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[2018] ZAGPPHC 478
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J.S.M v M.S.M (34560/14) [2018] ZAGPPHC 478 (23 March 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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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: 34560/14
23/3/2018
In
the matter between:·
J
S M
PLAINTIFF
and
M
S M
DEFENDANT
JUDGMENT
LEDWABA,
DJP:
INTRODUCTION
[1]
The plaintiff instituted divorce
proceedings against the defendant in May 2014 seeking an order in the
following terms:
"1.
A
Decree of Divorce;
2.
An
order that the Defendant forfeit the entire patrimonial benefit
arising out of the marriage in community of property in favour
of the
Plaintiff including:
2.1
the
immovable property situated at [….], GAUTENG, which immovable
property is registered in the name of the plaintiff and
which
immovable property
was
purchased
by the plaintiff prior to the marriage between the parties.
2.2
the
Plaintiff's pension interest in the GOVERNMENT EMPLOYEES PENSION FUND
which is administered by the DEPARTMENT OF NATIONAL TREASURY;
2.3
the
right, title and interests of the joint-estate of the parties in the
LEXUS motor vehicle currently being driven by the Plaintiff,
which
motor vehicle
is
registered
in the name of the Plaintiff and which motor vehicle
was
purchased by the plaintiff by way of
an instalment sale agreement with TOYOTA FINANCE prior to the
marriage between the parties.
3.
An
order that the defendant pay the plaintiff's costs of suit, only in
the event of the Defendant defending this action;
4.
An
order that the plaintiff be granted such further and/or alternative
relief as the above Honourable Court may deem just and equitable."
[2]
The
defendant filed a notice of intention to defend, a plea and a counter
claim seeking an order in the following terms:
"1.
A decree of divorce;
2.
An
order that plaintiff (defendant in reconvention) is entitled to 50%
of the Defendants interest in the Government Employees Pension
Fund,
payable immediately upon divorce,
alternatively
,
that an endorsement be made
in the records of the Fund that the Administrator pays 50% of
Defendant's interest in the Fund as at
the date of divorce payable to
Plaintiff when benefits accrue to Defendant;.
3.
The
patrimonial benefits arising out of the marriage in community of
property are divided in equal shares between the parties;
4.
Costs
of suit."
[3]
The defendant's attorneys were duly
served with a notice of set down and the defendant did not attend
court on the trial date, 26
October 2017. Only the defendant's
correspondent attorney attended Court after the matter was adjourned
and the plaintiff’s
attorney was directed to phone the
instructing attorney to attend Court. The Court postponed the matter
to the following day to
give the defendant an opportunity to attend
Court.
[4]
On 27 October 2017 the defendant’s
instructing attorney filed an application for a postponement and
briefed counsel to appear
in Court. The defendant's attorney in his
supporting affidavit stated that the defendant informed him that she
cannot attend Court
because her 16 year old minor child was involved
in a motor vehicle accident and requires medical care and she needs
to consult
with medical experts. The defendant further said she was
not well. A postponement was also sought to obtain instructions on
the
striking out of the Defendant's defence and counterclaim by the
Court.
[5]
The defendant's attorney did not clearly
explain how and why the defendant was not well and no medical
certificate was filed to
substantiate the hear-say evidence of the
defendant's attorney's affidavit nor did the defendant file a
confirmatory affidavit.
The attorney did not explain why there was no
appearance in the unopposed motion Court on 20 October 2017 when the
defendant's
defence and counterclaim were struck.
[6]
The notice of set down was served on
defendant's attorneys on 30 January 2017. The defendant's attorney
alleged that he struggled
to consult with the defendant. I interpose
to mention that on 20 October 2017 the motion court made an order
against the defendant
dismissing her plea and counterclaim and a
punitive cost order was granted against the defendant's attorneys.
[7]
In exercising my judicial discretion, I
dismissed the application for a postponement because the application
is made just to delay
the matter and, importantly, the defendant's
defence and counterclaim have been already been dismissed. Summons
was issued in 2014
and previously the matter was removed from the
roll after defendant's attorneys of record withdrew and she
instructed new attorneys
of record. The parties have not stayed
together as husband and wife for more than three years.
[8]
After the dismissal of the application
for a postponement, the defendant's counsel requested to be excused
because he was only instructed
to deal with the application for a
postponement. The court excused him
[9]
The plaintiff testified and his evidence
is summarised as set out hereunder.
[9.1] He said he is a principal at [….]
and has been contributing to his pension fund for about 20 years.
[9.2] Before they married on
5 December 2010 he owned an immovable property at [….], a
motor vehicle and furniture.
[9.3] The defendant also
owned an immovable property at [….] before the marriage.
[9.4] On 16 September 2013
the defendant damaged the plaintiff's house and furniture by setting
it alight, fortunately the
plaintiff managed to exit the house and
she was later convicted of arson and on 21 November 2013 she was
sentence to 18 months
of Correctional Supervision under certain terms
and conditions.
[9.5] Fortunately the house
was insured and the insurance paid for the house to be fixed.
[9.6] Defendant, prior to
the attempting to kill the plaintiff as aforesaid, further on two
occasions attempted to kill the
plaintiff by attempting to stab the
plaintiff with a knife and by attempting to force the plaintiff off
the road on a bridge with
her 4X4 motor vehicle where the plaintiff
nearly plunged into a river or ditch.
