About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 78
|
|
G.S.M v J.M.M (13945/17) [2021] ZAGPPHC 78 (26 February 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHERS
JUDGES:
YES
/NO
(3)
REVISED:NO
26/2/2021
Case No: 13945/17
Date:
In
the matter between:
M[....]
:
G[....] S[....]
Plaintiff
And
M[....]
:
J[....] M[....]
Defendant
JUDGMENT
KHWINANA
AJ:
AD
INTRODUCTION
1.
This is a divorce
matter. The parties are ad idem that this marriage has irretrievably
broken down and that the decree of divorce
should be issued. That the
primary residence of the minor child be awarded to the defendant
subject to the rights of access to
the plaintiff. That the Plaintiff
has agreed to the maintenance of the children, that is both the major
and the minor children
until the children reach age of majority or
become self-supporting.
The issues
in dispute are whether the plaintiff is entitled to an order against
the defendant for forfeiture of 50% of the plaintiff’s
business
known as [….], and spousal maintenance in the sum of R
30 000.00 per month.
AD ABSOLUTION FROM THE
INSTANCE
2.
At the closure of the
plaintiff’s case, the defendant applied for a writ of
absolution from the instance on the basis that
the plaintiff had
failed to prove his case of forfeiture. The application was declined,
and it was ordered that the reasons would
be contained in this
judgment.
3.
In
Gordon Lloyd Page and Associates v Rivera and another
[1]
it was held that a decree of absolution from the instance should be
granted sparingly because of its ability to negate the
audi
alteram partem rule
which enjoins a court to hear both sides of the story. In this case
plaintiff’s evidence called for an explanation from the
defendant.
AD SUMMARY OF FACTS
4.
The parties were
married to each other on the 18
th
day of December 1997 in community of property. They stayed together
as husband and wife at Lotus Gardens and they were blessed
with three
female children aged 22, 18 and 7.
The two
major children are not self-supporting yet and they all reside with
the defendant at a property herein after referred to
as the [....]
property. The plaintiff was employed by the Department of Justice
where he later resigned to establish his own business.
The defendant
was
employed at a school in
Soweto where she resigned and took further employment with Ellerines
furniture shop where she also later
resigned.
The
parties purchased an immovable property at [….], herein after
called the N[....] property. The bonds on both the [....]
and the
N[....] properties have been settled.
5.
Upon resigning at
Ellerines, the defendant took her pay-out in the amount of R52 000.00
and paid same into the business of
her brother, according to her, so
that the brother could purchase a vehicle for her. According to the
plaintiff the money was paid
into the business as an investment in
the business where the defendant continues to draw a benefit. It is
common cause that the
defendant continues to draw a benefit of
R5000.00 per month from the business but according to her, she
receives the money from
the brother as a donation to assist her from
suffering since she is unemployed.
6.
After resigning from
the Department of Justice, the plaintiff paid off the N[....]
property from his pay-out
.
He also used part of the money in the
year 2008 to start a business that he calls [….] (“[....]”)
which is now
his sole source of income. The business operated from
the N[....] property where it still operates even now. The plaintiff
continued
to acquire assets in the names of [....], including two
immovable properties (in addition to the [....] property), vehicles
and
probably other immovable assets. It is common cause that two of
the properties are occupied by the defendant’s girlfriends.
7.
The defendant established
[….], a catering business in 2011 and the plaintiff assisted
the defendant to purchase equipment
thereof. The business has since
collapsed. The plaintiff alleges that the marital problems began in
2002 as a result of the defendants
lavish and extravagant lifestyle,
an allegation denied by the defendant. It is common cause that the
[....] property, which is
currently occupied by the defendant and the
children was bought for an
amount of R 1
900 000.00. On the 30
th
September 2014, the plaintiff purchased a property at Unit [….]
through [....] (the [....] property) in the amount of R980
000.00
and
o
n the 29
th
October 2016, the plaintiff further purchased through [....] a
property situated at [….] ([....] property) in the amount
of
R1 649 000.00.
