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[2018] ZAGPJHC 617
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V S v S S (37350/2015) [2018] ZAGPJHC 617 (12 September 2018)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
37350/2015
In the matter between:
V
S
Plaintiff
and
S
S
Defendant
(born L)
JUDGMENT
MIA, AJ
[1] The
plaintiff, a 34 year old businessman issued summons for divorce from
his wife, a 34 year old PhD student. The parties were
married out of
community of property in terms of an antenuptial contract the terms
which excluded the accrual system as envisaged
in Chapter 1 of the
Matrimonial Property Act 1984
. The antenuptial agreement made
provision for medical aid on the most comprehensive medical aid
during the marriage and upon
dissolution that the plaintiff pay
the defendant R2 million duly adjusted for inflation within five days
of the date of dissolution
of the marriage as well as medical aid for
life. The plaintiff seeks forfeiture of the above benefits. I am
indebted and grateful
to counsel on both sides for the comprehensive
heads of argument, the thorough submissions and the records made
available which
have made my deliberation herein easier.
[2] The
defendant defended the action and instituted a counter claim seeking
the enforcement of the antenuptial contract as well
as maintenance in
the amount of R 25, 000.00 for life. In April 2018 the defendant
amended her counter claim to include a claim
for Western and Indian
jewellery alternately the payment of R43, 000.00 in respect of the
Western jewellery and R500, 000.00 in
respect of the Indian
jewellery. This claim was abandoned at the close of the plaintiff’s
case and before the defendant commenced
leading evidence. The
defendant brought a third
Rule 43
application on the day before the
matter proceeded for a contribution towards her costs as well as the
costs of her experts. The
application was opposed and the defendant
did not persist with the application. I am required to determine the
costs of this application
as well.
[3] The
remaining issues in dispute were as follows:
3.1 The reasons
for the breakdown of the marriage and the relevance of this to the
defendant’s claim for spousal maintenance;
3.2 The
defendant’s claim for spousal maintenance as specified in
prayer 3 of her counter claim. This includes her entitlement
to
maintenance as well as the duration and quantum of maintenance;
3.3 the
defendant’s claim for the enforcement of the terms of the
antenuptial contract;
3.4 the
plaintiff’s claim against the defendant for forfeiture of
benefits of the marriage out of community of property, which
benefits
are contained in clauses 5.1,5.2,5.3 of the antenuptial contract;
3.5 which party
should pay the costs of the action.
[4] It was
common cause between the parties:
4.1 the parties
signed an antenuptial agreement in terms whereof, as provided in
Chapter 1 of the
Matrimonial Property Act, Act
88 of 1984 as amended,
the accrual system was excluded;
4.2 no children
were born of the marriage;
4.3 the parties
do not share the common home since September 2015;
4.4 the marriage
has broken down irretrievably and there is no prospect of restoring
the relationship;
4.5 the parties
agree a decree of divorce should be issued;
4.6 the adapted
value of the donation of R2 million contained in paragraph 5.1 of the
antenuptial contract amounts to R2 396 360.00
as at 1 June 2018.
[5] The parties
married on 24 November 2014 out of community of property in terms of
an antenuptial contract which excluded the
accrual system, after a
very brief courtship. The defendant was graduating In December that
year and wished to graduate as Mrs
S. The summons was issued in
October 2015 before the parties’ first wedding anniversary.
However the incidents relating to
the irreconcilable breakdown
commenced from approximately July 2015 to September 2015. During this
period there were periods of
separation, counselling and in October
2015 it appears the trust and willingness to forge ahead together had
been compromised to
the point where it was no longer possible to
continue in the marriage.
[6] The evidence
indicated that the antenuptial contract was proposed by the
defendant in view of the parties’ disparity
in assets. The
plaintiff at the time owned a 15% share in the family business which
included: Varun Import Export CC, a close corporation
entity which
imports clothing for a retail store; interests in hotel properties in
South Africa; as well as various other investments.
