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[2019] ZAKZPHC 40
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H.K.E v S.E (4387/2017P) [2019] ZAKZPHC 40 (3 June 2019)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO:
4387/2017P
In the matter between:
H K E[....]
Plaintiff
and
S E[....]
Defendant
ORDER
The
order that I make is as follows:
(a)
There will be a decree of divorce.
(b)
The counterclaim for a share of the accrual in the plaintiff’s
estate is dismissed.
(c)
The plaintiff is ordered to pay to the defendant, without set-off,
the sum of R20 000
per month by way of maintenance, with effect
from 30 June 2019, on or before the last day of each month, together
with all her
medical, dental, ophthalmic, orthodontic, hospital,
prescribed medicine and surgical expenses incurred, which are not
covered by
her medical aid. Such expenses are to be paid by him to
the defendant within ten days of written proof thereof having been
supplied
to him.
(d)
The costs reserved in the rule 43 application will be costs in the
cause.
(e)
The plaintiff is ordered to pay the costs of the action, including
those in reconvention.
JUDGMENT
Delivered
on:
03
June 2019
Ploos
van Amstel J
[1]
This is an action for a divorce and other relief. The husband, who is
the plaintiff,
seeks a decree of divorce, forfeiture of the benefits
of the marriage and costs. The wife agrees that there should be a
divorce,
and in addition claims her share of the accrual in her
husband’s estate, maintenance and costs. There are no children
born
of the marriage. I shall refer to the parties as Mr and Mrs
E[....] where it is convenient to do so.
[2]
The parties were married to each other on 4 January 2008 in
Pietermaritzburg, out
of community of property and subject to the
accrual system. They both testified that for a number of years the
marriage was a happy
one, in spite of the age difference of some 20
years. They travelled a lot, Mr E[....] worked in a number of
different countries
as an engineer, and Mrs E[....] accompanied him
wherever he went.
[3]
They were living in Abu Dhabi when they accompanied friends to a
church service. This
resulted in a fundamental change in their lives.
They were both baptised and became committed Christians.
[4]
Mrs E[....] unfortunately later contracted cancer, and complications
arose as a result
of the radiation therapy. This eventually resulted
in the removal of her bladder.
[5]
The parties returned to South Africa and settled in East London,
where Mr E[....]
found employment. They both suffered setbacks as far
as their health was concerned, and after some time Mr E[....] lost
his employment
there.
[6]
They moved to Pietermaritzburg in 2015, into a property at Montrose,
owned by Mr E[....]’
family trust. Their relationship started
to deteriorate. Mr E[....] embraced his faith with enthusiasm and
conviction, while his
wife’s faith slowly slipped away. She
said this was partly due to the fact that her husband had become
obsessed with his
religion and became overbearing in this regard. She
found some of his convictions and suspicions weird, relating to the
ominous
presence of fluoride in toothpaste, the activities of the
so-called Illuminati, and the fact that the Queen of England
sometimes
changed her shape into that of a reptile. She freely
admitted in her evidence that she sometimes mocked him about this.
[7]
Mrs E[....] also felt oppressed by her husband’s insistence
that they, together
with their domestic servant and gardener,
participate every morning in the reading of the Bible and prayer. She
said he sometimes
subjected her to endless discussions about
religion, and she referred to it as ‘Bible punching’.
[8]
All of this led to regular conflict between the parties, with harsh
words exchanged.
Mrs E[....]’s health deteriorated and she
developed a variety of medical problems, which led to her being
hospitalised from
time to time. This included a life threatening auto
immune disease. Mr E[....] had his own medical problems, relating not
only
to degeneration of his knees and hips, but also to depression
and anxiety.
[9]
Both parties testified about conduct of which the other party was
guilty. One of these
related to an incident in Montrose when Mr
E[....] pushed his wife from behind, pinned her to a cupboard and
physically ejected
her from the house. Another related to him moving
his wife to an upstairs apartment in the house, sometimes locking the
interleading
door and refusing her access to their pets. His
complaints related to her mocking him and his religion and excluding
him from her
circle of friends.
[10]
They separated in January 2017 and both of them say there is no
prospect of a reconciliation.
