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[2019] ZAGPPHC 347
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C.V v W.J.V (49307/2017) [2019] ZAGPPHC 347 (16 July 2019)
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Certain
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES: NO/
YES
(3)
REVISED.
CASE No:
49307/2017
16/7/2019
In
the matter between:
C[….]
V[….]
PLAINTIFF
and
W[….]
J[….] V[….]
DEFENDANT
JUDGMENT
MTATI
AJ
Background
1.
The
Plaintiff and the Defendant were married to each other on 27 March
2009 out of community of property with the exclusion of the
accrual
system. 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. There are other reliefs sought by the Plaintiff
and those are dealt with fully further below.
Prior to this marriage
the parties were married to each other previously in 1997 which
marriage was dissolved in 2003. One child
was born out of the initial
marriage which child has since attained the age of majority.
2.
The
Plaintiff seeks other maintenance related costs from the Defendant
which can be summarised as being the following:
2.1.
Payment of maintenance in the amount of
R30 000.00 per month payable on or before the 25th day of every
month, which amount shall
escalate by 10% per annum until she
remarries;
2.2.
That Defendant retains her as a
dependant on his medical aid scheme similar to Discovery Classic
Comprehensive Plan and be responsible
for all medical costs not
covered by the medical aid until she remarries;
2.3.
Payment of resettlement costs
constituted as follows:
2.3.1.
The
purchasing of an immovable property of the Plaintiff's choice for an
amount of no less than R3,000,000.00 excluding transfer
costs;
2.3.2.
Furniture,
curtains, linen, household appliances and goods of the Plaintiff's
choice for an amount of no less than R500,000.00 within
30 calendar
days from date of divorce;
2.3.3.
Purchasing
a motor vehicle of the Plaintiff's choice for an amount of R450,
000.00 excluding licensing and registration and that
same be
registered in the Plaintiff's name within 30 calendar days from the
date of divorce.
3.
This
matter was initially set down for trial on 23 May 2018 and on 19
April 2018 the Plaintiff amended her particulars of claim
by
inserting a claim for maintenance of the major child which later
necessitated a postponement. On 23 May 2018 the parties agreed
that
the trial be postponed
sine die
and
that costs be reserved. The maintenance claim of the major child was
abandoned at the pre-trial conference held on 15 May 2019.
I do not
intend to burden this judgment with details of those claims since
they do not form part of my ultimate conclusions.
4.
On
the first day of the hearing of this matter, namely 28 May 2019, the
Plaintiff indicated that she seeks to amend her resettlement
costs
claim by reducing same to R1, 000,000.00 in respect of relocation and
furniture. This amendment was not confronted with an
opposition and
the Court consequently granted the relief sought.
Issues
for determination
5.
The issues that remained for
determination are therefore the following:
5.1.
Whether the Plaintiff is entitled to
maintenance, and if so, the amount and duration thereof;
5.2.
If Plaintiff is entitled to resettlement
costs of R1,000,000.00 as per amended claim; and
5.3.
Which party should bear the costs of the
proceedings.
6.
It
is not my intention to navigate the testimony of the parties in
minute detail on the causes that led to the irretrievable breakdown
of their marriage except where necessary. The parties are in
agreement that their marriage has broken down irretrievably. What
also emerged during the evidence is that not one of the parties can
be solely blamed for the reasons of the breakdown of the marriage.
That being the case, I shall commence by determining an entitlement
of the Plaintiff to receive maintenance and the duration thereof.
Maintenance
and duration
7.
The
parties appear, through their testimony, to have lived a comfortable
life and each was assisting the other when a need arose.
Defendant
clearly had an increased capacity to receive earnings in comparison
to the Plaintiff.
8.
The
Plaintiff possesses a secretarial qualification but through her
intelligence and hard work moved up through the grids and joined
the
information technology (IT) sector where she did IT support. She
moved up the ranks until where, before her resignation in
2007,
earned herself a salary in the region of R44, 000.00 per month
upwards. This amount was argued to be around R51, 000.00 per
month
and the Plaintiff did not deny this except to say that she could not
remember. It is worth noting that, whilst this was before
the
commencement of the second marriage, she was already then staying
with the Defendant. The reason for her resignation in her
testimony
was as a result of long working hours which caused a strain in her
relationship with the Defendant and availability at
home for the
children. The Defendant, on the other hand, disputed the reason for
the resignation attributing same to the continued
travel between
Johannesburg and Pretoria which frustrated the Plaintiff. Nothing
turns on this in my view.
9.
