M v M (4906/2016) [2018] ZAFSHC 161 (30 July 2018)

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[2018] ZAFSHC 161
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M v M (4906/2016) [2018] ZAFSHC 161 (30 July 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
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:  4906/2016
In
the matter between
E
M
Plaintiff
and
L
M
Defendant
CORAM:
NULLIAH, AJ
HEARD ON:
21 FEBRUARY 2018
JUDGEMENT
BY:
NULLIAH,
AJ
DELIVERED
ON:
30
JULY 2018
[1]
On the 30 July 2018, I granted the following order in divorce
proceedings.
1.
That the
bonds of marriage subsisting between plaintiff and defendant be and
are hereby dissolved.
2.
That the
defendant to pay rehabilitative maintenance to the plaintiff in the
amount of R8000 (EIGHT THOUSAND RAND) per month from
the first day of
the month following the month on which the date of divorce is granted
and thereafter on or before the first day
of each following month for
a period of 24 months.
3.
That the
defendant to retain the plaintiff on his medical aid and shall be
responsible for all medical, dental and ophthalmic expenses

reasonably incurred by the plaintiff, such to include but not limited
to, all costs of hospitalisation, surgical treatment, spectacles,

contact lenses, prescribed medication and allied expenses for a
period of 24 months from the date of the decree of divorce.
4.
That the
plaintiff to ensure that all chronic medication be registered as such
under the applicable medical aid scheme.
5.
That the
plaintiff is entitled to 50% of the defendant’s pension
interest calculated as at the date of divorce.
6.
That the
defendant is ordered to ensure that an endorsement is made in terms
of
section 7(8)
of the
Divorce Act of 1979
in the records of the
defendant’s Pension Fund to the effect that the plaintiff is
entitled to half of the pension interest
of the defendant as at the
date of divorce.
7.
That the
Pension Fund to which the defendant belongs is ordered to make
payment to the plaintiff of 50 % of the defendant’s
pension
interest calculated in accordance with the rules of the Fund, as at
the date of the decree of divorce, being 30 July 2018.
8.
That the
plaintiff is entitled to 50% of the accrued estate of the defendant
as per the marital contract (ANC with accrual) inclusive
of but not
limited to the matrimonial home, policies and annuities.
9.
That
the plaintiff’s claims’ insofar as they do not accord
with what is contained in this order is dismissed.
10.
That the
defendant’s counterclaim insofar as it does not accord with
what is contained in this order is dismissed.
11.
Each party
to pay their own costs.
[2]
Subsequently, the defendant requested reasons in terms of
Rule
49(1)(c)
for the order granted on 30 July 2018.  These are the
reasons for the order.
INTRODUCTION
[1]
The parties were married to each other on the 22 October 1994, out of
community of property in terms of a duly registered ante-nuptial

contract regulated by Chapter 1 of the
Matrimonial Property Act of
1984
in terms whereof the accrual system is applicable to the
parties’ marriage, which marriage still subsists.
[1]
[2]
No children were borne of this marriage. The plaintiff’s son
from a previous marriage was adopted by the defendant subsequent
to
the marriage and is presently a major and self-supporting.
[3]
During October 2016, the plaintiff vacated the matrimonial home and
instituted divorce proceedings, issuing summons in this
court for a
decree of divorce and ancillary relief pertaining to the division of
the accrued estate as per their marital regime
entitling her to an
amount equal to one half of the difference between the accrual of the
parties respective estates as well as
half of the pension interest of
the defendant;  permanent maintenance inclusive of the
plaintiff’s retention as a permanent
beneficiary on the medical
aid scheme of the defendant and costs for this action.
[4]
The divorce is founded on the basis that the marriage relationship
between the parties has irretrievably broken down and has
reached
such a state of disintegration that no reasonable prospect exists for
the restoration of a normal marriage relationship
between the
parties.
[2]
[5]
In amplification of the plaintiff’s claim, the plaintiff cited
incessant exposure to emotional, psychological, financial
abuse and
threats of physical abuse which culminated in the disintegration of
the marital relationship between the parties.
[6]
The defendant subsequently lodged a counterclaim for forfeiture of
benefits in terms of
section 9(1)
of the
Divorce Act
[3
]
and founded his counterclaim for forfeiture, with allegations of the
plaintiff’s infidelity, her ensuing abandonment of the
marriage
and vacation of the matrimonial home as one of the reasons for the
breakdown of the marriage. The counterclaim was subsequently
altered
during the trial to partial forfeiture at the instance of the
defendant.
[7]
The defendant further sought to buttress his counterclaim  by
placing reliance on the following, namely, i) that the plaintiff

habitually burdened the accrued estate financially with her refusal
to secure employment notwithstanding her ability and undertaking
to
do so and,  ii) that the plaintiff contributed virtually nothing
towards the upkeep and material growth of the accrued
estate which
when coupled with her delinquent attitude in the administration of
finances and wasteful expenditure, often exerted
undue pressure upon
the defendant financially and effectively diminished the accrual of
his estate.
[8]
The defendant resisted the plaintiff’s claim for permanent
maintenance including her retention as a permanent beneficiary
on his
medical aid scheme on the premise that, i) the plaintiff is
cohabiting with and is presently being maintained by another
man and,
ii) the plaintiff has the requisite physical and mental disposition
which when coupled with her skills, qualification
and experience,
enables her to secure employment and maintain herself. The defendant
eventually conceded to rehabilitative maintenance
and medical aid for
a limited period of time given the duration of the marriage, the
plaintiff’s unemployment status and
the absence of a pension
fund.
[9]
Pending finalisation of the main action, I am informed by counsel
that in terms of a
Rule 43
application, the plaintiff was awarded
pendente
lite
an amount of R6500 maintenance and the defendant was further ordered
to retain the plaintiff as a beneficiary on his medical aid
scheme.
There is no such
Rule 43
order contained in the file but
counsel for both plaintiff and defendant were
ad
idem
in
this regard.
[10]
These then are the terms of engagement. This court is now required to
establish and pronounce on the reasons for the breakdown
for the
marriage as well as determine the claim for division of the accrued
estate as against the counterclaim for partial forfeiture
of
benefits, the claim for permanent maintenance inclusive of medical
aid as against the counterclaim for rehabilitative maintenance
and
medical aid for a stipulated period and the issue of costs.
[11]
The plaintiff’s grounds on which she founds her claims must of
course be considered against the backdrop of the defendant’s

