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[2018] ZAGPJHC 499
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G v G (17650/14) [2018] ZAGPJHC 499 (21 September 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO: 17650/14
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
21/9/2018
In
the matter between
G:
B (born
J)
PLAINTIFF
and
G:
Y
DEFENDANT
J
U D G M E N T
HIEMSTRA
AJ
THE PLEADINGS
[1] This is a claim and a counterclaim
in which both parties seek divorce and ancillary relief. There are
two issues for determination.
1. Whether the
parties are married in community of property, or, in terms of an
ante-nuptial contract, out of community of property
with exclusion of
the accrual system; and
2. Whether the
plaintiff is entitled to maintenance for life or until remarriage, or
for a limited duration.
[2]
The plaintiff alleged in paragraph 4 of her particulars of claim that
the parties were married in community of property on 25
November
2002. The defendant admitted the marriage but alleged that the
parties had married out of community of property in terms
of an
antenuptial contract, with the express exclusion of the accrual
system. As proof, he attached a document, marked “CC1”.
Ex facie the document, it is an antenuptial contract
between the parties, signed by both and attested by a notary public.
[3] In her reply to a request for
trial particulars the plaintiff states as follows:
“
1.1.1 the
plaintiff never entertained the necessary intention to enter into
and/or conclude the antenuptial contract and/or to marry
the
defendant out of community of property in terms thereof;
1.1.2 at all
times prior to and at the time of entering into the marriage the
plaintiff and the defendant agreed and intended that
they would be
married in community of property;
1.1.3
accordingly, and, in the event of the defendant having intended to
conclude the antenuptial contract and to marry the plaintiff
out of
community of property, which the plaintiff denies, there was no
meeting of the minds of the parties in relation to the entering
into
the antenuptial contract and/or their marrying each other out of
community of property;
1.1.4 as a
result, the parties did not enter into a valid and binding
antenuptial contract whether in the form of annexure “CC1”
to the defendant’s counterclaim or at all;
1.1.5 in any
event, the alleged antenuptial contract, Annexure “CC1”
to defendant’s counterclaim, was not properly
and lawfully
entered into and/or executed and is accordingly not binding and/or
enforceable as between the parties, …
”
[3]
It is not clear from this plea how the plaintiff alleges that her
signature came to appear on the document. For that reason
the
defendant gave notice of intention to call a handwriting expert to
testify whether the signatures and initials purporting to
be those of
the plaintiff, are authentic. However, on the first day of the trial,
the plaintiff sought to amend her plea to the
counterclaim in such a
manner that it became clear that she does not dispute the
authenticity of her signature. Counsel for the
defendant objected to
the amendment, but I allowed it in order for the matter to proceed to
finality. Apart from the issue of the
costs of the expert witness,
the amendment did not prejudice the defendant. The only effect of it
was to make clear exactly what
the nature of her case is. It is not
so far-reaching that counsel would not have been able to obtain
instructions on the new version
in a matter of minutes.
[4] The amendment inserted the
following new paragraph:
“
Plaintiff
appended her signature to the document marked “CC1”
attached to the defendant’s counterclaim, but pleads
that she
is not bound by the terms of the thereof because she signed it
without reading it, and in error on the assumption that
the document
pertained to the registration of her marriage to the defendant with
the Department of Home Affairs in order to change
her surname from J
to G, and to apply for a passport bearing the surname G in order to
accompany the defendant to Haj in Saudi
Arabia.
”
B. THE EVIDENCE
[5]
On 21 November 1999 the parties married in terms of Islamic rites.
Since Islamic marriages are not recognised in South African
law, the
marriage was not registered in the South African population register.
Consequently, the plaintiff retained her maiden
surname, J. The
defendant testified that marriages concluded in terms of Islamic law
(Nikah) are out of community of property.
Mr Nasser Aboobakar Tayob,
an attorney and notary public, supported that view. However, neither
of the two witnesses was qualified
as an expert in Islamic law. I
can, therefore, have no regard to their opinions in this regard.
