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[2021] ZAGPPHC 26
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H.L v J.E.L (69227/17) [2021] ZAGPPHC 26 (18 January 2021)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
18
JANUARY 2021
CASE
NO: 69227/17
In
the matter between:
H[….]
L[….]
Plaintiff
and
J[….]
E[….] L[….]
Defendant
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives
by email. The judgement is further uploaded to the electronic file of
this matter on Caselines by the Judge or his/her secretary.
The date
of this judgment is deemed to be 18 January 2021.
JUDGMENT
COLLIS
J
INTRODUCTION
[1]
“Marriage as a social institution is not a business enterprise
and parties thereto do not generally regard each other
with
calculated prudence as shrewd business individuals would each other
when engaged in business transactions. They do not keep
precise
records of the favours they extend to each other, nor do they, as a
matter of course and practice, reduce their daily undertakings
to
each other in writing. They are guided in their dealings with each
other by trust and unquestioning acceptance that they would
be
together as husband and wife until death do them part. They generally
remain guillible towards each other until their love for
each other
loses its flame and only then do they start to gaze around and tread
with suspicion and care as against each other.
[1]
”
[2]
This is a defended divorce action.
[3]
As per the particulars of claim, the parties married each other out
of community of property, subject to the accrual system
on 16
September 2006. The marriage still subsists.
[4]
From the subsistence of the marriage three minor children were born
namely:
4.1 H, a minor
female born 9 November 2007;
4.2 R.J, a minor
male born 24 August 2009; and
4.3 H.E, a minor
male born 3 February 2014.
[5]
During October 2015, the defendant vacated the matrimonial home and
two years later the plaintiff issued summons in this court
for a
decree of divorce, division of the accrual estate as per their
marital regime and ancillary relief.
[6]
The divorce is founded on the basis that the marriage relationship
between the parties has irretrievably broken down and has
reached
such a state of disintegration that no reasonable prospect exists for
the restoration of a normal marriage relationship
between the
parties.
[2]
[7]
In amplification of the plaintiff’s particulars of claim, the
plaintiff cited a loss of mutual love and respect, vacation
of the
matrimonial home and lack of communication between the parties which
culminated in the disintegration of the marital relationship
between
the parties.
[8]
The defendant defended the divorce action issued against him and in
his plea he raises the following defences:
8.1 Albeit that the
marriage relationship of the parties had broken down irretrievably
the grounds for such break-up are the various
false allegation of
molestation of the minor children levelled against him by the
plaintiff;
8.2 the false
allegation by the plaintiff that he in the past had engaged in an
extra-marital affair;
8.3 considering the
reasonable maintenance needs of the minor children and the obligation
resting on both of them in proportion
to contribute towards the minor
children’s maintenance needs, he sought an order from the court
to pay maintenance towards
the minor children of R6500,00 per month
per child; the minor children’s pre-school and school fees; to
maintain the minor
children as dependants on his medical aid fund and
to pay the monthly premiums and to pay 50% of all reasonable medical
expenses
of the minor children that is not covered by the medical aid
fund.
[9]
Pending
[3]
the
finalisation of the main action I am informed by counsel for the
defendant that the plaintiff was awarded
pendente
lite
an amount of R8500 per month per child; ordered to pay maintenance to
the plaintiff in the amount of R12 000,00 per month for a
period of 6
months following the date of the order whereafter payment will cease
and in addition, the defendant was also ordered
to pay directly the
school and nursery fees, medical aid premiums, all reasonable medical
expenses not covered by the medical aid,
MWEB, ADT security, DSTV
household content insurance and the plaintiff’s annuity at
Sanlam.
[10]
It is also worth mentioning that on the eve of the hearing of the
trial, the defendant had made a tender in terms of Rule 34
on a with
prejudice basis and that the defendant mainly presented his case
within the ambit of the said tender.
