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[2023] ZAECMKHC 18
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R.B.M v M.S.M (CA 29/2022) [2023] ZAECMKHC 18 (24 February 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: CA 29/2022
In
the matter between:
R[...]-B[...]
M[...]
Appellant
and
M[...]
S[...] M[...]
Respondent
APPEAL JUDGMENT
BANDS
AJ:
[1]
The parties, who had been married for some 28
years, were divorced by order of the Regional Court on 12 November
2021. This
is an appeal against part of the trial court’s
judgment, and more particularly the court’s refusal to grant an
order
that the respondent forfeit the patrimonial benefits of the
parties’ marriage, in accordance with section 9(1) of the
Divorce
Act 70 of 1979 (“
the
Divorce Act
&rdquo
;).
[2]
In order to succeed with her appeal, the
appellant must establish that the Magistrate’s judgment is
assailable on the basis
of error or misdirection. I return to
this later.
[3]
The
parties were married to one another, in community of property, on 23
May 1993. That the marriage relationship had broken
down
irretrievably was common cause. The respondent, as plaintiff in
the divorce action, sought (i) a division of the joint
estate; (ii)
maintenance
for
the duration of the divorce action
;
[1]
and (iii) payment of 50% of the appellant’s pension interest as
at the date of divorce. The appellant, as defendant,
defended
the action and, by way of a claim in reconvention, sought an order
that the respondent forfeit the benefits arising from
the marriage in
community of property.
[4]
The appellant’s pleadings were not a
model of clarity, with the issue of forfeiture having been raised
obliquely. Not
only did the drafter conflate the factors set
out in
section 7(2)
of the divorce Act with those contained in
section 9(1) thereof; but the appellant’s claim for forfeiture
was misguidedly
based on the principle of fairness. By way of
illustration, paragraph 6 of the appellant’s claim in
reconvention reads
as follows:
“
In
the absence of an agreement, having regards for (sic) the reasons of
the breakdown of the marriage, as pleaded by the Defendant,
the
existing and perspective (sic) means of the parties,
their
respective earning capacities, their financial needs and obligations,
the age of the parties, the duration of the marriage
and the standard
of living that the parties enjoyed throughout the marriage, it is
pleaded that the Plaintiff will be
unfairly
advantage
(sic) vis-a-vis the Defendant unless he forfeit (sic) the benefits of
the marriage in community of property, including the Defendant’s
pension fund interest and the Plaintiff’s share in the
immovable property situated at 1[…] M[...] Street L[...],
Germiston, while the Defendant continues to pay the mortgage bond
over such immovable property.
”
[Own underlining].
[5]
I
pause to mention that reliance on the principle of fairness echoed
through the appellant’s evidence in chief. In adopting
this approach, the appellant lost sight of what a marriage in
community of property entails at its core. This was cautioned
against by the then Appellate Division, in
Wijker
v Wijker.
[2]
Simply put, section 9(1) does not provide for the application
of the principle of fairness.
[6]
Returning
to the appellant’s pleadings, I am of the considered view that
they lacked legal coherence in material respects
and were undoubtably
open to exception. None was taken. It is unsurprising, however,
that the respondent’s legal representative,
at the outset of
the divorce proceedings in the trial court, objected to the
appellant’s claim for forfeiture of benefits
given the
formulation of the pleadings. Notwithstanding this initial
objection, and after much debate, the legal representatives
on behalf
of the parties agreed that the crux of the appellant’s case was
one of partial forfeiture of benefits, such order
relating to (i) a
Nissan Qashqai motor vehicle 2.0 Acenta (“
the
motor vehicle
”);
[3]
(ii) the parties former marital home, situated 1[…] M[...]
Street, L[...], Germiston (“
the
immovable property
”);
and (iii) the appellant’s pension interest in the Government
Employee’s Pension Fund (“
the
appellant’s pension interest
”).
Moreover, the legal representatives agreed that the issues in
dispute, as appeared from the pleadings and which
had further been
defined by agreement, would be fully ventilated during the evidence.