The plaintiff
earns an amount of R30,000.00 from the close corporation. He had an
amount of approximately R150,000.00 in an account
after transferring
a substantial amount to the close corporation which carried the costs
of building the home the couple lived
in. The plaintiff also has
access to a credit card with a limit of R180, 000.00 which is
utilised by himself, his father, mother
and the defendant whilst she
was living with the plaintiff. The expenses are reconciled at the end
of each month and allocated
to company expenses or the plaintiff or
his father’s loan account with the close corporation.
[7] The
defendant owned a flat in Faerie Glen which was rented out when she
moved in with the plaintiff as well as a small motor
vehicle which
served her needs as a student. The plaintiff paid an amount of R6700
to the defendant each month which he intended
to be paid into the
defendant’s bond during periods when the defendant’s
property remained unoccupied and she had no
tenant to cover the bond.
He also paid the outstanding rates and taxes in the amount of R13,
000.00 when the property was sold
to ensure the property could be
transferred to the new owner. The defendant sold the property after
the parties separated and retained
the proceeds of the sale of the
property. It was evident that there was a huge difference in the
asset value of the plaintiff and
defendant.
[8] Both the
plaintiff and the defendant are academically accomplished graduates.
The plaintiff studied a business oriented degree
at a university in
the United States of America. The defendant was reading for her
Master’s degree at the date of their marriage.
She went on to
pursue her PhD studies which she is due to complete in June 2019. The
completion of her studies is delayed by six
months later than
originally envisaged. According to the plaintiff’s industrial
psychologist’s report and her consultation
with the defendant’s
supervisor this is as a result of the defendant‘s change in her
course of study and had less to
do with her medical condition. The
defendant is registered with the disability unit at the University of
Pretoria and appears to
be accommodated in her course due to her
medical condition.
[9] The
plaintiff has been diagnosed with multiple sclerosis and takes
medication for this disease. The plaintiff’s mother
testified
that she paid for his medication on a monthly basis. Whilst there was
a lack of clarity regarding what the source of
funds were for the
medication it was evident that this was not a cost covered by the
plaintiff’s medical aid. This appears
to be paid either by the
plaintiff’s mother or the close corporation by way of credit
card. It is possible that once the
credit card statement is
reconciled such expense was allocated to the plaintiff’s
parent’s expense. What is clear however
is that the medical aid
does not pay this expense, nor does the plaintiff pay for this
monthly expense of R23, 000.00 from his
own income of R30, 000.00.
[10] The
defendant was diagnosed with Idiopathic Inter-cranial Hypertension
(IIH) some time prior to meeting the plaintiff. She
had a
lumbar peritoneal shunt inserted to alleviate the symptoms she
experienced due to her medical condition. She requires medical
attention in the event the shunt becomes blocked or requires
revision. When she is admitted to hospital for such medical
procedures or surgeries she requires a recuperation period of four to
ten weeks. She envisages this will impact on her future employability
and thus claims future maintenance in the amount R25, 400.00 per
month alternatively rehabilitive maintenance or token maintenance.