ISSUES
IN DISPUTE
[11]
As I see it, the terms of engagement that this court was called upon
to determine was whether the plaintiff on a balance of
probability
has discharged her onus of proving a division of the accrual estate,
whether she is entitled to spousal maintenance
and if indeed the
amount of spousal maintenance to be paid to her and the amount of
maintenance to be paid in respect of each of
the minor children.
[12]
Both the plaintiff and the defendant testified in their respective
cases. During the proceedings the plaintiff appeared in
person. She
initially applied for a postponement. It was opposed by the defendant
and given the fact that the application for a
postponement was not
properly motivated and premised on good and strong enough reasons
exercising my discretion, it was refused.
COMMON
ISSUES BETWEEN THE PARTIES
[13]
Ex facie
, the pleadings it was common cause between the
parties that the marital relationship between them had broken down
irretrievably.
As such an order for a decree of divorce should
follow. It was further common cause between them, that the primary
care and residency
of the three minor children should vests, with the
plaintiff.
EVIDENCE
THE
PLAINTIFF’S VERSION
[14]
The plaintiff testified that she married the defendant on 16
September 2006. From this union three minor children, were born
and
that the marriage still subsists. She confirmed that her husband left
the marital home with only his clothes during October
2015 and that
they have been living separate lives since then. Albeit that attempts
were made to save their marriage she was of
the opinion that her
husband no longer wants to be married to her. It was further her
testimony that she does not recall concluding
the ante-nuptial
contract but confirmed that her assets listed therein were correct.
She testified that she wishes to be awarded
custody of the minor
children; maintenance for herself of R18 000 per month for the next
two years and maintenance per child per
month in the amount of R8500.
During cross-examination she confirmed having qualified as an air
hostess and that she was employed
for approximately three years at
the start of their marriage, and even on occasion earned more than
the defendant. She further
confirmed that the defendant pays the
expenses as ordered in terms of the Rule 43 court order and in broad
terms she requested
the court to order the defendant to pay
maintenance in line with the interim order. The plaintiff further
conceded that she is
desirous of becoming gainfully employed, and
that she infact has taken steps to become employed, but that she had
found it difficult
to become gainfully employed as she lacks a
support system at home to assist her with looking after the children.
THE
DEFENDANT’S VERSION
[15]
The defendant elected to testify and it was his evidence that he
married the plaintiff on 16 September 2006. Prior to entering
into
the union himself and the plaintiff concluded an ante-nuptial
contract, which terms of the contract was explained to them
by the
attorney tasked to attend to it. He testified that he vacated the
matrimonial home around October 2015, and that this was
not by choice
but by virtue of a court order obtained by the plaintiff. He conceded
however that prior thereto at around the beginning
of 2014, they
started experiencing marital problems when the plaintiff began to
accuse him of having an affair. Their relationship
thereafter
gradually deterioted with the plaintiff continuously having arguments
with relatives; neighbours and mutual friends.
On occasion the
plaintiff also accused him falsely of sexually abusing his children,
an accusation he strongly denies. Their marriage
thereafter was
strained with instability. Amongst others, the children were removed
from the plaintiff’s care by the children’s
court and she
was even hospitalized for psychiatric observation. He further
testified that when he first met the plaintiff that
she was employed
and remained employed at different intervals in various capacities.
Furthermore, that the plaintiff is an educated
person having a degree
in Psychology, a teachers Diploma and also having studied Tourism.
[16]
It was his testimony, that he is desirous of the marriage being
terminated as their relationship has broken down irretrievably
and
that all attempts made to save it, has failed. This marriage and the
deteoriating
state thereof not only has taken a toll on his
relationship with his children but is also cumbersome and draining on
his mental
health, which he as a pilot can ill afford. At present he
has had no physical contact with his children for over three years
albeit
that he complies religiously with the interim maintenance
order in terms of Rule 43. He refuted the evidence tendered by the
plaintiff
that he should be ordered to pay maintenance as requested
by the plaintiff in line with the Rule 43 order. He simply cannot
afford
same from his average monthly income of R76 092 he has
deductions of approximately R72 900 which leaves him a residue of ±
R4000 which he should use for himself. It was his testimony that
their respective estates showed no accrual and given this fact
he
requested the court not to make an order as sought by the plaintiff.
