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[2018] ZAGPPHC 477
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J.P.F v N.M.F (Born C) (30918/2016) [2018] ZAGPPHC 477 (2 March 2018)
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED
CASE
NO: 30918/2016
2/3/2018
In
the matter between:
J
P
F
PLAINTIFF
and
N
M F (BORN
C)
DEFENDANT
JUDGMENT
VUMA,
AJ
INTRODUCTION
[1]
Prior to the commencement of this trial
the parties had agreed that the only issue for determination herein
was the question with
regard to the forfeiture of the patrimonial
benefits by the defendant as prayed for by the plaintiff in his
particulars of claim.
[2]
Despite the parties disagreeing with
regard to the reasons for the breakdown of the marriage relationship,
they are
ad idem
that
the marriage relationship between them has irretrievably broken down
and that a decree of divorce be granted.
[3]
Accordingly, the issue for determination
is whether, if the order for forfeiture is not made, the defendant
will in relation to
the plaintiff be unduly benefited.
BACKGROUND
[4]
The plaintiff and the defendant entered
into a civil marriage in community of property on 15 January 2010,
which marriage still
subsists. In April 2016 the plaintiff instituted
divorce proceedings against the defendant claiming a decree of
divorce and,
inter alia,
forfeiture
of the patrimonial benefits of the marriage by the defendant,
including any interest which the defendant has or may have
in the
immovable property, which property is situated at [….]
Pretoria, Gauteng, hereinafter "the property". In
her
counterclaim, the defendant claimed for the division of the joint
estate.
[5]
Prior to the conclusion of the civil
marriage, the defendant fell pregnant with the plaintiff's child
which unfortunately resulted
in a still birth. However, such
pregnancy led to the parties moving in together in 2005. Following
the above the parties entered
into a customary union in August 2008.
COMMON CAUSE
[6]
The following is common cause:
1.
That
the plaintiff had acquired the property in June 2000 with his now
ex-wife, A F whilst the two were still married to each other;
2.
That
to date the property is paid up and its current market value is
estimated at R150 000-00.
3.
That
whereas originally the property was an RDP house, to date same have
been improved due to renovations that had taken place;
4.
That
the defendant contributed financially towards such improvements.
THE
EVIDENCE
[7]
Both parties testified and neither of
them called any witnesses.
[8]
In summary the plaintiff's evidence is
as follows:
8.1
With regard to the property, he
testifies that before he entered into the marriage relationship with
the defendant he owned the
property which he had acquired on 12 June
2000. He had purchased same together with his ex-wife, A F . As at 13
June 2017 the said
property's market value was R150 000-00 as per the
Valuation Report produced during the trial. As to why he instituted
the divorce
action, he testifies that it was because of the defendant
who had deserted their marital home in December 2015, only to return
three months thereafter. He further testifies that there was
"no
other person involved, it was Just the two of us",
meaning
that neither party is guilty of adultery. He denies that he ever had
any extra-marital affair with any of the defendant's
friends nor with
any young girl as was alleged by the defendant.
8.2
He further denies that he ever called
the defendant barren due to her failure to carry their two still-born
kids to term, saying
the loss of their stillborn children was just as
painful to him as it was to the defendant. He concedes that at the
time of the
defendant leaving their matrimonial home, the
relationship was not good and that there were physical assaults
between the parties.
The defendant would at times just leave their
common home, sometimes overnight without giving any explanation. The
defendant's
explanation about her disappearance would at times be
that she was going to her parental home.
8.3
However, regarding the defendant's
alleged absence from the common home from Fridays through Saturdays
prior December 2015, under
cross-examination the plaintiff conceded
that the reason for same was due to the fact that both of them
attending their common
Apostolic church and that they therefore had
to be away from home as a result thereof to perform some rituals.
8.4
Under cross-examination, he admitted
that the police were once called in on 22 November 2017 at the
instance of the defendant after
him refusing her access in one of the
rooms in the property.
[9]
In summary the defendant's evidence is
as follows:
9.1
In her evidence, the defendant admits that she did indeed leave the
marital home in December
2015 but that on 25 December 2015 she was
still there. She testifies that the conditions in her marriage at the
time were unbearable,
which, in part, were caused by the
extra-marital affairs the plaintiff had with some of her friends and
young girls. However she
testifies that she did not desert the common
home
per se
since the plaintiff had agreed thereto. Though
this was not put to the plaintiff, the defendant testifies that she
went back to
the common home in January 2016 by which time the
plaintiff had since changed the house locks, thus denying her access
into same
and even refusing to share the main bedroom or even a bed
with her. The plaintiff would even call the names due to her
inability
to give him children whom he so desperately needed.
