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[2018] ZAGPPHC 606
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R.T.R v D.J.R (37229/2015) [2018] ZAGPPHC 606 (23 February 2018)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE
NO: 37229/2015
23/2/2018
In
the matter between:
R
T
R
Applicant
and
D
J
R
Respondent
JUDGMENT
DAVIS,J
[1]
This is a divorce action in which the
current dispute centers around the patrimonial consequences of the
divorce and, more particularly,
whether what is colloquially known as
a "redistribution order" should be granted and, if so, in
what terms.
[2]
The parties were married to each other
on 1 September 1989 in Rusape, Zimbabwe. ,There were three children
born of the marriage,
all who are already majors.
[3]
The Plaintiff resides in the Republic of
South African and the parties are in agreement that this court has
jurisdiction. They are
further in agreement that the laws of Zimbabwe
apply to the patrimonial consequences of their marriage and the
impending divorce.
In terms of those laws the parties were married
out of community of property and the applicable law is the
Matrimonial Causes Act
No 33 of 1985 (as amended) of Zimbabwe. This
Act provides for the exercise of a judicial discretion upon divorce
to "re-allocate"
matrimonial property. The relevant
sections on which the Plaintiff relies (and which the Defendant has
conceded are applicable),
are Sections 7(1), and 7(4) which read as
follows:
"7(1)
Subject to the provisions of this section, in granting a decree of
divorce, judicial separation or nullity of marriage,
or at any time
thereafter, the Court may make an order with regard to:-
(a)
the
division, apportionment or distribution of the assets of the spouses
including an order that any asset be transferred from one
spouse to
the other
...
7(4
In the making an order in terms of
sub-section (1), an appropriate Court shall have regard to all the
circumstances of the case, including the following:-
(a)
the
income-earning capacity, assets and other financial resources which
each spouse and child has or is likely to have in the foreseeable
future;
(b)
the
financial needs, obligations, and responsibilities which each spouse
and child has or is likely to have in the foreseeable future;
(c)
the
standard of living of the family, including the manner in which any
child was being educated or trained or expected to be educated
or
trained;
(d)
the
age, physical and mental condition of each spouse and child;
(e)
the
direct or indirect contribution made by each spouse to the family,
including contributions made by looking after the home and
caring/or
the family and other domestic duties;
(f)
the
value to either of the spouse or to any child of any benefit,
including a pension or gratuity, which such spouse or child will
lose
as a result of the dissolution of the marriage;
(g)
the
duration of the marriage;
and
in so doing the Court shall endeavor as far as is reasonable and
practical and, having regard to their conduct, is just to do
so, to
place the spouses and children in the position they would have been
in had a normal marriage relationship continued between
the spouses.
"
[4]
Reliant on the above sections, the
Plaintiff claims that it would be just if the Defendant were ordered
to transfer to the Plaintiff
one half of his assets or such portion
as the court may deem just alternatively if the Defendant were
ordered to make payment to
the Plaintiff of an amount equal to the
half of the nett value of his estate. There is a similar counterclaim
by the Defendant
but this, although not formally abandoned, was not
pursued with any vigour.
[5]
The parties were further
ad
idem
that the issue of maintenance
claimed by the Plaintiff would stand over or would be determined by a
maintenance court as it could
only properly be adjudicated on once
the consequences and extent of any redistribution order has been
determined.
[6]
Two further aspects pertaining to the
litigation between the parties need to be mentioned:
6.1
The
first is an order granted by this court on 10 September 2015 in terms
of Uniform Rule 43 and the second is a settlement agreement
previously reached between the parties;
6.2
The
Rule 43 order was granted after an opposed hearing of the application
and
inter alia
dealt
with aspects pertaining to the parental rights and responsibilities
of care and contact of the youngest child and her maintenance.
These
have, for present purposes, fallen away;
6.3
Apart
from these issues, the Defendant was to pay to the Plaintiff
pendente
lite
an amount of R105 000,00 per
month "free of deduction" and a further amount of R37
500,00
''for as long as the Applicant
[the Plaintiff J participates in equestrian sport activities and /or
has horses kept by her for horse-riding
activities, serving as a
contribution towards her costs relating thereto"
6.4
The
Defendant initially complied with the court order but subsequently
fell in breach thereof. The Plaintiff testified that he was
at the
date of the divorce hearing in arrears with his payments in an amount
of some R2, 8 million and in recent months only paid
as little as
somewhere between R6 000 and RIO 000 in a particular month. These
figures and arrears were not disputed.
