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[2021] ZALMPPHC 84
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M.D.M v T.P.M (HCAA06/2021) [2021] ZALMPPHC 84 (23 November 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: HCAA06/2021
In
the matter between:
M[....]
D[....] M[....]
APPELLANT
And
T[....]
P[....] M[....]
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant and the respondent were married to each other in
community of property. The respondent
had instituted divorce action
against the appellant seeking an order for a decree of divorce;
division of the joint estate and
50% share of the appellant’s
pension interest in the Government Employees Pension Fund. The
appellant had defended the respondent’s
action and filed a
counterclaim in which she is seeking an order that the respondent
partially forfeit the rights to share in the
benefits of their
marriage in community of property specifically with regard to the
appellant’s pension interest in the Government
Employees
Pension Fund.
[2]
The appellant and the respondent were able to settle all other
aspects of the patrimonial consequences
of their marriage including
obtaining decree of divorce, except for the pension interest. Their
settlement agreement was reduced
to writing and signed by both the
appellant and respondent.
[3]
The matter came for trial before MG Phatudi J, and the only issue he
was required to determine
was whether or not the appellant was
entitled to a forfeiture order as per her counterclaim. The parties
agreed that the appellant
had the onus to discharge. The court
a
quo
found that there was no merit made in the counterclaim to
justify an order of forfeiture of the benefits of the marriage. The
court
a quo
granted the decree of divorce incorporating the
deed of settlement; dismissed the appellant’s counterclaim and
ordered 50%
share of the appellant’s pension benefit by the
respondent. At the time when the matter came before the court
a
quo
, the appellant was already paid her pension interest hence
the court
a quo
ordered that the respondent was entitled to
50% share of the appellant’s pension benefit. The appellant is
appealing against
the whole judgment and order of the court
a quo
with the leave of the Supreme Court of Appeal.
[4]
Both the appellant and the respondent have testified under oath in
the court
a quo.
The appellant in her evidence confirmed that
she and the respondent were married to each other in community of
property on 1
st
October 1985. She stated that on her
retirement from active service on 14
th
June 2019 she was
paid a lump sum pension benefit of R2 840 000.00. She testified that
her counterclaim for forfeiture was based
on the substantial
misconduct on the part of the respondent, and the circumstances that
gave rise to the breakdown of the marriage.
[5]
The appellant testified that the problems in their marriage with
regard to the substantial misconduct
by the respondent started during
2007 when the respondent started having an extra marital affair with
one of their employee one
M[....] E[….] L[....]. That they
were sometimes fighting about the extra marital affair which the
respondent had.
[6]
The appellant testified that she and the respondent were having a
cash loan business called [….]
([....]). E[....] was employed
at this cash loan. On 16
th
July 2007 the appellant was
phoned by a certain lady informing her that E[....] was having a love
relationship with the respondent.
The appellant confronted the
respondent and E[....] about their extra marital affair, and the
respondent assaulted the appellant
by biting her finger. They
quarrelled about his extra marital affair the whole night, and in the
morning the appellant told the
respondent that she was going to lay a
criminal charge against him. However, the respondent phoned his
brother who intervened,
and she did not open a criminal charge
against the respondent.
[7]
The appellant alleges that since that incident things got worse as
the respondent told her to
never go to [....] to see or inspect its
books. According to the appellant, she and the respondent were each
having 50% member’s
interest in [....]. The appellant and the
respondent consulted with a counsellor, and that during one of the
counselling sessions
the respondent told the counsellor that this
thing of marital affair is something that is in him, and that if
there is man who
does not have a mistress that man is a fool. The
respondent further told the counsellor that he will never stop
mistresses in his
life. That is when the appellant told the
counsellor that she did not see the whole session going anywhere. She
told the respondent
that since she was adamant, they may continue to
stay as husband and wife, but that they will not share conjugal
rights or be intimate
with each other until the respondent can
explain to the appellant that he was tired of having mistresses.