It is on this basis, that the trial
court heard the matter.
[7]
At the hearing of the
appeal, the appellant’s counsel conceded that the joint estate
falls to be divided equally up until
June 2015, this being the month
during which the parties separated. Accordingly, any order for
the forfeiture of benefits
would, of necessity, only be operative
post June 2015.
Legal
principles
[8]
It is trite that
a
discretion is conferred upon the court in terms of
section 9(1)
of
the
Divorce Act whether
or not to order forfeiture of the patrimonial
benefits of the marriage. Such discretion may be exercised in
favour of either
of the parties and may relate to the whole or only a
portion of the patrimonial benefits. In the exercise of this
discretion,
the court is enjoined by
section 9(1)
to have regard to
various factors in determining whether one party, in relation to the
other, will be unduly benefitted if an order
for forfeiture is not
made.
[9]
The factors to which the court must have
regard, include: (i) the duration of the parties’ marriage;
(ii) the circumstances
which gave rise to the breakdown of the
marriage; and (iii) the existence of any substantial misconduct on
the part of either of
the parties.
[10]
Regarding
the evidence, which is necessary to be led at trial, McCreath J
commented as follows in
Koza
v Koza
:
[4]
“
In
my view it is therefore necessary that there be placed before the
court evidence in respect of the factors mentioned in
section 9(1)
and also, in order to establish properly whether there is an undue
benefit warranting the making of an order, evidence of the nature
and
value of the benefits in respect whereof forfeiture is sought.
It follows that a party making a claim of this nature
should plead
the necessary facts to support that claim and formulate a proper
prayer in the pleadings to define the nature of the
relief sought
.”
[11]
Whilst it is apparent from
the record of appeal that the parties had, by agreement, defined the
issues in dispute prior to the commencement
of the trial, it remains
to be determined whether there was sufficient evidence to have
enabled the trial court to exercise a discretion,
or to have made an
order specifying the nature and extent of the patrimonial benefits,
if any, which ought to have been be forfeited
by the respondent in
favour of the appellant.
[12]
It is accepted that the court’s point of
departure, in considering a prayer for forfeiture, was to have held
the parties to
the matrimonial property regime elected by them.
In the context of the present dispute, the parties were married in
community
of property.
[13]
The
concept of community of property is described in HR Hahlo,
The
South African Law of Husband and Wife
in the following terms:
[5]
“
Community
of property is a universal economic partnership of the spouses. All
their assets and liabilities are merged in a joint
estate, in which
both spouses, irrespective of the value of the financial
contributions, hold equal shares.”
[14]
In
the oft-quoted case of
Engelbrecht
v Engelbrecht
[6]
the
court
found
that joint ownership of another party's property is a right, which
each of the spouses acquires on conclusion of a marriage
in community
of property. This is the inevitable consequence of the parties’
matrimonial regime. Unless the parties,
either before or during
the marriage, contribute in precisely equal shares, the party that
contributed less, shall on dissolution
of the marriage, be benefited
above the other should an order for forfeiture not be granted.
Section 9(1)
of the divorce act does not afford the greater
contributor a remedy in such circumstances, the remedy only arises in
the event
that the benefit is undue, having regard to the factors to
which I have referred.
[15]
Accordingly,
the court in
Wijker
in considering the proper approach in determining whether to grant an
order in accordance with
section 9(1)
, held that
the
court would first need to determine whether or not the party against
whom the order of forfeiture is sought will in fact be
benefited if
the order is not made. This is a purely factual determination.
Unless the nature and extent of the benefit
are established, the
court cannot determine whether the benefit was undue or not.
Only if, and when it is determined that
that party will benefit, will
the court move onto the next inquiry, being whether such benefit will
be an undue one.
[7]
The
second stage of the enquiry involves a value judgment. The onus
of proving the nature and extent of the alleged
benefit which is to
be forfeited, is on the party alleging that his or her spouse would
acquire an undue benefit.