FORFEITURE
[11] The
plaintiff seeks forfeiture of the matrimonial benefits as contained
in clauses 5.1, 5.2 and 5.3 of the antenuptial contract
which
provide:
“
SETTLEMENT
In
the event of the dissolution of the marriage for any reason
whatsoever, it is agree that the following provisions shall apply
to
the dissolution of the marriage, unless otherwise determined by the
High Court of South Africa or other applicable court at
the time-
5.1
the Husband shall, within (five) days after the date of the
dissolution of the marriage, pay the Wife an amount of R2, 000,
000.00(two million rand) ( which amount shall be adjust for
inflation,
mutatis
mutandis,
in
accordance with
Section 4(1)(b)(iii)
of the Act) by electronic
transfer of immediately available and freely transferable funds, free
of any deductions or set-off whatsoever,
in the currency of the
Republic of South Africa, into a bank account nominated by the Wife
in writing; and
5.2
the Husband shall remain liable for the Wife’s medical aid
scheme referred to in clause 4. The Husband shall pay all premiums
due in respect of such medical aid policy and the Husband shall
comply with all of the conditions to which the liability of the
medical aid service provider under the applicable medical policy will
be subject. The Husband shall not do anything or omit to
do anything
which could directly or indirectly cause the cancellation of the said
medical aid policy, the repudiation of any claims
thereunder, or the
medical aid scheme provider not to renew such policy in the future or
only renewing such policy on more onerous
terms; and
5.3
notwithstanding anything to the contrary contained in the Husbands
will at the time of his death, in the event that the Husband
dies
after the dissolution of the marriage but before the Wife’s
death, the Husband’s deceased estate shall be liable
to the
Wife for an aggregate amount equivalent to the 5(five) years worth of
premiums in respect of the Wife’s medical aid
policy payable at
the time of the Husband’s death, which amount shall be
immediately payable upon the Husband’s death
by electronic
transfer of immediately available and freely transferrable funds,
free of any deductions or set-off whatsoever, in
the currency of the
Republic of South Africa, into a bank account nominated by the Wife
in writing”
[12]
Section
9(1) of the Divorce Act, Act 70 of 1979 (the Divorce Act) provides:
“
9
Forfeiture of patrimonial benefits of marriage
(1)
When
a decree of divorce is granted on the ground of the irretrievable
breakdown of a 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 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
.”(my
emphasis)
[13] The plaintiff sought forfeiture
of benefits in terms of section 9(1) of the Divorce Act and relied on
the short duration of
the marriage and the grounds pleaded in
paragraph 6 of the plaintiff’s particulars of claim. The latter
was not pursued with
much vigour as it was the plaintiff’s case
that the marriage broke down for numerous reasons which both parties
contributed
to. Further, that attempts to resolve the issues and
effect a reconciliation failed. The plaintiff adopts a fault
neutral
approach and proceeded from the basis that the parties both
failed. Ms de Wet argued that the failure to succeed in overcoming
their problems could not be placed at the door of either party alone.
Thus the plaintiff relied on the short duration of the marriage
as
the ground for forfeiture.
[14] The parties were married on 24
November 2014 and separated finally in September 2015. In essence
they spent eight months as
a newly wedded couple before the daily
grind of life challenged the foundation of their marriage. During
this time the plaintiff
worked in the family business. The defendant
was engaged in her studies. There is evidence that she assisted with
running errands
for the plaintiff as well as for the close
corporation such as buying stationery supplies etc. from time to
time. The defendant
maintains she assisted in the business of the
close corporation by measuring items and packing samples. This
however did not occur
over any significant period as the defendant
resumed her studies to complete her PhD. Studies.
[15] In determining whether there is a
substantial benefit this must be answered on the facts. In Wijker
v
Wijker
1993(4) SA 720 (A) Van Coller AJA stated at 727:
“
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.
…
..
It
is only after the Court has concluded that a party would be unduly
benefited that it is empowered to order a forfeiture
of benefits
,
and in making this decision it exercises a discretion in the narrower
sense. It is difficult to visualise circumstances where
a Court would
then decide not to grant a forfeiture order. This discretionary power
may be more apparent than real but it is not
an issue in this appeal
and no more need be said about it.”
[16] Ms de Wet argued for forfeiture
based on various cases,
Binda v Binda
1993(2) SA 123 (W),
Wijker
above,
Engelbrecht v Engelbrecht
1989(1) SA 597
(C), and
Klerck v Klerck
1991(1) SA 265 (W) that not all three
factors are required to be present cumulatively. Hence the
plaintiff’s reliance on
the short duration of the marriage.