It is further
common cause that [....] owns the following vehicles: a
Nissan
Navara, a Mercedes Benz and a Toyota Etios.
8.
The defendant claims
spousal maintenance in the sum of R 30 000.00, the said amount
is calculated as follows:-
groceries,
R3500,00 chronic medication R500,00 Transport for B[....] R1300.00,
Lunch for B[....] R600.00, Lunch for K[....] R300.00,
School clothes
R1800 (0nce off), Casual clothes Gardener R250,00 and Woolworths
Account R650,00
Total
R7100.00,
Toiletries
R1000.00 for herself R600,00, Groceries R5000.00, Outings (me)
R1000.00, Children’s Outings R1000.00, Holidays
R1500.00,
Household Maintenance R19 100.00 Total
R30
000.00.
AD LEGAL PRINCIPLES
9.
A
claim for the forfeiture of benefits arising from a marriage is
governed by section 9(1) of the Divorce Act
[2]
which reads as follows:-
(i)
When a decree is granted on the ground of
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 break-down thereof and any substantial
misconduct on
the part of either of the parties, is satisfied that,
if the order of forfeiture is not made, the one party will in
relation to
the other be unduly benefited.
10.
In
the matter of Engelbrecht v Engelbrecht
[3]
it was held that “the court has the discretion when granting a
divorce on the grounds of irretrievable breakdown of the marriage
or
civil union to order that the patrimonial benefits of the marriage or
civil union be forfeited by one party in favour of the
other. The
court may order forfeiture only if it is satisfied that the one party
will, in relation to the other, be unduly benefited.
The court has a
wide discretion, and it may order forfeiture in respect of the whole
or part only of the benefits.”
11.
This court is enjoined
to ask itself whether one party would be unduly benefitted were such
an order to be made. I continue to take
into account factors alluded
to supra.
The
duration of the marriage;
12.
The marriage, as at the
date of hearing was twenty-three years old. However, parties are not
ad idem as to when the challenges of
the marriage relationship began,
a factor I consider to be irrelevant.
13.
It is common cause that
the parties were separated from each other, however what is in
dispute is the period of such separation.
That the parties became so
intimate after the reconciliation to the extent that a child was
conceived and born makes the fact of
the separation irrelevant for
our purposes. The plaintiff’s evidence that a ”child was
conceived in a one night stand
episode where he was inebriated”
should be rubbished because it is nonsensical and disrespectful. The
fact that the plaintiff
had previously issued a divorce summons
against the defendant in the Regional Court, which summons he later
withdrew, points to
there having been an intention to salvage the
marriage relationship by means of a reconciliation.
14.
It is my finding that a
consideration of the duration of the marriage should lean in favour
of the defendant as opposed to the defendant.
The circumstances that gave
rise to the breakdown of the marriage
15.
It is common cause that
the plaintiff kept multiple extramarital relationships openly without
consideration for the defendant. He
purports himself as a
polygamist
whereas he is married in terms of civil rites and not customary law.
The plaintiff had ample
time to convert his marital regime into a customary marriage with the
consent of the defendant, but he failed
to do so. During cross
examination he rightfully conceded that he was ashamed of his
actions.
16.
The
plaintiff alleges that the defendant was always quiet and refused to
wash his laundry, an allegation denied by the defendant.
The
plaintiff does not tell the court what means he undertook to change
the situation. I find it inconceivable that such trivialities
can be
said to have brought a marriage relationship to its demise if they
are indeed true.
The
plaintiff has a misconception as to what consortium entails. Washing
clothes is not a duty earmarked for a specific gender and
that
includes all household chores.
I
agree with plaintiff’s counsel in her heads of argument where
she stated that Flemming J in Swart
[4]
where a detailed analysis was made of conduct of factors that lead to
a breakdown of marriage relationships, especially where it
is said
that adultery and desertion might in certain instances merely be
symptoms, not causes of a marriage breakdown, and also
that conduct
which could not be considered to be morally very blameworthy, such as
refusal to engage in conversation, might be
a factor leading to
marriage breakdown. It is my finding that a refusal to wash clothing
cannot be a morally very blameworthy factor
that can be said to have
brought a marriage to its demise.