[8]
On 25
th
March 2008 the appellant dismissed E[....] from
her employment. When the appellant told the respondent that she had
dismissed E[....],
the respondent told the appellant that if indeed
she had dismissed her, the appellant must know that he is still in a
love relationship
with E[....], and he is going to marry E[....] and
also build her a house. The respondent further told the appellant
that he was
going to start a business with E[....], and also have
children with her. From December 2007 the respondent stopped
depositing money
for the appellant like he used to do, despite the
flourishing of their business [....].
[9]
The appellant testified that after she had dismissed E[....], the
respondent admitted to her that
he gave E[....] money to start
[....]. Further that the respondent and E[....] had started other
business entities in the names
of [….] and [….]. That
in [….] E[....] was owning 50%, respondent 20% and other
people 20% and 5% respectively.
That on [….] the respondent
and E[....] were both having 50% members interest each, but later the
respondent resigned as
a member of the closed corporation.
[10] The
appellant further testified that from there, the respondent’s
and E[....]’s relationship
went public. That on 22
nd
April 2009 the appellant saw a vehicle stopping at the garage and
when she went to the car to check, she found that it was E[....]
and
the respondent inside that car. The appellant further testified that
the respondent also bought a stand for E[....] where he
started
building a house for E[....]. The appellant stated that during the
year 2012 she and the respondent were having 73 head
of cattle, and
the herd boy told her that 9 head of cattle were sold. That year she
also heard that the respondent was having other
head of cattle in a
plot in Dendron, and when she went to the plot to check, she was told
that the owner of the cattle was E[....].
[11]
The appellant further testified that E[....] bought the bricks after
the cattle were sold, and that
her investigations revealed that a
senior traditional leader Kibi is the one who sold the cattle and
thereafter deposited an amount
of R34 000.00 into [....] bank
account. That at some stage she took the respondent to the
maintenance court, where the respondent
revealed to her that he was
having 6 children outside their marriage whom he was taking care of,
and that he will not be able to
afford the amount which the appellant
was requesting. The appellant further stated from 2007 up to the date
when the matter was
heard in the court
a quo,
there was no
change in the respondent’s behaviour in relation to his extra
marital affairs. The appellant further stated
that she was the one
who was paying medical aid cover for the respondent and their
children. The appellant further testified that
she is one who had
contributed 80% towards building their common home, and that the
respondent contributed little towards household
expenses and the
maintenance of the children.
[12]
The appellant was cross examined and she stated that in 2007 she was
running [....] whilst employed
as an educator by the Department of
Education. The appellant conceded that when she took the decision to
dismiss E[....] from her
employment she did not involve the
respondent, as the respondent was denying her access to the business.
The appellant further
stated that the reason why she dismissed
E[....] was that she was having a relationship with the respondent
and also the manner
in which E[....] was conducting herself around
her (appellant).
[13]
The appellant further stated that during 2016 or 2017 she and the
respondent withdrew money from their
joint investment account in
order to erect a wall at their house in preparation of their
daughter’s wedding. The appellant
conceded that stand no 882 is
registered in E[....]’s name, and that she and the respondent
are the ones who found that stand
and even paid a deposit for that
stand, and that the receipt for the deposit was issued in E[....]’s
name. The appellant
further stated that she was in the company of
E[....] when she went to pay for the deposit.
[14] The
appellant conceded that the respondent had contributed towards the
educational needs of their child R[....] , and
that she and the
respondent had an agreement that she will pay the educational needs
of the other child up to grade 12, and thereafter
the respondent will
takeover to pay for the tertiary education. The appellant further
conceded that with regard to their daughter
S[....] , she and the
respondent have jointly contributed towards her educational needs
from their investment account, even though
it was through a court
order.
[15]
The appellant stated that she was not sure as to when did E[....]
start building her house at stand 882,
but that during 2012 the house
was been roofed. The appellant stated that she did not know whether
E[....] had contributed in building
her house, but what she knows was
that it was the respondent who contributed through the sales of the
cattle. The appellant conceded
that when E[....] started building her
house, E[....] was already owning a cash loan business [....] which
she started during
2009. The appellant further conceded that E[....]
was having more customers for her cash loans business, and that those
were the
customers that she took from [....], and that even though
she was dismissed, she continued collecting money from their
customers.