Reliance on this individual ground as opposed to all three
grounds cumulatively is
supported by the decision of Kriegler
in
Klerck
above. In
Wijker
above at p 729, Van Coller
AJA refers to Kriegler’s rejection of the argument that all
three factors ought to be present
in Klerck and states:
“
In
rejecting this argument Kriegler J dealt fully with the wording and
context of the section and said the following at 269D-G:
'Bowendien,
en laastens, meen ek dat die interpretasie waarvoor
mnr
Kruger
betoog, geweld doen aan die woorde van
die subartikel soos hulle daar staan. Dit is wel so dat die drietal
faktore gekoppel
word deur die koppelwoord "en". 'n
Mens kan jou egter nie blindstaar op daardie koppelwoord nie. Wat die
Wetgewer
duidelik met sy woordkeuse aandui, is dat die Hof die drie
genoemde faktore in ag moet neem. Ek weet van geen taalkundige manier
om drie faktore te noem wat saam in een verband genoem word, anders
as om hulle met 'n "en" te koppel nie. Die Wetgewer
wou
juis nie die koppelwoord "of" gebruik nie omdat hy aan die
Hof die opdrag wou gee om breed en wyd te kyk na die drie
kategorieë
faktore.
Non constat
egter, dat as een van hulle
ontbreek, die diskresie te niet gaan. As dit die bedoeling van die
Wetgewer was, dan kon daardie
bedoeling baie maklik deur ander
woordkeuse so uitgespel gewees het.
Myns
insiens is die duidelike betekenis van die woorde wat die Wetgewer
gebruik het dat ek myself moet afvra of daar
in
casu
onbehoorlik
bevoordeling van die eiseres sal wees indien daar nie 'n
verbeuringsbevel gemaak word nie. Ten einde daardie
vraag
te beantwoord, moet ek kyk na die duur van die huwelik, die
verbrokkelingsomstandighede en, indien teenwoordig, wesenlike
wangedrag aan die kant van óf eiseres, óf verweerder,
óf albei.'
I
am in full agreement with these passages and in my judgment Leveson J
in
Binda
v Binda
1993
(2) SA 123
(W) correctly h
eld
that the decision in
Matyila
v Matyila (supra)
was
clearly wrong. The context and the subject-matter make it abundantly
clear that the Legislature could never have intended that
the factors
mentioned in the section should be considered cumulatively. As was
pointed out by Leveson J in
Binda
v Binda (supra
at
126A-B) the following statement by Innes CJ in
Barlin
v Licensing Court for the Cape
1924
AD 472
at 478 is apposite also with regard to the interpretation of
the section here in issue:
'Now
the words "and" and "or" are sometimes
inaccurately used; and there are many cases in which one of them
has
been held to be the equivalent of the other. Much depends on the
context and the subject-matter. I cannot think that in this
instance
the Legislature intended to make these provisions cumulative.'
[17] It is apparent from the
antenuptial contract that the defendant will receive a benefit. In
determining whether this benefit
is undue I have had regard to the
duration of the marriage. The parties spent eight months living
together before finally separating.
They entered into an agreement,
providing that the amount of R2 million adjusted for inflation be
paid to the defendant upon dissolution
of the marriage. After a
marriage of such short duration the above amount is not easily
justified. This is so especially having
regard to the purpose of the
payment.
[18] The argument presented on behalf
of the defendant was that the antenuptial contract was drafted at the
defendant’s instance.
The underlying intention of the parties
with regard to the R2 million adjusted for inflation was to place the
defendant in a similar
position in the event that the parties after a
period of time separate or get divorced. They estimated the value of
R2 million
as the appropriate value for the replacement of the flat
and vehicle. This agreement took into account that the defendant
would
sell her flat in Faerie Glen and invest the proceeds into the
parties’ new home. The defendant did not however invest the
proceeds of the sale of the flat into the parties’ new home but
retained the proceeds of the sale of the flat. The defendant
kept the
money after the sale of the flat and in addition continued to receive
R6700.00 each month for a further three years.
[19] During the course of the marriage
the plaintiff paid R6700.00 per month to the defendant which was
intended to cover the bond.
The defendant alleges that this was for
her assistance rendered during the marriage to the plaintiff and the
close corporation.
If this was the position the money would have been
paid from the close corporation rather than the plaintiff’s
post tax earnings.