6.5
The
Defendant had previously launched an application in terms of Rule
43(6) to amend and reduce the interim order but this application
was
enrolled and postponed and never pursued. This means that the
Defendant is and has been for some time in breach of an order
of this
court. The further relevance of this breach, as will be more fully
dealt with hereinafter, was that the Plaintiff had to
sell assets to
make ends meet.
6.6
The
other aspect to be noted is the fact that when the parties initially
contemplated a divorce, they in March 2015 negotiated with
each other
a written settlement agreement. The agreement featured as annexure A
to the Plaintiff's particulars of claim and provides
for a division
of the various movable and immovable assets of the parties. The
Plaintiff did not pursue reliance on this agreement
and no evidence
was lead in respect if its contents except for askance reference to
some of the assets mentioned therein such as
motorcycles and
vehicles.
[7]
Rather extensive evidence was lead on
the parties' various places of residence, the size and extent thereof
as well as the acquisition
of the primary places of residence from
time to time. The chronology of the evidence became a bit muddled as
the evidence meandered
and sometimes shot off at tangents. The most
relevant sequence of events pertaining to the patrimonial aspects in
dispute, can
however, be summarized as follows:
7.1
After
the Plaintiff fell pregnant with the parties' first child the parties
got married and lived in a small town in Zimbabwe. They
had little or
no assets each and only their matric o-levels as qualifications. The
Plaintiff had done a 6 months stable management
course in South
Africa and the Defendant was busy qualifying as an electrician.
7.2
Shortly
thereafter they moved to Harare in Zimbabwe. The Plaintiff worked for
a well-known horse racing stud and later as a bookkeeper,
having
undergone a six months "Pittmans course". She later joined
the business which the Defendant had started, being
a successful
electrical services company. From modest beginnings of only two
crews, the company soon grew into a business which
provided the
parties with a comfortable standard of living. The parties worked as
if in partnership, the Plaintiff seeing to the
administrative side of
the business and the Defendant to the operational side thereof. They
each held 50% shares of the business
which was operated as a private
company. The company later merged with another whereafter also the
Plaintiff stopped working there.
7.3
Due
to a declining economy and other adverse factors prevailing in
Zimbabwe, the Defendant sought greener pastures for the business
venture in neighbouring Mozambique. This caused him to travel a lot
and be away from home. Seeking safer accommodation and more
beneficial schooling for the children, the matrimonial home was moved
to White River, in South Africa. From their first home there
(the
"Plaston Road property) they progressed to a second home (where
the Plaintiff is currently residing). They also acquired
a house in
Maputo, Mozambique where they stayed together for a while but,
primarily due to the two sons, particularly the youngest,
not coping
well with being at boarding school in South Africa and also to
rejuvenate their marriage relationship which had negotiated
some
proverbial stormy waters, they acquired a substantial property in a
secure estate in White River and intended it to be a home
where they
could "be a family" (the Bayhill property). After the
marriage relationship finally broke up some five years
later, the
Plaintiff moved back to the more modest property in White River which
had previously been rented out (the Touyz Road
Property). The Bayhill
property in the estate was sold by the Plaintiff and the proceeds
after paying the bond and some other ancillary
costs were used, so
the Plaintiff says, to defray living expenses for her and the
children due to the Defendant being in breach
of his maintenance
obligations as ordered by this court.
7.4
I
add to this brief narrative of the marriage the fact that, during the
course of the marriage the Defendant was the one who provided
the
funds for the acquisition of the parties' assets, movable and
immovable as well as for their maintenance as well as that of
the
various horses that they had. At one stage, there was a set of five
horses with one for each of the three children to ride.