[16]
On a reading of the trial court’s
judgment, and whilst having referred to the two-stage enquiry as set
out in
Wijker
,
the trial court failed in its entirety to consider
whether
the respondent would in fact have stood to benefit if an order for
forfeiture was not made. Seemingly, the trial court’s
point of departure, insofar as the enquiry was concerned, was a
consideration of the second stage thereof, which in itself was
wholly
insufficient in that proper regard was not had to the factors set out
in
section 9(1)
of the
Divorce Act. Consequently
, there is no
basis upon which the Magistrate could have exercised a value
judgment.
[17]
For the aforesaid reasons, I am satisfied that
the trial court misdirected itself in the application of the legal
principles relevant
to claims in terms of
section 9(1)
of the
Divorce
Act. Whether
or not this misdirection will of necessity lead to
an interference with the findings of the trial court will be
dependent upon
the outcome of a proper assessment of the evidence, in
accordance with the stated legal principles.
Benefit
[18]
Accordingly, I turn to consider whether on the
evidence before the trial court, any benefit arose. In doing
so, I recount
the evidence of the trial court only insofar as it is
necessary for the purposes of this judgment.
[19]
The vehicle was purchased by the appellant for
an amount of R168,137.50 during the subsistence of the marriage,
albeit
post 2015. In the absence of any evidence to the contrary, and
for the purposes of this judgment, I shall assume that the
value of
the vehicle equates to the purchase price. The vehicle was
fully financed through WesBank and accordingly, an asset
with
corresponding liability was brought into the joint estate by virtue
of the parties’ marriage in community of property.
Put
differently, no nett asset was brought into the joint estate.
No evidence was led at trial as to the value of the vehicle
at the
time of divorce. The evidence led was speculative in nature,
with reference to the amount owing on the car in terms
of the asset
and finance agreement as of 31 January 2021, in the amount of
R128,090.48. This amount bears no correlation
to the value of
the vehicle, which value would, of necessity, be dependent on the age
of the vehicle; the condition of the vehicle;
and the current mileage
thereof. I am satisfied that the appellant failed to prove the
value of the vehicle at the time of
divorce and concomitantly, she
failed to establish the nature and extent of the benefit, if any,
that the respondent would have
derived, should the joint estate have
been divided in the ordinary course.
[20]
The immovable property was purchased during the
subsistence of the marriage for a purchase consideration of
R587,389.00 and was
fully bonded in favour of Nedbank. The
parties accepted equal responsibility for the repayment thereof.
Whilst the
parties testified that the property was registered in
their names during or about 2009, it was apparent
ex
facie
the statement of account
issued by Nedbank on 30 November 2020, which had been tendered into
evidence in the court below, that
the parties took transfer of the
immovable property on 27 November 2008. Assuming, for the
purposes of this judgment,
that the value of the property at the date
of purchase corresponded with the purchase price, the value of the
liability cancelled
out the value of the asset.
[21]
On the record, it was common cause that the
respondent was responsible for the payment of the bond instalments
from the date on
which the parties took transfer of the immovable
property up until he lost his employment during the course of 2013.
From
2014 to the date of trial, the appellant was responsible for the
payment thereof. Accordingly, and despite it having been
put to
the appellant that the respondent had paid such instalments for
approximately 3.5 years versus the appellant’s contributions
over a period of 8 years, this was objectively, on the facts,
incorrect. As at the time of divorce, the respondent and the
appellant had contributed towards the instalments for a period of 5
and 8 years respectively. Profits in the amount of R90,000.00
from the sale of an immovable property situated in M[...], which the
respondent owned prior to the parties’ marriage, and
which was
brought into the joint estate and utilised by the parties as their
first matrimonial home, were for the most part utilised
for
improvements to the immovable property.
[22]
It was undisputed that the appellant had made a
greater contribution to the property than the respondent.
Having said that,
a calculation as to the parties’ actual
respective contributions was never placed before the trial court.