However, this is of no consequence.
As Islamic marriages are not
recognised, the parties have the same status as unmarried persons.
Cohabitation does not create any
special property regime or community
of property between the parties. It may, however be forged through
contract, but this is not
the case here. In certain circumstances it
may be found that the parties had established a universal partnership
with joint ownership
of some of all their assets. However, that has
not been pleaded by either party.
[6]
Subsequent to the marriage, the parties decided to undertake the
Hajj, or pilgrimage to Mecca, which all Moslems, in terms of
Islamic
faith, are required to undertake at least once in a lifetime,
provided they have the financial means. The defendant testified
that
he had heard that they would be “hassled” at customs in
Saudi Arabia if the couple have different surnames in
their
passports. To resolve this dilemma, it was recommended that they
enter into a civil marriage in South Africa in order to
have the
marriage registered and for his wife, the plaintiff, to assume his
surname. The defendant knew of an Imam, who was a marriage
officer
who had the authority to officiate marriages that could be registered
as civil marriages. The person was a certain Mr Hassim,
who has in
the meantime passed away. The parties then agreed to enter into a
civil marriage and to approach Mr Hassim to officiate.
[7]
The defendant arranged with Mr Hassim to officiate the marriage. The
plaintiff testified that the parties, together with their
3-year old
son, proceeded to the home of Mr Hassim in the early evening of 25
October 2002. She said that only Mr Hassim was present
at his home.
He conducted some kind of a ceremony and then handed them documents
to sign. She duly signed where Mr Hassim had indicated
and initialled
the separate pages. The defendant also signed the papers. She did not
read the documents because she trusted her
husband and was satisfied
that their marriage would be in community of property. She did not
realise that one of the documents
was an antenuptial contract. The
alleged antenuptial contract was, as stated before, attached to the
defendant’s counterclaim,
and marked “CC1” Apart
from the signatures of the plaintiff and the defendant and Mr Hassim
on “CC1”, there
appear two other signatures: a person
named Khumalo, and Mr Nasser Aboobaker Tayob, a notary public. The
plaintiff denied that
persons named Khumalo or Tayob had been
present. (Mr Tayob testified that Ms S Khumalo had been his assistant
and that she may
have accompanied him to the home of Mr Hassim on the
occasion of the marriage. However, he has no independent recollection
of the
marriage.)
[8]
The defendant declared that he had explained to the plaintiff that
they would marry out of community of property with the exclusion
of
the accrual system. He said that she fully understood it and had
explicitly agreed. He further said that Mr Hassim had, before
he
solemnised the marriage, also explained the consequences of a
marriage out of community of property and the exclusion of the
accrual system. After the ceremony, Mr Tayob again explained the
antenuptial contract to the parties and presented the contract
for
them to sign.
[9]
That plaintiff denied that and maintained that she had never met Mr
Tayob or Ms Khumalo. She understood the process as merely
pertaining
to registration of the marriage at the Department of Home Affairs in
order to change her surname to that of her husband.
She understood
that that was necessary in order to apply for a passport bearing her
married name. She thought that, in terms of
South African law, she
was married in community of property.
[10]
Sadly, the marriage turned out to be an unhappy one. The plaintiff
pleaded that the defendant had on various occasions and
more
particularly on 4 May 2014 violently assaulted her and their
teen-aged son, Mohammed. As a result, she left the common home
on 4
May 2014 with her children and went to live with her parents in
Ermelo. Her father had in the meantime passed away.
[11]
The plaintiff instituted divorce proceedings on 16 May 2004 and the
defendant entered appearance to defend. It is common cause
that the
marriage relationship between the parties had irretrievably broken
down. As a result very little evidence was presented
as to the
defendant’s alleged violent behaviour. More details appear from
the affidavits submitted in the plaintiff’s
application in
terms of Rule 43 for interim relief pending the divorce. I do not
find it necessary for the purposes of this judgment
to deal with that
evidence.
