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2024
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[2024] ZAFSHC 97
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N.A.M v M.S.M (5306/2022) [2024] ZAFSHC 97 (28 March 2024)
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:
FAMILY – Divorce –
Forfeiture
–
Alleges
defendant did not contribute to growth of joint estate –
Failed to financially support plaintiff or minor daughter
–
Substantial misconduct – Marriage was harmonious until
defendant started cheating – Assaulted plaintiff
once –
Plaintiff provided evidence pertaining to alleged undue benefit –
Defendant would unduly benefit from
plaintiff’s pension fund
if forfeiture were not made order of court – Forfeiture
granted –
Divorce Act 70 of 1979
,
s 9.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no
.
5306/2022
In
the matter between:
M[…] N[…]
A[…]
and
M[…] M[…]
S[…]
Plaintiff
Defendant
CORAM
: S
BOONZAAIER, AJ
HEARD
ON
: 12,13,15
and 27 MARCH 2024
JUDGMENT
BY
:
S
BOONZAAIER, AJ
DELIVERED:
28
MARCH 2024
INTRODUCTION:
[1]
In this divorce action the only disputes are whether there should be
a forfeiture order under
Section 9(1)
of the
Divorce Act 70 of 1979
in favour of the Plaintiff and whether the Defendant would be
entitled to spousal maintenance.
FACTUAL
BACKGROUND:
[2]
The parties were married in community of property on 19
th
May 2017.The Plaintiff, a 41-year-old police officer issued summons
on 25 October 2022 against the Defendant, a 41-year-old unemployed
male for a decree of divorce. She also initially seeks an order for
the division of the joint estate and Defendant to forfeit 50
% share
of the Plaintiffs pension fund, or alternatively only to share 10 %
of the Plaintiffs pension fund. The Plaintiff later
amended the
summons to be that Defendant to forfeit 50 % share of the Plaintiffs
pension fund.
[3]
The Defendant disputes the grounds for the breakdown of the marriage
as alleged and filed a counterclaim
for a decree of divorce, division
of the assets of the joint estate which includes 50% share in the
Plaintiff’s pension fund.
He also seeks spousal maintenance of
R 5000 (five thousand rand) per month.
[4]
The Defendant also seeks an order that each party keep the furniture
in his or her possession
as his or her sole exclusive property.
[5]
It is for the court to determine the reasons for
the breakdown of the marriage, the division of the
estate and or
forfeiture, spousal maintenance and cost of the action.
UNDISPUTED
FACTS:
[6]
It is common cause that the parties met in 2016 and cohabitated at
the Defendant’s paternal
place of residence from 2017 when they
got married. The Plaintiff is employed at the Family Violence and
Child Protection and Sexual
Offences Unit of the Police Force
hereinafter called (“SAPS”) in Bultfontein. She travels
regularly to nearby stations
to also serve those areas.
[7]
The primary residence and contact rights
with regards to the minor child is not in dispute.
[8]
It is common cause that the Defendant is currently
unemployed and doing odd jobs.
[9]
It is further uncontested that the Plaintiff is employed
by SAPS since 2012 (which was indicated on the Plaintiff`s
Pension
Certificate).
[10]
The parties did not append any salary advises or any proof of
salary payments. The Plaintiff was able to
provide the court on
request with a salary advice and an advice regarding her current
value of her pension benefit.
.
[11]
It is also undisputed that during the Covid
pandemic the Plaintiff started a business selling meat
to the local
community on credit. The aim of the business was to supplement the
Plaintiff`s salary and improve the quality of their
lives. The
Defendant would receive the payments when the customers came to pay
at the end of the month. This business was profitable.
[12]
The Plaintiff left the matrimonial home in
September 2022.
PLAINTIFF:
[13]
It is the Plaintiffs case that the Defendant did not contribute to
the growth of the joint estate, (particularly
the Plaintiff’s
pension fund benefits), and that the Defendant never had a fixed
income or permanent employment, he continually
changed jobs. He
failed and or refused to financially support the Plaintiff or the
minor daughter. She maintained that she mainly
contributed to the
household expenses and that the Defendant failed to financially
provide in their needs due to him being mostly
unemployed and failing
to balance their budget.
[14]
The Plaintiff alleges that the Defendant is not
only currently unemployed but refuses to look for work.
Their fights
were sparked by her attempts to help him seek employment. When they
fought, he would tell her that she is staying
in his parental home
and that he did not have feelings for her and he used the latter as
justification for his indiscretions.