It is on this basis that he requested this court to make
an order in
line with his Rule 34 tender made on the eve of the hearing.
[17]
During cross-examination he refuted the proposition made by the
plaintiff as to the figures of the respective values of their
assets
as reflected in the ante-nuptial contract. He also refuted the
allegation by the plaintiff that she never signed the ante-nuptial
contract. He also denied being able to afford rehabilitative
maintenance in the amount of R18000 per month as sought by the
plaintiff.
He confirmed the various allegations of sexual molestation
made against him by the plaintiff and even conceded having undergone
and pass a lie detector tests on her insistence. Under
cross-examination he re-iterated the fact that he had borrowed
significant
amounts from his father and brother, all of which he is
requested to repay at some point in time. He further refuted the
plaintiff’s
allegation that she and the children are living in
rags as a substantial amount of his income is spent on maintenance
for his minor
children.
APPLICABLE
LAW
[18]
The
Divorce Act 70 of 1979
regulates the division of assets,
maintenance and forfeiture of benefits on divorce.
[4]
[19]
In terms of
section 7
of the
Divorce Act, the
court granting a decree
of divorce may make an order with regards to the division of assets
of the parties, forfeiture of benefits
or payments of maintenance by
one party to the other.
[20]
While a court is not restricted to a consideration of the division of
the accrued estate before considering an award for maintenance,
it is
considered sagacious to deal with the division of the accrued estates
before interrogating the claim for permanent maintenance
on the basis
of fairness and equity with a new of how justice may best achieved
between the parties in relation to the means, obligation
and needs of
the parties and other relevant factors.
[5]
[21]
Section 3(1)
and
section 4(1)(a)
of the
Matrimonial Property Act 88
of 1984
also has application.
Section 3(1)
provides that at
dissolution of the marriage subject to the accrual system the spouse
whose estate shows a smaller accrual than
the estate of the other
spouse acquires a claim against the other spouse for an amount equal
to half of the difference between
the accrual of their respective
estates.
Section 4(1)(a)
of the same Act provides that the accrual of
the estate of a spouse is the amount by which the net value of his
estate at the dissolution
of his marriage exceeds the net value of
his estate at the commencement of the marriage.
[6]
[22]
It is trite that accrual only takes place after the decree of divorce
is granted and is in accordance with the prayers contained
in the
summons. This also has the effect of buttressing the clean break
principle.
[23]
Now, it is also well established that the reciprical duty of support
spouses have towards each other when married terminates
when a
marriage comes to an end. However,
section 7(2)
of the
Divorce Act
confers
a decree of divorce to make a maintenance order which it
finds just having regard to the factors set out in the section.
[24]
With regard to maintenance after divorce in the absence of an order
made in terms of a written agreement between the parties,
the court
may having regard to those factors, make an order which it deems just
in respect of maintenance by one party to the other
for a period
until the death or remarriage of the party in whose favour it is
given, whichever occurs first. Hence, should the
court decide to
award maintenance to a spouse, the factors enumerated ultimately
determine the amount of maintenance payable.
[25]
In addition to the above it is trite that each case must of course be
considered on its own merits in light of the factors
and
circumstances peculiar to it and with regards to those factors set
out in
section 7(2)
of the
Divorce Act.
[26
]
It as a result follows that the determination of the inquiry embodied
in terms of
section 7(2)
has as its purpose the determination of the
just award. It requires of a court to ruminate a multiplicity of
listed factors embodied
in
section 7(2)
in the determination of
firstly, whether maintenance is to be paid.
[27]
These factors listed in
section 7(2)
are not listed in any particular
order of importance or relevance. The inquiry a court is called upon
to make requires one to go
further than merely to determine a just
financial need and obligation, existing means and earnings.