Mrs E[....] testified that she could
not believe it when her husband said he wanted a divorce. Although
they had many problems
she never thought the marriage would end in
divorce.
[11]
Be that as it may, their relationship has now deteriorated to the
point that divorce is inevitable.
I do not consider that fault or
misconduct on the part of either party was present to the extent that
it should be relevant to
the issue of maintenance. Counsel for the
plaintiff fairly conceded this, and also did not pursue the claim for
forfeiture of the
benefits of the marriage.
[12]
I do want to emphasise that where there is a difference between the
evidence of the two parties
I prefer the evidence of Mrs E[....]. She
was disarmingly honest and made concessions with regard to her own
conduct and gave credit
to her husband where it was due. He, on the
other hand, seemed to me to try to paint himself in the best possible
light and downplay
his financial position. He claimed to have a
life-threatening medical condition, as a result of which he cannot
work. When pressed
he said the condition related to depression and
anxiety. He omitted to disclose an investment in Gibraltar. He said
he did not
mention this as he uses this money to visit his family.
The omission was therefore intentional. There may be some merit in
counsel’s
submission that there was no point in trying to hide
the investment, as his wife knew about it. Her response was that he
probably
hoped that she had forgotten about it.
[13]
As far as the patrimonial consequences of the marriage are concerned
I deal firstly with Mrs
E[....]’ claim for a share of the
accrual in her husband’s estate. The antenuptial contract
provides that community
of property and community of profit and loss
would be excluded. It also provides that the provisions of Chapter 1
of the Matrimonial
Property Act
[1]
(the Act) would apply to the intended marriage. This Chapter deals
with the accrual system, in ss 2 to 10 of the Act. The relevant
part
of s 3(1) provides that at the dissolution of a marriage subject to
the accrual system by divorce, the spouse whose estate
shows no
accrual or 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.
[14]
Section 4(1)(a) 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 that marriage.
[15]
Section 6 deals with the proof of the commencement value of his
estate. It provides, in effect,
that a declaration in the antenuptial
contract of such net value serves as prima facie proof thereof.
[2]
[16]
The antenuptial contract between the parties records that for the
purposes of s 6 of the Act
the net values of their estates at the
commencement of the intended marriage would be, in the case of each
of them, the sum of
R500 000, consisting of personal belongings.
[17]
The stipulation relating to the sum of R500 000 in the case of each
of them, was plainly not
a reflection of the real values. The net
value of Mr E[....]’s estate was much more than this, while the
net value of Mrs
E[....]’s estate was much less. She testified
that it was her husband who suggested that this amount be reflected
in the
antenuptial contract, because, as he put it, he did not want
her to walk away with nothing if the marriage failed. She agreed to
his suggestion.
[18]
Counsel for Mrs E[....] submitted that the parties were bound to the
amounts stated in the antenuptial
contract as the commencement value
of their estates, and that it was not permissible to prove a
different value. He relied on the
judgment of Combrinck J in
Olivier
v Olivier,
[3]
who held that the provision in s 6(3) regarding prima facie proof did
not apply to the parties to the antenuptial contract inter
se, and
was only applicable as against third parties. He reasoned that a
declaration by the spouses in their antenuptial contract
of the
commencement value of their respective estates was conclusive proof
of their agreement regarding such values and could only
be attacked
on the recognised grounds of misrepresentation, duress, undue
influence, rectification and so forth. He said this was
the position
at common law and he could think of no reason why the Legislature
would have intended to alter the common law by s
6(3).
[4]
[19]
There seems to me, with respect, to be a fault in this reasoning.
Combrinck J approached the
matter on the basis that a declaration in
the antenuptial contract as to the commencement value is conclusive
proof of an agreement
as to that value, and that to allow parties to
prove a different value, without invoking one of the recognised
remedies, would
be to change the common law. This approach seems to
be based on a misunderstanding of the purpose of the declaration,
which is
not to state an agreed value, but rather the value which
each spouse puts on his or her estate, and which they agree will
serve
as prima facie proof thereof. In other words, the reason why,
at the dissolution of the marriage, they are free to prove a
different
value is that this is what they had agreed.