The plaintiff also paid R13, 000.00 to clear the
arrear rates and taxes to ensure the property could be transferred.
The defendant
thus as a result of the marriage received the proceeds
of the sale of the flat in Farie Glen, R13, 000.00 as the plaintiff
paid
the arrear rates and taxes. She received various gift items
which included jewellery and a luxury branded watch in addition to
the medical aid benefit and the contribution which covered her bond
whilst she did not have a tenant before the flat was sold as
reported
to her Industrial Psychologist. The plaintiff also invited her to
collect items she required from the couple’s home.
[20]
Whilst the defendant places the responsibility for the breakdown at
the feet of the plaintiff it is evident from the record
that both
parties’ conduct contributed to the breakdown of the
relationship. The parties married after a short courtship
and did not
have sufficient time to get acquainted with each other or their
families. Both parties had difficulty relating to their
partner’s
parents and felt their partner’s parent interfered in their
relationship, they did not feel comfortable in
the home of their in
–laws and displayed conduct which did not support the building
of the new partnership and the joining
of families. I thus am not
able to attribute substantial misconduct to either party in these
circumstances. The defendant under
cross examination conceded that
both
the
parties lost their way
focussed
on the wrong things
and in
so doing
lost their valuable
relationship in the process
.
[21] The short duration of the
marriage is thus the only factor which informs my decision that it
would result in an undue benefit
to the defendant to expect the
plaintiff to pay the amount of R2 million adjusted for inflation
after a union which lasted eight
months and to hold the plaintiff
responsible for the defendant’s medical insurance for life or
for 5 years after his demise.
Both parties were aware of the health
condition of the other at the time of the marriage. Both expressed
the desire to realise
their full potential despite their physical
health challenges. The defendant’s changed view in this regard
despite her accomplishments
academically and the expert evidence
regarding her academic abilities places an undue burden on the
plaintiff which is not justified
after a marriage of such short
duration. A clean break is desirable and is supported in our law. In
Klerck at p 273 E-F Kriegler
states:
“
Bowendien,
soos in die onlangse Appèlhof-beslissing in
Beaumont
v Beaumont
1987
(1) SA 967 (A)
opnuut beklemtoon is, is daar baie deug in
die skoon-breuk-beginsel. Dit word ook weerspieël in die
bepalings van arts
7 en 9 van Wet 70 van 1979. Dit is vir die
betrokkenes en vir die samelewing ongewens dat voormalige egliede tot
in lengte van
dae deur een of ander finansiële
verpligting aan mekaar geketting bly. Dit is in die belang van almal
dat daar
tussen hierdie partye 'n skoon breuk gemaak word.”
Similarly, it is in the interests of
both parties herein that there is a clean break after such a short
duration of marriage and
in view of the defendant’s health
condition being a pre-existing condition which she managed before the
marriage there is
no reason that the plaintiff be burdened therewith
post the divorce.
DEFENDANT’S
MAINTENANCE CLAIM
[22] I turn now to the defendant’s
claim for spousal maintenance. The defendant based her claim for
spousal maintenance on
the fact that she suffers from IIH and had a
peritoneal shunt inserted. This requires revision in the event it
becomes blocked.
She contends that she requires an unpredictable
amount of surgeries yearly to either revise or replace the distal
portion. Thereafter
she requires a period of four to ten weeks to
recuperate. The defendant’s claim was based on her not being
able to resume
work after these surgeries. It was contended that it
impacted on her ability to resume normal activities which include
resuming
her studies and in the future it will impact on her work
abilities, her employability and her promotion prospects.
[23] The Divorce Act provides in
section 7(2):
“
In
the absence of an order made in terms of subsection (1) with regard
to the payment of maintenance by the one party to the other,
the
court may, having regard to the existing or prospective means of each
of the parties, their respective earning capacities,
financial needs
and obligations, the age of each of the parties, the duration of the
marriage, the standard of living of the parties
prior to the divorce,
their conduct in so far as it may be relevant to the breakdown of the
marriage, an order in terms of subsection
(3) and any other factor
which in the opinion of the court should be taken into account, make
an order which the court finds just
in respect of the payment of
maintenance by the one party to the other for any period until the
death or remarriage of the party
in whose favour the order is given,
whichever event may first occur.