[7]
The parties
future earning capacities, their ages, an order in terms of the
Divorce Act for
the transfer of assets from one party to the other
all relate to the criteria of need of support and ability to pay. It
is patent
that this section confers on the court a wide discretion
which is absolute and the court may have regard to any other factor
that
in the opinion of the court should be taken into account.
[28]
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.
[29]
In making a determination on the appropriate amount of maintenance to
be paid a court must find a balance between the need
for maintenance
and the ability to pay maintenance on the other hand. These two
factors are generally the predominant considerations.
[30]
When it comes to award rehabilitative maintenance the ability to earn
an income and support oneself and the potential to earn
an income,
does not disentitle a court from ordering rehabilitative
maintenance.
[8]
[31]
A plaintiff’s claim for maintenance is dependent
inter alia
upon the marital standard of living of the parties prior to the
divorce. It is generally recognised that neither party is entitled
to
maintain the same standard of living as during the marriage and it
follows it cannot be expected that after divorce the parties
maintain
the same standard of living that he/she had as before the termination
of the marriage.
[32]
As such it follows that they are expected to abate their requirements
accordingly and as a result the needs of both parties
must be
balanced and the available income distributed fairly and equitably.
[33]
It must also be borne in mind that the clean break principle after
divorce has found resonance with our courts. The aim of
this
principle has as its basis the aim to ensure that the parties become
financially independent of each other as soon as possible
after
divorce. A court in applying this principle will have due
consideration of the particular circumstances of each case and
if
such circumstances permit.
ANALYSIS
OF LAW AND THE FACTS
[34]
The marriage between the parties on the evidence presented was
acrimonious. The parties were both in agreement that their marriage
was beyond salvation. That the marriage was emotionally,
psychologically and at times financially abusive to both parties is
patent.
It however cannot with equal measure be determined with any
certainty. Their marriage relationship deteriorated over time
resulting
in the defendant vacating the matrimonial home during
October 2015.
[35]
As to the financial strain which was placed on the marriage it was
undisputed that since 2009, when the plaintiff last worked
that the
defendant was the breadwinner of the family and to date that he had
been the sole breadwinner of the marriage and was
liable for all
expenses. The defendant remained gainfully employed throughout and
with regards to expenses payments were either
deducted from his
salary or paid by the defendant himself or by the plaintiff on behalf
of the defendant.
[36]
From the evidence presented it is clear that the defendant
contributed more than 80% of his salary towards the expenses that
he
was ordered to pay in terms of the
Rule 43
order. This evidence was
not refuted by the plaintiff. It was also not refuted by the
plaintiff, that the defendant since vacating
the matrimonial home had
been forced to borrow money from his father and his brother which
loans both remain unpaid. It was also
uncontroverted, that in
addition to the medical aid fund contribution being deducted from his
salary, that over and above this
contribution, he is paying on
average R10 000 per month for expenses not covered by the medical
aid.
[37]
Since the plaintiff seized working the evidence established that she
contributed to the running of the household, but that
she
nevertheless received assistance in the form of various domestic
workers and even a garden service for the rented matrimonial
home.
The evidence reveals that both parties made sacrifices, concessions
and contributions consistent with the sanctity of marriage.
[38]
The plaintiff was unable to articulate testimony in respect of her
maintenance claims and that in respect of her children.
Her testimony
in this regard was merely to say that she requires R18 000 per month
for herself for a period of two years post-divorce.
How this amount
was computed and whether it infact constitutes reasonable and
necessary monthly expenses for herself, she failed
to provide any
substantiation for. As per her particulars of claim this amount is
less than claimed and in her particulars she
certainly did not
request rehabilitative maintenance for a period of two years’
post-divorce.
[39]
What is known and undisputed is that the defendant has complied with
the
Rule 43
order, whereby she has received maintenance of R12 000
per month for a period of the 6(six) months from date of that order.