[20]
It may well be asked what the purpose of such a declaration is if it
is not binding. Its
practical value seems obvious. At the
dissolution of the marriage, which may be many years later, a spouse
may rely on the prima
facie commencement value stated in the
antenuptial contract, without having to prove it. If a party contends
that the prima facie
value is incorrect then such party bears the
onus to prove the real value.
[21]
Olivier
was discussed in two subsequent cases and not followed. In
Thomas
v Thomas
[5]
Buys J analysed s 6 in some detail and concluded that the provision
in s 6(3) regarding prima facie proof of the net value of the
estate
applies to the spouses and to third parties. He also concluded that s
6 does not contemplate agreed values, but provides
for the
commencement value that each spouse elects to put on his or her
estate, and which will constitute prima facie proof thereof.
As an
aside, it seems to me, with respect, that Buys J erred in suggesting
that the legislature expressly amended the common law
by the
provision in s 6(3). If the declared commencement values in the
antenuptial contract were not binding and merely prima facie
proof
thereof, then there was no need to amend the common law. As I pointed
out earlier, the reason why it is permissible to prove
that the
declared prima facie value is incorrect, is that the antenuptial
contract allows this. There is no conflict with the common
law.
[22]
The second case was
TN
v NN & others,
[6]
in which Binns-Ward J agreed with Buys J
[7]
that when the parties to a marriage declare the values of their
respective estates at the commencement of the union for the purposes
of the accrual system they are not reaching agreement on such values,
but merely fixing and recording a value that both of them
accept will
stand as prima facie proof thereof. He added
[8]
that the respective net values at the commencement and dissolution of
the marriage are matters of objective fact, not matters to
be
determined by agreement. He said it is not open to the parties by
means of a declaration to invent the objectively determinable
facts
by declaring or stating fictitious values. The way in which they are
entitled by agreement to alter the ordinary operation
of the accrual
system is by excluding or including specified types of assets that
ordinarily would be included or excluded in terms
of the statute for
the purpose of determining the respective accruals; not by
misrepresenting or misstating the objectively determinable
commencement values.
[23]
What however seems clear is that the declared commencement value does
not have to be the real
value. If an incorrect commencement value is
declared in the antenuptial contract, it provides prima facie proof
thereof, but it
will be accepted as the real value for purposes of
the accrual if both spouses elect to let it stand. This is the
position inter
se, but will not prevent a third party in appropriate
circumstances from challenging the declared value.
[24]
I am bound by the decision in
Olivier
,
unless I am satisfied that it is clearly wrong. For the reasons
stated above I am of that view, and I respectfully decline to
follow
it.
[25]
It follows in my view that the plaintiff was entitled to lead
evidence in order to show that the prima
facie commencement value of
his estate in the antenuptial contract was incorrect.
[26]
It was not disputed that if regard is had to the actual commencement
value of Mr E[....]’
estate, which was not challenged, there
was no accrual in his estate. In those circumstances Mrs E[....]’
claim for a share
of the accrual cannot succeed.
[27]
This brings me to the claim for maintenance. The plaintiff made an
open tender in court to pay
a sum of R13 000 per month, which
was not accepted. The defendant persisted in her claim for R20 000
per month, together
with her medical expenses which are not covered
by her medical aid.
[28]
Mrs E[....] currently lives in accommodation known as Jan Richter
Centre. She said this is intended
for people who fit in somewhere
between being homeless and being unable to afford something better.
Her accommodation consists
of one bedroom, communal bathrooms and a
hall where occupants have their meals. When asked in
cross-examination why she wanted
R20 000 per month when her
actual monthly expenses are less than that, she said she needed to
get out of the ‘slum’
where she lives.
[29]
Mr E[....] is 63 years old and lives in Underberg, in a large,
comfortable house which is owned
by his family trust. It was
previously a lodge, and he renovated it to its current condition. He
is a qualified engineer but no
longer works. He says he is unable to
work due to the medical condition to which I have referred. He claims
that he cannot afford
more than R13 000 per month.
[30]
On his own evidence Mr E[....] has in the last few years visited the
Caribbean, Wales and India.