“
[24] Mr Naude
appearing for the defendant argued that the Court had a wide
discretion to grant maintenance which included the time
and period
and that no single factor ought to predominate. The defendant was
required to establish a need to be supported. (
EH
v SH
2012(4) SA 164 (SCA). In
considering the defendant’s requirements he argued that all the
plaintiff’s financial resources
were to be taken into account
which included capital, income from other sources, gains and benefits
received as well as any money
that may be available to the plaintiff.
(Heaton, J( ed):
The law of Divorce and
Dissolution of Life Partnerships in South Africa
,
Juta (2014) p 128, par 2.3).
[25] Mr Naude
referred to a number of decisions to assist this Court in coming to a
decision herein. In referring to
Pommerel
v Pommerel
1990 (1) SA 998
(E), he
argued that a woman’s ability to earn an income does not
disentitle her to maintenance since the reasonableness of
her
decision not to work must be considered in light of factors such as
her age, state of health and qualifications, when she was
last
employed, the duration of the marriage, the standard of living of the
parties during the marriage and her commitment to care
of young
children and others. He also referred to the decision of
Pillay
v Pillay
2004(4) SA 81 (SEC) where the
court granted an order for rehabilitative maintenance after a
marriage of only fifteen months.
[26] The defendant indicated that
she had the amount of R10, 250.00 available as a result of a
University of Pretoria bursary
valued at R85, 000.00 a National
Research Foundation bursary valued at R120, 000.00. Tuition of
R17,000.00 was paid in 2018
and she paid her mother an amount of
R65,000.00 in 2018 as well. Thus she had R123, 000.00 available for
2018. She contends the
funding was linked to a research position and
that future funding is scarce, suggesting that she may not secure
funding in 2019.
During the Rule 43 launched in March 2016 the
defendant however indicated that she intended continuing with her
studies to obtain
post-doctoral work at the University of Pretoria.
Despite being registered with the disability unit there was no
evidence that
the defendant was given special treatment with regard
to her study program. She was able to catch up when she missed out
due to
ill health or as a result of doctor’s appointments.
[27] The joint expert minutes indicate
that in future the defendant would as a result of her health
condition be unable to maintain
herself for the full period of her
life. This is however one factor which is to be taken into account
when determining whether
future maintenance is applicable. Ms Talmud
(Talmud) testified that the defendant would enjoy more success if
self-employed where
she could regulate her work pace. Talmud’s
positive view with regard to the defendant finding suitable
employment is shared
by the defendant’s supervisor Dr Newton
who also shared that the defendant would be able to secure further
funding to complete
her studies in 2019.
[28] It was evident from the
defendant’s evidence she was not comfortable in the S residence
and in view of the short duration
of the marriage it can hardly be
argued that she became accustomed to the lavish lifestyle she
ascribed to the S family. On the
defendant’s own evidence she
was less anxious and more comfortable in her mother’s home to
which she returned after
she separated from the plaintiff. There are
no children born of the marriage and there is no need for the
defendant to be out of
work as a result of child caring
responsibilities.
[29] The defendant
is relatively young and has pursued her academic studies with
discipline and drive. Despite her medical condition
she has gone into
the
veld
to
conduct field work, catching and releasing rodents. She was
previously employed and received glowing references as a tutor
cum
au-pair
before
she commenced her studies. She expressed an intention to teach
alternately to conduct research or offer proof reading and
editing
services. Notwithstanding her registered disability she has managed
to secure two bursaries for 2018. According to her
supervisor she may
secure funding for 2019 to complete her research in 2019. The
evidence of Dr Woolf regarding her ability reflects
an individual of
above average intellectual and academic ability. This ability perhaps
explains how she has managed to adjust to
the academic requirements
and the change in her studies with a disruption of only six months in
light of her health and whilst
going through a divorce. It is thus
entirely foreseeable that a young woman, with a distinguished
academic ability and a disability
will qualify for financial aid in
2019.
