About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 216
|
|
L M v E M (A284/2018) [2019] ZAFSHC 216 (8 August 2019)
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,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number:
A284/2018
In
the Appeal between:
L
M
Appellant
and
E
M
Respondent
CORAM:
MOLITSOANE, J, POHL, AJ
et
MOENG, AJ
HEARD
ON
:
05 AUGUST 2019
JUDGMENT
BY:
POHL, AJ
DELIVERED
ON:
08 AUGUST 2019
INTRODUCTION:
[1]
This is an appeal and a cross appeal to the full bench from a single
Judge of this division in a divorce matter.
[2]
There was also an unopposed application for condonation by the
Appellant for the late filing of his heads of argument and the
late
filing of the Court a quo's judgment. The said condonation was
granted by this Court at the outset of the argument of this
appeal..
[3]
The Appellant, Mr Maree, was represented herein by Advocate Heymans
and the Respondent, Mrs Maree, was represented herein by
Advocate Van
Aswegen.
THE
COURT A QUO'S ORDER:
[4]
The Court a quo's order dated 30 July 2018, reads as follows:
"1. The bonds of
marriage subsisting between the plaintiff and defendant be and are
hereby dissolved.
2. That the Defendant
to pay rehabilitative maintenance to the plaintiff in the amount of
R8000 (Eight 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 following month for a
period of 24 months.
3. That the defendant
to retain the plaintiff on his medical aid and shall be responsible
for all medical, dental and ophthalmic
expenses reasonably incurred
by plaintiff, such to include but not limited to, all costs of
hospitalization surgical treatment,
spectacles, contact lenses,
prescribed medication and allied expenses for a period of 24 months
from date of decree of divorce.
4. That the plaintiff
to ensure that all chronic medication be registered as
such under the
applicable medical aid scheme.
5. That the plaintiff
is entitled to 50% of the defendant's pension interest, calculated at
date of divorce.
6. That the defendant
is ordered to ensure that that an endorsement is made in terms of
section 7(8)
of the
Divorce Act of 1979
in the records of the
defendant's Pension Fund to the effect that the plaintiff is entitled
to half of the pension interest of
the defendant as at date of
divorce.
7. That the Pension
Fund that the defendant belongs to is ordered to make payment to the
Plaintiff of 50% of the defendant's pension
interest calculated in
accordance with the rules of the Fund, as at date of the decree of
divorce, being 30 July 2018.
8. That the plaintiff
is entitled to 50% of the accrued estate of the defendant as per the
marital contract (ANC with accrual),
inclusive of but not limited to
the matrimonial home, policies and annuities.
9. That the
plaintiff's claims insofar as they do not accord with what is
contained in this order, is dismissed.
10. That the
defendant's counterclaim insofar as it does not accord with what is
contained in this order, is dismissed.
11. Each party to pay
their own costs."
THE
ISSUES ON APPEAL:
[5]
Although,
ex facie
the appellant's notice of appeal and the
heads of argument filed on behalf of the appellant, a number of the
paragraphs of the Court
a quo's order referred to in paragraph 4,
supra were attacked, Mr Heymans however confined the appellant's
appeal, at the hearing
of the appeal, to an attack on paragraphs 2, 3
and 8 of the said Court Order. He also opposed the cross appeal on
behalf of the
appellant.
[6]
The counter appeal by the respondent, was an attack on the order as
to costs as contained in paragraph 11 of the Court a
quo's
judgment. In essence, the submission on behalf of the Respondent
was that the Court a qua should have ordered the appellant to pay
the
costs of the divorce action.
A
COURT OF APPEAL'S APPROACH:
[7]
Before I deal with certain of the factual issues and submissions,
made on behalf of the parties, I deem it necessary to deal
with the
principles which should guide an Appellate Court in an appeal such as
the present. The decision, that to my mind, remains
the
locus
classicus
in this regard, is
REX vs DHLUMAYO AND ANOTHER,
1948 (2) SA 677
(A).