Re
the property's improvements, she testifies that in 2009 she
started with the house renovations after securing a bank loan of
approximately
R100 000-00, which loan she had to repay all by
herself. She paid the labourers and also bought some furniture. Under
cross
examination, she stated that since at the time of securing
the R100 000-00 loan she had no other accounts to pay, that's how she
managed to pay same back. She denies that her benefitting from the
matrimonial benefits would be undue since,
inter alia,
she
even attended to fix the property roof which at the time of her
arrival at the property, was leaking and that, also, the property
itself was in a dilapidated state. She also attended to doing the
gate, the walls and the tiles of the property. She denied ever
assaulting the plaintiff.
LEGAL
POSITION
[10]
The legal principles applicable to a claim for forfeiture are laid
down in
section 9(1)
of the
Divorce Act 70 of 1979
, hereinafter "the
Act", which provides as follows:
"When
a
decree of divorce
is granted on the ground of the irretrievable break-down of
a
marriage the
court may
(my
emphasis
)
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".
[11]
Accordingly, the three factors governing
the value judgment to be made by the trial Court in terms of
s 9(1)
are limited to the following:
11.1
The duration of the marriage;
11.2
The circumstances which gave rise to the
breakdown of the marriage; and
11.3
Any substantial misconduct on the part
of either of the parties.by one or both of the spouses.
[12]
As stated by Van Coller AJA (as he then
was) in the matter of
Wiiker v
Wiiker
1993 (4) SA 720
(A) at 727 D -F
,
the Supreme Court of Appeal (SCA),
when considering the question whether proof of 'substantial
misconduct on the part of either
of the parties' was an essential
requirement for a forfeiture order, held that it was not since the
context and the subject-matter
of
s9(1)
made it abundantly clear that
the legislature never intended the three factors mentioned in the
section to be considered cumulatively.
[13]
Regarding the approach that needed to be
followed by the court hearing the appeal ('the matter in our/ this
instance) in respect
of a forfeiture prayer, the SCA stated the
following:
"It is obvious from the
wording of the section that the first step is to determine whether or
not the party against whom the
order is sought will in fact be
benefited. That will be purely a factual issue. Once that has been
established the trial court
must determine, having regard to the
factors mentioned in the section, whether or not that party will in
relation to the other
be unduly benefited if a forfeiture order is
not made. Although the second determination is
a
value judgment,
it is made by the trial court after having considered the facts
falling within the compass of the three factors
mentioned in the
section".
[14]
In
Botha v Botha (393/04) {20061 ZASCA
6;
[2006] ZASCA 6
;
2006 (4) SA 144
(SCA); £200612 All
SA
221 (SCA) (9 March 2006 )
,
Van
Heerden JA held that the trial Court may not have regard to any
factor5. other than those listed in
s9(1)
in determining whether or
not the spouse against whom the forfeiture order is claimed will, in
relation to the other spouse, be
unduly benefited if such an order is
not
made.
[15]
SUBMISSIONS
15.1
Benefit:
In her written closing arguments,
plaintiff's counsel submits that the fact that the plaintiff's house
was already paid off at the
time of the defendant's departure from
the common home, coupled with the fact that during her living thereat
, that is the common
home, she did not contribute much except for the
bricks which were used to build the wall around the property, should
weigh against
the defendant. She submits therefore that the property
in question does qualify as a 'benefit' in terms of
s 9(1)
as cites
Schreiner J (as he then was) in the matter of
Smith v Smith
1937
WLD
126
at 127-8 where the following was held with regard to what
the concept of 'benefits' by stating the following:
"What the defendant
forfeits is not his share of the common property, but only the
pecuniary benefit that he would otherwise
have derived from the
marriage.... It is really an order for division plus an order that
the defendant is not to share in any excess
that the plaintiff may
have contributed over the
15.2
She
further submits that a
'benefit'
as
envisaged in
section 9
of the Act includes what the parties owned at
the time of the marriage.
15.3
She
further cited the matter of
Engelbrecht
v Engelbrecht
1989 (1) SA 597
(C)
where
the court held, in dealing with factual determination, that
"Unless the parties
(either before or during the marriage) make precisely equal
contributions, the one that contributed less
shall on dissolution of
the marriage be benefited above the other if forfeiture is not
ordered".