The evidence
as to the parties’ estimated contributions was no
more than speculative in nature. Moreover, the only evidence at
trial
regarding the current value of the property was with reference
to the municipal valuation included in a municipal statement of
account issued to the parties by the City of Ekurhuleni on 21 June
2020, some 15 months prior to the date of divorce. The
value
recorded therein was in the amount of R737,000.00. Insofar as
the outstanding loan agreement is concerned, the parties
owed an
amount of R392,011.62 as of 1 September 2021.
[23]
On the aforesaid evidence, I am not satisfied
that the appellant proved the extent of the respondent’s
benefit at all.
This is further compounded by the concession
made on behalf of the appellant, that the joint estate up until 2015,
fell to be divided
equally between the parties. On the evidence
before the trial court, it is not possible to determine the value of
the property
in 2015 nor the extent of the property’s
appreciation, if any, between 2015 and the date of the parties’
divorce.
Accordingly, the appellant failed to establish the
nature and the extent of the benefit, which may accrue to the
respondent in
respect of the immovable property, if any.
[24]
Lastly, it is necessary to consider the
appellant’s pension interest. It was undisputed in the
trial court that the
appellant’s pensionable service date with
the Government Employees Pension Fund was 10 October 2005, the
contributions towards
which the respondent played no part.
Accordingly, such asset was acquired during the subsistence of the
parties’ marriage,
the value of which accrued to the joint
estate. According to the evidence led at trial, the resignation
benefit as of 8 February
2021 was in the amount of R2,165,547.00.
Given the concession to which I have referred, it is necessary to
consider the value
of the pension interest as it was in 2015.
By virtue of the lateness of the concession, no evidence was led at
trial regarding
such value, and accordingly this court is unable to
ascertain it. Notionally, the extent of the benefit that the
respondent
would acquire if the joint estate were to be divided
equally for the full duration of the parties’ marriage, would
be the
increase in the value of the pension interest from 2015 to the
date of divorce in November 2021.
[25]
Primarily, I am not persuaded that the
aforesaid constitutes sufficient proof of the benefit and
accordingly, I cannot conclude
that the respondent would have been
unduly benefitted in the absence of an order for forfeiture.
Having said that, and in
the event that I am incorrect in this
conclusion, I am further not persuaded that forfeiture ought to have
been awarded on a consideration
of the factors set out in
section
9(1).
[26]
It
is trite that the three factors governing the value judgment to be
made by the court in terms of
section 9(1)
are not cumulative in
nature. Whilst the court is required to consider all three
factors, it does not follow that if one
factor is absent, an order
for forfeiture is incompetent. This was made clear by the court
in
Wijker
and has more recently been restated by the Supreme Court of Appeal in
Botha
v Botha
.
[8]
I accordingly proceed to consider the required factors.
Duration
of the marriage
[27]
In
dealing with the interpretation of the meaning of ‘
the
duration of the marriage
’,
the court, in
Matyila
v Matyila
,
[9]
stated as follows:
“
The
meaning of the words ‘duration of the marriage’ as
appearing in
s
9(1)
aforesaid
is clear. It means no more nor less than the period during
which the marriage has, from the legal point of view,
subsisted,
namely from the date of marriage to the date of divorce or, at the
very least, to the date of institution of divorce
proceedings.
This is in accordance with the primary rule of interpretation that
words should be understood in their ordinary
meaning
.”
[28]
During the trial, it was undisputed that the
duration of the parties’ marriage was 28 years. The
appellant at no stage
contended otherwise. For the first time,
the appellant took issue with the duration of the parties’
marriage, in the
heads of argument filed in the appeal proceedings.
The contention contained therein was that the duration of the
marriage
ought to have been calculated from 1993 up until the
parties’ separation in 2015, with the resultant duration being
that
of 22 years and not 28. The Magistrate’s finding in
this regard was not raised by the appellant as a ground of appeal
and
accordingly, it need not be dealt with any further suffice to comment
that it could never have been the intention of the legislature
to
allow a party to delay the institution of divorce proceedings and
then rely, to their benefit, on their own failure to act.
[29]
In any event, whether this factor is considered
with reference to: (i) the date on which the parties separated, being
June 2015;
alternatively, (ii) the date on which summons was issued,
being October 2020; further alternatively, (iiii) the date of
divorce,
being November 2021, the duration of the marriage is that of
22, 27, or 28 years respectively.