[16]
The appellant further stated that she knows [....] ([....])
which is a company registered by her sister’s
son and that her
sister has passed away. The appellant did not dispute that she was
running [....] behind the scenes, but stated
that the employees of
that close corporation will collect money on behalf of the close
corporation and hand over that money to
her. The appellant further
stated that after the money for that close corporation has been
handed over to her, she will give it
her sister’s son who was
staying in Johannesburg, and some of it she will use it to maintain
the children of her sister’s
son. The appellant did not dispute
that she was sleeping partner in [....], but disputed that it was
competing with [....].
[17]
The appellant stated that [....] was established by E[....], but the
cash injection in establishing
it was made by the
respondent. The appellant further stated that she is having a lot of
proof that the said business was established
with cash from the
respondent in that some of its customers were transferred from
[....], and also that she is having information
that E[....] was
still collecting money from the customers of [....] even after she
had established her own business.
[18]
The appellant stated that she was contributing 80% towards the
maintenance of their children, whilst the
respondent was contributing
20%. When it was put to the appellant that she and the respondent
owned a shop and a poultry farm that
were assisting in the well
keeping of the family, the appellant stated that the shop did not
have too much stock and that she was
only taking bread from that
shop.
[19]
The respondent also testified under oath. He testified that he
started [....] during the year 2000 as the
only member of the close
corporation. During 2003 he included the appellant as a member of the
close corporation. He held 50% member’s
interest, whilst the
remaining 50% was held by the appellant. The respondent stated that
he was the one who was running the business
of [....], whilst the
appellant was supporting him. [....] had six employees. The
respondent further stated that during 2007, he
and the appellant were
able to invest R500 000.00 with ABSA from the proceeds of [....].
[20]
The respondent stated that E[....] was one of their employees and
that he is the one who had employed her
either during 2003 or 2004.
That E[....] was employed as general worker until she was dismissed
during 2008 by the appellant. The
respondent further stated that the
appellant did not consult him before she dismissed E[....]. According
to the respondent, E[....]
was a team leader and was doing a fine job
as they were able to bank money. The respondent denied that he was in
a love relationship
with E[....], and also denied building a house
for E[....]. When asked whether he had fathered any child with
E[....], his answer
was that he did not remember, but did not have
one.
[21]
The respondent stated that initially the investment account was doing
well, and they were able to use the
proceeds from that investment to
take their children to school and also cover where there were some
shortages with regard to household
needs. That they were able to pay
the university fees M[....] , whilst the respondent was exclusively
responsible for the fees
of R[....] . The respondent stated that he
was using money generated from the poultry shop and cell phone
business to pay for R[....]
’s fees. The respondent further
stated that with regard to their other child Hamilton, both him and
the appellant were jointly
assisting each other to pay his fees.
[22]
The respondent further stated he and the appellant were the ones who
started the poultry shop and cell phone
business together, and
further that when they started the two businesses, he was already
having a spaza shop. The respondent denied
that the appellant had
made any cash injections in the poultry shop, cell phone shop and
spaza shop. The respondent stated that
he was utilizing the money
generated from the spaza shop to cater for household needs, that when
he was still running those businesses,
there was not a time when did
not buy food for his family. The respondent further stated that they
were contributing to stockvels
monthly, of which during December time
they will buy groceries and share it amongst themselves for the
benefit of their families.
[23]
The respondent further stated that from the money he was generating
from the businesses, he had opened a
bank account for one of their
children, M[....] , so that he can be able to pay for her school
fees. The respondent stated that
he was contributing R400.00 to
R500.00 monthly into the bank account that he had opened for M[....]
. The respondent further stated
that the appellant was not taking
bread only from the shop, but that she also took some other stuff for
households needs. Further
that from the poultry business, if the
appellant wanted a live chicken, she will come take it and slaughter
it for the family.
[24] The
respondent stated that he was not aware of any theft that was
committed by E[....] in their business.
