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[2022] ZAMPMBHC 67
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C.G.S v S.B.S (3616/2020) [2022] ZAMPMBHC 67 (12 August 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
CASE
NUMBER: 3616/2020
In the matter between:-
C[....]2
G[....]S[....]
Plaintiff
and
S[....]2
B[....]
S[....]
Defendant
JUDGMENT
GREYLING-COETZER
AJ
INTRODUCTION
[1]
The plaintiff instituted divorce
proceedings against the defendant, wherein she seeks a decree of
divorce, division of the joint
estate in specific terms, and that
both parties forfeit their pension fund claims against each other
.
The defendant defended the action and instituted a
counterclaim to the extent wherein he in seeks the division of the
joint estate
per
the applicable marriage regime.
BACKGROUND
[2]
The parties were married to each other on 1
November 2012 in community of property, and the marriage still
subsists. From the marriage
relationship two children were born, whom
are both still minors. It is common cause between the parties that
their marriage relationship
has broken down irretrievably and that
there are no prospects of reconciliation between them.
[3]
The pleadings in this matter are not a work
of clarity. The amended particulars of claim relied on by the
plaintiff and introduced
in August 2021, claims the following:-
“
10.1
Decree of divorce.
10.2 Division of
the joint estate as per paragraph 9 above.
10.3 Both
plaintiff and defendant forfeit their pension fund claim against the
other spouse (party).
10.4 Contact and
care of the minor children as per paragraph 8 above.
10.5
Cost of suit if defended; and …
”
[4]
Paragraph 9 referenced in 10.2 above sets
out that:
(a)
the plaintiff is to retain the immoveable
property known as Erf [....], R[....]E[....] [….] T[....],
Province of Mpumalanga;
(b)
the defendant to retain the immoveable
property known as Stand [....], V[....] T[....], V[....], Mpumalanga
Province;
(c)
the parties to share equally from the
proceeds of the sale of Stand [....], K[....]-A, Mpumalanga Province;
and
(d)
each party is to retain his/her own pension
fund.
[5]
P
aragraph 8
referenced in 10.4 above and respect of the minor
children’s contact and care, sets out a contact regime in terms
of which
the defendant, enjoys contact every alternative weekend, the
defendant to retain the minor children on his medical aid and to make
a contribution of R10 000.00, being R5 000.00 per month per
child in respect of their maintenance.
[6]
The defendant, in response and per his
counterclaim, seeks:-
“
1.
A decree of divorce.
2.
An order that the joint estate of the parties be divided amongst the
parties in equal shares.
3.
An order that the defendant is entitled to 50% of the plaintiff’s
pension fund benefit.
4.
An order that the Government Employees Pension Fund pay 50% of the
plaintiff’s pension
and interest directly to the defendant’s
bank account within 60(sixty) days after the date of final order of
divorce.
5.
An order that an endorsement be made in the records of the
plaintiff’s pension fund,
Government Employees Pension Fund, to
the effect that an amount equal to 50% of the plaintiff’s said
nett pension fund interest
is so payable directly to the plaintiff’s
bank account as at date of divorce.
6.
An order referring the children’s maintenance to the
Maintenance Court.”
[7]
In the plaintiff’s replication, issue
was not taken with the division of the joint estate in equal shares.
The plaintiff only
sought a dismissal of prayers 3 to 5 of the
defendant’s counterclaim.
[8]
Due to the ambiguity caused by the
pleadings, counsel for the plaintiff was at the outset requested to
indicate the issues in dispute
and which the court will be required
to decide. It was submitted on behalf of the plaintiff that the only
issue truly in dispute
is the forfeiture of the pension fund, as the
division of the joint estate (as per paragraph 9 of the particulars
of claim), the
aspect of the contact and care of the minor children
(as per paragraph 8 of the particulars of claim) had been agreed upon
and
the referral of the issue of the minor children’s
maintenance to the Maintenance Court for determination.