[30]
On any calculation such marriage was of
significant duration and militates against the granting of an order
for forfeiture.
The
circumstance which gave rise to the breakdown in the parties’
marriage
[31]
The reasons leading to the breakdown in a
marriage are complex in nature. It is not often that a marriage
relationship breaks
down due to the conduct of only one spouse and it
is seldom possible to identify a peculiar event as being decisive.
[32]
The circumstance relied upon by the respondent
in his particulars of claim were somewhat generic in nature. He
contended that:
(i) the appellant had abused him emotionally, whilst
residing in their Gauteng property; (ii) there was no meaningful
communication
between the parties; and (iii) that the parties had
lost their love and affection for each other. In his
replication, the
respondent placed further reliance on the impact
that his unemployment had on the marriage. In evidence, the
respondent made
repeated reference to the parties’ financial
strain over a period of many years, which was exacerbated by his
intermittent
employment and income. He cited Covid-19, and the
impact thereof, as the breaking point in the parties’
marriage.
[33]
Given the construction of the appellant’s
pleadings, it was difficult to discern which circumstances the
appellant contended
gave rise to the breakdown in the parties’
marriage versus those which she contended constituted substantial
misconduct on
behalf of the respondent.
[34]
On a consideration of the
appellant’s pleadings, and in addition to the usual grounds
which are routinely pleaded in divorce
actions, it was apparent that
the appellant in her claim in reconvention relied primarily on the
following further grounds for
the breakdown in the marriage between
the parties:
“
4.1
…
4.2
…
4.3
the
[respondent] has throughout the marriage verbally, emotionally,
financially and physically abused the [appellant], which resulted
in
a protection order being issued in favour of the [appellant] against
the [respondent];
4.4
the [respondent] has failed to maintain the [appellant] and the
former, home financially;
4.5
the [respondent] resigned from his employment in 2013 for no apparent
reason and left the
former common home approximately five years ago;
4.6
…
4.7
the [respondent] throughout the marriage utilised his salary, while
employed, and his pension
fund interest, after he resigned, for his
own benefit, and without any due regard for the [appellant] and as
such the [respondent]
failed to share the financial benefits with the
[appellant];
4.8
the [respondent] sold a motor vehicle belonging to the parties and
part of the joint estate
and retained the cash proceeds, without
accounting to the [appellant] in respect of such proceeds, or sharing
such proceeds with
the [appellant];
4.9
the [appellant] engaged in an extramarital affair during the
marriage, which resulted in
him in fathering a child by another
woman;
4.10
…
4.11
…
”
[35]
Immediately apparent from
the above was the appellant’s disdainful attitude towards what
she perceived to be, the respondent’s
lack of financial
contribution towards the joint estate.
[36]
The grounds pleaded in
paragraphs 4.4; 4.5; and 4.7 of the appellant’s claim in
reconvention, to a large degree, overlap.
With the exception of
the allegation regarding the respondent having vacated the common
home in 2015 (which is common cause), the
remainder of the
allegations are not borne out from the common cause evidence as it
appears from the record. It is accordingly
necessary to examine
the parties’ respective contributions towards the joint estate.
[37]
The respondent owned an
immovable property situated in M[...] prior to the conclusion of the
marriage. As stated, this property
was brought into the joint
estate and utilised by the parties as their first matrimonial home.
Whilst employed, this property
was paid for by the respondent.
The property was sold during September 2010 and the profits received
from the sale, in the
amount of R90,000.00, were utilised for the
joint benefit of the parties. More particularly, a large
portion of the profits
was utilised to cover the costs of renovations
and improvements to the immovable property situated in Germiston.
