthought during his
testimony. He did not dispute crucial evidence brought
by the
defendant. He sought to establish a different case from what he
pleaded. A bulk of his testimony was not put to the defendant
in
cross examination. He further did not dispute most of what the
defendant testified about. His evidence is unreliable and falls
to be
rejected.
[22]
The parties are not able to communicate
constructively with one another. The undisputed evidence shows that
the plaintiff abused the defendant physically and emotionally. The
defendant had to endure assault and profanities from the plaintiff.
He had extra marital affairs and used monies that he had to
contribute towards the growth of the joint estate to buy gifts for
his girlfriends. He treated the defendant with disdain to a point of
openly conducting his love affairs in her full view.
[23]
He sold assets belonging to the joint estate even those that were
aimed at creating a sustainable income
for him and used proceeds
thereof for his own benefit to the exclusion of the defendant. He
failed to contribute to the growth
of the joint estate and the
parties’ household when he still earned income from his taxi
business. His conduct diminished
the joint estate in many respects.
It worked against the growth and maintenance of the parties’
joint estate. The evidence
shows that he had means to contribute
towards the growth of the joint estate but he simply did not do it
because he was not invested
in it. He invested his energies somewhere
else. Defendant was solely responsible for the education of their
only daughter. Plaintiff
never contributed meaningfully to the assets
in respect of which the forfeiture order is sought.
[24]
The plaintiff’s substantial misconduct as
alluded above and the fact that he made no meaningful contribution
towards the purchase of the relevant assets disqualifies him from
having an equal share in the joint estate. He worked tirelessly
to
recklessly squander the joint estate and sabotage its growth. He has
no moral entitlement to the aforementioned assets. The
defendant
succeeds in her counterclaim.
[25]
I make the following
order in favour of the defendant.
1.
A decree of
divorce
1.1
The plaintiff
forfeits the following benefits of the marriage in community of
property:
1.2
His claim to 50% of the Defendant’s pension
interest held in the GEPF;
1.3
His interest in an immovable property situated at
Erf
1[…], B[…]-T, D[…] Thaba Nchu, Province Free
State
as held under Deed of Grant
G0[…]/1988;
1.4
His share in all the moveable assets kept at
Erf
2[…], Section H, B[…];
and
1.5
His share in the following motor vehicles:
(I)
An Audi A4 bearing registration number:
C[…]
;
(II)
An Audi A5 bearing registration number:
H[…]
;
(III)
A Kia Rio bearing registration number:
F[…]
;
(IV)
An Opel Corsa bearing registration number:
D[…]
.
___________________
N.M. MBHELE, DJP
Appearances:
For
the Plaintiff:
Mr Venter
Instructed
by
Jacobs Fourie Inc.
Bloemfontein
For
the Defendant:
Adv.Mazibuko
Instructed
by
Amade & Company
Inc.
Bloemfontein
[1]
The
Divorce Act 70 of 1979
[2]
Wijker v Wijker 1993 (4) SA 720 (A)
[3]
Klerck v Klerck
1991 (1) SA 265
(W)