[9]
Consequently, the only issues in dispute
are:-
(a)
whether there are grounds for this court to
grant an order for forfeiture of the pension benefit, representing a
partial forfeiture
of the patrimonial benefit arising out of the
marriage in community of property as set out in section 9 of the
Divorce Act, Act
10 of 1979;
(b)
the ground that led to the breakdown of the
marriage; and
(c)
the costs.
[10]
As
set out above the parties are married in community of property.
Community of property has been described as “
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 their financial contributions hold equal
share
”.
[1]
[11]
Both parties indicated that they only
intended giving evidence themselves.
Plaintiff’s
evidence
[12]
The plaintiff testified that the minor
children reside with her and she takes care of them. That she tried
mending their broken
marriage through family meetings, but this was
unsuccessful.
[13]
Both parties are gainfully employed. The
plaintiff is a politician and permanently employed, whereas the
defendant also works for
the government but on municipal level and on
a contract basis.
[14]
The plaintiff further testified that the
defendant is careless, gambles, and wasteful with money. She also
testified that a prior
pension benefit of the defendant of
approximately R800 000.00 had been paid out to the defendant on
former contract ending
with the municipality. According to the
plaintiff the defendant spent this money on purchasing the Elawini
property in the amount
of R550 000.00, and the remainder of the
balance was wasted by the defendant on what the plaintiff described
as “
doing his things
”.
[15]
The plaintiff further testified that the
defendant’s gambling had an emotional effect on her.
[16]
During
cross-examination the plaintiff conceded that both of the parties
support the joint household, but the plaintiff would tend
to cooking,
cleaning and care for the children.
[17]
According to the
plaintiff she was aware of what she termed the defendant’s
“
financial
problems
”
already at the commencement of her romantic relationship with the
defendant, prior to marrying the defendant. The plaintiff
and
defendant were involved in a romantic relationship with each other
for approximately ten years before they got married. According
to the
plaintiff, the defendant’s contribution throughout the marriage
was limited.
[18]
The plaintiff testified that she left her
employment at H[....]in order to move to V[....] with the defendant,
before they got married.
Defendant’s
evidence
[19]
The defendant testified and categorized the
only issue in dispute to be whether the court ought to grant a
partial forfeiture of
the benefit in community of property in respect
of 50% of the plaintiff’s pension interest.
[20]
The defendant testified that during 2017
one of his contracts with the municipality came to an end, and a
pension payout was received
in the amount of R870 000.00. He
confirmed that this money was used to purchase the Elawini property
in the amount of R550 000.00.
He further confirmed that
R150 000.00 of the remaining payout was utilized for a tombstone
for his mother and his brothers,
which he contends the plaintiff was
well aware of and agreed to.
[21]
He testified that both parties contributed
equally to care and the schooling of the minor children. He made
payment of one child’s
school fees and the plaintiff in respect
of the other.
[22]
The defendant was not cross-examined.
[23]
The plaintiff proceeded with her closing
address. It was argued that notwithstanding the limited evidence
leads and absence of documentary
evidence to support the pleaded
forfeiture the defendant did not disprove the evidence by the
plaintiff by any other mean that
a denial.
[24]
It was argued in closing on behalf of the
defendant that the plaintiff failed to prove forfeiture of the
partial patrimonial benefit
in community of property, and that the
court ought to grant a division of the joint estate as per paragraph
9 of the particulars
of claim; care and contact as per paragraph 8 of
the particulars of claim; and the parties to share in each other’s
pension
benefit.
[25]
The matter took a very unexpected turn,
when plaintiff’s counsel, as she was to address the court in
reply to the defendant’s
argument, indicated that both she and
her attorney of record’s mandate to act on behalf of the
plaintiff had summarily been
terminated. The plaintiff in person,
then addressed the court and sought, what she termed, “
to
withdraw the divorce proceedings
”.