grounds for resistance and forfeiture.  To prove their
respective cases, both parties testified and led the evidence of
their
respective witnesses to bolster their versions.  It is
considered prudent to furnish an abridged version of their individual

testimonies.
MARITAL
BACKGROUND
[12]
The plaintiff had met the defendant, an accountant by profession in
Bloemfontein and was employed as a bookkeeper for approximately
five
to six years.  She had a five year old son from a previous
marriage, whom the defendant subsequently adopted and whom
they
raised as their own.  After the marriage, they moved to Wepener
where they stayed for approximately two and half years
in consequence
of the defendant securing another employment position.  The
plaintiff was however, unable to secure employment
for lack of
employment opportunities.
[13]
The parties then relocated to Welkom where they lived for a period of
approximately twelve years.  The defendant worked
at a brewery
and the plaintiff was employed firstly, at General Electric for a
period of two (2) years and then at Beatrix Mine
for a period of
three (3) years, where she occupied an administrative position which
included bookkeeping.  That she contributed
financially to the
matrimonial home during this period is in dispute.  The mine
subsequently closed and the defendant purchased
a printing business
for the plaintiff to conduct.
[14]
While the business was operational, the defendant underwent a triple
heart bypass and was assisted by the plaintiff who stayed
at home to
aid his recovery.  The exact period that the plaintiff attended
to the defendant is also in dispute. The defendant
returned to work
six weeks later while the plaintiff remained at home. The business
had proven unsuccessful and a loss of approximately
R185 000 was
incurred by the defendant, who utilised his inheritance to cover such
loss.  Both parties ascribed divergent
reasons for the failure
of the printing business.  The plaintiff started to breed birds
and managed the running of the household
including the garden. The
extent to which the plaintiff attended to the running and cleaning of
the house including the garden
is also in dispute. She was employed
for six out of the twelve years that they resided in Welkom.
[15]
In consequence of the plaintiff’s asthma, the defendant secured
a position at Albany in Sasolburg and the couple bought
a home in
Parys. The plaintiff worked for a period of three months on a
contract basis at a property business in Parys. The plaintiff
then
remained at home and assisted the defendant with administrative work
for the church they attended and in which the defendant
occupied the
position of a pastor. She also did volunteer work with cancer
patients. The plaintiff remained at home up until she
left the
matrimonial home.  The parties are
ad idem
that they
lived a fairly good standard of life and were never truly short of
anything.
THE
PLAINTIFF’S VERSION
[16]
The plaintiff testified that at the end of each month and at the end
of every financial year, the defendant regularly ventilated
his
stress and pent up frustrations on her. His aggressive attitude and
threats of physical assault and harassment relentlessly
continued to
the extent that it negatively affected her physical, emotional and
mental health and well-being. She endured constant
accusations of
wasteful expenditure and was abused financially.  She was
treated with disrespect and was persistently threatened
with divorce
proceedings. She was financially dependent on the defendant for
maintenance and medical aid and was constantly subjected
to the
threat of it being discontinued. The threats and harassment prevailed
to the extent that she was forced to leave the matrimonial
home,
institute divorce proceedings and take out a Domestic Violence
Protection Order against the defendant for fear for her safety.
In
consequence, she lost all regard, respect and love for the defendant
and is no longer interested in continuing with the marriage.
[17]
She denied any romantic involvement with Mr D. either before or after
leaving the matrimonial home and that she left the matrimonial
home
in consequence of any such romantic involvement.  She further
denied ever living with or being maintained by Mr D. and
revealed
that her mother assisted her with her financial shortfall.  She
also denied being derelict in her responsibilities
to the marriage or
that she squandered money and abused the medical aid. She maintained
that she was never employed by Mr D. and
merely assisted him with
administrative work for his company without remuneration as his
projects were still to take off the ground.
She and the defendant had
socially interacted with Mr D. since June 2016 as he was a bird
breeder like them. Their relationship
is purely platonic and Mr D.
has been emotionally supportive of her plight.
[18]
The plaintiff placed reliance on her contributions, both directly and
indirectly during the subsistence of the marriage to
buttress her
claim for division of the accrued estate including half of the
defendant’s pension interest. In furtherance
of her claim for
permanent maintenance and medical aid, she also founded her claim on
the state of her health, her age and lack
of qualifications.  At
the time of trial, the plaintiff was 51 years old, she was on chronic
medication for asthma and bronchitis,
she had already suffered a
stroke on the 27 October 2017
en
route
to Bloemfontein, her vision was not clear and four tumours were
removed from her brain on 7 December 2017.  She also revealed