[15]
The Plaintiff maintained that the parties are married for a short
period of time and lived as husband and
wife for a shorter time.
[16]
The Defendant was verbally abusive and he
physically, assaulted her when he slapped her on one occasion
which
left a bruised eye.
[17]
He showed no love and affection to the Plaintiff
and continually indicated his lack of interest in the marriage.
[18]
The Defendant also entered into improper relations
with numerous women and committed adultery.
[19]
The Defendant is able to generate an income. He has a tenant and he
is also seeking to be elected as a ward councillor.
They earn R 500
per month.
DEFENDANT:
[20]
The Defendant on the other hand argued that Divorce law currently is
based on a no fault- principle. He relied
on the case of
Schwartz
v Schwartz
[1]
where the Appellate Division formulated the approach to be taken. It
stated that regard should be had to:
“
What has happened
in the past, i.e. the history of the relationship up to date of the
trial, and also to the present attitude of
the parties to the
marriage relationship as revealed by the evidence at trial.”
[21]
The Defendant also accused the Plaintiff as the
one who mostly is guilty of misconduct on all the prayers.
The
Plaintiff did not prove any of the allegations made against him.
[22]
He is the one who maintained the family
because the plaintiff has many debts. He insisted that he
raised the
child and took care of the child after hours. He attributed his
failure to look for a job to the fact that he was constantly
looking
after the child.
[23]
He denied that the duration of the marriage was short-lived. It
was later conceded that the marriage
did not last for long, but it is
not short enough to unduly benefit the Defendant. He also denied that
he was living with another
women and her kids, a fact which was
conveyed to the Plaintiff by the minor child.
[24]
She has a drinking problem and abuses alcohol
frequently during the week. Defendant insisted that he takes
care of
the child and that the Plaintiff would get so drunk that she was
constantly late for work and would on occasion have to
be fetched by
colleagues at work. He stated however that there were no disciplinary
steps taken against her.
[25]
It was argued that the fact that the Defendant was in and
out of work is not a refusal to work. The business was
run from the
family home and Plaintiff never paid rent for herself or the
business. That was the contribution to the household.
[26]
It was submitted in argument that the Defendant is willing to
abandon spousal maintenance, should the court find
that it is not
due, in light of the fact that the Defendant can still find
alternatives to survive and find employment
THE
EVIDENCE:
[27]
the Plaintiff testified the marriage was harmonious until 2018 when
the Defendant started cheating on her and swearing at her
and telling
her that she was a whore sleeping with all the townships men.
[28]
She mainly supported the family from her salary. She also took the
initiative to start a business during
the beginning of Covid 2020 to
try to further improve their financial position. Whenever the
Plaintiff asked the Defendant about
him seeking employment he was not
interested. The Defendant assisted her in this business, because he
was home most of the time,
he received the payments at the end of the
month. She however realised when she did the reconciliation of the
books that the business
is lucrative but it does not show a profit.
There is always shortages and she had to pay from her own salary
whenever it was time
to restock. Defendant conceded that he
once used some of the money to fill his fuel tank to visit family.
[29]
The Plaintiff testified that the Defendant never paid school fees and
after care for the minor child as well as
the household expenses
regarding clothing and food. The Defendant was not involved in the
daughter`s upbringing.
[30]
The Defendant indicated that as she was working during the day 8am to
4pm shifts, the minor child was at
school and after hours, she was
being taking care of by the next-door neighbour. Only if she
was working out of town, she
would knockoff late. She stated that she
would from time to time hang out with friends and that they would
consume alcohol, but
not to the extent that she gets drunk. During
these times she always let the Defendant know of her whereabouts.
[31]
Once when the Plaintiff went home to fetch something from the house
during working hours early in the morning.
She found the neighbour`s
daughter in the sitting room and the Defendant was in the kitchen.
When she entered the bedroom, she
noticed that the bed was untidy.
When she confronted him about her presence, he told her that they
grew up together. From
Plaintiffs own perception it seems that this
lady was visiting whenever Plaintiff was not home.
[32]
During their marriage she would on several occasions see him in the
streets with female companions. Once she drove
past him with an
unmarked Police vehicle.
[33]
The Defendant never told her that he did not obtain his
matric certificate. When she testified it was clear that
it was a
disappointment for her.