The Plaintiff
was an accomplished rider, participating in dressage and show events
and training young riders. The Defendant also,
at one state gave her
a horse as.a gift. Despite all her involvement with horses, the
Plaintiff never made a business or a career
thereof and was always
dependent on the Defendant. There is a dispute as to whether she had
been encouraged to become self-sufficient
or whether the Defendant
was content to have the Plaintiff create and maintain a comfortable
domestic environment for the sake
of the family and, primarily also
the children. At the time when the parties moved to the estate
property in Mpumalanga the Defendant
also had a rented flat in
Sandton which was used to generate business opportunities. He was
otherwise (and still is) resident in
Mozambique for most of the time,
as necessitated by the business and returning home at bi-weekly or
six-weekly intervals, depending
on work requirements. The Plaintiff
and the children, when they were still minors visited Mozambique
during school holidays.
[8]
I now deal with how these facts of the
parties' marriage fit in with the requirements or not of Section 7 of
the Matrimonial Affairs
Act.
8.1
Ad
Section 7(4)(a)
This
section deals with the income-earning capacity, assets and other
financial resources which each spouse is likely to have in
the
foreseeable future. The plaintiff has a limited residual or
prospective income-earning capacity. Her bookkeeping skills are
limited and the ISO 9001:2000 Quality Leader Auditor Course she did
for 5 days in 2006 for purposes of her helping with management
systems auditing in the Defendant's business is outdated and of
little application in the absence of subsequent experience. Her
horse-training or stable management abilities also appear to be of
limited income generating scope. She is presently pursuing some
photographic enterprises, having done some courses previously and is
doing photographic work for local business in respect of which
she
also scans the local papers. The nature and extent of these ventures
and the income to be obtained therefrom presently appear
to be rather
small. The Plaintiff was criticized by the Defendant's counsel for
not having utilized the time and opportunity that
she had during the
course of the marriage to better her qualifications or to obtain
gainful employment. The criticism is only partially
justified as she
did not need to seek employment or advance her income generating
capacity as, during the bounty years, the Defendant's
income from the
business was sufficient to have the parties live in relative luxury.
The Defendant accepted the fact that the Plaintiff
was physically the
primary caregiver and saw to the raising of the children while he saw
to the making of the money. In fact, he
testified as such. The fact
that the Plaintiff had the assistance of domestic workers does not
materially detract from this fact
neither from the fact that during
the Defendant's absence in Mozambique, she was the one who saw to the
children's needs, care
and schooling and everything that goes along
with it. If she is criticized for not having prepared herself for
divorce, then such
criticism is misplaced.
8.2
On
the other hand, and dealing with the Defendant's income generating
capacity, he has worked himself up to being a director on
the board
of a holding company in the engineering and construction field with
some four subsidiaries. Although the decline in Mozambican
economy
and the change in the political landscape has resulted in a loss of
government contracts and the companies have downsized,
both resulting
in a substantial drop in his monthly income, the indications are that
he will continue with these companies and
retain an income generating
capacity or opportunities which far outstrip that of the Plaintiff.
Whilst the South African properties
were all required in the name of
the Plaintiff, they have all but for one been depleted and the only
assets of real value are those
in Mozambique. As I shall point out
below, the evidence also indicates that the Defendant's assets far
exceed that of the Plaintiff.
8.3
The
defendant's asset position
The
Defendant holds 45% of the shares in the Mozambican group of
companies. Its property is worth US$ 3million. It has debtors of
US $
17 million and debt of US $ 9 million, giving a net asset position of
some US $ 11 million. The Defendant says, however that
this debt is
due by the government and its payment is slow or even doubtful. Even
if it is halved (as an extreme impairment of
debt), this still leaves
the Defendant with 45% in a net asset company of US $ 2, 5 million.
There are no finalized financial statements
available however and the
Defendant pessimistically estimated the net asset value at somewhere
between US$ 750 and US $ 1 million.
When the Defendant testified
about a list of assets and liabilities previously drawn up by
himself, it seems that he has furniture
of some R70 000, joint
ownership in Dream Vacation Club points of which his half is worth
R44 000 and bank balances of some R78
000. His debt (including
lawyers' fees) is just over R500.000, and he is as guarantor liable
for the bond on the remaining property
in Mpumalanga where the
Plaintiff resides in the amount of R1, 4 million. In addition, the
Plaintiff owns 15 stands in a prospective
development in Mozambique.