that she had completed standard 8 and had obtained a secretarial
qualification at a technical college in 1983.
[19]
The plaintiff argues that in consequence of the abusive treatment
meted out to her during the course of the marriage, and given
the
length of the existence of the marriage, her contributions during the
marriage, both direct and indirect,  the state of
her physical
health,  her emotional and mental well- being coupled with the
fact that she is financially dependent on the
defendant presently and
is not in a position to secure employment, she is entitled to the
relief as claimed in her prayers, namely,
a decree of divorce and
ancillary relief pertaining to the division of the accrued estate as
per their marital regime entitling
her to an amount equal to one half
of the difference between the accrual of the parties respective
estates, half of the pension
interest of the defendant, permanent
maintenance inclusive of her retention as a permanent beneficiary on
the medical aid scheme
of the defendant and costs for this action.
[20]
Under cross examination, she revealed that she resided at a guest
house since leaving the matrimonial home until June 2017.
In
consequence of the interim maintenance granted to her in terms of a
Rule 43 order, she was in a financial position to rent a
unit and has
subsequently relocated to bigger unit in the same complex. She was
unable to produce the current lease when requested
to do so. She
admitted that she owes the Guesthouse R140 000 for the period
that she resided there. She further admitted that
Mr D. assisted her
with a deposit of R2000 for the guesthouse and that the invoice which
was initially made out to her, was subsequently
changed to the name
of the company, Orego Technologies, in which Mr D. was a Director.
According to the plaintiff, the guesthouse
had required something
more ‘substantial’. Notwithstanding the name on the
invoice, she resolutely maintained that
she was responsible for the
payment of that account.   Mr D. only stood as surety but
she intended to pay it after she
obtained a divorce.  She was
however, unable to produce such account upon request by the defence.
[21]
The plaintiff further admitted to the following under examination in
chief and under cross examination:
·
She had
refused to disclose her address because she was afraid of the
defendant and not with the intention of hiding the fact that
she was
residing with Mr D..
·
She marked
the dining room suite drawers with ugly words because the defendant
had removed it from her mother’s possession
after having given
it to her;
·
Notwithstanding
the protection order she obtained against the defendant, she stayed
one night with the defendant at his request
because it was too late
to travel alone at night and the church was attempting to reconcile
them as the defendant was at risk of
losing his priestship if he got
divorced.  Furthermore, the defendant told her that he would
retire in two years.
·
She
admitted to sending him kind hearted messages as she still loved him
and at that stage, she was not ready  write off a
relationship
that had lasted 23 years.  She has now made peace that their
relationship is over.
·
Mr D.
brought her for the trial.
·
The second
list of expenditure submitted in furtherance of her maintenance claim
was based on the anticipated expenditure of relocating
to
Bloemfontein, hence the difference in amounts between the initial
list and the second list.
·
She
admitted to threatening M. M. because she and the defendant were
making her life hell and M. M. was well aware since February
2017
that the plaintiff wanted to reconcile with the defendant.
·
M. M. and
the alleged adulterous relationship with the defendant was not cited
in the summons and that she only cited the abusive
conduct of the
defendant.
·
She denied
ever taking the firearm of the defendant.  The firearm was
eventually found in the house of the defendant and it
was because the
firearm could not be found that she was accused of threatening M. M.
with a pistol.
·
She had
lied to the defendant about being in Pretoria just after she had left
him because she was scared for her safety.
[22]
Mr D. testified as a witness for the plaintiff. He revealed that he
is an 80 year old pensioner who receives a monthly pension
of R12 500
per month and has no other source of income presently.  He was
previously an engineer by profession.  According
to Mr D., he
met the plaintiff through the defendant, breeding and showing birds.
The Marees’ bought birds from and exchanged
birds with him.
The defendant used to deliver bread crumbs for the birds in exchange
for birds.   Mr D.’s
partner, Ms V. V. also travelled
daily with the defendant to Sasolburg where they were employed and at
some stage he suspected
an affair between the two of them. The
visiting suddenly stopped but he remained friends with Mrs Maree who
at a later stage approached
him for employment.
[23]
The plaintiff had approached him at a stage and informed him that she
could not continue with her marriage and that she required

accommodation.  He took pity on her and assisted her with
securing accommodation at a bed and breakfast that was known to
him.
The plaintiff was responsible for payment of the account as she
had indicated to them she was getting a divorce.   He
did
however, assist the plaintiff in paying a R2000 deposit as she had no
money. The invoice was made in the name of his company
as the owners
of the guesthouse wanted some guarantee for payment. They were
prepared to let the plaintiff stay in consequence
of the deal he was
presently involved in and his company would stand as guarantor.
However, the money never came in.
He resolutely denied residing
with the plaintiff or maintaining her.
[24]
He ended his relationship with Ms V. V. in December 2017. In
consequence of an altercation with his son, he moved out of the
house
in which he had resided with Ms V. and presently rents a room on a
farm for R1500 per month.  Mrs Maree assisted him
with
administrative work for the company and discharged her duties on a
computer, diligently and efficiently.  He and the
plaintiff have
developed a friendship and even though he wanted more from the
relationship, the plaintiff remains adamant that
she will only
consider such a relationship after her divorce. According to him, the
plaintiff has other boyfriends.  He visits
the plaintiff often
at her place and they often have lunch together.
THE
DEFENDANT’S VERSION:
[25]
The evidence of Ms Lindi Loubsher, the owner of the guesthouse where
the plaintiff resided, testified as a witness for the
defendant and
her testimony bears relevance to the following extent:  The
plaintiff resided at the guest house from 20 October
2016 up until
June 2017.  The outstanding balance on the account is R140 000.
Mr D. had approached them for accommodation
for the plaintiff
on the understanding that the business, Orego Technologies in which
he occupied the position of Director would
be responsible for payment
of the account every month.  No payment was received and Mr D.
subsequently indicated that the
defendant was liable for the account.
No agreement had been concluded with the plaintiff or the defendant
for payment of the account
nor was it mentioned to her as the owner
of the guesthouse that Mr D. would only be standing as guarantor.
[26]
In an attempt to secure payment for the outstanding amount, the
guesthouse issued summons against the plaintiff.  The
plaintiff
became angry and maintained that the defendant was not liable and
insisted that Mr D. settle the account.  According
to Ms
Loubsher, the plaintiff was employed by Orego Technologies and she
indicated her intention to resign.  After four to
five months of
staying at the guesthouse, the plaintiff asked her to change the
names on the invoice from Orego Technologies to
an account in her
personal name.  She confirmed that at no stage did Mr D. stay
over at the guest house with the plaintiff.
However, she
witnessed them hugging and kissing each other and felt it was more
than a mere friendship.
[27]
The second defence witness was Mrs V. V. who testified that she had
been in a relationship with Mr D. which ended in December
2017 at his
instance. Mr D. had informed her that he had found another woman who
shared his interest in birds.  His withdrawal
from her started
in March or April 2016 and she witnessed a distinct change of
attitude during May or June 2016.  He also
started contributing
less financially, the birds were no longer a priority for him, and
towards the end of their relationship she
was supporting him
financially.  She also confirmed that up until the end of their
relationship, Mr D. returned home every
evening.
[28]
The defendant elected to testify and from the onset founded his
counterclaim for forfeiture on the alleged breach of the plaintiff’s

moral obligation to him in that the plaintiff engaged in an
adulterous relationship with Mr D., resulting in the deterioration
of
the marriage and eventually precipitated the plaintiff’s
abandonment of the marriage and vacation of the matrimonial home.