[12] The defendant has remarried and
continues to live in the parties’ former common home in
Mayfair, Johannesburg. The parties
have reached agreement on the
primary residence of the children with the plaintiff and the
visitation and contact rights of the
defendant. They have also agreed
on the amount of maintenance to be paid in respect of the children.
However, they could not reach
agreement on maintenance of the
plaintiff.
C. THE MARRIAGE REGIME
[13]
The versions of the two parties are mutually exclusive. The plaintiff
bears the onus of proof on a balance of probability.
The locus of the
onus of proof will only be decisive if I cannot make a finding on the
evidence before me. In deciding which version
is more probable, I am
guided by the judgment of Nienaber JA in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Cie and
Others
2003 (1) SA 11
(SCA) (the SFW case) par [5]. Nienaber JA said that
the technique applied by courts in resolving factual disputes is to
make findings
on
(a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. There are also subsidiary
considerations to be taken into account. They overlap to some extent
so that it is not possible to consider them seriatim. However
I take
them into consideration
[14] My
impression of the witnesses is the following:
The plaintiff
The
plaintiff is an exceptionally timid woman. She was hesitating and
unsure of herself as a witness. She displayed utter ignorance
of the
financial affairs of the family. She trusted her husband implicitly
in all matters financial. She was restrained in
her testimony
and throughout hesitated to contradict the defendant. She testified
that she never had anything to do with the financial
aspects of the
marriage and she knew nothing about the defendant’s financial
affairs. He provided for all the needs of the
family and allowed her
the use of an unlimited credit card for household purchases, even for
relatively major items such as appliances.
She never had to concern
herself with the question of affordability.
The defendant
In
contrast, the defendant is a forceful and self-assured man. Comparing
the parties’ personalities in the witness box, I
am convinced
that the defendant completely dominated the plaintiff. He appeared
insincere in his testimony, giving glib, one-line
answers.
[15]
But, evaluation of the credibility of witnesses merely on impressions
gained under cross-examination is unreliable. Evaluation
of the
contrasting versions on their probabilities is more substantial. In
my view the probabilities overwhelmingly favour the
plaintiff’s
version. The purported antenuptial contact is so patently contrary to
the plaintiff’s financial interests
that it is improbable that
she would have consented to it after rational consideration. Had she
understood that she would have
no claim against the estate of the
defendant in the event of divorce or death, she is unlikely to have
entered into the contract.
[16] The
plaintiff wishes to resile from the antenuptial contract on the
ground of
iustus
error, or reasonable or pardonable error.
Counsel for both parties provided excellent summaries of the legal
principles around
the concept of
iustus
error, for which I
thank them. I do not intend to exhaustively reiterate the law. I have
no quarrel with the positions set out by
counsel. The point of
departure is the general principle, expressed by Innes CJ in
Burger
v Central South African Railways
1903 TS 571
, namely that:
“
it
is a sound principle of law that a man, when he signs a contract, is
taken to be bound by the ordinary meaning and effect of
the words
which appear over his signature
.
It
is for the party seeking relief from an agreement that he has signed
to convince the Court that he was misled as to the purport
of words
to which he was thus signifying his assent”
’
A
unilateral mistake, other than a mere error in the motive, also does
not allow a party labouring under the erroneous belief
to
repudiate his apparent assent to a contract except in very narrow
circumstances, …’
’
The court
referred to a number of judgments and continued:
“
The
effect of these decisions is that, for a unilateral mistake to
vitiate the necessary assent to a contract, the error must be
a
iustus
error.
In this respect the ‘courts in applying the test have taken
into account the fact that there is another party involved
and have
considered his position. They have, in effect said; Has the first
party – the one who is trying to resile –
been to blame
in the sense that by his conduct he has led the other party, as a
reasonable man, to believe that he was binding
himself.’”
[17] Davis AJ
(as he then was) provided a useful guide in deciding whether a party
acted in justifiable error. In
Prins v Absa Bank Ltd
1998(3)
SA 904 (C), he proposed the following series of questions that can be
used to determine whether reliance in terms of the
conduct of the
party allegedly creating the impression of consensus and the conduct
of the other party in believing the impression:
“
(a)
Is there consensus?