15.4
She further submitted with regard to the
above the court can order that a percentage of the estate or an asset
be forfeited, as
was done in
Singh
v Singh
1983 (1)
SA
781
(C).
15.5
The defendant's counsel submits that in
casu,
the
plaintiff has failed to prove the nature and extent of the benefit
DURATION
OF THE RELATIONSHIP
[16]
With regard to the above, plaintiff's
counsel cited the matter of
Singh
supra
where
the parties had been married for 22 years. The plaintiff husband had
alleged that the wife had been away from the common home
overnight on
73 occasions, had been intimate with other men
"
and had committed adultery with one of them"
(sic).
The further allegation was that she had neglected her marital duties.
The wife denied all these allegations, stating that
she only left the
common house as a result of the plaintiff's treatment of her. She
admitted the adultery allegations but stated
that she committed same
only later. Regardless, on evidence, the court found her misconduct
to be "substantial" , which
outweighed the fact that the
marriage had lasted for 20 years. As a result, forfeiture was
decreed. In
casu,
the
plaintiffs counsel submits that the court should regard the seven
year period as short, which submission the defendant's counsel
refutes, arguing that the period establishing the parties' "duration"
should be back-dated to 2005, when they were cohabiting.
[17]
SUBSTANTIAL
MISCONDUCT AND REASONS FOR THE BREAKDOWN
In the matter of
Wiiker
supra
the Supreme Court of Appeal stated that although
misconduct was no longer a requirement for obtaining a forfeiture
order, the introduction
of no-fault divorce did not do away with
fault as a factor in respect of forfeiture orders.
However, plaintiff's counsel cited
what was held in the matter of
Binda v Binda
1993 (2)
SA
123
(W
)
that it ls not essential for a
claimant to prove substantial misconduct before a forfeiture order
can be granted. However, as stated
above she submits that but for the
defendant's departure from the common home for a period of three
months, the plaintiff would
not have instituted these divorce
proceedings.
ANALYSIS
[18]
With regard to the property in question,
I must state that I do find same to constitute a benefit as submitted
by plaintiff's counsel.
It must further be borne in mind that the
plaintiff admits that whilst the parties lived together in the common
home, the defendant
contributed to the matrimonial joint expenses to
the extent that her salary allowed her to as part of their agreement.
[19]
It must further be noted that the
defendant also conceded that she does own a property.
[20]
From the uncontroverted evidence of both
parties, the defendant made the following contributions whilst still
living at the common
home:
1)
Towards
the improvement of the property, the defendant bought the building
materials which the plaintiff estimated to be approximately
R15
000-00 to R20 000-00 whereas she stated it was for approximately R100
000-00;
2)
She bought groceries;
3)
She kept the common home and would also
cook; and
4)
She contributed towards the parties'
white wedding.
[21]
From the plaintiff's counsel’s
submissions, it is evident that the nub of plaintiff's forfeiture
claim is based on the following:
1)
the
defendant's departure from the marital home which, she argues,
bordered on substantial misconduct, and
2)
the
fact that the defendant contributed very little financially towards
the property's renovations and the general joint expenses
of the
marriage. She argues that the estimated R15000-00 to R20 000-00
contribution by the defendant is not significant.
[22]
Plaintiff's counsel also disputes the
defendant's alleged contribution of approximately R100 000-00 from
the loan she testified
she had secured. To buttress her argument, she
further submits that given the defendant's then monthly salary which
was arguably
very little, it is highly improbable that the defendant
could have even qualified for a loan that much.
[23]
In respect of the above argument by plaintiff's counsel, I am not
persuaded, especially when
one has regard to
Wiiker
supra,
where the SCA criticized the trial court's finding that
' it
would be unfair to permit the appellant husband to share in the
respondent wife's estate agency business while he had made
hardly any
contribution towards its management, administration and
profit-making'.
[24]
The SCA went on further in the above cited
Wiiker
matter
in response to the trial Court's above finding and held that
"the
finding that the appellant would be unduly benefited if
a
forfeiture order was not made,
was
therefore based on a
principle of fairness. It seems to me that the learned trial Judge,
in adopting this approach, lost sight of
what
a
marriage in
community of property really entails.... The fact that the appellant
is entitled to share in the successful business
established by the
respondent is
a
consequence of their marriage in community of
property. In making
a
value judgment this equitable principle
applied by the Court
a
quo is not justified. Not only is it
contrary to the basic concept of community of property, but there is
no provision in the section
for the application of such
a
principle..... The benefit that will be received cannot be viewed
in isolation, but in order to determine whether
a
party will
be unduly benefited the Court must have regard to the factors
mentioned in the section. In my judgment the approach adopted
by the
Court
a
quo in concluding that the appellant would be unduly
benefited should
a
forfeiture order not be granted was clearly
wrong'
[25]
It is common cause that the thrust of the plaintiffs argument is that
to the extent that the
defendant did not contribute equally to the
joint expenses, in particular the property renovations, that that
should disqualify
her from benefiting half the proceeds of the
matrimonial benefits upon the dissolution of the marriage. She is of
the
view
that anything less will benefit the defendant unduly.