His suspicions were further buttressed by the information he received
from the owner of the bird seed store that the plaintiff
had left the
store with an old white haired gentleman on the very same day that
she vacated the matrimonial home.
[29]
The defendant maintained that he was in fact the recipient of
financial abuse during the marriage when confronted with the

allegations of abuse against the plaintiff.  He admitted that
finances were a regular source of contention in their marriage.
The
defendant denied that the plaintiff contributed to the accrual of his
estate. Rather, the plaintiff was guilty of burdening
his estate and
exerted undue financial pressure on him and cited various examples to
buttress his stance. The defendant readily
admitted controlling and
administering and the finances and disbursing amounts of money to the
plaintiff to run the household and
ascribed the need for this
arrangement to the delinquency of the plaintiff in her past
management of their finances.  He revealed
that when they
resided in Welkom, the plaintiff in fact controlled the finances and
had full access and use of his cards.
Instead of paying their
utility bills, the money was squandered and their electricity was
consequently disconnected.  He averred
that she would purchase
unnecessary items and could not account as to how she had utilised
their money. In consequence, he removed
the control of the finances
away from the plaintiff.
[30]
He admitted that he purchased material for the plaintiff who,
together with her mother would fashion and sew clothes until
three in
the morning as this was cheaper option. He further admitted to buying
the plaintiff a dress once a year for the annual
church meeting. He
incurred a huge financial loss of R185 000 which he covered with
the money from his inheritance when the
printing business he bought
for the plaintiff went under. The remaining items from the business
were sold and the plaintiff pocketed
the money.
[31]
He maintained that they moved from Welkom to Parys because the
plaintiff was asthmatic.  The plaintiff insisted that they

purchase the house in Parys and promised to secure employment and
contribute financially but she only worked for a period of six

months.  She further insisted on extra security services and
again undertook to pay for it but he eventually fitted the bill.
The
defendant was financially burdened yet the plaintiff continued to do
charity work for cancer patients. She barely cooked and
while she did
the washing, she never ironed his clothes. Her contribution to the
household was minimal as he often bought food
over the weekend and
‘hungered’ up during the week; he had garden services
twice a week and he assisted with vacuuming
and household chores on
the weekend.
[32]
The defendant testified that in September 2016, he became so enraged
about the fact that the savings plan of his medical aid
was depleted,
that he threatened to leave the plaintiff.  He also testified
that there was an ongoing build up to that moment.
The plaintiff
abused the medical aid in that she had a penchant for obtaining and
collecting medication but was delinquent in the
use of her
medication.  He also repeatedly asked the plaintiff to secure a
doctor’s script to ensure her asthmatic medication
fell under
chronic medication as opposed to paying R500 each time from their
savings plan. The plaintiff was aware that he wanted
to utilise the
medical aid for the repair of his teeth. She never attended to the
chronic medication and instead saw fit to attend
to her eyes,
effectively depleting their savings. He admitted threatening to leave
the plaintiff during that fight. However, he
denied ever showing her
disrespect, threatening to divorce her or threatening to remove her
as a dependant from his medical aid.
[33]
He further resisted the plaintiff’s claim for permanent
maintenance and unrestricted medical aid on the ground that the

plaintiff was presently cohabiting with and being maintained by Mr
D.. The defendant elucidated that the manner in which the plaintiff

had left him led him to believe she was living with another man.  Her
refusal to disclose her residence coupled with the fact
that she
simultaneously obtained a Protection Order precluding him from
contacting her, effectively prevented him from finding
out where she
was living.  He further maintained that the plaintiff, by her
own account had the necessary physical and mental
disposition to
work.  The defendant furthermore maintained that when he
retires, he will no longer be on a medical aid fund
and he will not
be able to contribute to the medical aid of the plaintiff.
[34]
The defendant acknowledged that if he succeeds in obtaining an order
that the plaintiff forfeits her right share in the accrual,
she will
be destitute and this was not his wish after twenty four years of
marriage. The defendant thus conceded in examination
in chief on the
third day of the trial that the plaintiff is entitled to some benefit
and that there should only be partial forfeiture.
While under cross
examination he was unable to provide a percentage of the accrual that
should be forfeited, in closing arguments
it was conceded that the
plaintiff should be entitled to 25% percent of the accrued estate
albeit
half of what she claimed.  He maintained that the plaintiff
would be unduly benefitted if a partial forfeiture order was not