[30] The defendant is required to
prove the amount required as well as the resources she has at her
disposal to determine her maintenance
requirement. The amount of
maintenance has changed from R17 625.00 noted in the first Rule 43
application, then R25 330.00 in the
pre – trial held on 29
November 2016 and the amount was adjusted to R25 400.00 during the
trial on 1 June 2018. The
computation changed during the trial
and on 1 June 2018 the defendant requested plaintiff to comment on
the new list. The plaintiff
denied that the list constituted the
defendant’s needs and responded that it did not accord with the
bank statements as suggested
by counsel. The defendant did not
provide vouchers to support the amounts claimed.
[31] The defendant did not provide
vouchers nor did she supplement her discovery so it is not possible
to ascertain the funds she
has access to such as in her money market
account. She indicated that it was not possible to obtain the bank
statements. The bank
statements included and which form part of the
record do not support the amount of the defendant’s claim for
maintenance
and she has failed to prove the quantum claimed. I have
already indicated that the standard that the defendant enjoyed whilst
living
with the S family was too brief a period to be the standard of
maintenance against which the defendant’s needs are determined.
Thus the various expenses referred to by defendant which plaintiff
introduced the defendant to are of no consequence.
[32] Having regard to the resources
the defendant has at her disposal I am aware of the two bursaries
that she was awarded. The
defendant has received a substantial number
of gifts from the S family, gifts of great value. Of her own assets
she had the proceeds
of the flat that was sold which was retained by
the defendant before transferring the money to her mother. The
plaintiff
also paid R13 000 to the defendant towards the overdue
rates and taxes. The plaintiff also paid the defendant’s
medical aid
payments for the past three years which is almost three
years longer than the duration of the marriage.
[33] The defendant is in possession of
a Patek Phillipe watch, a diamond ring valued at R 1250, 000.00, a
gold chain from Dubai,
tanzanite earrings, diamond hoop earrings, a
Burberry coat, shoes from Italy, Desigual clothing, a designer
handbag, a gold emerald/jade
bracelet, a wedding dress valued at R46,
000.00. This does not include money in her account as the defendant
failed to discover
her money market account statements. The defendant
indicated she intended selling her jewellery. This option is still
available
to her. She will also receive funding to complete her
studies in 2019 according to Dr Newton. She is still able to work as
an art
model. Nothing prevents her from securing work as a tutor or
editor of written work as envisaged, on a part time basis.
[34] The defendant’s medical
condition impedes the defendant’s work opportunities on
occasion. She testified how she
was able to manage these to enable
her to continue field work in the past and to continue her academic
work. The condition did
not arise as a result of the plaintiff or the
marriage. The plaintiff has to date displayed a liberal and
big-hearted approach
to the defendant’s maintenance needs
despite the short duration of the marriage. The plaintiff ought not
to be burdened with
the consequence of the defendant’s
pre-existing condition especially in light of the short duration of
the marriage.
In view of the above I am of the view that the
defendant has not made out a case for a cash contribution toward
maintenance in
perpetuity nor for rehabilitative maintenance, nor
for token maintenance. In view of the short duration of the marriage
and
the clean break principle I see no need for maintenance.
[35] I had posed a
question to Ms de Wet regarding the circumstances of the
Pillay
matter above which the defendant relied on in
comparison to the present matter. Ms de Wet conceded that there was
no difference
in that the unions were both of short duration and both
afforded the defendant an opportunity to upskill to re-enter the
workplace.
