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[2018] ZAGPPHC 482
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L v L (83552/2016) [2018] ZAGPPHC 482 (27 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
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE
NO: 83552/2016
27/2/2018
In
the matter between:
L:
M M L
(I.D.
No.:
[….])
Plaintiff
and
L:
A W M K
(I.D.
No.:
[….])
Defendant
JUDGMENT
Matter heard on: 22 February 2018
CONSTANTINIDES AJ:
1.
This
is an action for divorce. The parties were married to each other in
community of property on the 8
th
December 2012 at Ga-rankuwa. There are no children born of this
marriage between the parties. It is common cause that the marriage
relationship between the parties has irretrievably broken down and
that there is no prospects of a reconciliation between them.
2.
The
Plaintiff is seeking:
2.1.
a
decree of divorce,
2.2.
an
order that the Defendant forfeit the entire patrimonial benefits
arising out of the marriage in community of property in favour
of the
Plaintfif, including-
2.2.1.
the
immovable property situated at [….], Gauteng, which immovable
property is registered in only the name of the Plaintiff
and which
immovable property is totally unencumbered;
2.2.2.
the
Plaintiff's pension interest of approximately forty years in the
Government Employees Pension Fund;
2.2.3.
furniture
and household effects which the Plaintiff
purchased;
2.2.4.
an
Isuzu bakkie which is registered in the name of the Plaintiff;
2.2.5.
a
Toyota Corolla motor vehicle which is registered in the name of the
Plaintiff;
2.2.6.
Plaintiff's
investments;
2.3.
An
order that the Defendant pay the Plaintiff's costs of suit;
2.4.
An
order that the Plaintiff be granted such further and/or alternative
relief as the above Honourable Court may deem just and equitable.
3.
The
Defendant has filed a Plea and Counterclaim wherein the Defendant
claims:
3.1.
A
decree of divorce;
3.2.
An
order that the Plaintiff forfeit the entire patrimonial benefits
arising out of the marriage in community of property in favour
of the
Defendant, including -
3.2.1.
the
immovable property situated at [….] Gauteng;
3.2.2.
the
Defendant's pension interest in the Government Employees Pension
Fund;
3.2.3.
the
Defendant's pension interest/s in any other pension fund/s:
3.2.4.
the
Defendant's retirement benefits or retirement annuity with any
retirement annuity concluded with any institution;
3.2.5.
furniture
and household effects which the Defendant purchased;
3.2.6.
all
motor vehicles, trailers or any propelled vehicle registered in the
name of the Defendant;
3.2.7.
the
Defendant’s investments;
3.2.8.
an
order that the Plaintiff pay the Defendant’s costs of suit on
an attorney and own client scale;
3.2.9.
an
order that the Defendant be granted such further and/or alternative
relief as the honourable Court may deem just and equitable.
4.
The
Plaintiff was represented by Adv. M Fabricious. The Defendant
appeared in person as her Counsel Adv. L. T. Leballo withdrew
from
the matter immediately before the matter was to commence. The
Defendant’s attorney of record had no right of appearance
but
assisted the Defendant throughout the proceedings.
5.
During
evidence it was conceded that the parties have been living apart
since June/July 2016.
6.
The
Plaintiff alleged that the Defendant repeatedly accused him of
wanting to kill her. Extensive evidence was led relating to the
very
unhappy relationship between the two parties.
7.
The
Plaintiff was commissioned by the Government to work in Belgium from
July 2015 and in terms of employee benefits his spouse
would be
entitled to visit him at least once or twice a year.
8.
Bundle
"C" (the "Documents Bundle") was admitted as
Exhibit
"A" .
Page
17, in Exhibit
" A"
reflects the Plaintiff's Government
Employees Pension Fund("GEPF Pension Fund"). The
resignation benefit of the aforesaid
pension amounts to R8 476
841.00.
9.
In
Bundle
" B"
which
was admitted and marked Exhibit
"
B"
on page 61, there is a
valuation of immovable and movable assets:
9.1.
Erf
[…] (incomplete structure);
9.2.
Movable
·assets- vehicles (2), the valuation certificate on page 67,
states the following:
"...
I/we are of the
opinion that R1,260 000.00 (one million two hundred and sixty
thousand Rand) is
a
fair and reasonable market value for this
property
as
at 22 July 2017.
…
"
9.3.
On
page 71 of Exhibit "B" there is a valuation of the total of
all movable assets which comprises an lzuzu D/cab 2005,
a Toyota
Corolla 2003, and the total of all the movable assets amounts to R144
400.00.