It was explained to the plaintiff that should she withdraw her claim,
it would have the result that the defendant’s
counterclaim will
be proceeded with as the defendant intends persisting with same.
[26]
Pursuant to explanation and engagement, the
plaintiff was granted an opportunity to obtain legal advice at this
late stage of the
hearing and who may assist her with her argument in
reply. For this purpose, the matter was stood down to the following
day.
[27]
On the following day the plaintiff had
appointed new legal representation, whom appeared and indicated that
they sought a postponement
of the matter in order to properly consult
with the plaintiff. This postponement from the bar was opposed by the
defendant. The
plaintiff was granted this opportunity, and the
following order was made:-
“
1.
The trial is postponed to Friday 22 April 2022 at 10h00, to enable
the plaintiff to consult with her new legal
representative;
2.
In the event that the plaintiff is of the view that the matter
cannot proceed on Friday or during the trial week commencing on 25
April 2022, the plaintiff is ordered to:
2.1
serve and file a substantive postponement application and a
substantive application for re-opening her case
and seek leave to
introduce further evidence, by close of business on Friday 22 April
2022;
2.2
the defendant will enjoy until close of business on Monday the 25
th
of April 2022 to serve and file his answering affidavit and
2.3
the plaintiff will enjoy till 12h00 on Tuesday 26
th
of April 2022 to file a replying affidavit, if any.
2.4
the applications contemplated in 2.1 above will be heard on a date
and time communicated to the parties by
the court, which will be
either on Tuesday 26 April 2022 or Thursday 27 April 2022.
2.5
the substantive application for re-opening the plaintiff’s case
and leave to introduce further evidence
must specifically deal with
the following:
2.5.1
full reasons why the evidence was not timeously led;
2.5.2
the degree of materiality of the evidence and what exactly
the
evidence
entails, which was confirmed to already have been made available
to
the erstwhile attorneys of record;
2.5.3
balance of prejudice;
2.5.4
the general need for finality in judicial proceedings;
2.5.5 the relevance of
the advanced stage which the proceedings had
reached; and
2.5.6
proposals for future conduct of the trial to ensure the
integrity of
the proceedings and rules of court remain intact.
3.
The Plaintiff is ordered to pay the wasted costs:
3.1 in
respect of 19 April 2022 on a party and party scale;
3.2
in respect of 20 April 2022 on an attorney and client scale.
”
(“postponement
order”)
[28]
On 22 April 2022 the
plaintiff indicated that the trial matter was unable to proceed. The
events contemplated in paragraph 2 of
the postponement order was thus
to follow. The plaintiff confirmed having already prepared the
application contemplated in paragraph
2.1 of the postponement order
and the hearing to take place on 28 April 2022.
[29]
It transpired that
notwithstanding the clear wording of the postponement order to the
extent that the plaintiff was to bring a substantive
application for
postponement together with a substantive application for the
re-opening of the plaintiff’s case and leave
to introduce
further evidence, the plaintiff only sought a further postponement to
consider whether to launch an application for
re-opening of the
plaintiff’s case and leave to introduce further evidence. As
before, this application was opposed by the
defendant.
[30]
Pursuant to
engagement with the parties in order to find common ground, move the
matter forward and obtain finality of sorts, the
following order was
made:-
“
1.
The matter is postponed to Wednesday
18 May 2022
at 14h00;
2.
The following issues are separated for adjudication from the
remaining issues which are common cause:
2.1
Partial forfeiture of the benefit of the marriage in community of
property – the pension benefit of
the plaintiff;
2.2
Cost of divorce action
3.
The judgment/order in respect of the remaining issues which are
common cause between the parties are
reserved;
4.
The defendant is ordered to provide to the plaintiff details of his
provident fund inclusive
of the provident name, number and current
value by no later than close of business Monday 2 May 2022
(notwithstanding that it is
a public holiday);
5.