These currently have only a speculative value and will only have a
value once a development can take
place some time in the future when
this investment will be worth something between R1, 5 million and
potentially US $ 1.5 million.
8.4
The
Plaintiffs asset position
The
Plaintiff is the registered owner of the immovable property on which
she resides outside White River. Its value is approximately
somewhere
between RI, 9 million and R2, 2 million and the bond amounts to some
RI, 4 million. She also owns Dream Vacation Club
points valued at R44
000. These points attract annual levies of some R13 000. In her bank
account (presumably pursuant to the sale
of the property in the
estate in White River) she has some R260 000. She has furniture of
some R100 000 and a 15 year old horse
worth approximately R30 000.
She has in recent years incurred debts to family members of some R250
000. Her estimated net asset
worth is therefore approximately RI
million.
8.5
Other
property
The
parties are the joint owners of a large residential property in
Maputo in Mozambique. This appears to be worth between US $
405 000
and US$ 633 000 (or US$ 243 000 at a forced sale). The Defendant has
conceded that he has, unbeknown to anyone, in the
days preceding the
trial attempted to have the Plaintiff removed as joint owner of this
property. The property is unbonded and
has substantial potential
monthly rental income. The Plaintiff was also criticized for having
sold some of the property registered
in her name in South Africa and
Defendant's counsel put it to her that these disposals already
amounted to a distribution. However,
the Plaston Road property was
sold more than 12 years ago and when the parties still conducted
their financial affairs jointly
and with equal access to their bank
accounts (save for those held by the Defendant in Mozambique). The
Bayhill property (the estate
property) was sold for R4, 8 million but
the net proceeds, after payment of the bond, the arrears amounts due
to SA Home Loans,
estate agent's commission, rates, taxes and
transfer fees amounts to just over RI million. This sale, as the sale
of other houses
and vehicles of the Plaintiff, was necessitated
because of the Defendant's breach of the Rule 43 - order and the fact
that the
Plaintiff could not afford the property or the assets any
longer.
8.6
Ad
Section 7(4)(b)
The
financial needs, obligations and responsibilities of the parties
have, save for the issue of the bond on the Plaintiffs property
and
financial assistance to the younger son regarding his post-graduate
studies, not been touched on a lot in evidence, presumably
because it
mostly forms part of the maintenance issue, which is to be postponed.
The impression the court got however, was that
the Defendant is able
to maintain himself and his lifestyle, despite a large drop in
monthly income, while the Plaintiff has very
little income from which
to maintain herself and the property on which she lives, apart from a
modest rental income.
8.7
Ad
Section 7(4)(c)
It
is clear that the parties' standard of living has, to an extent
declined from the life of reasonable luxury during the Mozambican
business heyday to the present. The Plaintiffs lifestyle has
diminished primarily as a result of the separation and lack of
maintenance
and the Defendant's as a result of the business woes and
decline of the Mozambican economy within which he operates,
8.8
Ad
Section 7(4)(d)
This
section refers to the age and physical conditions of the spouses.
They are of the similar age, in their very early fifties
and both in
good health.
8.9
Ad Section 7(4)(e)
This
section pertains to the direct or indirect contributions made by each
spouse to the family, including contributions made by
looking after
the home and caring for the family and any other domestic duties.
This aspect has already been touched on in the
narrative summary of
the parties' marriage. It is further summed up by the plaintiffs own
evidence: "my job was to make money,
her job was to look after
it". The "looking after" the money also entailed the
maintaining of the household, the
managing of the maintenance of the
property and the horses and stables, the looking after the children
and their schooling needs
and extra-curricular activities, ensuring
they get to and from school and sport and other practices and their
extra-curricular
activities. The Defendant, very gallantly and
truthfully praised the Plaintiff for having been a good mother. She
continued with
this role after the children had left school and
supported the youngest son in his further studies. The youngest
daughter is currently
doing au pair work in Australia but will return
to live with the Plaintiff after that (or until her circumstances
later changes).
8.10
Ad Section 7(4)(f)
There
are no pensions, benefits or gratuities which any of the partie's
would lose as a result of the divorce. No evidence was lead
as to any
pension or retirement annuity forming part of either party's estate
8.11
Ad Section 7(4)(g)
The
duration of the marriage. The parties have been married for more than
28 years, despite previous short periods of separation
and the period
since the institution of the divorce. It is a marriage of substantial
duration which has also seen their offspring
attain majority.