Before
her resignation the Plaintiff successfully attended training under
the auspices of the Estate Agency Board to obtain a qualification
as
an Estate Agent. This qualification would have enabled her to provide
and receive opportunities from the Defendant who is in
the legal
profession. After obtaining her qualification as an Estate Agent, the
Defendant resigned his membership from one of his
companies, namely,
[….] Real Estates CC, and handed over the full ownership to
the Plaintiff. This act would have enabled
the Plaintiff to run and
own her own company. The Plaintiff testified that the Defendant
helped her a lot in establishing her estate
agency business by making
referrals to her, introducing her to Bond Choice and generally
marketing her business.
10.
It
is not in dispute that the Defendant supported the Plaintiff
financially as well at the commencement and during the operation
of
the estate agency business. This appear to have been the case until
the marital problems between the parties commenced or even
worsened.
The Plaintiff also joined [….] where she worked for a period
of approximately 6 months. This business also ran
as an estate agency
and there the Plaintiff rented one house out of which she received
commission. She also received commission
for one referral for a
purchase.
11.
Whilst
at [….], she met a lady who was running a promotional company.
She joined this lady and there worked together for
some three to four
months. They would apparently share proceeds of the business they
generated equally. This led the Plaintiff
to establish her own
company called [….] Promotions. The Defendant once again was
supporting the marketing of this business
and assisting in obtaining
clients for the Plaintiff. In fact, the Defendant's firm of Attorneys
was one of the clients for the
Plaintiff's business.
12.
The
Plaintiff also worked for the Defendant there earning a management
fee for his private portfolio. The Plaintiff received a management
fee for Willie [....] Family Trust as well as for Udumo Trading (Pty)
Ltd.
13.
According
to the Plaintiff's evidence, business took a toll on her and due to
lack of sufficient manpower she started losing support.
Another
contact of hers left South Africa and she also lost the Defendant's
firm as a client because of complaints on deliverables.
The Plaintiff
demonstrated that she lost quiet a lot in the business from the year
2018 compared to previous years.
14.
She
was cross examined extensively about the losses. It however remains
my view that notwithstanding some gaps in her evidence,
she still
verified that she suffered some losses. For example, the Plaintiff
was asked about differences in income between financial
records that
were later produced in Court with a variance of some R400 000.00. To
this the Plaintiff testified that the difference
could have been
caused by rental income she received. I was not entirely convinced by
this explanation especially as a result of
the effort that it took
the Defendant's team to extract same during the pleadings stage.
15.
I
have however already indicated that I am of the view that there has
indeed been a reduced income received by the Plaintiff in
the recent
past.
16.
The
Plaintiff is currently employed by One Chain Capital where she earns
an amount of R10 000.00 per month. It appears. through
the testimony
of Mr Van Eck (Plaintiff's employer), that there are some prospects
for the Plaintiff progressing in her current
employment. The
progression is however dependant on the Plaintiff taking some efforts
in developing herself at her own cost as
the company will not pay for
her training. This would require some form of additional income for
the Plaintiff if she were to pursue
her career further. The
progression that was referred to can also only improve the
Plaintiff's financial situation by some R5000.00
and nothing
substantially more.
17.
The
Plaintiff also conceded that she makes approximately R2 281.29 per
month in respect of [….] Promotions. Importantly,
the
Plaintiff appears to be running this business during her own time and
often after hours. This becomes important in determining
prospects of
improved income in the future.
18.
The
evidence of Mr Van Eck was further that they have been fairly
flexible in accommodating the Plaintiff in running her business
for 4
Zyl Promotions. Whilst Mr Van Eck may have been compassionate to the
Plaintiff, I do not think the level of benevolence should
play any
factor in determining availability of the Plaintiff to promote her
business since the actual working time as testified
is approximately
eight hours. In other words, not a lot can be made about that portion
of Mr Van Eck's evidence although it remains
relevant.
19.
Another
witness that was called in relation to employment prospects of the
Plaintiff was Mr Ben Moodie. He testified that the Plaintiff
has
reached her occupational ceiling with One Chain Capital. His evidence
is in direct contrast with that of the Plaintiff's direct
employer,
Mr Van Eck. His evidence is not of great assistance to me as I am in
possession of direct and relevant evidence of Mr
Van Eck and I shall
consider his evidence in coming to what I believe should be an order
of this Court.
20.
It was the Plaintiff's own testimony
that the [….] Promotions was doing well when she had all the
time to herself and when
there was sufficient business for the
company. It is of importance to note that the promotional business
has little or nothing
to do with manufacturing but the Plaintiff acts
more as a "middle-man" earning income through the sale of
promotional
items. The question to me is whether marketing of the
business itself can be done after hours. The Defendant testified,
which testimony
was not disputed, that the Plaintiff worked long
hours on her business at home. The Defendant believes that the
Plaintiff can proficiently
pursue the [….] Promotions business
whilst employed by One Chain Capital. Whilst this may be so, the
clearly will be a concomitant
cost attached to the business whilst
the Plaintiff is employed by One Chain Capital.