At page 705 to 706 the following
crisp summary appears:
"1. An appellant is
entitled as of right to a rehearing, but with the limitations imposed
by these principles; this right is
a matter of law and must not be
made illusory.
2. Those principles are
in the main matters of common sense, flexible and such as not to
hamper the appellate court in doing justice
in the particular case
before it.
3. The trial Judge has
advantages - which the appellate court cannot have - in seeing and
hearing the witnesses and in being steeped
in the atmosphere of the
trial. Not only has he had the opportunity of observing their
demeanour, but also their appearance and
whole personality. This
should never be overlooked.
4. Consequently the
appellate court is very reluctant to upset the findings of the trial
Judge.
5. The mere fact that the
trial Judge has not commented on the demeanour of the witnesses can
hardly ever place the appeal court
in as good a position as he was.
6. Even in drawing
inferences the trial Judge may be in a better position than the
appellate court, in that he may be more able
to estimate what is
probable or improbable in relation to the particular people whom he
has observed at the trial.
7. Sometimes, however,
the appellate court may be in as good a position as the trial Judge
to draw inferences, where they are either
drawn from admitted facts
or from the facts as found by him.
8. Where there has been
no misdirection on fact by the trial Judge, the presumption is that
his conclusion is correct; the appellate
court will only reverse it
where it is convinced that it is wrong.
9. In such a case, if the
appellate court is merely left in doubt as to the correctness of the
conclusion, then it will uphold it.
10. There may be a
misdirection on fact by the trial Judge where the reasons are either
on their face unsatisfactory or where the
record shows them to be
such; there may be such a misdirection also where, though the reasons
as far as they go are satisfactory,
he is shown to have overlooked
other facts or probabilities.
11. The appellate court
is then at large to disregard his findings on fact, even though based
on credibility, in whole or in part
according to the nature of the
misdirection and the circumstances of the particular case, and so
come to its own conclusion on
the matter.
12. An appellate court
should not seek anxiously to discover reasons adverse to the
conclusions of the trial Judge. No judgment
can ever be perfect and
all-embracing, and it does not necessarily follow that, because
something has not been mentioned, therefore
it has not been
considered.
13. Where the appellate
court is constrained to decide the case purely on the record, the
question of
onus
becomes all important, whether in a
civil or criminal case.
14. Subject to the
difference as to
onus,
the same general principles will guide
an appellate court both in civil and criminal cases.
15. In order to succeed,
the appellant has not to satisfy an appellate court that there has
been 'some miscarriage of justice or
violation of some principle of
law or procedure'"
[8]
The evidence adduced at the trial, the submissions of counsel and the
judgment of the Court a quo will thus be evaluated by
this Court with
the abovementioned principals in the
Dhlumayo
decision in
mind.
THE
ISSUES OF MAINTENANCE AND MEDICAL AID:
[9]
When dealing with the issue of maintenance, it is first of all
necessary to have regard to
Section 7(1)
and (2) of the
Divorce
Act,
Act
70 of 1979, which reads as follows:
“
7
Division of
assets and maintenance of parties
(1) A court
granting a decree of divorce may in accordance with a written
agreement between the parties make an order with
regard to the
division of the assets of the parties or the payment of maintenance
by the one party to the other.
(2) 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 in so far as it may be relevant to the break-down 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 the death or remarriage
of the party in whose favour the order
is given, whichever event may first occur."
[10]
As is clear from the Court order, the Appellant was ordered to pay
rehabilitative or bridging maintenance of R8 000.00, for
a period of
24 months. It is important to have regard to the fact that the
appellant in evidence conceded in cross examination
that the
respondent is entitled to bridging maintenance after the divorce,
because, the
rule 43
interim order of R6 500.00 would fall away and
she is not employed and has no other source of income.