granted.
[35]
He was also constrained to agree that he had also resisted the claim
for permanent maintenance and unrestricted medical aid
on the premise
that the plaintiff was living with and being maintained by Mr D. .
The main reasons advanced by the defendant for
his subsequent
accession to partial forfeiture included that they were married for
24 years, the plaintiff was presently unemployed
and therefore not in
a position to maintain herself and she did not possess a pension.
However, he remained adamant that
the plaintiff was not entitled to
half of the accrual or his pension interest.  He stated that for
the most part of the marriage,
he maintained the plaintiff, her
sister and even her mother stayed with them. He had even adopted her
son.
[36]
His mother in law sometimes gave him R600 or R700 while she lived
with them.  The arrangement with the plaintiff’s
mother
when she moved on her own was that she had the use of the dining room
suite and once she was settled, the dining room suite
would go to
their son that he adopted.
[37]
After the plaintiff abandoned the matrimonial home, she wanted to
reconcile and would plays songs on the radio and sent him
‘whatsapp’
messages until September 2017.  The plaintiff was an obsessively
jealous wife and he witnessed the
plaintiff threaten M. M. in
church.  Her behaviour was often aggressive and uncontrollable.
[38]
The testimony of Ms M. M. invites no criticism and is relevant to the
extent that there were attempts between the parties to
reconcile and
that the plaintiff exhibited jealous behaviour even after she left
the defendant.  Ms M. M. testified that the
plaintiff pointed
her fingers at her like she was holding a firearm and told her that
she will take her out; the plaintiff told
her that she will “wetter”
her and the plaintiff also bumped her hat from her head in church. On
the 19
th
February 2017, the plaintiff visited her and she revealed to her that
she was scared of the defendant. M. M. explained how her
relationship
with the defendant developed and approximately May or June 2017, they
became more affectionate. She denied that the
defendant moved in with
her and maintained that they each have their own home. She had
volunteered to make food for him and to
do his washing.
[39]
The following appears to be common cause:
a)
The
marriage between the plaintiff and the defendant has irretrievably
broken down and has reached such a state of disintegration
that there
is no possibility of the restoration of a normal marriage
relationship between the parties;
b)
The parties
had duly registered an ante-nuptial contract and declared that the
nett values of their respective estates at the commencement
of their
marriage were ‘nil’;
c)
The estate
of the defendant has shown an accrual in respect of various assets,
inclusive of the matrimonial home and two vehicles,
one of which is
presently in the possession of the plaintiff which the defendant
purchased and paid for, his pension interest and
various insurance
policies and annuities and is valued collectively at approximately R3
million rand;
d)
The estate
of the plaintiff has not shown any accrual during the marriage;
e)
The
plaintiff is presently unemployed, does not possess a pension fund
and is financially dependent on the defendant inclusive of
the
medical aid;
f)
The
plaintiff suffers from chronic asthma and bronchitis, she also
suffered a stroke and had recently undergone surgery and removed
four
tumours from her brain;
g)
The pension
interest of the defendant calculated at the date of decree of divorce
forms part of the accrued estate for the purpose
of determining the
parties’ patrimonial benefits.
[40]
The following was found to be in dispute:
a)
The
plaintiff was involved in a romantic relationship with Mr D. which
led to a breakdown of the marriage and caused the plaintiff
to
abandon the marriage and vacate the matrimonial home;
b)
The
plaintiff is presently residing with and is being maintained by Mr
D.;
c)
The
plaintiff is incapable of future employment and therefore not able to
maintain herself inclusive of medical aid;
d)
The
plaintiff habitually burdened the accrued estate and contributed
virtually nothing to the estate.
PLAINTIFF’S
CLOSING ARGUMENTS:
[41]
Advocate van Aswegen on the counterclaim for forfeiture essentially
placed reliance on the fact that the defendant’s
case amounted
to no more than conjecture and speculation and he had not adduced any
cogent evidence for this court to conclude
that the plaintiff had
committed adultery and abandoned the marriage and vacated the
matrimonial home in consequence.  He
argued that the examples of
alleged financial abuse advanced by the defendant to buttress his
case for partial forfeiture and rehabilitative
maintenance, correctly
contextualised, were trivial in nature and deficient in sustaining
such an allegation. He further argued
that the plaintiff’s
contribution in the running of the household was no less valuable
than a financial contribution.
Accordingly, the defendant
failed to prove that plaintiff would unduly benefit if a forfeiture
order was not given.
[42]
Advocate Van Aswegen was resolute that while the accrual claim only
arises when the decree of divorce is granted, this court
was not
empowered to make such an order given the request of the parties. He
elaborated that the issue of accrual was not properly
ventilated in
these pleadings and there was insufficient evidence to conclude a
percentage amount.  He further contended that
notwithstanding
the plaintiff’s concession that she would relinquish her claim
for maintenance if she received a sufficient
capital amount, the
plaintiff nor the court is aware of what the accrual amount. He
argued that to the extent that the defendant
wishes to capitalise on
this concession, it is noteworthy that   the defendant
himself seeks forfeiture.
[43]
Regarding the plaintiff’s claim for permanent maintenance and
medical aid, Advocate Van Aswegen pointed out that the
defendant
eventually conceded that he had failed to prove that the plaintiff
was indeed residing with and being maintained by Mr
D.. Regard being
had to the evidence before court of the monthly nett income of the
defendant coupled with the fact that the plaintiff
is unemployed and
financially dependent on the defendant, he maintained that the
plaintiff had indeed made out a proper case that
she is entitled to
maintenance post-divorce. He conceded that the plaintiff indeed
vacillated in her prayers in terms of the amount
she requested for
permanent maintenance and further conceded that the amount requested
by the plaintiff was not a viable amount
given the income of the
defendant. Notwithstanding, he maintained that the defendant enjoys a
healthy bank balance and is in a
financial position to pay more than
the interim month payment of R6500 to the plaintiff in addition to
her monthly medical aid
contribution. The defendant, by his own
account was financially able to meet the temporary excess medical
fees incurred in respect
of the plaintiff in the amount of R5000 per
month, he was able to make his monthly church contribution of R2700
and he utised approximately
R1000 per month to sustain his bird
breeding hobby, the bulk of which can be channelled towards the
plaintiff’s maintenance.
He argued that the defendant has
at least R13 500 per month of disposable income to pay towards
the plaintiff’s
maintenance.
[44]
Advocate Van Aswegen further contended that the plaintiff’s
medical expenses forms merely one of the components embraced
in the
general concepts of the duty of support. Given the plaintiff’s
health, it is vitally important for her medical aid
expenses to be
taken care of.  While he conceded that there is no expert
medical evidence before court, he maintained that
there is no
evidence that the plaintiff would be able to secure and maintain
employment which would allow her to maintain herself
entirely from
her own earnings. He argued that the prospects of the plaintiff
becoming self-sufficient if she is granted rehabilitative
maintenance
are slim given her age, health, her outdated qualification and her
limited exposure in the open labour market. Furthermore,
her
disclosure of her medical history would make it virtually impossible
to obtain stable employment.
[45]
In closing, he maintained that a divorce order must be granted on the
ground that the marriage had broken down irretrievably
and that the
probabilities favoured the plaintiff’s version for the
breakdown of the marriage and her claim for permanent
maintenance
inclusive of medical aid.
DEFENDANT’S
CLOSING ARGUMENT
[46]
Advocate Heymans for the defendant maintained that the extramarital
relationship between the plaintiff and Mr D. led to a breakdown
of
trust which culminated in the breakdown of the marriage and the
ensuing divorce. He further contended that the plaintiff’s

infidelity coupled with her mismanagement of the parties’
finances and abuse of their medical aid should be considered as

material misconduct justifying a partial forfeiture order.  He
argued that incriminating evidence had been led that the plaintiff

was in fact residing with and being maintained by Mr D. and cited
various reasons to buttress the defendant’s resistance,