9.4.
In
bundle "C", in the documents bundle, on page 66, it is
evident that the immovable property is registered in the name
of the
Plaintiff and the registration date is on the 27
th
June 2003 which is well before the marriage took place.
9.5.
According
to the Plaintiff the Defendant made no contribution to the building
of the immovable property. There was an agreement
that she was going
to pay for the finishes, yet she failed to do so.
9.6.
However
the Defendant countered the Plaintiff's aforesaid allegation and
stated that they built the house
"together".
9.7.
The
Defendant stated that she made payments for bricks and cement for the
house however she conceded that the receipts in regard
to payments
were in the name of the Plaintiff. The Defendant could not produce
any proof that she had made payments.
9.8.
Furthermore,
the Defendant stated that she always bought the groceries and paid
for the gardener and the domestic helper in the
house.
9.9.
The
Defendant stated that she had no assets whatsoever and she also
indicated when asked whether she had any bank statements to
provide
proof that she had made payment or contributions towards the
immovable property, her response was that she paid
"in
cash"
as she was purchasing the
bricks and cement from
"an
Indian gentleman".
9.10.
The
Defendant stated that she had contributed
"more
than R500 000.00 towards the building of the house".
However
she could not provide any form of documentary proof in this regard.
9.11.
The
Defendant confirmed that the Plaintiff paid for the roof of the
immovable property.
9.12.
She
stated that she bought clothing for both her girls and for the
daughter of the Plaintiff. She confirmed that the mother of the
Plaintiff's daughter was paying for her schooling despite having
stated earlier that she had been paying for the aforesaid child's
schooling.
10.
The Defendant stated that the Plaintiff refused to eat her food as he
was afraid that she was
going to
"kill him".
The
Defendant denied ever having accused the Plaintiff of wanting to kill
her. She stated that is
"untrue".
11.
In
cross-examination, the Defendant stated that she did not accumulate
any assets due to the fact that she was looking after her
mother, her
children and her brother until such time as he had secured a job.
Thereafter, her two sisters assisted in helping maintain
her mother
as she could no longer afford to do so.
12.
The
Defendant conceded that the Plaintiff can retain the motor vehicles
referred to in prayers 2.4 and 2.5 of the Particulars of
Claim.
13.
In
regard to the Plaintiff's Government Pension Fund the Defendant
stated in evidence that a quarter of the pension should be allocated
to her. The Defendant alleges that she bought groceries and spent
approximately R6000.00, R7000.00 or R8000.00 a month on groceries,
some of which went to the Plaintiff's daughter in Attridgeville. The
Defendant has not provided any form of documentary proof relating
to
any payments that she has made in this regard.
14.
The
Defendant stated that she paid for the Plaintiff's son's school fees
for two years but provided no proof in this regard.
15.
According
to Plaintiff's counsel the Defendant did not discover any documents
in this matter.
16.
She
stated that she did cook
"sometimes"
and she did perform her
"wifely
duties".
The Defendant alleged
that the Plaintiff failed to support her in the August 2016 election
process.
17.
She
did not want to move to Belgium and live with the Plaintiff. The
Plaintiff allegedly refused to support her career.
18.
Both
the Plaintiff and the Defendant could not explain why they chose to
be married in community of property. Despite questions
put to both
parties, the Defendant said that she did not want to be married in
community of property but due to the fact that the
date of marriage
was moved
" forward"
by
the Plaintiff, this is why they got married in community of property.
The Plaintiff did not afford any explanation as to why
they were
married in community of property and stated that he only found out
after he was married that he had been married in community
of
property.
THE LAW:
19.
In
terms of section 9 of the Divorce Act 70 of 1979 ("the
Divorce
Act"
;), the Court has the discretion when granting a divorce on
the grounds of the irretrievable break-down of the marriage or civil
union to order that the patrimonial benefits of the marriage or civil
union be forfeited by one party in favour of the other. The
Court may
order forfeiture only if it is satisfied that the one party will in
relation to the other, be unduly benefitted.
[1]
20.
While
the Court has a wide discretion in that it may order forfeiture in
respect of the whole or part only of the benefits, it is
not
empowered to award a
" portion
of an errant husband's separate estate"
to
his wife for example merely because this might seem equitable in the
circumstances. Nor may a forfeiture order be granted simply
to
balance the fact that one of the spouses or partners has made a
greater contribution than the other to the joint estate. The
forfeiture order relates only to the benefits of the marriage - in
other words those that arise upon marriage. The precise nature
of
these benefits depends on the particular matrimonial regime.