[38]
Whilst it was apparent that
the respondent was unemployed for certain periods during the
subsistence of the marriage, blame for
such circumstances cannot be
attributed to him. The undisputed evidence was that the
respondent’s employ with D[...]
came to an end in 1998 due to
the restructuring of the organisation. This period of
unemployment lasted approximately 1 and
a half years whereafter the
respondent studied full time for a period of 2 to 3 years. In
2002, the respondent obtained gainful
employment which lasted up
until 2013. At this time, the respondent was hospitalised for
ongoing chronic health issues, including
diabetes and high blood
pressure. The respondent’s health issues resulted in his
absence from work on various occasions
and led to two disciplinary
proceedings. Whilst in hospital, the respondent received a
phone call from his team leader demanding
his attendance at work the
following day. This was impossible in the circumstances.
He was advised by his employer
that he should leave the section in
which he was working as he was unable to handle the pressure.
In light of the aforesaid,
and given the stress experienced by the
respondent at the relevant time, he resigned from his employment.
[39]
He thereafter started a
transport business, which was unsuccessful. The business was in
operation for approximately 1 year.
During this period up until
2016, the respondent was unemployed with occasional casual
employment. From 2016 up until the
end of May 2018, the
respondent was employed at N[...] on a fixed term contract. He
thereafter took up employment at C[...]
C[...] from March 2019 to
November of that same year.
[40]
Apparent from the common
cause evidence is that prior to 2015, both of the parties contributed
their earnings towards the joint
estate.
During
the periods of the respondent’s unemployment, the appellant,
who had enjoyed continuous employment, had been required
to meet the
parties’ financial obligations in full. It is clear from
the record that this had placed a great deal of
strain on the marital
relationship. The respondent on the other hand,
(i)
studied in an endeavor to upskill; (ii) sought employment,
albeit
that he was not always successful; (iii) started a business venture;
and (iv) assisted with the lifting and carrying of children.
[41]
Whilst there existed some
dispute regarding the value of the parties’ respective pension
interests, it was apparent that each
of the parties contributed a
portion thereof to the joint estate.
[42]
It light of the aforesaid,
the evidence established that both of the parties consistently
contributed towards the running of the
joint estate. The
respondent’s inability to contribute financially, at times, was
not due to an attitude of laxity
on his behalf.
[43]
Significantly, the appellant
conceded that everything done by the parties prior to 2015, was done
jointly.
This
concession, coupled with the concession by the appellant’s
counsel during the appeal regarding the division of the joint
estate
up until 2015 is definitive of any question as to forfeiture prior to
2015.
Having
dealt with the facts prior to 2015, it is necessary to assess
the
position, which subsisted post 2015.
[44]
The respondent testified
that, following the separation, he routinely returned home over
weekends to visit the family, bringing
home consumables such as
chocolates and 2-minute noodles. In addition, he made cash
contributions to the appellant, in the
form of bank transfers and by
utilising the Shoprite Money Market service.
[45]
The appellant denied that
the respondent had contributed financially in any way towards the
immovable property or towards her and
the children’s expenses.
Specific reference was made to the respondent’s apparent lack
of contribution, notwithstanding
his gainful employment with N[...]
during 2016 and 2017.
[46]
The record shows that the
appellant initially attempted to distance herself from any form of
relationship with the respondent and
sought to create the impression
that she had no knowledge of the respondent’s whereabouts, nor
his employment details for
a significant period during 2016 and
2021. It was put to the respondent that the appellant had only
become aware of the respondent’s
employment with N[...]
following the discovery process. Not only is this evidence at
variance with that of the respondent,
but it was later contradicted
by the appellant herself.
[47]
More particularly, the
appellant testified that the respondent would return home
occasionally for the night,
albeit
that the parties would sleep in separate bedrooms. The
appellant, presumably in an attempt to bolster her evidence that she
was unaware of the respondent’s whereabouts, testified that she
had contacted N[...] telephonically in 2019, to speak to
the
respondent. In doing so, the appellant inadvertently admitted
to having been aware of the respondent’s employment
with
N[...]. Moreover, the appellant was constrained to concede,
during cross examination, that the respondent had on at
least two
occasions during this period, transferred money to the appellant in
the amounts of R4,000.00 and R2,500.00 on 25 May
2017 and 24 June
2017 respectively. The appellant further made mention of an
intended family meeting in 2019, the purpose
of which was to resolve
the parties’ marital issues. In light of such
concessions, I have no reason to doubt the veracity
of the
respondent’s evidence as to events post 2015, which evidence
accorded with the probabilities.