including, the continued reluctance of the plaintiff to disclose her
residential address, the obtaining of protection order forbidding
any
contact effectively precluding the defendant from ascertaining such
address and revealing who she was residing with, the invoice
of the
guesthouse which was on Mr D.’s name, the evidence that the
defendant was informed that the plaintiff left with a
white haired
gentleman on the day she left the matrimonial home, the fact that the
plaintiff has worked for Mr D. without remuneration
for a lengthy
period of time and the absence of her current lease which would have
revealed the name of the lessee had it been
made available to court
notwithstanding repeated requests for it.
[47]
Advocate Heymans further contended that the plaintiff proved to be an
unreliable, aggressive and a dishonest witness. Her entire
demeanour
was misleading to the court and she was often contemptuous.  He
argued that contrary to being a victim, the plaintiff
often proved
aggressive and cheeky. He submitted that the testimony of the
plaintiff coupled with Mr D.’s refusal to pay
for the
guesthouse clearly evinces Mr D.s’s inability to look after the
plaintiff and their willingness to manipulate the
defendant
financially. The testimony of Mr D. that he encouraged the plaintiff
to secure a capital settlement in the divorce so
that she can start a
B &B business is also illustrative of the influence Mr D. exerts
on the plaintiff regarding her expenditure
and her finances.
[48]
Advocate Heymans maintained that the plaintiff’s testimony
during the trial further revealed her as being opportunistic
and
abusive. By her own account, she did not hesitate to damage the
furniture that was removed from her mother and was patently
not
afraid of the defendant as she constantly professed to be.  In
fact, the plaintiff was even so bold as to kick the furniture
twice
in front of the defendant when the furniture was removed, effectively
refuting any allegation that she feared for her safety.

Notwithstanding the plaintiff’s rejection of the reconciliation
arranged by the church, her subsequent attempts at reconciliation

coincide with the fact that she needed her account at the guesthouse
to be paid by the defendant and clearly evinced that she did
not fear
the defendant or considered her safety to be at risk.  He
further argued that it was only during the trial that the
plaintiff
made allegations of the defendant’s infidelity.
[49]
Advocate Heymans further maintained that the defendant has indeed
conceded that the plaintiff is entitled to a certain percentage
of
the accrued estate given the length of their marriage.  In the
same breadth, the defendant has further indicated that he
is desirous
to have a clean break and have no further financial links with the
plaintiff. By the plaintiff’s account, this
in accordance with
her wishes.  Advocate Heymans however, contended that it would
be grossly unfair to the defendant if this
court granted an order
entitling the plaintiff to her half share of the whole accrual in
view of the evidence tendered in respect
of the counterclaim.
In cross examination, plaintiff agreed that the total estate is
approximately plus minus R 3 million.
This was clearly
evidenced in the financial documents discovered by the defendant.
With due regard to the evidence tendered,
he argued that the
plaintiff should only be entitled to 25% of her right to share in the
accrual of the estate. The defendant also
argued that both parties
indeed made concessions during the trial and vacillated in terms of
their prayers and justice requires
that the parties pay their own
legal costs.
[50]
The defendant while resisting the claim for permanent maintenance and
medical aid, offered rehabilitative maintenance and medical
aid for a
limited period. Advocate Heymans argued that there exist no expert
medical reports or testimony verifying that the plaintiff
has indeed
suffered an impairment, to what extent she has recovered and what
will be the long term and short term effects of the
brain operation.
Nor is there any expert medical and related evidence confirming that
the plaintiff is indeed unable to work in
the open labour market. The
absence of such critical evidence patently negates her claim for
permanent maintenance and her need
for unlimited medical assistance.
Her decision not to work in consequence of her medical history lacks
substance and was not properly
canvassed by the plaintiff either in
terms of the labour market or with the medical doctors.
[51]
Advocate Heymans further contended that during the trial, the
plaintiff was emphatic that if she gets a capital settlement,
she
does not require maintenance. He argued that while the defendant’s
means presently far exceeds that of the plaintiff,
in approximately
two years, the defendant will retire, his income will seriously
decline and he will be reliant on his pension.
The defendant will
also have to fund his own medical fund and pay his own medical
expenses. There is indeed evidence before court
that the plaintiff
has performed administrative duties for a lengthy period and by all
accounts, she discharged them competently
and efficiently. Further,
the plaintiff possesses numerous skills and talents and has the
potential to secure employment and earn
a salary to support herself
which when coupled with what she will receive from the accrued estate
constitutes ample income to enable
her to become self-sufficient.
Advocate Heymans argued that the tender of a fixed contribution of R
6500 as rehabilitative
maintenance and R2500 for her medical aid
until the defendant retires was considered a reasonable and fair
concession.
ISSUE
[52]
The issues for determination are patrimonial in nature and involves
firstly, a consideration of the patrimonial claim of the
plaintiff in
accordance with the accrual system inclusive of the claim for
permanent maintenance and medical aid; and secondly,
the defendant’s
counterclaim for partial forfeiture of benefits of a marriage out of
community of property but subject to
the accrual system as
contemplated by
section 9
of the
Divorce Act of 1979
and whether each
of the parties have discharged the onus of proving such entitlement
on a preponderance of probabilities.
APPLICABLE
LAW
[53]
It is patent that the disputes are more patrimonial in nature. It is
thus considered prudent to sketch the legal backdrop against
which
the case falls to be decided regarding the claim for an award of the
division of the accrued estate on divorce, the counterclaim
for
forfeiture of benefits and the claim for spousal maintenance and
medical benefits on a permanent basis. It is well established
that
where the court is confronted with conflicting versions which cannot
be reconciled and which will ultimately inform the determination
of
such disputes, it adopts a holistic approach to the matter and has
regard to the probabilities amongst others.
[4]
[54]
The
Divorce Act 70 of 1979
regulates the division of assets,
maintenance
[5]
and forfeiture of
benefits on divorce.
[6]
In terms
of
section 7
of the
Divorce Act, the
court granting a decree of
divorce may make an order with regard to the division of assets of
the parties, forfeiture of benefits
or the payment of maintenance by
one party to the other. While the court is not restricted to a
consideration of the division of
the accrued estate before
considering and award for maintenance, it is considered sagacious to
deal with the division the accrued
estate and the counterclaim for
partial forfeiture before interrogating the claim for permanent
maintenance on the basis of fairness
and equity with a view of how
justice may best be achieved between the parties in relations to the
means, obligations and needs
of the parties and all other relevant
factors.
[7]
[55]
Section 3(1)
and
section 4(1)(a)
of the
Matrimonial Property Act 88
of 1984
also has application.
Section 3(1)
provides that at the
dissolution of the marriage subject to the accrual system the spouse
whose estate shows a smaller accrual
than the estate of the other
spouse acquires a claim against the other spouse for an amount equal
to half of the difference between
the accrual of their respective
estates.
Section 4
(1) (a) of the same Act provides that the
accrual of the estate of a spouse is the amount by which the nett
value of his estate
at the dissolution of his marriage exceeds the
nett value of his estate at the commencement of the marriage.
[8]
[56]
It is putative that a pension interest of any party to a divorce
action is deemed to be an asset of such a person’s estate
for
the purpose of determining patrimonial benefits
[9]
and
that a court granting a divorce is empowered to order ‘that any
part of the pension interest of such a member spouse is
due or
assigned to the non-member spouse when such an interest accrues in
respect of the member spouse’
[10]
.
It is also well established that the date of accrual of the pension
interest is deemed to be the date of divorce.
[11]
[57]
The court in
Brookstein
v Brookstein (20808/14)
[2016] ZASCA 40
(24 March 2016),
finally
resolved the issue that the date of determination of the right to
share in the accrual is on the date of dissolution of
the marriage
which is the date of divorce. It is trite that accrual only takes
place only after the decree of divorce is granted
and is in
accordance with the prayers contained in the summons of the
plaintiff. This is also has the effect of buttressing the
clean break
principle.
[58]
Initially this court was confronted with a counterclaim for
forfeiture of benefits which was subsequently altered to partial