8.12
Taking all the above in consideration, I
am satisfied that the Plaintiff has satisfied the onus in proving
such circumstances as
listed in Section 7(4) of the Matrimonial
Causes Act which would entitled her to claim that a court should
grant an order of division,
apportionment or distribution of the
assets of the Defendant as envisaged in Section 7(1) of the said Act.
The difficulty now lies
in the determination of the nature, extent
and mode of any apportionment or distribution.
[9]
The
law and its application
9.1
The
closing part of Section 7(4) of the applicable Act provides that in
making an order in terms of Section 7(1), the court
"shall
endeavour as far as is reasonable and practicable and, having regard
to their conduct, is just to do so, to place the
spouses
...
in the position they would have been
in had a normal marriage relationship continued between the spouses".
9.2
Having
regard to the facts of this case, it is not possible, let alone
practicable to have the assets and income of the parties
apportioned
as before. The Defendant will proceed with his life, if not always
being in Mozambique, then for the foreseeable future
remaining with
his businesses there. He no longer has any link to White River.
Unless there is a maintenance order, then his profits
and his
dividends will exclusively be his own. Reliance has been placed by
his counsel on the unreported judgement of
Kangai
v Kangai,
High Court of Zimbabwe, HC
211/02 dated 20 June 2007 which confirm that in that country
"a
woman who has been divorced is no longer entitled as of right to be
maintained by her former husband until remarriage or
death".
This statement is, of course, to be
qualified by circumstances such as that of an unemployable elderly
woman - see
Chiomba v Chiomba
1992
(2) ZLR 197.
Similarly, the Plaintiff will seek to pursue her own
life in South Africa.
9.3
Counsel
for the parties referred me to the well-known judgment in
Beaumont
v Beaumont
1985 (4) SA 171
WLD and
on appeal in
Beaumont v Beaumont
1987 (1) SA 967
AD. The latter judgment confirmed that there could be
no qualification placed on the nature of the contribution required by
a claimant
for a redistribution order. The performance by the wife of
the ordinary duties of looking after the household could constitute
such a contribution. The wording of Section 7(4)(e) of the
Matrimonial Causes Act of Zimbabwe in any event expressly provides
for
this and its wording goes further than Section 7(4) of the
Divorce Act 70 of 1979 (of South Africa), being that under
consideration
in the
Beaumont-
judgments.
9.4
The
Beaumont
-judgments
further deal with a "clean-break" principle. That is where
a redistribution of assets can be of such a nature
and extent that it
obviates the need for a maintenance order. Although this might be
both attractive and advantageous, it could
only be done if the
circumstances permit it.
Katz v Katz
1989 (3) SA 1
AD warns that the
issue of maintenance and redistribution are interrelated and the
former can only be assessed once the latter
has been determined. In
the present instance there are so many as yet undetermined valuations
in respect of, in particular, the
Defendant's assets, that the value
of any redistribution cannot be ascertained with such certainty that
one could determine its
impact on the Plaintiff’s ability to
maintain herself or not. It must follow that this aspect, as also.
indicated by counsel,
in the event of a redistribution order, will
have to be postponed.
9.5
I
interpose t state that I use the ;words "redistribution order"
only in a loose or general sense as this is after all
what results
from an order as that claimed by the Plaintiff. Orders of this type
are in writings on the subject referred to as
"redistribution
orders". See eg:
Family Law
Service,
Lexis Nexis at D8A. What is
actually envisaged in Section 7 of the Matrimonial Causes Act is an
order
"with regard to
...
the division, apportionment or
distribution of the assets of the spouses".
This
may include an order for the transfer of assets from one spouse to
the other. Such a transfer would, result in a "redistribution"
of the distribution which would otherwise have flowed from the
termination of a marriage out of community of property.