[48]
Leaving aside the allegations as to physical
abuse, to which I shall return, I am satisfied that the appellant
failed to prove any
instances of abuse as contended for in paragraph
4.3 of the appellant’s claim in reconvention. Insofar as
physical
abuse is concerned, and on a close analysis of the evidence
on behalf of both parties, it is common cause that a physical
altercation
took place on 13 June 2015, after which the appellant
obtained a domestic violence interdict against the respondent.
[49]
The extent of the altercation remained in
dispute between the parties at trial, with the respondent being vague
regarding the details
thereof. The appellant testified that she
was sitting on the couch when the respondent, unprovoked, started
assaulting her.
During cross examination, the appellant
conceded that the altercation was preceded by a disagreement between
the parties.
According to the evidence, the respondent threw
the appellant into the corner of the couch and pulled her hair.
The appellant
grabbed hold of the respondent’s arm and bit
him. He loosened his hold of the appellant, affording her an
opportunity
to move away from the corner of the couch. The
respondent thereafter pushed the appellant against the wall. At
that
stage, the appellant’s nephew, X[...], arrived home and
the altercation ceased. X[...] contacted the parties’
children as well as the police. Upon arrival, the police
requested the respondent to accompany them to the police station.
The respondent was uninclined to do so and requested that he be
permitted to stay at the immovable property until the end of the
week. It is this altercation which precipitated the parties’
separation. No evidence was led as to any other
incidents of
violence between the parties and accordingly, it must be accepted for
the purposes of this judgment, that it was a
once off incident.
[50]
In respect of the ground
pleaded in paragraph 4.9 of the appellant’s claim in
reconvention, it is common cause on the record
that the respondent,
during the early 2000’s engaged in an extramarital affair with
one N[...] Z[...], with whom he fathered
a son in 2001.
Consequently, the appellant left the common home. After a
period of separation, the parties reconciled
and continued to live
together as husband and wife until their separation in 2015.
[51]
Implicit in the appellant’s
conduct is that after returning home, she forgave the respondent for
his infidelity and laid the
issue to rest. At no stage did the
respondent take steps to seek the dissolution of the marriage.
Markedly, it was
the respondent who vacated the common home in 2015,
whereafter he issued summons in late 2020.
[52]
On the evidence, it is not
possible to make any conclusive findings regarding the respondent’s
alleged affair in 2015, nor
in respect of the appellant’s
alleged affair in 2000 and accordingly, it cannot be said that
parties’ marriage was
characterised by infidelity beyond the
respondent’s one indiscretion.
[53]
Lastly, it was conceded during argument in the
trial court that the respondent had sold a motor vehicle belonging to
the joint estate
and retained the cash proceeds thereof in the sum of
R20,000.00.
[54]
Having regard to the aforesaid, and on the
parties’ own versions, I am of the view that the reasons for
the breakdown in the
marriage related mainly to the financial strain
on the parties, resulting in high levels of discontent. This
was exacerbated
by the periods of unemployment experienced by the
respondent and the added demands placed on the appellant. Over
time, this
eroded the marital relationship and led to ever increasing
unhappiness.
Substantial
misconduct
[55]
As stated, it was unclear on the pleadings on
which grounds the appellant placed specific reliance for substantial
misconduct.
This too was not clear from the record.
Apparent from the trial court’s judgment is that no
consideration was given
to this factor whatsoever.
[56]
The appellant, in the heads of argument filed
in the appeal, in support of a finding of substantial misconduct,
contended as follows:
“…
The
respondent had the affairs, he had a child out of wedlock, he
resigned from gainful employment, he remained unemployed for
substantial periods, he assaulted the appellant, he left the
matrimonial home and did not return after June 2015
.”
[57]
I have dealt with these aspects in detail.