The respondent further stated
that according to him, there was no bad blood between the appellant
and E[....]. According to the
respondent, the reason why the
appellant had dismissed E[....], was a cell phone call which the
respondent had received from his
(respondent) brother’s child
talking about licence stuff, and the appellant thought that he was
talking to E[....]. After
talking to his brother’s child, he
left the cell phone on the bed and left the house. The appellant took
the respondent’s
cell phone to check who had phoned, but the
caller had phoned from a public phone. The respondent stated that he
was told by E[....]
that it was the reason for her dismissal.
[25]
The respondent stated that according to him E[....] is the owner of
stand 882. The respondent further stated
that when E[....] was
searching for the stand, she was in the company of the appellant, and
that the appellant was assisting E[....]
to stay next to the
workplace. The respondent stated that he did not know how much had
E[....] paid for the stand. Where she got
the money to pay for the
stand, the respondent stated that E[....] was employed, and further
that she had children who were receiving
social grant.
[26]
The respondent testified that he knows [....] which is a close
corporation, and that he was told by the appellant
that it was
registered in names of K[....] who is the son of the late
sister of the appellant. The respondent stated that
[....] was
started by the appellant and managed by her in the initial stages,
but that the appellant later employed other
people to manage it. The
respondent stated that the appellant started this business when he
and the appellant were doing business
at a SASA pay point at
Gamashashane. At that pay point, the appellant was looing prospective
customers to come and take a loans
from [....] as it was
offering 25% interest, whilst others were offering 30% interest. The
respondent stated that he was
operating the cash loan business at
SASA pay points. The respondent further stated that their son R[....]
was employed at
[....] . The respondent stated that he saw
R[....] operating at the same pay points with him for about
seven months, and
that resulted in the respondent stopping to operate
at the pay points.
[27]
With regard to [....], the respondent testified that he was told by
the appellant that it was registered
in E[....]’s names, and
that the appellant was also having a certificate for that. With
regard to the cattle the respondent
disputed that they had 73 head of
cattle, but that they were either 54 or 55. The respondent stated
that some of the cattle have
died, some were stolen, and that he sold
10 of them in order to enable him to buy cattle feed, and some of the
money he used it
for travelling as he was travelling a lot. The
respondent stated that in order not to hurt each other, the
appellant’s pension
benefit should be divided equally amongst
themselves.
[28]
The respondent was cross examined and he disputed that he had denied
the appellant access to the records
of the business, and
that the appellant was the one who was collecting those books after
he had finished working with them. The
respondent stated that after
he learned about E[....]’s dismissal, he did not confront the
appellant. The respondent stated
that at the time of E[....]’s
dismissal, the relationship between him and the appellant was bad, as
the appellant was always
shouting at him. The respondent stated that
he could not discuss the dismissal of E[....] with the appellant as
he was afraid of
the appellant, and he decided to leave things as
they are, as he did not want to engage in an argument.
[29]
The respondent stated that even after the dismissal of E[....], he
did not have a problem with E[....], did
not want to distance himself
from E[....], and further that he would ask E[....] about the
customers who have run away and where
to find them, as she was the
one who knew them. The respondent further stated that sometimes, he
would phone or visit E[....] to
ask her about these customers, and
that even as at date of hearing of their matter in the court
a
quo
, he was still phoning E[....] as there were some customers
who were still owing him money. He denied that he was having a
special/love
relationship with E[....]. The respondent stated the
only relationship he was having with E[....] was that sometimes
E[....] would
ask him for some business advice and he will advise her
accordingly, that sometimes E[....] will send him to collect money
from
customers and he will do that. The respondent denied that he had
started three businesses with E[....], but that it was only
one
business that they have started, and that they were partners in that
business. The respondent stated that the business in which
he was a
partner with E[....] was [….].
[30]
The respondent stated that he and E[....] registered this business
either during 2009 or 2010, and that they
both each held 50% member’s
interest. The respondent conceded that he, E[....] and other members
have registered [….]
on 26
th
November 2008. The
respondent stated that he was not aware that [....] which he and the
appellant held 50% member’s interest
each was deregistered on
23
rd
November 2015. According to the respondent, the
appellant is still involved in the running of that business, and that
he had make
an application to remove himself as a member of that
business as it was giving him too much stress, and he did not want
any stress
anymore. The respondent stated that after, he removed
himself as the member of the close corporation, he did not know what
happened
thereafter.