17.
The plaintiff raises
issue of debts of creches, clothing accounts and eating out at
restaurants as a cause of the irretrievable
breakdown of the
marriage. However, during cross examination he conceded that these
debts pre-existed the challenges in the marriage.
The plaintiff did
not take the court into his confidence about the hardships that he
experienced with the effect of the debts.
18.
The argument of the
plaintiff is self-defeating in that the plaintiff informed the court
that Ms. M[....], one of his mistresses
also wines and dines
similarly to what the defendant does. The plaintiff accords his
mistresses amenities that he denies his wife.
The plaintiff says the
defendant moved out of the common home and with the same tone says he
was living with Ms. M[....]. Essentially
if we accept that the
defendant moved out then the plaintiff would not have been in a
position to accept her as he had already
moved on with a girlfriend
at a different address.
19.
It is my finding that
the circumstances that the plaintiff alleges brought the marriage to
its demise, even if it were to be found
that they were proven, are
not substantive enough to entitle him to his prayer of forfeiture.
SUBSTANTIAL MISCONDUCT
20.
The plaintiff
alleges that the defendant used the money she received from her
pension fund in her brother’s business and is
now a
shareholder. According to the defendant she gave the money in order
for a motor vehicle to be bought for her. She does not
have a car at
the present moment.
21.
The plaintiff
testified about how he spent a lot of time with Ms. M[....] to the
extend that he bought a microbus and started a
taxi business together
with her. This was done without knowledge of the defendant. The
plaintiff ran the taxi business with the
mistress to the exclusion of
the defendant.
22.
While the
defendant’s alleged misconduct seems to be immaterial, the same
cannot be said about the defendant’s conduct,
which he admitted
to being ashamed of. He openly conducts adulterous extra-marital
relationships; he begets children outside of
the marriage
relationship and he even ensures that his mistresses enjoy the
benefits of the joint estate.
23.
In
casu the parties’ assets started the business and to-date the
estate continues to house the business. The defendant therefore
will
not unduly benefit from [....] which owes its existence to the
estate.
In
the matter of Z V Z
[5]
, Legodi J
alluded to what is meant by “undue benefit” and stated
that a cumulative consideration of all relevant factors
seem to be at
play in terms of subsection 1, and the court will make an order only
when is satisfied that, if an order for forfeiture
is not made, the
one party ('guilty party') will unduly be benefited in relation to
the other party ('the innocent party'). It
is an exercise of a
discretion guided by consideration of the duration of marriage, the
circumstances which gave rise to the breakdown
and
any
substantial misconduct
on
the part of either of the parties. It is clear from the wording of
the subsection that to qualify for forfeiture, based
on misconduct,
such misconduct must be "substantial".
24.
If I were to borrow
from Legodi J, and in the light of the facts in casu, declaring the
plaintiff an innocent party would not be
escapable. The same cannot
be said about the defendant.
25.
Undue benefit, one
would be guided by a number of factors for example, refusal to work
when it is possible to do so, squandering
of money and other assets
of one's estate and other factors on the handling of the estate which
is prejudicial to the other spouse.
According to the plaintiff the
defendant acquired a legal secretary qualification which she did not
use.
The plaintiff despite being in the
legal fraternity never offered the defendant work neither did he say
he solicited work for her.
He did not tell the court that he offered
her employment which she refused.
Further,
she started a business which he supported and she was able to solicit
work. The plaintiff also mentioned how he bought
equipment for the
business and he noted that its failure emanated from the drawing up
of quotations which would seem were far low.
The plaintiff also
testified that the defendant would wine and dine therefore using the
funds extravagantly. Except that the plaintiff
said the defendant
failed to pay for a creche in the early years of their marriage there
is no evidence that she refused to assist
in the maintenance of the
children or the household. I therefore cannot find how she refused to
work nor how she squandered the
income of the joint estate. It is
also not clear how the defendant would have prejudiced the joint
estate save for the fact that
third parties have access to the joint
estate assets because of the plaintiff.