[34]
The Plaintiff testified that she borrowed R 60 000 and paid
R50,000.00 to purchase a motor vehicle,
the silver Bantam bakkie in
Bloemfontein. Because she was at work the Defendant travelled to
Bloemfontein signed the papers and
the vehicle was with her knowledge
registered in his name. Defendant on the other hand conveyed to the
court that his late brother
gave the money for the Bantam bakkie to
him to enable him to purchase the vehicle.
[35]
The Plaintiff denied the accusations that she the excessively abuse
of alcohol caused the irretrievable breakdown
in the relationship.
[36]
The Defendant only testified under cross examination about the
assault, which Defendant denies. The Plaintiff
explained that at the
time she did not file any charge against the Defendant because she
was ashamed to involve her colleagues
in her private matters.
CLAIM
FOR FORFEITURE
:
[37]
Section 9(1)
of the
Divorce Act reads
as follows:
“
(1)
When a decree of divorce is granted on the ground of 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, is satisfied that, if the order for
forfeiture is
not made, the one party will in relation to the other
be unduly benefitted.”
[38]
The section confers a discretion on the Court which is to be
exercised with regard to the three factors enumerated
in the
section.
[2]
The party
alleging that his/her spouse would acquire an undue benefit bears the
onus of proving the nature and extent of
the alleged benefit which is
to be forfeited.
[39]
It was held in
Wijker
v Wijker
[3]
that the Court should first determine whether or not the party
against whom the order is sought will in fact benefit if the
order is
not made. The Supreme Court of Appeal considered the question whether
proof of “substantial misconduct” on
the part of either
of the parties was an essential requirement for a forfeiture order.
The question was answered in the negative.
It was held that the
subject-matter of
s 9(1)
made it abundantly clear that the
legislature never intended the three factors mentioned in the section
to be considered cumulatively.
[40]
The only evidence regarding her assets submitted by the Plaintiff was
her employee benefit certificate from
GEPF Pension Fund dated
13/03/2014 indicating that the total pensionable service is 11 years
7 months. The total cash value of
her normal retirement benefit at
date of the statement amounted to R533 705. Her
resignation benefit reserve value
amounted to R553 292. As is
evident from the Plaintiff’s updated salary advice submitted
during the hearing, the Plaintiff
receives a pensionable salary of R
234 852 per year, a net salary in the amount of R19.571 per
month. There is no evidence
as to the value of the car or any
evidence disclosing the value of any movable property. Although
reference is made by the parties
in their pleadings of two motor
vehicles and immovable property, the Defendant denied having any
other car than the silver Bantam
bakkie, he did not indicate any
other movable or immovable assets or any liabilities.
[41]
As was held in
Wijker v Wijker,
supra the determination of the
fact whether the spouse will be benefitted relates to a purely
factual issue. Due to the Defendant`s
failure to present any evidence
as to his employment or the quantum of any salary or monies he
received as remuneration it is impossible
to determine whether he
earned any salary. Hence, I must accept that he cannot prove that he
earned anything.
[42]
In
Herman
R Hahlo
[4]
describes
community of property as follows:
“
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 parties, irrespective of the value of their financial
contributions, hold equal shares.
”
[43]
Co-ownership of the property, movable as well as immovable is a
consequence of the marriage in community of property.
Unless
the parties make precisely the same contribution to the joint estate,
whether prior to the marriage or during the subsistence
of the
marriage, the one who has contributed less at the termination of the
marriage will necessarily be benefitted unless an order
of forfeiture
is made. That is the inevitable consequence of their marital
regime. The Act does not afford the spouse
who has made the
greater contribution an opportunity to bewail himself thereof.
He may only complain about an
undue
benefit. Unless it
is proved what the nature and extent of the benefit was the Court
cannot determine whether the benefit
was undue or not. Only
when the nature and extent of the benefit has been proved by the
Plaintiff, does it become necessary
for the Court to consider the
factors which determine whether the benefit is undue or not.
[5]
[44]
In the present instance the alleged undue benefit which the Plaintiff
contends for is limited to her pension benefit.
DURATION
OF THE MARRIAGE
:
[45]
The relationship between the parties commenced in 2016 and they were
married in 2017. Even though the
Plaintiff avers in the
particulars of claim that the marriage lasted happily for a mere
year. On the Defendant’s version
the parties lived together for
at least five (5) years. The Defendant provided a home for the
parties for the first five
(5) years whereafter the Plaintiff
relocated to another property. The Defendant started working on
the 1
st
December 2012 and was able to sustain her
employment and income for the past sixteen (11) plus years.