21.
The Plaintiff was cross-examined on her
re-settlement claim of R1 000 000.00 and she explained the amount by
stating that she will
settle her bond in the region of R400 000.00
and pay for the balance of her motor vehicle which was estimated to
be at R100 000.00
at the time of trial. Lastly, she also explained
that she will buy some furniture for her new abode. On being
confronted with an
offer made by the Defendant that he will
contribute an amount of R400 000.00 for the settlement of her bond, a
further amount of
R100 000.00 towards the settlement costs on her
vehicle and lastly, that Defendant will share furniture with her,
there was, at
least in the Court's mind, no further justification for
the claim of R1 000 000.00. I say this because she can always go back
to
her townhouse which will be bond free.
22.
Cross-examination then continued to test
her entitlement to her monthly expenses as she claimed an amount of
R30 000.00 per month.
This amount was calculated as per spreadsheet
that was attached to her papers filed as an annexure. The following
transpired during
her cross-examination:
22.1.
She is still under the medical aid of
the Defendant;
22.2.
The rates and taxes for her townhouse
are actually R1200.00 and not R2500.00 as appears on her spreadsheet;
22.3.
Items relating to home decoration
(candles and linen) are not a regular expense and a monthly estimate
can be agreed to at R200.00
per month;
22.4.
The holiday amount of R4000.00 can be
removed since this was a once-off expense; and
22.5.
The auditor's fees of R1335.00 can be
taken out as these are the company's expenses.
23.
Taking into account the income of the
Plaintiff and her own concessions during cross-examination, her
monthly expenses were reduced
by R11 877.57 leaving her with a
monthly shortfall amounting to R16 756. 84.
24.
The Plaintiff's other monthly expenses
included e-toll expenses for R331.00, petrol for R2 508.27, groceries
estimated at R3 988.98
as well as vitamins and skin care amounting to
R1 666.09. Ms Vermaak-Hay for the Defendant argued that all the
expenses fore-toll,
petrol and groceries were as a result of the
Plaintiff's intimate relationship at Cullinan. Counsel instead
proposed different
amounts for these expenses taking into account
past patterns and the fact that the Plaintiff actually works in
Pretoria. Receipts
were produced to demonstrate the routes driven by
the Plaintiff and places where groceries is sometimes bought at
Cullinan. There
was no convincing response from the Plaintiff except
to mention that often when she goes to Cullinan she will be in the
company
of her friends and further that occasionally she drives
through these routes when visiting her friends. If the Court accepts
the
argument by the Defendant's Counsel, then the Plaintiff's monthly
shortfall amounts to R6 627.24 per month.
25.
In conclusion, on the need for
maintenance post-divorce, it is my view that the Plaintiff has put
forward a convincing case that
some form of maintenance is necessary
for her upkeep. In consideration of the period and the amount I shall
first consider the
circumstances and the version of the Defendant and
lastly reflect on the applicable law.
Defendant's ability to pay
maintenance
26.
The Defendant tendered to pay
rehabilitative maintenance in the amount of R6 700.00 per month for a
period of twelve months to the
Plaintiff. He also tendered to
register her on his medical aid fund again for a period of twelve
months. In respect of the medical
aid scheme, the Defendant indicated
that he intends scouting for a cheaper scheme because of the cost of
the current medical aid.
As indicated earlier, the Defendant also
offered to contribute R500 000.00 in respect of both the bond and the
settlement amount
on the Plaintiff's motor vehicle.
27.
The Defendant is an attorney and a
director at his firm. He is a majority shareholder with 64% shares at
this entity. He also testified
that he was previously involved in
other businesses, namely, property development and money lending
business, however as a result
of change in legislation, he
discontinued his other businesses. According to his testimony, his
only income emanates from the legal
practice and rental income from
three properties. The Defendant confirmed his monthly income as
appearing from the Rule 43(6) application
with some few changes. This
Rule 43(6) application was later abandoned by the Plaintiff and its
only relevance is in interrogating
the income and expenses of the
Defendant.
28.
The Defendant testified that some of his
expenses are paid for by his attorney's firm directly and that he
receives a direct income
of R21 000.00 from the firm. Furthermore, he
also receives an amount of R10 429.00 from the rental of three
properties. His testimony
was that his total monthly expenses are R46
750.66 which are clearly in excess of his income. In order to cover
the deficit he
testified that he makes use of his overdraft facility.