26.
It is upon the
plaintiff to show the extent to which the defendant will be unduly
benefited. The plaintiff has not attempted to
prove same. He instead
gave evidence that makes his case weak. For example, he testified
that that he is using the assets of the
joint estate to grow [....].
27.
The
plaintiff failed to show that the defendant carried an extravagant
lifestyle and it would seem
I
agree with the defendant’s counsel in their heads of argument
that a joint estate is formed for parties married in community
of
property as stated by Makgoba J in O v O
[i]
[6]
.The parties are joint owners and will share each other’s
liabilities.
It
has been also stated that “community of property is a universal
economic partner partnership of the spouses. All their
assets and
liabilities are merged in a joint estate, in which both spouses,
irrespective of the value of the financial contributions,
hold equal
shares”.
[7]
28.
What is apparent is
that the plaintiff has been paying for the accommodation expenses,
household related expenses and food. The
defendant has therefore
succeeded to prove that she must be maintained however it cannot be
for a lifetime, but it can be rehabilitative
maintenance.
29.
The
plaintiff reiterated that he has the means thus his contribution was
more than that of the plaintiff. The test for f
orfeiture
is not whether one party has contributed more than the other. It is
as already alluded to in terms of section 9 of the
Divorce act 70 of
1979. I must concur that the courts discretion is limited two factors
already mentioned indeed the case of Botha
v Botha
[8]
.
30.
The
plaintiff argues that fairness should prevail in so far as the
sharing of the joint estate. In the matter of Wijker v Wijker
[9]
the
proper approach was stated in determining whether an order of
forfeiture should be made. It was held that the court should first
determine whether or not the party against whom the order of
forfeiture is sought will in fact benefit if the order is not made.
Once it is determined that the party will benefit, the next enquiry
is whether such benefit will be an undue one”.
31.
In casu the
plaintiff used the assets of the joint estate to grow his business,
he fathered children outside the marriage relationship,
he entered
into the illicit and adulterous relationships and he is using two
immovable properties and other assets of the joint
estate for the
benefit of his two mistresses at a great cost to the marriage
relationship, both emotionally and financially.
LEGAL PRINCIPLES ON
MAINTENANCE
32.
There
is no automatic right to maintenance after divorce however
entitlement to maintenance must first be shown before a court
determines the quantum and duration thereof.
[10]
This area of law is governed by the
Divorce Act 70 of 1979
, which
permits a court to make an award which it deems just. The Act further
grants the court discretionary powers when considering
the question
of spousal maintenance and the following considerations apply:
34.1
Existing of prospective
means of the parties / Prospective earning capacities of the parties
In casu, the plaintiff is shown
to be a man of good means whereas the defendant has less means. In
this regard, one has to look
at the success of the plaintiff’s
business as opposed to the defendant inability to generate income.
34.2
Financial needs and
obligations
That there are financial needs
and obligations on the defendant’s part is clear from the facts
and the fact that the plaintiff
is in a position to provide and that
he has in fact been providing calls upon a recognition of an
obligation on his part to continue
to provide for the defendant,
albeit on a rehabilitative basis.
34.3
Age of the parties
The defendant’s age makes
her a proper candidate for future employment and her share in the
joint estate should be able to
sustain her and it is my finding that
an order for rehabilitative maintenance would be just and equitable
under the circumstances.
34.4
Duration of the
marriage
The plaintiff has survived in the
marriage for 23 years while enjoying the benefits of the joint estate
to which the plaintiff was
the main contributor. It is therefore only
fair that the benefit should proceed, albeit on a rehabilitative
basis.
34.5
Standard of living of
the parties prior to the divorce
Taking judicial notice of the
fixed properties amassed by the joint estate and their locations, a
finding to the effect that the
standard of living of the parties was
above average is inescapable. It would therefore be unfair to expect
that the plaintiff’
standards be allowed to drop abruptly.