Since 2017 the Defendant
has made no contribution to her and their
daughter`s maintenance.
SUBSTANTIAL
MISCONDUCT
:
[46]
The substantial misconduct alleged by the Plaintiff is that the
Defendant had several extra marital affairs
and assaulted her on one
occasion. She did not lay a charge because she did not want her
colleagues at work to get involved in
her family violence matter. As
indicated above, she conceded that she suspected the Defendant of
having many “extra marital”
relationships, with ladies
from the counsel where he sought to be elected.
[47]
Defendant denied being unfaithful to the Plaintiff and testified that
she is the one having extra marital affairs
although he could not
mention specific incidences. She drank frequently with her colleagues
during the week and weekends after
hours and came home drunk. The
Plaintiff however testified to several specific instances where the
Defendant seemed to be unfaithful.
[48]
The evidence clearly reveals that the Defendant on one occasion
assaulted the Plaintiff, when he slapped
her with his open hands
which left her with a bruised eye. The Defendant denies that his
behaviour had contributed to the breakdown
of the marriage. The
Plaintiff testified as to the event that gave rise to her finally
leaving the common home. She gave a detailed
and truthful account of
what happened and testified that she only left the common home after
due consideration. She loved the Defendant
and tried to salvage the
marriage but she only realised it is not going to work after he told
her that he doesn’t love her.
THE
CIRCUMSTANCES WHICH GAVE RISE TO THE BREAKDOWN OF THE MARRIAGE
:
[49]
The Plaintiff testified that the Defendant neglected his duties and
that he had never supported her and the
minor child financially. He
verbally and physically abused her.
[50]
Notwithstanding the introduction into our law of the “
no
fault
”
principle
in divorce matters, a party’s misconduct may be taken into
account in considering, in terms of Section 9(1) of the
Act, the
circumstances which gave rise to the breakdown of the marriage.
The fact that substantial misconduct has been included
as a third
factor does not exclude a consideration of misconduct as a
circumstance which gave rise to the breakdown of the marriage.
Substantial misconduct may include conduct which has nothing to do
with the breakdown of a marriage and may for that and other
reasons
have been included as a separate factor. Too much importance should,
however, not be attached to misconduct which is not
of a serious
nature.
[6]
[51]
The Plaintiff testified that the parties started experiencing
difficulties in their relationship in 2018
when the Defendant became
aggressive whenever she addressed his to will to seek employment.
The Defendant did not dispute
the Plaintiff’s contention and
elaborated that the problems in their relationship then and
thereafter were largely on account
of the Plaintiff’s excessive
abuse of alcohol. The Defendant testified that her colleagues
at the Police Station, once
informed her that the Defendant were
spotted in the streets with female companions. She was however aware
of this situation notwithstanding
the information received from her
colleagues.
[52]
It is common cause that the relationship between the parties endured
from 2017 until the Plaintiff left the
common home. It seems that for
most of that time the marriage was characterised by conflict.
The fact that the marriage,
on the Plaintiff’s version endured
for approximately five (5) years appears to be a factor militating
for an order for forfeiture
being granted.
[53]
Taking all of this into consideration, my view is that the Plaintiff
provided evidence pertaining to the
alleged undue benefit that will
befall the Defendant in the event that forfeiture is not ordered.
The evidence pertaining
to the quantum of the estate the Plaintiff
and Defendant have built up and that was placed before the Court is
limited. It
is obvious that the Plaintiff considers her
employment at the Police in Bultfontein as crucial to support herself
and her child.
She was employed for the whole duration of the
marriage. It is her evidence that she has acquired the motor vehicle
and furniture
and household goods during this period. The Defendant`s
evidence that his late brother bought him the car without any
evidence
is clearly unreliable and obviously false.
SPOUSAL
MANTENANCE
:
[54]
A marriage create a reciprocal duty of support between spouses. This
duty terminates upon death or divorce. Our law does not
provide for a
right to spousal maintenance when parties divorce
[7]
.
Spousal maintenance is a creature of statute.
