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[2020] ZAGPPHC 215
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Land and Agricultural Development Bank of South Africa v Voorsiener (46357/2017) [2020] ZAGPPHC 215 (6 February 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED :
CASE NO: 29933/2017
In
the matter between:
B[….]
J[….] M[….]
Plaintiff
And
S[…]
M[….] M[….]
Defendant
JUDGMENT
SENYATSI
J:
[1]
The
Plaintiff instituted divorce action against the Defendant during 24
April 2017in terms of which he claimed a decree of
divorce and
division of the joint estate and costs of this action only when the
action is defended.
[2] A
counter-claim was instituted by the Defendant and she claimed for a
decree of divorce; forfeiture of all
patrimonial benefits arising out
of the marriage in community of property, more specifically the
Defendant’s pension interest
held and administered by
Government Employee Pension Fund (GEPF) by virtue of her employment
with the Department of Telecommunication.
The Defendant also claimed
forfeiture by the Plaintiff of all policies and monetary investments
held in favour of the Defendant;
all movable assets including the
Defendant Kia motor car with registration No: [….] and VW Polo
Classic motor car with registration
No: [….]. As an
alternative, she claimed the division of the estate on the basis that
each party retains assets currently
in his/her possession and costs
of suit.
[3] The parties were married to
each other on the 4
th
December 1995 in community of
property and the marriage still subsists. Two children were born of
the marriage and they are all
majors. None of the parties claims
spousal maintenance.
[4] It is common cause that the
marriage has broken down irretrievably and there are no prospects of
reconciliation
between the parties.
[5] The only issues that are in
dispute are:
5.1. Whether there are grounds for this Court to grant
an order
that
the Plaintiff forfeits all patrimonial benefits arising out
of
the marriage in community of property in favour of the
Defendant
and;
5.2. The grounds that led to the breakdown of the
marriage
and
the costs of suit.
[6] Both parties are employed
and have not lived together since 25 February 2016. The Plaintiff is
employed
by [….]as a customer engineer. The Defendant is
employed by [….] as a deputy director. She is a former
teacher.
[7] Each party testified in
support of his/her case. The first to testify was the Plaintiff.
[8] The Plaintiff testified that
he was married to the Defendant for 23 years. He further stated that
he
contributed to the estate and was responsible for taking their
children to school. He earned less than the Defendant and for that
matter conceded that the Defendant was the bread winner of the
household.
[9] He testified that he moved
out of the common home and that this was by agreement with the
Defendant
as they quarrelled continuously.
[10] He admitted that he had an extra
marital affair with one Ms. M[….] M[….] (“M[….]”)
out of which one child known as Mpho was born. The relationship
continued after the Plaintiff left the common home.
[11] The Plaintiff also conceded that the
parties had two bonded houses and that he was responsible for the
repayment
of the bond for one of the houses. He failed to pay for the
bond as he could not afford it as he relied on his travel claims to
service the bond repayment.
[12] The Plaintiff conceded that his
relationship with M[….] continued during the subsistence of
the marriage
and he abandoned the common home to live with her. The
Plaintiff conceded further that he currently lives with the said
M[….].
[13] The Plaintiff did not deny that due to
the birth of M[….], the Defendant suffered acute stress and
depression
and was treated by Doctor Mokhuane.
[14] The Plaintiff also conceded that the
fallout between the parties was also caused by his failure to pay the
mortgage
bond as agreed between the parties.
[15] The Defendant testified that the
Plaintiff deserted her and their children and went to live with
M[….].
She testified that she was tested HIV positive as a
result of the Plaintiff’s adulterous behaviour.
[16] She testified that she prays for
forfeiture of the benefits arising from a marriage in community of
property.
[17] The issue to be determined is whether
or not the Plaintiff is entitled to division of the joint estate or
whether
forfeiture of the benefits arising out of the marriage in
community of property should be granted.
[18]
Section 9(1)
of the
Divorce Act 70 of
1979
provides as follows:
(1) When a decree of divorce is granted on the grounds
of irretrievable breakdown of a marriage, the Court may make an
order
that the patrimonial benefits of the marriage be forfeited by
one party in favour of the other, either wholly or in part, if the
Court having regard to the duration of the marriage the circumstances
which gave rise to the breakdown thereof and any substantial
misconduct on the part of the parties, is satisfied that, if the
order for forfeiture is not made, the one party will in relation
to
the other be unduly benefitted.
[19]
In
Wijker
v Wijker
[1]
the Appeal Court said the following with regards to the approach to
be followed:
“
It is obvious from the
wording of the section that the first step is to determine whether or
not the party against whom the order
is sought will in fact be
benefitted. That will be purely a factual issue. Once that has been
established the trial court must
determine having regard to the
factors mentioned in the section, whether or not that party will in
relation to the other be unduly
benefited if a forfeiture order is
not made.”
[20]
It is only after the Court has concluded that a party would be unduly
benefited that it is empowered to order
a forfeiture of benefits and
in making this decision the Court is exercising a discretion in a
narrow sense.