forfeiture of the plaintiff’s right to share in the accrual of
the defendant’s estate.
[12]
In order to decide whether the plaintiff will be improperly
advantaged if partial forfeiture is not ordered, the factors

mentioned in
section 9
(1), namely the duration of the marriage, the
circumstances that gave rise to the breakdown thereof and any
material misconduct
on the part of either party is to be taken into
account.
[59]
It is also well established that the reciprocal duty of support, an
invariable consequence of marriage terminates when the
marriage comes
to an. However,
section 7(2)
of the
Divorce Act
[13
]
confers
a discretion upon the court granting a decree of divorce to make a
maintenance order which it finds just, having regard
to the factors
set out in the section. With regard to maintenance post-divorce, in
the absence of an order made in terms of a written
agreement between
the parties, the court may having regard to those factors, make an
order which it deems just in respect of the
payment of maintenance by
one party to the other for any period until the death or the
remarriage of the party in whose favour
is given, whichever occurs
first.  Hence, should the court decide to award maintenance to a
spouse, the factors enumerated
ultimately determine the amount of
maintenance payable.  It is trite law that each case must of
course be considered on its
own merits in the light of the facts and
the circumstances peculiar to it and with regard to those factors set
out in
section 7(2).
[60]
The inquiry embodied in this
section 7(2)
has as its purpose the
determination of a just award.  It requires a court to ruminate
a multiplicity of listed factors embodied
in
section 7(2)
in the
determination of firstly, whether maintenance is to be paid at all
and, if so, the amount to be paid and the period for
which the
maintenance is to be paid. They are not listed in any particular
order of importance or relevance. One is required to
go further than
just financial needs and obligations, existing means and earning
capacities.
[14]
The parties’
future earning capacities, their ages, an order in terms of the
Divorce Act for
the transfer of assets from one party to the other
all relate to the criteria of need for support and ability to pay.
It
is patent that this section confers on the court a wide
discretion which is absolute and the court may have regard to any
other
factor that in the opinion of the court should be taken into
account.  It is putative that this discretion must be exercised

judicially according to established rules of law and practice.
[61]
Prior to the
Divorce Act 70 of 1979
, much emphasis was placed on
conduct when divorce was based on matrimonial fault and parties were
penalised in terms of maintenance.
It must be stressed that since
divorce is no longer fault orientated, post-divorce maintenance can
no longer be considered as a
form of penalty for misconduct as it
sometimes was in the past.  The criteria of ‘conduct’
clearly introduces
a moral judgment. In the determination of
maintenance, such conduct is not irrelevant.  However, this
court is not there to
assess the moral blame worthiness of the
parties but to identify the actual conduct which caused the breakdown
of the marriage.
[15]
After that, considerations of justice must prevail in the
determination of maintenance.
[62]
The comments by author, RH
Hahlo
in The South African law of Husband and Wife, Fifth Edition on page
373
on
the issue of misconduct are indeed noteworthy:
All this has changed.
There are no longer ‘innocent’ or ‘guilty’
spouses in the old sense.  ‘Substantial
misconduct’
on the part of one or the other spouse is only one of the factors
which the court may take into consideration.
And while it is
presumably still the law that the courts may not make a forfeiture
order unless one of the spouses applies for
it, it is within the
discretion of the court whether to make an order or to withhold it.
It may make it in favour of the
plaintiff or the defendant –
there is nothing to preclude it from making an order in favour of the
spouse who formerly would
have been considered the guilty one.
[63]
The award of maintenance post-divorce is based on a balancing of need
and the ability to pay.
Section 7
of the
Divorce Act can
and should
be used by the court to ensure fairness between the parties. While
none of the factors claim dominance, need and the
ability to pay are
generally the predominant considerations. It becomes apparent that
the ability to earn an income and support
oneself and the potential
to earn an income does not disentitle the court from ordering
rehabilitative maintenance.
[16]
This is clearly evinced from the factors enumerated in
section 7(2)
and the wide discretion which is conferred on the trial court.
[64]
It is well established that the plaintiff’s claim for
maintenance is dependant
inter
alia
upon the marital standard of the living of the parties, the
plaintiff’s actual and reasonable requirements and the capacity

of the defendant to meet such requirements. With regard to the
standard of living of the parties prior to divorce, it is generally

recognised that neither party is entitled to maintain the same
standard of living as during the marriage and therefore cannot be