[55]
Section 7(2)
of the
Divorce Act
[8
]
stipulates that: “… the court may, having regard to the
existing or prospective means of each of the parties, their
respective earning capacities, financial needs and obligations, the
age of each of the parties, the duration of the marriage, the
standard of living of the parties prior to the divorce, their conduct
in so far as it may be relevant to the break-down of the
marriage, an
order in terms of subsection (3) and any other factor which in the
opinion of the court should be taken into account,
make an order
which the court finds just in respect of the payment of maintenance
by 5 the one party to the other for any period
until the death or
remarriage of the party in whose favour the order is given, whichever
event may first occur.”
[56]
In
EH v
SH
[9]
,
the court held that:
‘
the person
claiming maintenance must establish a need to be supported. If no
such need is established, it would not be “just”
as
required by this section for a maintenance order to be issued’.
[57]
In
Van
Wyk v van Wyk
[10]
,
the court stated that a proper application of the
Section 7(2)
of the
Divorce Act involves
a balanced assessment of maintenance needs and
ability to pay and that the starting point was the existing and
prospective means
of the defendant and her earning capacity, because,
if she has the ability to support herself, she is not entitled to
maintenance
from the Plaintiff.
[58]
From the language of the enabling provision, it is clear that
awarding postdivorce spousal maintenance is purely discretionary.
This discretion of the court should be exercised judicially according
to established rules of law and practice and in making a
determination of maintenance, consideration of justice must prevail.
The factors that a court will take into account when awarding
maintenance are not exhaustive and the court has a very wide
discretion whether or not to grant a maintenance, the amount payable
and the duration of the maintenance.
[59]
If the circumstances permit, our courts will generally attempt to
achieve a “clean break” between the parties.
The
Defendant is currently unemployed. He has existing means to support
himself. From his own testimony he is doing “piece
jobs”
The Plaintiff has been in steady employment earning a nett income
stated above. In this matter, a clean break is possible.
[60]
The Plaintiff did not indicate what his needs are or how the amount
of R 5000 was calculated to be his needs for spousal maintenance.
[61]
In
K v
K
[11]
,
it was found that the parties "means" would include
property such as a matrimonial home that can be used to generate
income.
[62]
The Plaintiff submits that in the event the court orders maintenance,
the Defendant’s prospective means be taken into
consideration.
The
[63]
When dealing with the parties` financial needs and obligations, the
court in
K
v K
[12]
stated that this factor
means how much money each party needs for their day-to-day 7 living,
and how much of the income or resources
of each has to be spent for
some obligatory purpose.
CONCLUSION:
[64]
The defendant did not make a favourable impression in the witness
box. He was evasive and uncertain about when certain incidents
took
place. Although he testified that the Plaintiff was an absent mother
and that she left the minor child most of the time with
him he was
adamant that she had problem with alcohol abuse but he could not
explain why he is satisfied that she be awarded the
primary care of
the minor child.
[
65] What is required of the court is to consider the
three issues set out in
s 9(1)
of the Act in broad terms and to then
make a value judgement whether the Defendant would be unduly
benefitted if a forfeiture order
is not made. An undue benefit, is
one which is disturbingly unfair. On a careful consideration of all
the facts I came to the conclusion
that the Defendant would unduly
benefit from the Plaintiffs pension fund if the forfeiture is not
made an order of court.
[66]
The Defendant is also not entitled to any spousal maintenance.
ORDER:
[67]
As a result I make the following order:
1.
A Decree of Divorce.
2.
Division of the joint estate.
3.
The Defendant to forfeit the 50 % share in the Plaintiff`s Pension
Fund.
4.
Each party to pay their own costs.
S
BOONZAAIER, AJ
On
behalf of the Plaintiff:
Adv.
MOTSELEBANE
Instructed
by:
MHLOKONYA
ATTORNEYS
On
behalf of the Defendant:
Adv.
S MOTLOUNG
Instructed
by:
KGANG
ATTORNEYS
[1]
1984(4)
SA 467(A)
[2]
L
v L
(3146/2015)
[2017] ZAECPEHC 9 (2 February 2017)
[3]
1993(4) SA 720 (A)
[4]
The South African Law of Husband and Wife, 5
th
Edition at 157-8
[5]
Engelbrecht v Engelbrecht
1989 (1) SA 597
(C) at 601 F - H
[6]
Beaumont v Beaumont
1987 (1) SA 967
(A) at 994 D - E
[7]
Strauss
v Strauss 1974(3) SA 79(A)
[8]
Act
70 of 1979
[9]
2012(4)
SA164(SCA) at para 13.
[10]
[2005]
JOL17228(SE)
[11]
1986(4)
SA616(E).
[12]
Ibid