He acquired a BMW sports car in 2017,
which he has since sold. He currently drives a 2012 model Mercedes
Benz. As I have mentioned,
he intentionally omitted to disclose an
investment in Gibraltar. To this I should add that in the rule 43
application he said he
funded his monthly shortfall from capital and
a loan from the bank. In cross-examination he claimed the reference
to capital was
an error. The current net value of his estate is, on
his disclosed figures, just over R3 million. Mrs E[....]’
estate is
worth less than R200 000.
[31]
In determining what maintenance should be awarded to Mrs E[....] I do
not think a strict mathematical
calculation is appropriate. She lives
in circumstances which, compared to those of her husband, may be said
to be an affront to
her dignity. Her health has been seriously
compromised and some of her medical expenses are not recoverable from
her medical aid.
The amount that I intend to award is intended to
help her with her monthly expenses, including her medical expenses
which are not
covered by her medical aid, and hopefully assist her in
finding more suitable accommodation. Her medical aid contributions
are
already included in her list of expenses, which is why I do not
provide for them separately.
[32]
It is not open to the plaintiff to protest that he cannot afford to
pay the maintenance that
I intend to award. Apart from his current
income, he has a substantial estate. If he does not have the cash
flow to pay the maintenance
then he must get the trust to pay his
loan account to him. He and his attorney are the only trustees of the
trust and it is within
his power to get access to his loan account.
[33]
There are already contempt proceedings pending, arising out of a
failure by Mr E[....] to pay
the full amount of the pendente lite
maintenance. His defence is set-off of what he claims Mr E[....] owed
him. To avoid this kind
of situation I intend to order that the
maintenance is payable without set-off of any kind.
[34]
As far as costs are concerned counsel for the plaintiff submitted
that there should be no order
for costs. The claim for forfeiture of
the benefits of the marriage was in my view not only frivolous, but
created the expectation
with the defendant that there was some
accrual which her husband wanted her to forfeit. As it turned out,
there was none. She was
successful in her claim for maintenance,
which was the main focus of the trial. I intend to award her the
costs of the action.
The only costs that were reserved in the rule 43
application were those reserved by Potgieter AJ. I intend to order
them to be
costs in the cause. I should add that the parties were in
agreement that the plaintiff had paid to the defendant the
contribution
of R30 000 towards her costs which he was ordered
to do in the rule 43 application.
[35]
The order that I make is as follows:
(a)
There will be a decree of divorce.
(b)
The counterclaim for a share of the accrual in the plaintiff’s
estate is dismissed.
(c)
The plaintiff is ordered to pay to the defendant, without set-off,
the sum of R20 000
per month by way of maintenance, with effect
from 30 June 2019, on or before the last day of each month, together
with all her
medical, dental, ophthalmic, orthodontic, hospital,
prescribed medicine and surgical expenses incurred, which are not
covered by
her medical aid. Such expenses are to be paid by him to
the defendant within ten days of written proof thereof having been
supplied
to him.
(d)
The costs reserved in the rule 43 application will be costs in the
cause.
(e)
The plaintiff is ordered to pay the costs of the action, including
those in reconvention.
Ploos van Amstel J
Appearances:
For
the Plaintiff
: HA De Beer
SC
Instructed
by
:
Patrick Lander Attorneys
:
C/o Tatham Wilkes Inc.
:
Pietermaritzburg
For
the Defendant
:
P C Blomkamp SC
Instructed
by
:
WHA Compton Attorneys
:
Pietermaritzburg
Date
Judgment Reserved
:
28 May
2019
Date
of Judgment
: 03 June 2019
[1]
88 of 1984.
[2]
See
Olivier
v Olivier
1998 (1) SA 550
(D) and
Thomas v Thomas
[1999] 3 All SA 192
(NC), where the inept wording of s 6 was
discussed, and it was held that the words ‘contemplated in
subsection (1)’,
had been inserted in subsection (3)
per
incuriam
.
[3]
Olivier v Olivier
1998 (1) SA 550
(D) at 555C-D.
[4]
At 555D-I.
[5]
Thomas v Thomas
[1999] 3 All SA 192 (NC)
[6]
TN v NN & others
2018 (4) SA 316
(WCC).
[7]
Thomas v Thomas
above.
[8]
Para 15.