[11]
Mr Heymans who acted for the Appellant, submitted that the Court a
qua erred to order the said bridging maintenance for a fixed
period
of 24 months. His argument in essence was that when the respondent
receives her portion of the appellant's pension fund
and/ or her
portion of the accrual in his estate, her need for maintenance will
fall away and the respondent would then be unduly
benefitted. He thus
submitted that the maintenance order should have been crafted in such
a way that the obligation to pay maintenance
will fall away upon
receipt of the pension monies and/or the portion of the accrued
estate.
[12]
I do not agree with these submissions. It is clear that
Section 7(2)
of the
Divorce Act,
gives
the Court a wide discretion. The
Court a quo clearly took all relevant factors into account in the
exercise of her discretion.
She,
inter alia,
took into account
that the marriage between the parties lasted for over 23 years. the
fact that the plaintiff, given her age would
be in a position to
obtain employment in future, the concession of the appellant as to
the bridging maintenance, the parties' existing
means and financial
needs. The Court a quo made this order, well knowing that the
respondent would be entitled to a portion of
the appellant's pension
monies and a portion in his accrued estate. Within that context. she
exercised her discression to limit
the duration of the maintenance
order to 24 months.
[13]
On the maintenance issue, I cannot find that the Court a
quo
exercised its discretion wrongly, capriciously or based on any
wrong principle or factual position. (See also:
Grasso v Grasso,
1987 (1) SA 48
Cat page 52 E-H.) The Court a quo thus made an
unbiased decision on the issue at hand and thus acted for substantial
reasons. In
any event, should there be a material and substantive
change in the factual circumstances of the parties in future, they
could,
if so advised, approach the maintenance Court for the
appropriate relief.
[14]
As indicated in paragraph 4,
supra.
the Court a
quo
also
ordered the appellant to keep the respondent on his medical aid
scheme and ruled that the appellant remains responsible for
the
respondent's medical, dental and ophthalmic expenses reasonably
occurred for a period of 24 months from date of divorce.
[15]
Mr Heymans submitted that the evidence suggests that during the
subsistence of the marriage, the respondent abused the medical
aid
and in the process incurred unnecessary expenses in this regard. His
argument was further that the respondent did not adduce
any expert
evidence that she suffered from any particular medical condition,
which may have necessitated the order the Court a
quo
made. He
thus submitted that the Court a
quo
should have curbed the
respondent's ability to spend so much on medical expenses and that
the Court a
quo's
order should therefore be interfered with
and altered to achieve same.
[16]
Although, generally, a maintenance order may, and sometimes do,
include and encompass an order as to the recipient's need to
be
retained on the medical aid scheme, there is in principal no problem
if a Court, in its discression, separates the two, as the
Court
a
quo
did in this instance.
[17]
It matters not that the respondent did not adduce any expert evidence
as to any particular medical condition she may suffer
from. It is
clear from the evidence, which the Court
a quo
correctly
accepted, that the respondent is a lady of over 50 years of age, who
previously had some medical problems, which included
brain surgery
and who is unemployed. She is therefore not in a position to afford
her own medical aid scheme and has no other means.
The Court
a quo
however accepted that she may be able to secure a job in the
future which would enable her to maintain herself, including her
medical
needs. In the premises the Court
a quo
exercised its
discretion to order the appellant to keep her on his medical aid
scheme, but for a limited period of 24 months. The
order furthermore
clearly stipulates that the appellant is only liable for the expenses
"reasonably incurred".
[18]
In the premises I am satisfied that the Court a
quo
also
exercised its discretion correctly in this regard, as is the case and
for the same reasons as set out in paragraph [13],
supra.
THE
PROPORTION OF THE ACCRUAL:
[19]
Mr Heymans submitted that the Court a
quo
erred in ordering
that the respondent is entitled to 50°/o of the appellant's
accrued estate. He submitted that given the particular
circumstances
and facts of this case, the order should have been that the
respondent is only entitled to 20o/o or 25%, of the appellant's
accrued estate.