9.6
In
considering such a "redistribution" or transfer of assets,
it is now settled law that there is no "yardstick"
with
which to begin measuring or quantifying the percentage, portion or
amount of distribution. Neither the one third yardstick
applied in
English courts at the time of the
Beaumount
-judgments
(by,
inter
alia
Lord Denning in
Wachtel
v Wachtel
[1973] EWCA Civ 10
;
1973 1 All ER 829
(A))
or the equal redistribution of
assets between the parties as a yardstick (as in
Childs
v Childs
2003 (3) SA 138
(C) and in
the a quo decision
Bezuidenhout v
Bezuidenhout
2003 (6) SA 691
(C))
constitute a proper starting point. On appeal in Bezuidenhout v
B
ezuidenho
ut
2005 (2) SA 187
SCA it was held that there should not be any shackles
placed on the exercise of a court's discretionary power. The appeal
judgment
stated further that the traditional role of housewife,
mother and homemaker should not be undervalued simply because it is
not
measurable in terms of money and further reaffirmed" the
principles set out in the
Beaumont
-appeal
judgment. Last mentioned are the following:
"Lord
Denning thought that the court could not 'operate in a void' and that
'a start has to be made somewhere
'.
I do not see any real difficult in
starting with a clean slate, then filling in the void by looking at
all the relevant facts and
working through all relevant
considerations and finally exercising a discretion as to what would
be just, completely unfettered
by any starting point'
(at
998 F-G). In
Badenhorst v Badenhorst
2005
(2)
SA
2
53
CPD the court stated that it must, on the facts before it, attempt to
balance the scales as far as possible. These pronouncements
n the law
are apposite to the present case.
9.7
The
unfettered nature of a court's discretion is further enhanced by the
wide authority granted to the court by section 7(2) of
the
Matrimonial Causes Act, a section which also speaks to practicalities
and which provides as follows:
"An
order made in terms of subsection (1) may contain such consequential
and supplementary provisions as the appropriate court
thinks
necessary or expedient for the purpose of giving effect to the order
or for the purpose that securing that the order operated
fairly as
between the spouses and may in particular, but without prejudice to
the generality of this subsection order any person
who holds any
property which forms part of the property of one or other of the
spouses to make such payment or transfer of such
property as may be
specified in the order".
9.8
Had
the parties remained married (as alluded to as a factor to consider
in terms of Section 7(4) of the relevant Act), the Plaintiff
would
have retained the immovable property outside White River where she
now stays as her own, as well as all the movables currently
in her
possession, which includes the horse and her bank accounts from which
she would presumably have maintained herself and sought
to partially,
at least, repay her family debt. The Defendant would have continued
to pay the bond on the property. Such a position
would also have
accorded with the legal position regarding registration of ownership
and him being a guarantor of the bond.
9.9
The
Defendant would have continued with his business in Mozambique and
implemented such austerity measures as may be necessary but
always
with an eye to recovery of the US $ 17 million debt owed by the
state, realizing the erstwhile profits and generating income
and
dividends. As indicated earlier, these assets and the benefits
attached to them far exceed those of the Plaintiff. Has the·
marriage continued, she would have shared in those benefits and if no
redistribution is ordered, she will not. In the circumstances
of this
case and on the application of the law as set out in paragraph 8
above and hereintofore, this would be unfair and inequitable.
9.10
Both parties, had their marriage continued, would have remained joint
owners of the property in Mozambique
and shared in the value and
rental income thereof. If this status quo is not maintained and the
Defendant not prevented from summarily
terminating the Plaintiff's
joint ownership, she would be equally unduly prejudiced.
9.11
As
to the Defendant's shares in the various companies, his counsel
argued that .the Plaintiff should have no share in it or, if
any, it
should be limited to 20%. Plaintiff's counsel argued for an equal
distribution. Having regard to all the facts of the case
and the fact
that, for the businesses to become profitable again in the future,
the imput to do so will come solely from the Defendant
in a post
divorce scenario. Where it is difficult if not impossible to
mathematically quantify the contributions of the parties
in both pre-
and post-divorce scenarios, it would be fraught with danger to accord
any monetary value to any contribution. By the
same token, I am of
the view that an equal distribution is also not justified and, in
similar vein as in the
Bezuidenhou
t-case
supra on appeal, I am of the view that a 40/60 apportionment should
apply. In reaching this conclusion, I have also taken
the accrued
arrears maintenance into account, which was due in terms of the Rule
43 order which will now fall away.