The circumstances surrounding the respondent’s resignation and
the periods
of his unemployment, whilst admittedly, having caused
strain on the parties’ marriage, do not constitute misconduct,
let
alone misconduct of a substantial nature as envisaged by the
legislature. During his periods of employment, which were not
unsubstantial, the respondent diligently discharged his financial
obligations.
[58]
Whilst the respondent vacated the matrimonial
home in June 2015, it is factually incorrect that he did not return
thereafter.
On no version can this factor be characterised as
constituting substantial misconduct.
[59]
To the extent that the respondent engaged in an
extramarital affair in 2000, and that a physical altercation took
place between
the parties on 13 June 2015, both relate to single
incidents, neither of which were features of the marital
relationship.
Whilst such conduct is not to be condoned, nor is
it to be considered acceptable, on the facts of the present dispute,
such conduct
falls short of constituting substantial misconduct.
Moreover, I am of the view the parties conduct, following the
respective
incidents, as appears from the record, militates against
such a finding. Not only did the respondent, following the
altercation,
continue to spend nights at the former common home, with
the knowledge and consent of the appellant, but he also continued to
make
financial contributions as and when circumstances permitted.
The fact that the appellant took no steps to seek the dissolution
of
the parties’ marriage, is of significance. This is more
so in the context of the respondent’s affair, given
the
duration of the parties’ marriage following their
reconciliation.
[60]
For the aforesaid reasons, I am not satisfied
that the appellant succeeded in proving substantial misconduct on the
part of the
respondent.
Conclusion
[61]
It is apposite to repeat my earlier finding
that the appellant had failed to prove the nature and extent of the
respondent’s
benefit on dissolution of the parties’
marriage and accordingly, the appellant’s claim on this basis
alone ought to
have been dismissed.
[62]
In
the event that I am incorrect in this finding and given the
appellant’s concession in respect of the division of the joint
estate prior to 2015, all that remains to be determined, to the
extent necessary, is whether the respondent would be unduly
benefitted
if the joint estate, for the full duration of the
marriage, was divided equally. An undue benefit as been held to
be one
that is disturbingly unfair.
[10]
[63]
In answering the aforesaid question, a
consideration of the factors set out in
section 9(1)
of the
Divorce
Act is
required, whilst being mindful of the authorities to which I
have referred. On a conspectus of the evidence, and in the
exercise
of a value judgment, I am of the view that appellant would
not be unduly benefited if the joint estate, for the full duration of
the marriage, was divided equally.
[64]
Having come to this conclusion, and
notwithstanding the misdirection of the trial court, it is not
necessary to interfere with the
order granted.
[65]
In the result, the appellant’s appeal
must fail. I see no reason why costs should not follow the
result.
[66]
In the premises, the following order is issued:
1.
The appeal is dismissed.
2.
The appellant is ordered to pay the
respondent’s costs.
I
BANDS
ACTING
JUDGE OF THE HIGH COURT
I
agree.
B
HARTLE
JUDGE
OF THE HIGH COURT
Heard:
25
November 2022
Judgment
granted:
24 February 2023
For
the appellant:
Adv Sephton
Instructed
by:
Neville Borman & Botha
For
the respondent:
Adv Ndamase (together with Adv Masiza)
Instructed
by:
Mente Faltein Attorneys Inc.
[1]
Notwithstanding the inclusion of such prayer, it does not appear
that proceedings for the payment of maintenance
pendente
lite
were ever pursued by the respondent.
[2]
1993 (4) SA 720
(A) at para 33.
[3]
Which was not previously sought on the pleadings.
[4]
1982 (3) 462 (TPD) at 465H.
[5]
5
th
Edition at pp 157 and 158.
[6]
1989 (1) SA 597 (C).
[7]
See also:
Engelbrecht
(supra) at 601F-H.
[8]
Wijker
(supra) at 729.
See
also:
Botha v Botha
2006 (4) SA 144 (SCA).
[9]
1987 (3) SA 230
(WLD) at 236B-C.
[10]
Engelbrecht
v Engelbrecht
(supra) at 602F.