[2]
[21] The factors stated in
Section
9(1)
of the
Divorce Act, are
three fold; namely:
(a) the circumstances giving rise to
the breakdown;
(b) misconduct of the party;
(c) the duration of the marriage.
[22]
The Defendant bears the onus of proving that the Plaintiff will be
unduly benefitted if forfeiture is not
granted. The Court can only
order forfeiture if the factual evidence is led on the nature and
extent of the undue benefit.
[3]
[23]
In
Engelbrecht
v Engelbrecht
[4]
Conradie J said the following on the consequences of marriage in
community of property:
“
Joint ownership of another
party’s property is a right which each of the spouses acquires
on concluding a marriage in community
of property. Unless the parties
(either before or during the marriage) make precisely equal
contributions the one that contributed
less shall on dissolution of
the marriage be benefited above the other if forfeiture is not
ordered. This is the inevitable consequence
of the partys’
matrimonial regime. The legislature (in
section 9
of the
Divorce Act
70 of 1979
) does not give the greater contributor the opportunity to
complain about this. He can only complain if the benefit was undue.
Unless
it is proved (and the burden of proof rests on the party who
seeks the forfeiture order) what the nature and extent of the benefit
was, the Court cannot decide if the benefit was undue or not. Only if
the nature and ambit of the benefit is proved is it necessary
to look
to the factors which may be brought into consideration in deciding on
the inequity thereof. In this connection, it should
be borne in mind
that misconduct and gross unreasonableness do not always go hand in
hand. Although it appears as if the Legislature
wanted limit the
Court’s discretion as to the granting of a forfeiture order and
did not intend to authorise the Court to
take cognisance of the same
wide-ranging considerations as those which
section 7(3)
;(4);(5) and
(6) (where parties are married out of community of property), with
reference to the transfer of assets from one party
to the other,
permits the Legislature did not intend to elevate fault, in the
granting of forfeiture order so prominently above
other
considerations. It could lead to the advantages of a no-fault divorce
system being eroded by disputes over fault on the division
of the
estate.”
[24] I now consider the evidence led
by the Defendant on whether or not the Plaintiff will be unduly
benefited.
I have not heard the nature and ambit of undue benefit
that the Plaintiff will have if forfeiture is not ordered.
[25] The only evidence led is that the
Defendant is a member of Government Employees Pension Fund. I have
not
been informed of what size of the Defendant’s contribution
or value of this pension is. I have also not heard any evidence
on
what other assets either than the cars and immovable properties
mentioned and what values of these assets are and who contributed
more than the other.
[26] Having regard to the evidence led
by the Defendant to prove that she is entitled to a forfeiture order,
I
am not persuaded that she has discharged the onus of showing
factual undue benefit by the Plaintiff if the forfeiture order is not
granted. She failed to lay a factual basis of what she has
contributed to the joint estate and what value that contribution
amounted
to as compared to the Plaintiff.
[27] Consequently, the prayer for a
forfeiture order must fail.
ORDER:
[28] The following order is made:
(a)
The
decree of divorce is granted.
(b)
The
joint estate shall be divided equally between the parties including
the parties’ respective pension funds.
(c)
The
Defendant’s pension administrator, the Government Employers
pension Fund is ordered to pay the Plaintiff an amount of
50% of the
Defendant’s pension interest held and will accrue to the
Defendant at the date of this order.
(d)
The
Defendant’s pension fund administrator is ordered to make the
said 50% of the Defendant’s pension interest thereof
to the
Plaintiff within sixty (60) days from the date of this order. The
Defendants pension details are:
Pension
No: [….]
Salary
No: [….]
Pension
Administrator: GEPF/GPAA
(e)
The
Plaintiff’s pension administrator, Alexander Forbes Pension
Fund is ordered to pay to the Defendant 50% provident interest
of the
Plaintiff pension interest held and administered by Alexander
Forbes the Plaintiff’s pension benefits will accrue
to the
Plaintiff to him the date of this order.
(f)
The
Plaintiff’s pension fund administrator is ordered to make
payment of the 50% of the Plaintiff’s pension interest
thereof
to the Defendant within sixty (60) days from the date of this order.
Plaintiff’s pension details are:
Pension No: [….]
Pension Administrator: Alexander Forbes
(g) Each party shall pay their own
costs.
SENYATSI ML
Judge of the High Court of
South Africa
Gauteng Local Division,
Johannesburg
Date matter heard: 18 November 2019
Date of Judgment: 26 March 2020
Plaintiff’s Counsel: Mr. V. Mabe
Instructed by: Victor Mabe Inc. Attorneys
Defendant’s Counsel: Miss N. Matlhatji
Instructed by: Naledi Matlhatji Attorneys
[1]
1993 (4) SA 720
(A) at 727 E-F
[2]
See Wijker v Wijker supra at
728B
[3]
See JWv SW 2011(1)SA 545
[4]
1989 (1) SA 597
at 601F-G