[2]
21.
A
spouse or partner cannot be made to forfeit those assets that he/she
actually brought into the joint estate.
[3]
The extent of the contributions of the respective spouses or partners
will be determined on the facts. Therefore, the Defendants
counterclaim that the Plaintiff forfeit his own property is
unsustainable in our law.
22.
In
Singh
[4]
for sample the Court determined that
the Defendant's contribution which included
"keeping
house"
and
"looking
after the children",
should be
assessed at 20% of the joint estate.
23.
In
exercising the discretion to order forfeiture, the Court is enjoined
to ask itself whether one party would be unduly benefitted
were such
an order not made. In answering this question the Court should take
into account factors such as the following:
"(i) the
duration of the marriage or civil union;
(ii)
the
circumstances that gave rise to the break-down of the marriage or
civil union; and
(iii)
any
substantial misconduct on the part of either of the parties and the
fact that undue benefit
may
accrue
to the one party in relation to the other if an order of forfeiture
is not granted.
”
[5]
24.
The
discretion is restricted to a consideration of these grounds alone,
no other factors may be taken into account.
25.
As
far as specified factors are concerned, this discretion is in keeping
with the movement away from the idea that dissolution of
the marriage
(and now, also of a civil union) is based on the principal of fault,
and hence, misconduct of one of the parties.
Care must be taken not
to elevate misconduct to a consideration higher than the basic
requirement of undue benefit.
[6]
26.
The
Plaintiff in examination in chief stated that he did not want the
Defendant to share in his hard earned pension funds and that
he would
much rather have a clean break principle and just pay her an amount
of money instead of her sharing in his pension fund.
An open tender
was made in Court in the amount of R100 000.00 and that the Defendant
be entitled to retain the assets set out in
prayer 2.3 of the
Particulars of Claim.
27.
Having
heard substantial arguments it is evident that this indeed is a
marriage of short duration. The parties have been living
apart since
July 2016. Therefore effectively the parties have lived together for
approximately 3% years. Both parties were very
unhappy in this
marriage from the outset.
28.
The
circumstances that gave rise to the breakdown of the marriage appear
to be due to the fact that both parties were abusive to
each other
both emotionally and verbally.
29.
According
to the Defendant the Plaintiff refused to support her career. The
Plaintiff alleges that the Defendant was not willing
to go and stay
with him in Belgium.
30.
I
have taken note of the Plaintiff's open tender.
31.
I make the following order:
1.
A
decree of divorce is granted;
2.
The
Defendant is to forfeit all the patrimonial benefits arising out of
the marriage in community of property including -
2.1.
the
immovable property situated at [….], Gauteng which is
registered in the name of the Plaintiff;
2.2.
the
Plaintiff's pension interest in the Government Employees Pension
Fund;
2.3.
the
Plaintiff's pension interest/s in any other pension fund/s;
2.4.
an
Isuzu bakkie which is registered in the name of the Plaintiff;
2.5.
a
Toyota Corolla motor vehicle which is registered in the name of the
Plaintiff;
2.6.
all
the Plaintiff's investments;
2.7.
That
Plaintiff is to make payment to the Defendant the amount of R100
000.00 (one hundred thousand rand) within 30 days from the
granting
of the decree of divorce, which payment is to be made into a bank
account of the Defendant;
2.8.
The
Defendant is to take the furniture and household effects which the
Plaintiff purchased;
2.9.
Each
party are to pay their own costs.
H
CONSTANTINIDES
Acting
Judge of High Court
Gauteng
Division
Pretoria
27
th
February 2018
Attorneys
for the Plaintiff:
Shapiro &
Ledwaba Incorporated
Counsel
for the Plaintiff:
Adv. M
Fabricious
Attorneys
for the First and
Defendant:
Mkhonto &
Ngwenya Incorporated
Counsel/Attorney
for the
Defendants:
Defendant in
person
[1]
Family Law Service -Schafer Butterworths Divorce/issue 57 pg. 26 D9
Forfeiture of benefits
[2]
Ibid
Pgs.
26-27
[3]
JW v SW
2011
1 SA 545 (GNP)
[4]
983
1 SA 787
at 788H.
[5]
Ibid Family law service Pg. 27
[6]
Ibid Pg. 28