The plaintiff is granted leave to comply with paragraph 2.1 to 2.5.6
of the order by this
court dated 20 April 2022, by delivering an
application for re-opening of her case and introducing of further
evidence in respect
of the separated issues, by no later than
10
May 2022
at 10h00, if any;
6.
The defendant is ordered to deliver his answering affidavit to the
application contemplated
by 5 above read with paragraph 2.1 to 2.5.6
of the order of this court dated 20 April 2022, by no later than
16
May 2022
at 10h00, if any;
7.
The plaintiff is ordered to deliver her replying affidavit, if any by
no later than
17 May 2022
at 10h00 and
simultaneously prepare the court file and cause an electronic copy to
be emailed to the Judges secretary;
8.
In the event that the plaintiff
elects not to launch
the application contemplated by 5 above, or in the event that the
application so launched is
dismissed
, the
parties are granted an opportunity to deliver supplementary closing
arguments in writing or orally as agreed between the parties,
at
10h00 on Thursday the
19
th
of May 2022
.
9.
In the event that the application as contemplated in 5 above is
g
ranted
:
9.1
the plaintiff is ordered to file her supplementary discovery
affidavit, if any by no later than Monday
23 May 2022
at 10h00 and the defendant is ordered to file his supplementary
discovery affidavit, if any by no later than Friday
27 May
2022
;
9.2
the matter will proceed on Tuesday
31 May 2022
at 10h00 for the purpose of receiving further evidence.
10. The
plaintiff is ordered to pay the costs of this postponement
application on a party and party scale.”
(“Separation
order”)
[31]
In terms of the
separation order, the matter was postponed to 18 May 2022.
[32]
Not having received
any application as contemplated in paragraphs 5 to 7 of the
separation order by 17 May 2022, the parties were
engaged to
ascertain the plaintiff’s election. In response the plaintiff’s
attorney indicated that the plaintiff elected
not to launch the
application, having the effect that paragraph 8 of the order becomes
operative.
[33]
The plaintiff’s
attorneys did not indicate what the parties’ agreement was in
respect of the filing of further submissions
as contemplated in
paragraph 8 of the order.
[34]
It was thus necessary
to again engage the parties in order to establish the election in
respect of the format of the further closing
arguments to be
submitted or delivered at 10h00 on 19 May 2022. It appeared from the
responses received that the parties’
legal representatives
attributed a contrasting interpretation of the separation order.
According to the plaintiff’s attorneys
they were to deliver
closing agreement by 10h00 on 19 May 2022, and although the
correspondence seems to suggest that they sought
to do so orally,
same was not expressly communicated. The defendant’s attorneys’
position was that the plaintiff elected
not to proceed with the
application to re-open her case, and as such the matter is considered
to be finalized, and no further submissions
are necessary.
[35]
From aforementioned
it was clear that the parties’ legal representatives failed to
engage one another at all in respect of
these issues, which was most
regrettable.
[36]
Clarity was provided
to the parties with reference to paragraph 8 of the order. However,
same seemingly did not address the issue.
This is so as the plaintiff
indicated that she wished to submit oral argument, but same would not
be just since the defendant’s
legal representative
indicated that he is of the opinion nothing more stands to be done
and is not available at 10h00 on 19 May
2022 which was the allotted
time for such argument.
[37]
A directive was
therefore issued in the following terms:-
“
1) The
Plaintiff is granted an opportunity to file written supplementary
closing submissions by 10h00 on 23 May 2022;
2) The Defendant is
granted an opportunity to file written supplementary closing
submission in response to the submission, if any
by the plaintiff by
10h00 on 26 May 2022;
3) The Plaintiff is
ordered to file the original marriage certificate by 10h00 on 26 May
2022;
4) Judgment will be
reserved on 26 May 2022
.”
Supplementary
closing submissions
[38]
Before dealing with
the contents of the submissions, it bears mention that the plaintiff,
on 23 May 2022, filed further written
closing submissions. The
defendant has to date failed to do so. What the defendant elected to
do is file same on 24 May 2022 by
e-mail. In terms of the applicable
practice directive, unless specific leave from the court is obtained
to filing by e-mail, all
filing received by e-mail will be ignored
and regarded as if no such filing had taken place.