[40]
In determining an award for rehabilitative maintenance post-divorce
as mentioned a court must balance the need to pay as against
the
ability to pay, and in exercising the wide discretion conferred upon
this court with specific reference to the provisions of
section 7(2)
of the
Divorce Act, I
find it fair and equitable to order the
defendant to pay the plaintiff an amount of R10 000 per month for the
next 12 months’
post-divorce.
[41]
In turning then to the maintenance to be paid in respect of the minor
children, the plaintiff again without articulation claims
maintenance
of R20 000 per month per child. From the evidence this amount as
testified to by the defendant is unsustainable, if
regard be had to
his expenses which he has been paying in terms of the
Rule 43
order.
[9]
It was his
evidence that in addition to these amount he also has his own
expenses which brings him to a combined amount of R83 983,68.
If one
considers his current income of approximately R76 092,12 the
defendant it is clear, already has a shortfall with the result
that
some of these expenses needs to be curtailed.
[42]
That having been said, maintenance in respect of children is not just
the responsibility of one parent but the responsibility
of both. In
the present instance the plaintiff is abled bodied, educated and
needs to obtain employment. She needs to do so, not
only to maintain
herself, but also to maintain her minor children.
[43]
As per the
Rule 34
tender the defendant offered maintenance in a
capital some of R6 000 per month per child and I am of the opinion
that this amount
would serve the best interest of the minor children
in so far as their maintenance needs is concerned.
[44]
As for the accrual of the respective parties’ estates, no
evidence in this regard was presented by the plaintiff. As
far as the
defendant’s estate is concerned two notices in terms of
section
7
of Act 88 of 1984 was served on the plaintiff. In respect of the
first notice
[10]
dated 2
nd
May 2019 the defendants’ total assets amounted to R 1 081
318,53 and his liabilities to R 1 002 856,42. A further notice
[11]
dated 7
November 2019 depicts the defendant’s total assets as R 1 109
526,92 and his liabilities at R 1 096 501,21. On the
latest
calculation thus, the value of the defendant’s estate is R 13
061,71, which shows no accrual.
[45]
In the absence of any accrual on either side it follows that no order
be made in this respect.
[46]
As to the best interest of the minor children and the fact that a
lengthy period has lapsed since the defendant last had contact
with
his minor children and the pending criminal proceedings it will be
appropriate under the circumstances to suspend the defendant’s
parental responsibilities and right, in terms of section 28 of the
Children Act.
[47]
One further aspect requires mentioning during closing argument, the
Legal Aid representative appointed on behalf of the children
in the
children’s court proceedings informed this court that these
proceedings remain pending and that this court should
await progress
made in the children’s court as same will have an impact of
maintenance to be paid. Subsequently, this court
was presented with
an order whereby the minor children were all removed from the care
and custody of the plaintiff and defendant
and placed in foster care.
Both parties were also afforded supervised contact inclusive of
parental guidance and reunification
with the minor children.
COSTS
[48]
In respect of legal costs to be awarded albeit that the plaintiff was
legally represented during the proceedings and only terminated
their
service on the eve of the hearing given the order to be made by the
court, both parties partially succeeded with their respected
cases.
In these circumstances the most appropriate award in respect of legal
costs to be made is to order each party to pay its
own costs.
ORDER
[49]
In the result the following order is made:
49.1 The bond of
marriage subsisting between the plaintiff and the defendant be and
are hereby dissolved.
49.2 The defendant
is to pay rehabilitative maintenance to the plaintiff in the amount
of R 10 000 (Ten Thousand Rand) per month
from the first day of the
month following the month on which the date of divorce is granted and
thereafter on or before the first
day of each month for a period of
12 months.
49.3 That the
defendant’s parental rights as regards care of and contact with
the minor children as contemplated in section
18(2)(a) and 18(2)(b)
of the Children’s Act, be temporarily suspended in terms of
section 28 of the Children Act, until such
time as the suspension is
uplifted by a court of competent jurisdiction.
49.4 The parental
responsibilities and rights with regard to the guardianship of the
minor children, as contemplated in section
18(2)(c) and 18(3) of the
Children Act be retained by both parties equally.