It is somewhat strange that the Defendant would forever make use of
his
overdraft facility to pay the deficit on his expenses. Certainly,
at some time or another there must be substantial income that
would
service the overdraft facility.
29.
In cross-examination, it became apparent
that he had, at least for one month, received a large sum of money
from his attorney's
firm. In response thereto the Defendant, whilst
not very determined in his response, explained the extra income as a
bonus. The
Defendant could also not explain the reason for different
payslips of the two that were filed of record. Ms Fabricius for the
Plaintiff
suggested to the Defendant that there is more than
sufficient money to maintain the Plaintiff which was denied.
30.
Ms Fabricius also confronted the
Defendant on his involvement in the Willie Van Zyl Family Trust where
in 2012 it appears that an
amount of R7 000 000.00 was received by
the trust after a sale of shares. The Defendant could not remember
what happened or how
the proceeds of this sale were expended. In 2017
the trust also sold a property for R4 200 000.00. The Defendant's
response on
the proceeds of this sale was that the money is still
lying on his firm's trust account as there is currently a dispute
which is
pending between the parties in the sale agreement. It
however also became clear that the Defendant is not the sole trustee
nor
beneficiary of the trust. At least one other beneficiary is the
major daughter of both parties in this action. It has been
Defendant's
version that he has made loans to the trust and is
currently not receiving any income from it. The only income that the
trust sometimes
receives is through renting a property in
Amanzimtoti.
31.
The Defendant has already made an offer
during these proceedings and conclude that he is in a position to
contribute to Plaintiff's
maintenance post- divorce. The other
remaining aspect for consideration is the amount of maintenance and
the period thereof. The
Plaintiff claims maintenance until she
remarries and the Defendant's tender is for a period of one year. My
starting point on this
issue will be to move from the premise that
any amount of maintenance shall be a minimum of R6 700.00. Added to
this amount shall
be inclusion of Plaintiff to a medical aid scheme
with reasonable benefits.
The legal disposition
32.
Section 7(2)
of the
Divorce Act 70 of
1979
provides that:
"In the absence of an
order made in terms of subsection (1) with regard to the payment of
maintenance by the one party to the
other, the court may, having
regard to the existing or prospective means of each of the parties,
their respective earning capacities,
financial needs and obligations,
the age of each of the parties, the duration of the marriage, the
standard of living of the parties
prior to the divorce, their conduct
insofar
as
it
may be relevant to the breakdown of the marriage, an order in terms
of subsection (3) and any other factor which in the opinion
of the
court should be taken into account, make an order which the court
finds just in respect of the payment of maintenance by
the one party
to the other for any period until death or remarriage of the party in
whose favour the order is given, which ever
event may first occur."
33.
I have already
alluded to the fact that neither of the parties in their own
testimonies can be absolved from the break-up of the
marriage. I have
also already concluded that the Plaintiff is entitled to maintenance
and equally that the Defendant has the means
to pay maintenance in
one form or the other. I shall then not deal with these aspects again
except to determine the amount and
duration of maintenance. It is
indeed so as argued by Ms Fabricius that a Court may consider
"any
other factor"
which
in its opinion should be taken into account in payment of
maintenance. This, in my view, indicates the discretion that lies
with the Court in coming to an equitable determination. In
Nilson
v Nilson
1984 (2)
SA
294
(C)
at
297 it was suggested that
section 7
of the
Divorce Act can
and should
be used by the court to ensure fairness between the parties.
34.
In the matter of
Rousalis
v Rousalis
1980 (3) SA 446
(C)
at
450G it was stated that:
''A
wife of longstanding who
has assisted her husband materially in building up his separate
estate would in my view be entitled to
far more by way of maintenance
... than one who did no more for
a
few years than share his
bed and keep his house."
35.
In the case before Court the parties
were already married in the past which marriage was dissolved in
April 2003. The Plaintiff
and the Defendant married again in 2009. It
is apparent that they stayed together as a couple before the second
marriage. It is
during this time of staying together that the
Defendant assisted the Plaintiff in various ways by among others,
transferring his
shareholding from [….] Real Estate CC to the
Plaintiff and also assisting the Plaintiff to pursue his business
interests.
The funds for the training of the Plaintiff as an estate
agent were also paid for during this period. It appears to me that
the
Plaintiff was remunerated for all work that she performed for the
Defendant. During her testimony she indicated that she would bill
the
Defendant (his legal firm and the [....] Family Trust) for the work
she performed on monthly basis.
36.