[26]
What I further find is that plaintiff's
counsel fails to appreciate that the contribution towards the joint
estate
per
se
was never viewed by the legislature as a primary consideration, no
less a consideration at all. I am inclined to find as was
held by the
SCA in the matter of
Wiiker
supra
that the extent of the contribution
or no contribution at all was never intended by the Legislature as a
factor to be considered
in instances of this nature. I also find in
accordance with the reason held by the SCA in
Botha
supra
that
the trial court must shy away from considering factors that were
never prescribed by the Legislature.
[27]
Having stated the above, when one
considers the statutory factors to be taken into account by the court
in making a forfeiture determination,
can it be said that from the
evidence, the defendant falls foul of any? When one has regard to the
issue of the duration of the
marriage, it is common cause that as
early as August 2008 the parties were married in a customary union
which again was followed
by a civil union in 2010, having been in a
relationship since 2005 and moving in together in 2005. To date, the
parties have been
married for a period of 9 years from the date of
the customary union.
[28]
Regarding the counter-allegations
re
issues which both parties raise as
the reason for the breakdown of the marriage, it is my view that
there is nothing substantial
on the part of the defendant which
qualifies as such. What I find as more of a probability is what was
testified to by the defendant
that her failure to bear kids in the
marriage most probably led its breakdown due to the plaintiff's anger
and disappointment at
such failure. I am of the further view that a
further probability is that the defendant left the common home around
December 2015
due to the fact that same was already broken down. I am
therefore not persuaded that the defendant's departure was the
catalyst
which led to the institution of the divorce proceedings by
the plaintiff, rather that taking into account the totality of the
evidence,
the defendant's traction just gave way to the inevitability
of bringing to a halt the already irretrievably broken down marriage
relationship.
[29]
Another major consideration to be made
is whether the defendant will be benefited unduly should a forfeiture
order not be made.
Despite it being held by the SCA that contribution
towards the joint estate by a party is not a requirement
per
se,
one cannot discount the fact
that the plaintiff himself conceded that the defendant's financial
contribution was,
inter alia,
in
respect of the household groceries and that such contribution was as
per agreement between them. The plaintiff further conceded
that, to
the extent of her financial means, the defendant did contribute to
the joint estate. I understand this concession to mean
that whatever
financial means the defendant had, she withheld nothing of same and
thus contributed to the marriage's material and
financial needs.
[30]
The above therefore bring me to the
following conclusions:
[31]
Regarding the question why if the
defendant will benefit unfit unduly in the event the patrimonial
benefits·, including the
property, are shared equally between
the parties, the plaintiff replied in the affirmative, further
stating that he holds this
view because at the time the defendant
moved in with him, the RDP house {'the property') was already paid
off. I find that this
basis is not sustainable legally and therefore
ought to be disregarded. Furthermore, despite the fact that lack of
contribution
to the marital estate is not a statutory requirement, I
find that the defendant's contributions to the renovations of the
property,
that is, in the form of the cooking and the cleaning of the
house, the financial contributions she made, whether of R20 000-00
odd as alleged by the plaintiff or of R100 000-00 as alleged by
herself, entitle her to benefit from the patrimonial benefits of
the
marriage.
plaintiff. It is trite that costs
follow the result. Counsel for the plaintiff submits that an ordinary
costs award should follow
in favour of the plaintiff. I am of the
view that in this instance costs should follow the result.
[36]
In the result I make the following
order:
ORDER
1.
A decree of divorce.
2.
Division of the joint estate.
3.
Costs are awarded to the defendant.
L
Vuma
Acting Judge of the High Court
Gauteng Division, Pretoria
Head
on: 4 December 2017
Judgment
delivered:
2 March 2018
Appearances
For
Appellant:
Adv. N. Fourie
Instructed
by: Shapiro & Ledwaba Inc.
For
Defendant: Adv. K Mhlanga
Instructed
by: Mahlangu Mashoko Inc.