(b) If not,
it there dissensus caused by a mistake?
(c) Is the
other party aware of the resiler’s mistake?
(d)
Who induced the mistake and was done by commission or omission, which
was either fraudulent or even innocent?
”
[18]
Applying these questions,
mutatis
mutandis,
I find that the plaintiff cannot be held to the terms of the
antenuptial contract. There was patently no consensus; the dissensus
was caused by mistake on the part of the plaintiff; the defendant was
probably aware that the plaintiff did not appreciate the
implications
of the antenuptial contract. I reject, as improbable, the defendant’s
evidence that he had explained the antenuptial
contract to the
plaintiff. I also accept the plaintiff’s evidence that Mr
Tayob had not explained the antenuptial contract
to her. As I
have already said, it is highly unlikely that any person by their
full senses can conclude a contact which is
so clearly against his or
her interests. I cannot find that the defendant by commission induced
the mistake on the part of the
plaintiff, but I find it probable that
he ‘snatched the bargain” when he knew that the plaintiff
was oblivious of the
implications of the contract.
[18] I therefore
find that the plaintiff entered into the contract in error. Given the
personalities of the parties I believe that
her error was justified.
MAINTENANCE
[19]
The
plaintiff and her three children live in Ermelo with her mother in a
three-bedroomed house. She shares a room with her eldest
son and the
other two children share a room. She works in the family jewellery
business and earns a salary of R5 000 per month
in cash. She
probably pays no tax on her earnings. The defendant pays her R10 000
per month for the maintenance of the children.
[20]
The defendant made a with-prejudice offer of settlement to the
plaintiff in terms of Rule 34. He tendered maintenance in respect
of
the children, which the plaintiff has accepted. In respect of the
plaintiff, he tendered rehabilitative maintenance in the sum
of
R3 500 per month for a period of twenty-four months. He has in
the meantime increased the tender to R5 000 per month
for 36
months.
[21]
The parties have disclosed their financial positions, and it is clear
that the defendant can afford to pay maintenance to the
plaintiff,
not only for a limited period, but indefinitely. At the same time,
the plaintiff can survive financially in her current
living
conditions. However, that is largely through the largesse of her
mother. She cannot indefinitely share a room with her son,
who is 17
years old. She will soon be compelled to find her own accommodation.
In any event, during her marriage, she became accustomed
to a life of
relative luxury and the defendant is obliged to maintain her on the
level she had become accustomed to.
[22]
In his testimony, the defendant argued that the plaintiff should be
able to find much more lucrative employment, or conduct
her own
business. According to the defendant’s answering affidavit in
the plaintiff’s Rule 43 application, he had paid,
during the
marriage, over R20 000 for the plaintiff to attend a full-time
sewing and dress design course, which she completed.
She also
completed an advanced workshop in Abaya (traditional clothing)
construction as well as drawing & illustration workshop.
The
defendant admitted as such, but maintained that these courses do not
assure her employment of business opportunities. I got
the impression
that the plaintiff is not an enterprising person. She did nothing to
pursue career opportunities that these qualifications
may have
presented. However, the plaintiff never worked during her marriage.
She never had to concern herself with the family’s
financial
affairs. That is not conducive to developing an entrepreneurial
mind-set. She does not appear to me to have the personality
or the
drive to start and maintain a business of her own. She works in the
family business, which is well-established. She may
progress in that
business, but one cannot predict to extent to which she may become
self-sufficient.
[23] The defendant is obliged to
maintain the plaintiff for as long as she is dependent on his support
to maintain her living standard.
It cannot be predicted when she will
be able to fully maintain her living standard. If the plaintiff
becomes self-sufficient, the
defendant will be able to approach a
court with the requisite jurisdiction for a reduction of the
maintenance payable to the plaintiff.