[20]
Section 9(1)
of the
Divorce Act,
>act 70 of 1979, provides as
follows:
"
9
Forfeiture
of patrimonial benefits of marriage
(1) When a decree of
divorce is granted on the ground of the irretrievable break-down 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 break-down thereof
and any substantial
misconduct on the part of either 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 benefited."
[21]
In essence Mr Heymans submitted that the evidence shows that the
respondent had an extra marital "affair'' and that the
"affair''
constituted "substantial misconduct" within the context of
Section 9(1)
of Act 70 of 1979. His argument then entailed that such
misconduct, would lead to the respondent being unduly benefited,
unless
she forfeits the difference between 50% and the 20°/o to
25°/o suggested by him.
[22]
I disagree with these contentions of Mr Heymans. The evidence
presented in the Court a
quo
also shows that the appellant had
a similar extra marital "affair". I do not think that the
evidence suggests that any
of the extra marital relationships which
any of the parties may have had constitutes 11affairs" in the
true sense of the word.
To my mind, even if accepted, they constitute
no more than neutral factors. I agree with Mr Van Aswegen's
submission that the duration
of the marriage, being 23 years in this
case, forms the dominant factor in determining whether there should
be forfeiture or not.
The longer the marriage, the more likely it is
that the benefit will be due and proportionate and conversely, the
shorter the marriage
the more likely the benefit will be undue and
disproportionate. If this proportionality test is applied to this
marriage of 23
years, it is clear that the benefit of the accrual was
and is due to the respondent, as the Court a
quo
correctly
ordered.
THE
COUNTER APPEAL:
[23]
The counter appeal is levelled at the Court a
quo's
order as
to costs. The respondent prays: 1) That the appellant's appeal be
dismissed with costs; and 2) That the respondents counter
appeal be
upheld with costs and that the Court a
quo's
order be
substituted with the following: "The defendant is ordered to pay
the plaintiff's costs."
[24]
Section 10
of the
Divorce Act,
Act
70 of 1979, reads as
follows:
"
10
Costs
In a divorce action the
court shall not be bound to make an order for costs in favour of the
successful party, but the court may,
having regard to the means of
the parties, and their conduct in so far as it may be relevant, make
such order as it considers just,
and the court may order that the
costs of the proceedings be apportioned between the parties."
[25]
In essence, Mr Van Aswegen submitted that the respondent was
substantially successful with her claim for maintenance and her
resistance to the appellant's claim for forfeiture. He thus submitted
that the Court a
quo
should have exercised its discretion in
favour of the respondent and ordered the appellant to pay the
respondents costs of suit.
[26]
I am not persuaded by Mr Van Aswegen's submissions. It is clear that
the Court exercised its discretion properly. The Court
took all the
relevant factors into account, such as the fact that the
irretrievable breakdown of the marriage was never an issue,
the fact
that the relative success of the respondent does not necessarily mean
she is entitled to a cost order in her favour, the
individual means
of the parties. Based on that, she ordered that each party should pay
their own costs. I cannot fault her reasoning
and I find that on this
aspect too, she exercised her discretion properly.
[27]
In the premises, I have come to the conclusion that the following
orders should be made in respect of the appeal and the counter
appeal:
ORDER:
[28]
1. The appeal is dismissed.
2.
The counter appeal is dismissed.
3.
Each party to pay their own costs in respect of both the appeal and
the counter appeal.
________________
L.
LE R. POHL, AJ
I
concur,
_________________
P.E.
MOLITSOANE, J
I
concur,
_________________
L.B.J.
MOENG, AJ
On
behalf of appellant: Adv. P. J. Heymans
Instructed
by:
N.
C. Oosthuizen
EG
Cooper Majiedt Inc.
BLOEMFONTEIN
On
behalf of the respondent: Adv. W. A. Van Aswegen
Instructed
by:
G.
H. Bradshaw
McIntyre
& Van der Post
BLOEMFONTEIN