49.5 Both parties
shall retain equal parental responsibilities as regards contributing
towards the maintenance of the minor children,
as contemplated in
section 18(2)(d) of the Children’s Act.
49.6 The defendant
shall contribute towards maintenance of the minor children as
follows:
49.6.1 Payment in
the amount of R 6000 (Six Thousand Rand) per month per child, payable
into the trust account already in existence
at Van Bruggen Attorneys
payable on or before the first day of each and every month. The first
payment shall be made on the first
day of the month following the
month in which the decree of divorce is granted.
49.6.2 The
maintenance amount referred to above shall be increased on the
anniversary date of granting of the final decree of divorce
by a
percentage increase in the weighted average of the Consumer Price
Index as published from time to time in the government gazette
or any
substitute official publication based on the latest statistics
available for the 12 month period immediately prior to the
anniversary date(“CPI”).
49.6.3
Notwithstanding, the above each party may approach the Maintenance
Court having jurisdiction to entertain an application
to increase or
decrease the maintenance payable immediately after the granting of
the final decree of divorce, without having to
prove any change in
circumstances.
49.6.4 The defendant
is liable for the payment of the minor children’s reasonable
school fees and agreed extra mural activities.
49.6.5 The defendant
will retain the minor children as beneficiaries on his medical aid
scheme and will make the benefits available
to them.
49.6.6 The parties
to each retain the motor vehicles in his/her possession as his/her
sole and exclusive property.
49.6.7 It is
recorded that neither party own any immovable property.
49.6.8 The parties
retain the movable property in his/her possession as his/her sole and
exclusive property.
49.6.9 Each party to
retain his/her annuities pensions, provident funds, shares
investments, life polices and business interest
as his/her sole
property.
49.6.10 The parties
are responsible for his/her own debt.
49.6.11 It is
recorded that neither parties’ estate has shown any accrual.
49.6.12 Each party
is ordered to pay its own legal costs.
C.J. COLLIS
JUDGE
OF THE HIGH COURT
Appearances
For
the Plaintiff
: In Persona
Counsel
for the Plaintiff : In Persona
For
the Defendant
: Arthur Channon Attorneys
Counsel
for the Defendant : Adv. C.V Schalkwyk
Date
of Hearing
: 24 February
2020, 3 March 2020
31 July 2020, 06
November 2020 &
07 December
2020
Date
of Judgment
: 18 January 2021
Judgment
transmitted electronically.
[1]
PGJ v
AEJ Case No: 4949/2013 delivered 19 May 2016 Free State Division.
[2]
Section
4
of the
Divorce Act 70 of 1979
.
[3]
Rule
43
order: Potteril J dated 18 December 2017.
[4]
Section
9
of the
Divorce Act 70 of 1979
.
[5]
Beaumont
v Beaumont
1987 (1) SA 967
(A) at 987; also Archer v Archer
1989 (2)
SA 885
(E) at 895.
[6]
Section
3
(1) and
Section 4
(1)(a) of the
Matrimonial Property Act 88 of
1984
.
Section
3
: Accrual System
(i)
At the dissolution of a marriage subject to the accrual system by
divorce or by death by one of the spouses the spouse whose
estate
shows no accrual or a smaller accrual than the estate of the other
spouse or his estate if he is deceased acquires a claim
against the
estate of the other spouse or his estate for the amount equal to
half of the difference between the accrual of the
respective estates
of the spouses.
Section
4
: Accrual of Estate
(1)(a)
The accrual of the estate of a spouse is the amount by which the net
value if his estate at the dissolution of his marriage
exceeds the
net value of his estate at the commencement of the marriage.
[7]
B v B 2009 (3) SA 89 (W).
[8]
Joubert v Joubert
[2004] 1 All SA 426
SA (C)
[9]
Trial
Bundle 2. p 55
[10]
Trial
Bundle – Notices 2 p 103-105.
[11]
Trial
Bundle – Notices 2 p 154-155.