[39]
Pursuant to the
purported filing, electronically, the defendant’s legal
representatives were engaged and advised of aforesaid
provision. They
were similarly requested to ensure that proper filing is done in
order for the matter to be finalized. Notwithstanding
the position
explicitly being explained to the defendant’s attorneys, they
had not cured the defective filing of the further
submissions. In the
interest of justice and in order for this matter to be dealt with, I
reluctantly herewith condone the electronic
filing in order for both
sets of submissions to be considered before the order is granted.
[40]
It was conceded by
the plaintiff that she has failed to prove her entitlement to an
order in terms whereof the benefit from the
marriage in community of
property or portion thereof should be forfeited. It was contended
that the plaintiff proved that the defendant
failed to disclose that
he is a member of a pension fund where he is employed, and that in
his counterclaim he only sought division
of the plaintiff’s
pension fund but failed to offer division of his own. It was
submitted that aforementioned can be inferred
from the pleadings.
[41]
It was submitted on
behalf of the plaintiff that from the evidence before the court it is
clear that an order should be made that
the joint estate be divided
between the parties in equal shares. This must include an order
against the Government Employees Pension
Fund of which the plaintiff
is a member, in terms whereof it is ordered to note the defendant’s
interest in that fund and
to pay the benefit to the defendant into
the defendant’s bank account as disclosed to the Fund.
Similarly, an order should
be made against the defendant’s
pension fund in favor of the plaintiff. It should also be provided
that both parties shall
be liable for the tax on their portions of
the pension fund benefits to be paid to them.
[42]
It was argued that
the defendant and his attorney could easily have disclosed the fact
that the defendant was prepared to share
his pension fund and
statements with the plaintiff under cross-examination, or in evidence
by the defendant, but as this was not
done, it gave rise to a delay
in the matter and the plaintiff “changing horses” when
she did. In the circumstances,
it was submitted that it would be
unfair to order the plaintiff to pay the costs of suit and defendant
should pay the costs, or
at worse, each party should bear their own
cost.
[43]
It was submitted on
behalf of the defendant that the plaintiff was granted an indulgence
to procure the services of a new legal
team. She was also granted a
further opportunity of postponement in order to …seek
re-opening of her case on the basis that
critical information
relevant to her case had not been brought before court. No such
application for the re-opening was ever launched.
The court was on
this basis asked to conclude that no evidence or such critical
information existed, and the delay in finalizing
the divorce can
squarely be placed at the door of the plaintiff, therefore the
plaintiff stood to pay the cost of the divorce on
the scale as
between attorney-and-client.
[44]
Since the events
detailed above, the only live issue was that of costs.
[45]
The costs arguments
were not directed at cost of a normal divorce action. The focus was
on the “
delay
caused in finalizing the matter
”.
The plaintiff contends that had she known that the defendant was to
share his pension interest with her, she would not
have persisted
with her claim for forfeiture. The defendant lays the blame for the
delay before the plaintiff’s door, saying
she delayed the
finalization of the divorce to bring fictitious evidence before
court, which, according to her, was critical, but
then abandoned
same, therefore merely causing a delay.
[46]
I am of the view that
both parties contributed to this matter not being finalized with
expediency. It is correct, as submitted on
behalf of the plaintiff,
that from the pleadings it cannot be said to be clear that a pension
benefit/interest existed in respect
of the defendant, and that he was
willing to share same with the plaintiff. The plaintiff was under the
impression that there was
no pension benefit. However, is such an
impression reasonable in the circumstances? The plaintiff knew that
the defendant was employed
in a similar capacity as before, therefore
it would have been reasonable for her to assume that again he would
be having and contributing
to a pension fund. The defendant was not
cross-examined on the issue or at all, this would have been an
opportunity to solicit
the information from the defendant in
circumstances where he did not tender such evidence himself.