[31]
The respondent conceded that in his pleadings he had stated that he
was still working for [....] company
and that sometimes he would go
and work with E[....] at [….] and [....]. However, the
respondent stated that he had ceased
to be a member of [….]
during 2013 as he could not continue working due to stress. The
respondent stated that even though
he was assisting E[....] in her
businesses despite no longer been a member, he did not have a basic
salary as sometimes he will
be paid R2000.00 or R3000.00 per month.
The respondent conceded that she did not obtain consent from the
appellant before she started
business with E[....], and did not know
that he needed consent, further that the appellant was always grumpy
and it was not easy
to talk to the appellant. The respondent stated
that the reason why the appellant obtained a maintenance order
against him to pay
R750.00 per month, was that according to
respondent, things were not good between him and the appellant, but
he was taking care
of the child.
[32]
The basis of the appellant’s appeal is that the respondent
would be unduly benefited if a partial forfeiture
order in respect of
her pension benefit is not made against the respondent share regard
being had to the respondent’s alleged
prolonged extra marital
relationship with a certain E[....] L[....] , and the respondent’s
alleged mismanagement of the parties
once thriving cash loan
business, to wit [….] which led to its deregistration in 2015.
[33]
Section 9(1) of the
Divorce
Act
[1]
(Act) provides that:
“
When
a decree of divorce is granted on the ground of the irretrievable
break-down of the 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 breakdown and any substantial misconduct
on the part of
either of the parties, is satisfied that, if the order for forfeiture
is not made, the other party will in relation
to the other be unduly
benefited.”
[34]
Section 9 of the Act gives the court discretion when granting a
divorce on the ground of the irretrievable
breakdown of the marriage
to make an order that the patrimonial benefits of the marriage be
forfeited by one party in favour of
the other party. In
Wijker
v Wijker
[2]
the court held that the benefit that will be received cannot be
viewed in isolation, but in order to determine whether a party
will
be unduly benefited the court must have regard to the factors
mentioned in section 9 of the Act. Those factors are the duration
of
the marriage, the circumstances which gave rise to the breakdown and
any substantial misconduct on the part of either of the
parties.
[35]
The appellant in her counterclaim had stated that what led to the
irretrievable breakdown of the marriage
between her and the
respondent were (i) the respondent’s adulterous relationship
which he refused to end notwithstanding
numerous request by the
appellant; (ii) that the respondent was having a 5 year old child
with his mistress; (iv) that the respondent
had failed to contribute
pro-rata according to his means towards the running of the household
and the maintenance of the parties’
children; (v) that the
respondent has ruined the appellant ly in the amount of
approximately R1 500 000.00; (vi) that the
appellant was ly
irresponsible in that he would inter alia spend his money on his
mistress; (vii) that the respondent has
humiliated and degraded the
appellant throughout their marriage relationship; (viii) that there
is lack of communication between
the parties; (ix) and that the
parties were living separate lives and are no longer interested in
the continuation of the marriage
relationship.
[36]
The respondent in his particulars of claim has stated that what led
to the marriage between him and the appellant
to irretrievably
breaking down was (i) that the parties were no longer compatible and
no longer share common interest; (ii) the
appellant had through her
aforesaid conduct humiliated and hurt the respondent; (iii) the
respondent had lost his love and affection
for the appellant and is
no longer interested in the continuation of the marriage
relationship; (iv) and that the appellant denies
the respondent with
his conjugal rights.
[37]
What this court must determine is whether the court
a quo
exercised its discretion properly in dismissing the appellant’s
claim for forfeiture. As pointed out in paragraph 31 above,
the
appellant’s appeal is based on two grounds. Regarding the
alleged extra marital affair between the respondent and E[….],
this is an issue that was known to the appellant since 2007. At no
stage did the appellant try to institute divorce proceedings
because
of the respondent’s adamant attitude of being involved in an
adulterous relationship. The appellant seems to have
condoned the
alleged extra marital affair between the respondent and E[….],
as during trial the appellant in her evidence
in chief, told the
court that after the respondent told her and the counsellor during
the counselling session that he would not
stop with behaviour of been
involved in extra marital affairs, she told the respondent that they
can stay together as husband and
wife, but they will not have sexual
intercourse until the respondent stops having his extra marital
affairs. When the appellant
was asked to explain as what she meant
when she said that until the respondent stops his marital affairs,
the appellant stated
that up until the appellant can explain to her
or tell her that he was tired of having mistresses, they will start
talking as to
what will happen next.