It is however evident that the Plaintiff
can no longer generate the same income as she did previously hence
the Court is of the
view that she requires some form of maintenance.
Furthermore, it was also not disputed that if the Plaintiff were to
progress further
in her employment position, she will have to attend
training at her own cost. In
Buttner
v Buttner
2006 (3) SA 23
SCA
at
paragraph 36, the court had the following to say:
"[Section 7(2)] requires
the court to consider the factors listed
...
in order to
decide, first, whether
a
need for
maintenance exists and, if
so,
by whom and to
whom maintenance is to be paid; secondly, the amount to be paid. And
thirdly, the period for which it is to be paid.
This does not,
however, mean that, in the exercise of its discretion in terms of
s7(2)
,
a
court
is not competent to make an award of token maintenance, provided of
course that the circumstances of the case render it just
in the light
of the factors set out in
s7(2)
..."
37.
The evidence before Court is that the
Plaintiff is a hard worker. She obtained promotions from her previous
employment through hard
work. At her current employment there appears
to be opportunities for her to progress further. She still earns some
income however
minute, from [….] Promotions. It is my view
that with additional effort, she can still generate more income for
her company
thereby increasing her income. The length of their
marriage with associated problems from very early in its life, does
not persuade
me to make an order as sought. Accordingly, I am not of
the view, in the light of all evidence before me that a lifelong
maintenance
or until re-marriage is deserved.
38.
I have however looked at her added needs including possible training
and other costs that may be required to increase her
business
through, for example, marketing costs and my view is that an amount
of R7 600.00 as tendered by the Defendant should be
increased. The
Court is unfortunately not in a position to apply a mathematical
calculation in the order arrived at.
39.
Both Plaintiff and Defendant have also
entered into an agreement in respect of the division of movable
assets currently in possession
of the Defendant. A list of all the
assets and respective allocation to each of the parties was presented
to the Court as agreed
to by the Plaintiff and the Defendant.
Costs
40.
The last aspect argued by the parties is
an issue of costs. On behalf of the Defendant, it was argued that the
matter should have
long been disposed of but for the dilatory tactics
of the Plaintiff. The Defendant argued that they have long made an
offer to
the Plaintiff and this was rejected. The Defendant further
argued that he d:d not know what case to meet since the particulars
of claim for example, did not contain any maintenance claim of the
major child but was later changed to include same. The very
particulars of claim were amended again before trial reducing the
resettlement amount and abandoning the maintenance claim for the
child.
41.
The Plaintiff on the other hand denies
that they have delayed finalisation of the matter and attributes
blame at the hands of the
Defendant. On behalf of the Plaintiff it
was argued that the Defendant did not provide full disclosure of his
assets which made
it difficult for the Plaintiff to properly set out
her claim.
42.
It is trite that ordinarily the costs of
litigation follow the successful party. The discretion to award costs
are however vested
in the hands of the Court. In my view, each of the
two litigants can be faulted for one aspect or another in the
determination
of costs. What is of importance though is that
whichever party that is ordered to pay the costs, such costs will be
borne by a
portion of a party's estate. The order I make below is, in
my mind the most equitable in respect of costs.
43.
The Court is of the view that the
following order is equitable and appropriate under the circumstances:
Order
1.
The
marriage between Plaintiff and Defendant is hereby dissolved;
2.
Defendant
is to contribute a maximum amount of R400
000.
00
within 30 days from date of this
order towards settlement costs of the Plaintiff's bond with her
financiers;
3.
Defendant
is to pay a maximum amount of R100
000.00
within 30 days of this order towards
settlement costs of Plaintiff's motor vehicle;
4.
Defendant
is to obtain and retain the Plaintiff in a medical aid scheme with
ail comparable standard options for a period of 12
months from date
of this order;
5.
Defendant
is to pay rehabilitative maintenance to the Plaintiff in the amount
of R8000.00 per month with effect from
25
August 2019 for a period of 12
months;
6.
Defendant
is
to
release all the movable
assets
in
his
possession
marked
for the sole use and ownership of the Plaintiff
as
agreed to and contained in the
annexure filed during the proceedings, within 30 days from date of
this order
7.
Each
party shall bear his/her own
costs.
V.T. MTATI AJ
ACTING JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA
APPEARANCES
FOR
THE PLAINTIFF: ADV M FABRICIUS
INSTRUCTED
BY: SHAPIRO & LEDWABA INC
FOR
THE DEFENDANT: ADV I VERMAAK-HAY
INSTRUCTED
BY: VAN ZYL'S INC
DATE
OF HEARING: 28 - 31 MAY 2019
DATE
OF JUDGMENT: 16 JULY 2019