[10]
According to the plaintiffs evidence the parties lived together for a
period of about two and
a half years in which period there was a lot
of acrimony between the parties.
[11]
The defendant did not attend Court to
testify and her defence and counterclaim were dismissed by the Court.
From the evidence of
the Plaintiff it is clear that the marriage
relationship has irretrievably broken down and that there are no
reasonable prospects
of reconciliation.
[12]
The parties were married to each other
in community of property and the plaintiff is seeking for an order of
forfeiture of the patrimonial
benefits of marriage against the
defendant.
[13]
Before an order of forfeiture of
patrimonial benefits against another party can be granted, the legal
position should be carefully
analysed.
[14]
Section 9(1)
of the
Divorce Act 70
of 1979
reads as follow:
"9.
Forfeiture of
patrimonial benefits of marriage
-
[1] When
a
degree of
divorce is granted on the ground of the irretrievable breakdown of
the 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
breakdown thereof and any substantial misconduct on the
part 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 benefitted.
[15]
In
WIJKER
v WIJKER 1993(4) SA 720 (A) the Court set out the following approach
to be adopted in hearing of a forfeiture claim:
"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
benefitted. 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".
[15]
It is not in dispute that the plaintiff
contributed to the pension benefits for about 20 years before the
marriage and he also acquired
the house, the vehicle and the
furniture before the joint estate before the conclusion of the
marriage on 5 December 2010. The
parties had an acrimonious marriage
and lived together for only about two and a half years. I think it is
factual clear that the
defendant will unduly benefit if the court
orders that the joint estate be equally divided.
[16]
In
ENGELBRECHT
v ENGELBRECHT 1989(1) SA 597 (C)
the
court in dealing with this factual determination said that:
"Unless the parties (either
before or during the marriage) make precisely equal contributions the
one that contribute less
shall on dissolution of the marriage be
benefitted above the other if forfeiture is not ordered".
[17]
Before the court makes an order of
forfeiture, the Court should carefully analyse the duration of the
marriage and the circumstances
is giving rise to the breakdown of the
marriage, in particular the substantial misconduct on the part of the
parties.
[18]
According to the evidence before court
the parties lived together for a period of about two and a half
years. There is uncontradicted
evidence that the defendant at least,
tried to cause serious bodily injuries to the plaintiff and damaged
the house.
[19]
The plaintiff denied that the cause of
the breaking down of the marriage is the allegations set out in the
defendant's counterclaim.
[20]
The SA Concise Oxford Dictionary (2005)
edition explains "undue" as "unwarranted or
inappropriate because excessive
or disproportioned. I have seriously
considered his duration of the marriage and the misconduct of the
defendant in the matter.
The longer the duration of the marriage the
issue of substantial misconduct will not carry much weight as in a
case where the marriage
is of a short duration. The Court should duly
consider this aspect.
[21]
In determining whether an order of
forfeiture should be granted or not the court should be careful not
adopt a rigid and mechanical
exercise but it should make a proper
value judgment.
[22]
The defendant also had an immovable
property before the marriage. On careful consideration of all
relevant factors without attaching
too much weight on any of them I
think an order of forfeiture as sought by the plaintiff would be
appropriate. The plaintiff should
further not be entitled to share or
entitled to share the immovable property that the defendant brought
into the joint estate and
the immovable asses presently in the
defendant's possession.
[23]
I have also considered that the
plaintiff wanted the Court to make a punitive cost order against the
defendant. I think it is just
and equitable that I should make an
order of cost against the defendant, considering how she tried to
delay this matter unnecessarily.
However, the costs to be costs on a
party and party scale basis.
I make the following order:
1.
Decree
of divorce is granted.
2.
An
order that the Defendant forfeit the entire patrimonial benefits
arising out of the marriage in community of property in favour
of the
Plaintiff including-
2.1
the
immovable property situated at [….], which immovable property
is registered in the name of the Plaintiff and which immovable
property was purchased by the Plaintiff prior to the marriage between
the parties;
2.2
the
plaintiff's pension interest in the GOVERNMENT EMPLOYEES PENSION FUND
which is administered by the DEPARTMENT OF NATIONAL TREASURY;
2.3
the
right, title and interest of the joint-estate of the parties in the
LEXUS motor vehicle currently being driven by the plaintiff,
which
motor vehicle is registered in the name of the plaintiff and which
motor vehicle was purchased by the plaintiff by way of
an instalment
sale agreement with TOYOTA FINANCE prior to the marriage between the
parties;
2.4
The
plaintiff to keep all the movable assets presently in the plaintiff's
possession.
3.
The
defendant to keep as her sole and exclusive property the immovable
property situated at [….] and all the movable property
presently in her possession.
4.
Costs
of the suit to be paid by the defendant.
A
P LEDWABA
DEPUTY
JUDGE PRESIDENT OF
THE
HIGH COURT, GAUTENG DIVISION PRETORIA
APPEARANCES:
SHAPIRO & LEDWABA ATTORNEYS
FOR
PLAINTIFF:
ADV. FOURIE
FOR
DEFENDANT:
Z MHLONGO & KHUMLAO ATIORNEYS
DATE
OF HEARING: 26 and 27
OCTOBER 2017
DATE
OF JUDGMENT: 23 MARCH 2018