[38]
The appellant on her own accord had given the respondent permission
to continue having extra marital affairs
until he got tired of that.
When he is tired of been involved in extra marital affairs, the
respondent is permitted to go back
to the appellant and they will
together talk a way forward. The respondent had instituted his
divorce action on 17
th
October 2016. The appellant had
condoned the respondent’s alleged extra marital affair with
E[....] for nine years. In my
view, the appellant had waived her
right to raise the respondent’s alleged involvement in extra
marital affairs as a reason
for the irretrievable breakdown of the
marriage since she was content with it. The appellant had given the
respondent permission
to be involved in the extra marital affairs,
and when he was tired of that, he must report to the appellant and
they will talk.
The appellant was still waiting for the respondent to
get tired of been involved in extra marital affairs, but the
respondent surprised
the appellant by serving her with divorce
summons. Now that the respondent had served the appellant with
divorce summons, the appellant
wants to rely on an act which she had
condoned as one of the ground for the irretrievable breakdown of
their marriage. In my view,
by condoning the respondent’s
actions for nine years, she had waived her right to rely on it.
[39]
In
Premier
Attraction 300 CC t/a Premier Security v City of Cape Town
[3]
Pillay AJA said:
“
An
intention to waiver must be inferred reasonably, no one can be
presumed to have waived rights without clear proof. The test for
such
intention is objective. Some outward manifestation in the form of
words or conduct is required; silence and inaction will
do when a
positive duty to act or speak arises. Mental reservations not
communicated have no legal effect.”
[40]
The appellant was unequivocal when she told the respondent to
continue with his extra marital affairs until
he got tired of them,
and when he was tired, he must report to the appellant and they will
talk. That in my view, was a clear intention
from the appellant that
she was waiving her right to in future rely on the respondent’s
alleged extra marital affairs as
a ground for the irretrievable
breakdown of their marriage. The court is mindful of the fact that
there are many reasons why a
wife can choose to stay in a marriage
where her husband is involved in extra marital affairs and not
divorce him. In the case at
hand, the appellant is not stating that
she chose to stay married to the respondent despite his extra marital
affairs because of
their children or stability, or for
any other reason. The appellant just gave the respondent permission
to do whatever
he was doing until he got tired. In my view, since the
respondent did not come back to report to her that he was tired of
been
involved in extra marital affairs, the appellant cannot be
permitted to use that as a ground to claim forfeiture.
[41]
The facts of this case shows that the relationship which the
respondent was having with E[….] was
not that of an innocent
friendship where the respondent was only giving E[….] business
advice, or that of a business partner.
Their relationship was more
than that, and the facts shows that they were involved in an extra
marital relationship. However, their
involvement is not a ground that
led to the irretrievable breakdown of the marriage relationship
between the appellant and the
respondent. Their involvement has been
going on for years with the knowledge and permission from the
appellant.
[42]
Even though that amount to a substantial misconduct by the
respondent, taking into consideration the
prolonged relationship
between the respondent and E[….] has been ongoing with the
knowledge and permission from the appellant,
this was not an ordinary
adulterous relationship. Not every substantial misconduct is a ground
to grant a forfeiture of benefits.
The appellant for years was at
peace with the adulterous relationship which the respondent had with
E[….], she cannot now
use that as a ground to claim forfeiture
whilst for years he had condoned that. Therefore, the appeal on the
ground of substantial
misconduct stand to fail.