34.6
The parties’
conduct in relation to the demise of the marriage
So much has been said above about
the plaintiff’s negative conduct and the conclusion that that
conduct should weigh against
him is inescapable.
33.
It is therefore my
finding that the plaintiff is entitled to spousal maintenance, albeit
on a rehabilitative basis.
COSTS
34.
Both parties pray and
argued for costs orders in their favour. I will take guidance from
Section 10
of the
Divorce Act 70 of 1979
which enjoins me to take
into consideration the means of the parties and their conduct.
35.
So much has been said
about the plaintiff’s means vis-à-vis those of the
defendant and the conclusion that the plaintiff
should endure a cost
order is inescapable.
36.
Looking at the
plaintiff’s conduct, which I find brought the relationship to
its demise, for example open adulterous relationships;
bearing
children out of wedlock and sustaining mistresses using resources of
the joint estate and thereafter approaching the court
with a prayer
for forfeiture should be frowned upon.
I
am in agreement with the defendant’s contention that the
plaintiff conduct can be characterized as “catch me if
you
can” as referred to in the defendant’s heads of
argument. It is my finding that the plaintiff, by conducting
the
proceedings as he did, wanted to frustrate the defendant by, inter
alia, putting her out of pocket. A conduct that I frown
on, thus the
costs order below.
In
the result, I grant the following orders:
1.
A decree of divorce;
2.
That the Plaintiff pay
maintenance in respect of the minor child born from the marriage
relationship between the parties at the
rate of R 7500.00 per month
from the 1
st
day of the month subsequent to the granting of a final decree on or
before the 1
st
of each month and every successive month thereafter;
3.
That the defendant
contributes 100% per cent towards the maintenance of the minor child
including medical, dental, pharmaceutical,
ophthalmological, hospital
and the like expenses on demand, pre-primary school fees, primary
school fees, secondary school fees,
prescribed school books,
prescribed school stationary, prescribed school uniform, prescribed
school tours, reasonable aftercare
school fees, reasonable extramural
activities, school related expenses and reasonable extramural
activity equipment on demand;
4.
That the plaintiff pays
rehabilitative maintenance to the defendant in amount of R15 000.00
from the date of this order until
the joint estate has been wound up
and the parties have been awarded their respective shares;
5.
A division of the joint
estate, including the business known as Gilbert Matsunyane Costs
Consultanting CC;
6.
That the plaintiff pays
costs of suit.
E
N B KHWINANA
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
DATE OF HEARING:
17-20 NOVEMBER 2020
DATE OF JUDGMENT: 26
FEBRUARY 2021
HEADS OF ARGUMENT
FILED: 07 DECEMBER 2021
(FOR PLAINTIFF)
HEADS OF ARGUMENT
FILED: 11 DECEMBER 2021
(FOR DEFENDANT)
ATTORNEY FOR
PLAINTIFF: TOMLINSON MNGUNI JAMES INC.
ADVOCATE FOR
PLAINTIFF: ADVOCATE JL KHAN
ATTORNEY FOR
DEFENDANT: SHAPIRO & HAASBROEK INC.
ADVOCATE
FOR PLAINTIFF: ADVOCATE AJ SCHOEMAN
[1]
2001
(1) SCA at 92E – 93A as formulated in Caudle Neron lights (SA)
Ltd v Daniel 1976 (4) 403 (A) at 409 G-H
[2]
70 of
1979 as amended
[3]
1989
(1) SA 597
( c )
[4]
1980 4
SA 364 (O)
[5]
Z
v Z (43745/13) [2015] ZAGPPHC 940 (18 September 2015)
[6]
[7]
HR
Hahlo: The South African law of husbands and wives 50 edition at
page 157-158
[8]
2006
ZASCA 6
2006 (4) SA 144
SCA
[9]
1993
(4) SA 720 (A)
[10]
Botha
v Botha
2009 (3) SA 89
(W)