In
the result, I make the following order:
A
decree of divorce is hereby issued;
It
is declared that the marriage concluded between the parties on 25
October 2002 is in community of property;
The
joint estate of the parties is to be divided equally between the
parties;
The
plaintiff and the defendant shall retain full parental
responsibilities and rights as contemplated in section 18(2) of the
Children’s Act 38 of 2005 of their minor children;
The
children’s primary residence shall be with the plaintiff;
The
defendant shall have parental responsibilities and rights with
regard to contact with the minor children as contemplated in
section
18(2) of the Children’s Act as set out in paragraph 7 below;
The
implementation of the defendant’s contact with the minor
children is subject to the following provisions:
7.1
Dr
V.A. Jaggan, a psychologist, is forthwith appointed in order to:
7.1.1
provide
guidance and assistance to the minor children in order to prepare the
children concerning the implementation of sleepover
contact with the
defendant and to assist them with the issues pertaining to contact
with the defendant, as well as any emotional
difficulty they may be
experiencing;
7.1.2
provide
as far as possible, or facilitate individual, reunification, and/or
bonding therapeutic assistance in order to strengthen
the
relationship between the defendant and the minor children, if
required;
7.1.3
evaluate,
monitor, structure, facilitate and/or phase in extended contact
between the defendant and the minor children when deemed
to be in the
interests of the minor children. In the event that Dr Jaggan has
deemed it to bt in the best interests of the children
to implement a
phase-in contact schedule;
7.1.4
guide
the parties and/or provide or facilitate therapy and/or parental
guidance and/or an anger management course concerning both
of the
parties;
7.1.5
monitor
the situation and make recommendations regarding any element
pertaining to the application of the parties’ parental
responsibilities and rights, if necessary.
7.1.6
Assist
the parties with the resolution of any future disputes and the
compilation of a parenting plan
The
defendant shall pay maintenance to the plaintiff in respect of their
minor children in an amount of R10 000.00 per month,
which
payment shall be made monthly in advance by no later than the 7
th
day of each month with effect from 7 September 2018;
Notwithstanding
the contents of paragraph 8 above, same shall not be construed as a
waiver by either of the parties’ rights
to forthwith apply to
court for a variation of such maintenance;
The
defendant shall make payment either to the plaintiff or to the
creditor/s concerned against statements of amounts produced
to him
of:
10.1
all
reasonable medical and dental expenses in respect of the minor
children and for this purpose he shall retain the minor
children on the hospital plan at his costs and pay all of the
reasonable excess medical and dental expenses not covered by the
benefits of such plan;
10.2
all
reasonable school fees and levies including the reasonable cost of
prescribed books, stationery and school uniforms;
10.3
all
reasonable extramural, sporting, cultural and academic activities and
sporting equipment and attire relating thereto;
The
defendant shall pay maintenance to the plaintiff in an amount of
R10 000.00 per month, which payment shall be made monthly
in
advance by no later than the 7
th
day of each month with effect from 7 September 2018, until her death
or remarriage, whichever occurs first;
The
defendant shall make payment either to the plaintiff or the
creditor/s concerned against statements of amounts to be produced
to
him or all reasonable medical and dental expenses in respect of the
plaintiff and for this purpose shall retain the plaintiff
on the
hospital plan at the defendant’s cost and pay all of her
reasonable excess medical and dental expenses not
covered by the
benefits of such plan;
Save
for the costs of the handwriting expert, Mr Cecil Greenfield, the
defendant shall pay the plaintiff’s costs of this
action.
J. HIEMSTRA
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
Counsel
for the plaintiff: Mr H.P West
Attorney for the
plaintiff Sader Attorneys
Cinetech
Centre
1
Frost Avenue, corner Lime Street
Sunnyside
Jonhannesburg
Tel.: + 27 11 726
3711
Ref.:
H Sader/BVG/G520
Counsel for the
defendant: Ms F. Bezuidenhout
Attorney for the
defendant: Saheed Dolly Attorneys
48
Twickenham Averue
Auckland
Park 2029
Johannesburg 2092
Tel:
+27 11 482 9933
reception@sdollieinc.co.za
Ref:
S DOLLIE/SL/G 329