[43]
Turning to the ground whether the respondent had mismanaged the
parties once thriving cash loan business,
[....] which led to its
final deregistration in 2015. It seems counsel for the appellant
wanted to have a one-sided approach on
this issue, as if the
appellant did not play any role in the final demise of [....]. The
appellant under cross examination did
not dispute that she was a
sleeping partner in the close corporation that was registered under
the names of the son of her late
sister. The employees of the close
corporation of the son of the appellant’s late sister were
collecting money from the customers
of the close corporation and
handing it over to the appellant. That shows that the appellant was
actively involved in the running
of that close corporation as
testified by the respondent. That close corporation was also in the
business of cash loans.
[44] The
respondent had testified that the appellant at one of the SASA pay
points was advertising the close corporation
of the son of her late
sister as offering less interest than other cash loans institutions.
It follows that the prospective customers
will go to the cash loans
that offers less interest and that will be that of the son of the
appellant’s late sister. The
appellant was therefore conducting
business in competition with the family business. It should not have
come as a surprise when
[....] was no longer thriving. She out of her
own actions contributed to that. The names [....] and
[....] Services
is so closely related to one another to
extend that it can confuse their prospective customers. In my view,
that was done deliberately
in order to deceive and confuse the
customers of [....] and that was done with full knowledge of the
appellant as she was actively
involved in running the affairs of
[....]. The conduct of the appellant in contributing in the demise of
[....] in my view, also
amount to substantial misconduct on her part
towards the demise of the family business.
[45]
Even though the appellant is claiming that the respondent was not ly
contributing towards the educational
fees of his children, the
evidence presented shows that the respondent was contributing. The
appellant had testified that she had
an agreement with the respondent
that she will pay for the school fees of their child R[....] up
to grade 12, the respondent
will be responsible for his tertiary
education. The appellant further testified that she could not get the
result of R[....] at
University of Johannesburg because the
respondent told her that it was as a result that she was not
responsible for R[....] ’s
fees, and that at that stage things
were bitter. That shows that even though the appellant and the
respondent had some differences,
the respondent continued to honour
his agreement of paying for educational fees of his children. For
their daughter S[....] , both
the appellant and the respondent were
jointly paying for her educational fees from their investment
account. This investment account
was from the proceeds of [....].
[46]
As at the date of the divorce, the appellant and the respondent were
married to each other for 35 years,
which is a long period of time.
All the children born of the marriage between the appellant and
respondent are majors. As at 2017
the appellant and the respondent
were still able to jointly withdraw the money from their joint
investment account and erected
a wall for their house in enhancing
their joint estate. The respondent had contributed to the educational
needs of their children
despite the challenges he and the appellant
were encountering in their marriage. The appellant was gainfully
employed as an educator,
and her retirement pension interest had been
secured from the moment she started working, whilst the respondent
has been self-employed.
The parties were able to build their joint
estate with the income that was generated from the businesses that
were started by the
respondent, whilst the appellant’s pension
interest was secured in the Government Employees Pension Fund. The
appellant had
contributed to the demise of the close corporation
which was the respondent’s source of income.
[47]
In my view, taking into consideration the duration of the marriage of
the appellant and respondent, the circumstances
that led to the
breakdown of their marriage and that both parties have committed
substantial misconduct, an undue benefit will
not accrue to one party
in relation to the other if an order for forfeiture is not granted.
As such the court
a quo
had properly exercised its discretion
and correctly granted the orders, even though the judgment of the
court
a quo
does not engage with the issues dealt above. In
the result, the appellant’s appeal stands to fail. With regard
to costs,
the respondent did not oppose the appeal, and an
appropriate order will be no order as to costs.
[48]
In the result I make the following order:
48.1
The appeal is dismissed and there is no order as to costs.
KGANYAGO J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
I
AGREE
MULLER J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
I
AGREE
NAUDE AJ
ACTING JUDGE OF
THE HIGH COURT OF
SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
appellant
: MC De Klerk
Instructed
by
: DDK Attorneys Inc
For the
respondent
: in default
Date
heard
: 12
th
November 2021
Judgment
electronically circulated :
23
rd
November 2021
[1]
70 of
1979
[2]
1993
(4) SA 720
(A) at 731G
[3]
[2018]
ZASCA 69
(29 May 2018) at para 14