9.12
At
to the 15 stands m the undeveloped proposed township in Mozambique,
these have currently a R nil value and would only be of any
possible
future value after enormous future investments and contributions, all
of which would be post-divorce and these should
be treated as falling
outside any current redistribution. It is not as of the Plaintiff can
claim joint-ownership of an existing
asset which might through the
passage of time increase in value, the income would be as a result of
other factors to which she
would not contribute and I exercise my
discretion against redistribution of these assets.
9.13
Insofar
as the issue of maintenance is to be postponed but the value and
benefit of the redistribution order is as yet undeterminable,
particularly insofar as it may impact on the Plaintiff's ability to
maintain herself, an interim order should be made, as least
up to the
amount recently paid by the Defendant.
9.14
Section
7(2) of the Matrimonial Causes Act is wide enough to encompass an
order for such interim maintenance and, in the circumstances
as
already outlined, this is justified. Until such time as the issue of
the Plaintiffs claim for maintenance for herself (including
the
maintenance of her assets) is finalized, this should also include the
payment of the Dream Vacation Club points.
9.15
As
to the issue of costs and the exercise of my discretion in relation
thereto, I considered ordering that each party pay her or
his own
costs, having regard to the nature of the dispute rather than
ordering that costs follow the event. Having regard to the
effects of
a costs order on the asset position of the parties however and,
having regard to e concluding paragraph of Section 7(4)
of the
applicable act, one should bear in mind that the present dispute
centres around the estates of the parties. Had litigation
around
these estates ensued whilst they were married or if treated as though
they were to remain married, then the Defendant would
have
contributed to such an expense. I therefore deem it fair that he
contributes in no less a proportion than the redistribution
percentage already determined in paragraph 9.4 above to the
Plaintiff's costs.
Order
[10]
Having considered all the above facts
and findings, an order is granted as follows:
[1]
A
decree of divorce is granted;
[2]
In
terms of Section 7(1) of the Matrimonial Cause Act, of Zimbabwe, Act
No 33 of 1985 (as amended) it is ordered as follows:
2.1
The
Plaintiff shall retain as her sole property the immovable property
known as [….], Mpumalanga;
2.2
The
Defendant shall remain liable for the bond over the property and
shall pay the instalments due in respect thereof;
2.3
Both
parties shall remain joint owners of the property known as [….]
Maputo, Mozambique which may not be sold or encumbered
without prior
written consent of both
parties
and
who shall equally be entitled to whatever net rental income the
property generates;
2.4
The
Defendant shall transfer 40% (forty per cent) of his shareholding in
his businesses in Mozambique to the Plaintiff within 60
days from
date of this order, including but not limited to the shareholding in
the Engco Group, Engco Limitada, Engco Electrica
Limitada, Fleetco
Limitada, Pierlite Limitada as well as in the South African company
Engco Engineering Services (Pty) Ltd with
registration number [….];
2.5
The
Defendant shall retain as his sole property the 15 vacant stands in
Costa del Sol, Maputo;
2.6
The
parties shall each retain the movable property in their possession at
the time of this order as their own, including half of
the Dream
Vacation Club points each;
2.7
Pending
finalization of the issue of the Plaintiffs claim for maintenance, e
Defendant shall pay the amount of R10 000 per month
with the first
payment before or on 7 March 2018 and each successive payment before
or on the 7
th
day of each month as well as the levies and costs due in respect of
the Dream Vacation Club points of the parties and, if the Plaintiff
has already made payment for 2018, the Defendant is to reimburse her.
[3]
The
Plaintiffs claim for maintenance for herself is postponed sine die
and may be enrolled in this court or in a Magistrates or
similar
court with competent jurisdiction.
[4]
The
Defendant shall pay 40% of the Plaintiffs costs of the divorce action
including the costs of the Rule 43 application, the costs
of which
have previously been ordered to be costs in the cause.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Hearing: 15 and 21 February2018
Judgment
delivered: 23 February 2018
APPEARANCES:
For
the Plaintiff:
Adv. F Botes SC
Attorney
for Plaintiff:
Macintosh, Cross & Farquharson, Pretoria
For
the Defendant:
Adv. R.J Stevenson
Attorney
for Defendant:
Tomlinson
Mnguni James Inc., Pretoria