[47]
On the opposite side
of the coin, the defendant did not correct the plaintiff during trial
preparation, and more specifically during
the pre-trial that was held
when all questions were focused and dealt with on the presumption
that he had already cashed in his
pension benefit and does not
contribute to a new fund.
[48]
Further, the
plaintiff has already stood in for the costs associated with the
postponements which she reaped the benefit of and
thus her changing
of her legal team and quest to potentially introduce new evidence has
been accounted for.
[49]
Having regard to that
set out herein above, I am of the view that each party should bear
their own cost in respect of this matter.
[50]
Consequently, the
following order is made:
1)
The bonds of marriage between the parties are dissolve and a decree
of divorce
is granted.
2)
Primary residence of the minor children, C[....] P[....] S[....] and
K[....]2
P[....]2 S[....], is awarded to the plaintiff subject to the
defendant’s right of access, being:-
2.1)
every alternative weekend from 17h00 on the Friday until 17h00 on a
Sunday;
2.2)
every alternative long and short school holiday, which will rotate
between the parties;
2.3)
the minor children are to spend one annual long or short holiday,
depending on the rotation between the parties,
annually with the
defendant;
2.4)
the defendant is to enjoy access to the minor children on their
respective birthdays as agreed to between the parties;
2.5)
access to the minor children will at all times be exercised in their
best interest and in such a manner so as to
minimise the degree of
disturbance to their scholastic and daily routine; and
2.6)
the defendant is to enjoy telephone and electronic contact, and other
communication with the minor children, which
contact should be
reasonable and not disturb the minor children’s routine during
school terms.
3)
The parental rights and -responsibilities in respect of the minor
children are
awarded to both the plaintiff and the defendant, as
envisaged in Section 18 of the Children’s Act 38 of 2005.
4)
The maintenance in respect of the minor children is referred to the
Maintenance
Court for determination.
5)
The joint estate of the parties must be divided between them and as
follows:-
5.1)
Each party to retain those moveable assets which he or she possesses,
together with all personal effects which
may be in the possession of
the other party.
5.2)
The plaintiff to retain as her exclusive property Erf [....],
Riverside E[....] 5, Province of Mpumalanga.
5.3)
The defendant will retain as his exclusive property Stand [....],
V[....] T[....], V[....], Mpumalanga Province.
5.4)
The parties to share equally from the proceeds of the sale of Stand
[....], K[....] -A, Mpumalanga Province.
5.5)
50% of the pension interest due and assigned to the defendant
held by the Municipal Employees Pension Fund
under pension fund
number [....] are to be paid to the plaintiff within 60 (sixty) days
from date of divorce.
5.6)
50% of the pension interest due and assigned to the plaintiff held by
Alexander Forbes be to be paid to the defendant
within 60 (sixty)
days from date of divorce.
5.7)
The respect pension funds are
ordered to endorse its records
accordingly and make payment to the defendant in terms of the
provisions of section 37D(4) of the
Pension Fund Act, 24 of 1956.
5.8)
Any tax liability incurred as a result of the draw down and
endorsements of the plaintiff’s and the defendant’s
pension interests are for each respective parties account and will be
deducted by the respective Fund before payment of any monies
is made
to the defendant and plaintiff respectively.
6)
That each party is to pay their own legal costs.
GREYLING-COETZER
AJ
JUDGMENT
RESERVED: 26
MAY 2022
DATE
OF JUDGMENT: 12
AUGUST
222
FOR THE
PLAINTIFF:
Adv
Braukmann
Instructed by
Nomaswazi
Shabangu Attorneys
nomaswazi@nsalaw.co.za
FOR THE
DEFENDANT:
Mr
Nsibande
of TMN Kgomo & Associates
info@kgomo.co.za
[1]
HR
Hahlo,
The
South African Law of Husband and Wife
5
th
Ed at 157-8