I have had an opportunity to consider the circumstances of
the two matters at length. I am of the view that whilst there are
similarities
in that the marriages were both of short duration, the
circumstances in the present matter is distinguishable in that the
defendant
in casu
is
academically skilled having a Master’s degree at the time of
the marriage and was assessed as having a superior intellectual
ability and has been employed as a tutor and
au
pair
. The skills base of the defendant
in the
Pillay
matter
and that of the defendant vary vastly with defendant being advantaged
academically and from a skills base and thus being
better placed to
enter the employment market by comparison. The defendant
in
casu
is in a different skill category
in comparison to the defendant in the
Pillay
matter. The defendant has not been disadvantaged
as a consequence of the marriage, she was not prevented from working
or improving
her skills due to her being married to the plaintiff or
her responsibilities in the marriage and consequently there is no
need
for rehabilitative maintenance. The defendant worked part time
even whilst she was ill, to generate an income to maintain herself
prior to the marriage, there is no reason why she cannot do so again.
[36] The defendant has received
maintenance payments for a period of almost three years after living
with the plaintiff for a period
of eight months. Both parties
suggest delays at the behest of the other party. I can see no reason
why the plaintiff would
seek to delay going to trial and incur a
maintenance obligation for almost three years after separating from
the defendant.
[37] I turn now to the question of
costs. The first issue was the Rule 43 application on 31 May 2016.
Having regard to the facts
herein the plaintiff was still paying the
defendants medical aid premium. The plaintiff was still paying the
defendant R 6700 which
was terminated at the defendant’s
attorney’s request. The plaintiff’s attitude to continue
to covering the defendant’s
costs for a reasonable period of
time was clear. There was no need for an application to be launched
without demand being made.
The application was settled without the
defendant pursuing her claim for a contribution toward her costs.
In view hereof
the defendant is liable for the costs of the
application.
[38] The defendant brought a second
Rule 43 application which the plaintiff complied with. The defendant
brought a third Rule 43
application a day before the trial commenced
seeking a daily contribution towards counsels’ fee, her
attorney’s fee
as well as experts’ fees. There was no
explanation offered for the late filing of the application or why the
urgent relief
was sought. No application was made for condonation or
non- compliance with the rules. This application was opposed and the
defendant
did not persist with the application. The defendant did not
call any of the experts except Mr Zeeman. The defendant also
pursued a claim for western and eastern jewellery from the plaintiff
well knowing that the jewellery was a gift from her in laws
which
they would hand over to her as part of the ritual during the planned
Hindu wedding ceremony which did not occur. It thus
did not form part
of the matrimonial action and was opportunistic. Consequently she did
not pursue this claim after Mrs S testified.
In view of the
defendants conduct herein it is appropriate that she be ordered to
pay the costs.
COSTS
[39] Section 10 of the Divorce Act
provides:
“
In
a divorce action the court shall not be bound to make an order for
costs in favour of the successful party, but the court may,
having
regard to the means of the parties, and their conduct in so far as it
may be relevant, make such order as it considers just,
and the court
may order that the costs of the proceedings be apportioned between
the parties.
“
[40] Both parties have been assisted
by their respective parents in litigating the divorce action. The
plaintiff is assisted by
his father and the defendant by her mother.
The plaintiff testified that the loan account was subrogated to
creditors to ensure
the viability of the close corporation. Mr
Zeeman’s evidence regarding the financial well being of the
close corporation
was based on insufficient information supplied
alternately misinformation. His comments were thus of limited value
until he was
afforded the opportunity to consider the information in
totality. I cannot ignore that the defendant has conducted this
matter
in a less than constructive manner. The claim for
jewellery was misplaced and then abandoned. She pursued a claim for
permanent
maintenance after a marriage of short duration.
ORDER
[41] For the reasons above I make an
order in terms of the draft attached marked “X”:
_________________________________________________
S C MIA
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances:
On behalf of the applicant: Adv S de
Wet SC
Instructed by: Thomson Wilks Inc
Incorporating Adam Mitchell Attorney
On behalf of the respondent: Adv G
Naude SC & Adv GT Kyriazis
Instructed by: Van Wyk Attorneys
Dates of hearing: 30-31 May; 1, 2, 5,
6,7June;
24- 25 July 2018
Date of judgment: 12 September 2018