expected to enjoy after the divorce the same standard of living that
he or she had as a married person.
[17]
They are expected to abate their requirements accordingly. The needs
of both parties must be balanced and the available income
distributed
fairly and equitably.
[65]
The clean break principle after divorce has found resonance with our
courts for many years.  The aim of this principle
is to ensure
that the parties become financially independent of each other as soon
as possible after divorce.  This principle
however has to be
applied with due consideration of the particular circumstances of
each case and if such circumstances permit.
[18]
ANALYSIS
OF LAW AND THE FACTS
[66]
On a conspectus of the evidence, this was clearly an acrimonious
marriage.  The plaintiff and the defendant, notwithstanding
the
allegations of infidelity levelled against each other before and
during the trial, were both in agreement that their marriage
was
beyond salvation. That the marriage was emotionally, psychologically
and financially abusive to both parties is patent. Whether
in equal
measure or not cannot be determined with any certainty.  It is
patent that the marriage relationship between the
parties clearly
deteriorated over time to such an extent that on the 16 October 2016,
the plaintiff left the matrimonial home and
launched the present
proceedings.
[67]
It becomes apparent that the bulk of the incidents that both parties
have latched onto in furtherance of their claims occurred
during the
course of the marriage, subsequent to the plaintiff’s vacation
of the matrimonial home and are relevant to the
extent that they
reveal that there was indeed a communication breakdown in the
marriage. I align myself with the argument of Advocate
Van Aswegen
that it is arguable as to whether substantial misconduct after an
irretrievable breakdown had taken place could be
taken into
consideration in adjudicating forfeiture of benefits.
Notwithstanding, I am in agreement that guilt
per
se
is
no longer an overriding or decisive factor when a prayer for
forfeiture is considered.
[68]
Finances was indeed a recurring issue and a source of contention in
the marriage. It was the evidence of the plaintiff that
the marriage
was placed under considerable stress at the end of each month and at
the end of each financial year. It is also undisputed
that the
defendant was the breadwinner of the family and for the most part,
the sole breadwinner of the marriage and was liable
for all
expenses.  The defendant was gainfully employed and a member of
a pension fund. As regards the matrimonial home, all
payments were
either deducted from the defendant’s salary or paid by the
defendant himself or by the plaintiff on behalf
of the defendant from
the defendant’s salary.  The defendant for his part
admitted that he controlled the purse strings
and disbursed amounts
that he deemed necessary.  The plaintiff was clearly at the will
of the defendant financially for the
greater part of the marriage.
The defendant buttressed this arrangement citing the plaintiff’s
delinquency in the payment
of their utility bills, her wasteful
expenditure on unnecessary items, her inability to account for the
manner in which their money
was utilised, her penchant for obtaining
medication on medical aid and never using it,  her wilful and
continued neglect to
secure a prescription from the doctor ensuring
her medication fell under chronic under the medical aid and the
failure of the printing
business and the accompanying loss incurred
to the amount of R185 000.
[69]
The evidence establishes that the plaintiff worked for approximately
12 years of the 24 years that the parties were married.
According to
the plaintiff, she contributed financially to the matrimonial home
during this period. She utilised her monthly income
on the
acquisition of household necessities and payment of the utility
bills, thus improving the parties common home saving the
defendant
expenses which the defendant would have otherwise have had to incur.
The plaintiff admitted that she ran a printing business
bought for
her at the instance of the defendant which was subsequently closed.
It is not disputed that the defendant shouldered
the loss of R185 000
incurred by the business nor was evidence led establishing the reason
for the loss. The plaintiff sought
to ascribe such loss to the
personnel who were stealing money from the business as well and in
consequence of her remaining at
home to attend to the defendant in
his recovery after undergoing heart surgery. The defendant merely
ascribed the loss to the plaintiff’s
management of the
business.
[70]
Subsequent to the business closing down, plaintiff remained at home
and created a home environment for the defendant where
the defendant
could enjoy all the creature comforts and which enabled the defendant
to commit and apply his energy and time to
his work. The plaintiff
during this period at home took care of the household duties without
the assistance of a domestic worker
and garden services which only
came in once or twice a week. The plaintiff attended to members of
the community belonging to the
church in which defendant was a
priest, accompanied the defendant to social functions and attended to
his administrative duties
in the church, indirectly assisting the
defendant.  The plaintiff further assisted with the breeding of
the birds which by
all accounts was a joint hobby.  She made her
own clothes which was a cheaper option than buying clothes and she
nursed the
defendant during his ill health.
[70]
Notwithstanding the plaintiff being unemployed, the evidence
establishes that the plaintiff in contributing to running the

household did not contribute to a lesser degree in the accrual of the
defendant’s estate. It becomes patent that the during
the
subsistence of the marriage between the parties, that the plaintiff
contributed both directly at certain periods and indirectly
by saving
the defendant money or expenses which the defendant would have
otherwise have had to incur and thereby contributed to
the growth and
or increase of the defendant’s estate. During this period the
value of the defendant’s estate indeed
escalated. The
plaintiff’s estate however consists of nil.  The defendant
eventually found himself constrained to concede
that the plaintiff
did have a right to share in the accrual,
albeit
a smaller percentage as opposed to what was claimed.
[71]
I find myself aligned with the thinking of my learned brother, Lekale
J, who wisely captured the essence of marriage as follows:
Marriage as a social
institution, is not a business enterprise and parties thereto do not
generally regard each other with calculated
prudence as shrewd
business individuals would each other when engaged in business
transactions.  They do not keep precise
records of the favours
they extend to each other, nor do they, as a matter of course and
practice, reduce their daily undertakings
to each other to writing.
They are guided, in their dealings with each other, by trust and
unquestioning acceptance that
they would be together as husband and
wife until death do them part.  They generally remain gullible
towards each other until
their love for each other loses its flame
and only then do they start to gaze around and tread with care and
suspicion as against
each other.
[19]
[72]
The evidence further reveals that both parties made sacrifices,
concessions and contributions consistent with the institution
and
sanctity of marriage. It is patent that both parties made concerted
efforts during the marriage and it is disingenuous of either
party to
raise their discontent at this stage.  Their actions, correctly
contextualised were consistent with institution of
marriage, taking
care of and being responsible for each other and extending such care
beyond their immediate family.  I remain
unpersuaded that the
plaintiff habitually burdened the accrued estate or did not
contribute towards the accrual of the defendant’s
estate.
Even the various attempts at reconciliation and the plaintiff’s
exhibitions of jealousy must be correctly contextualised
and may well
be ascribed to the fact that the parties had not reached a stage
where they had accepted that their marriage had ended.
[73]
Notwithstanding the defendant’s attempt to convince the
court that the plaintiff had breached her moral obligation
to him,
abandoned the marriage and vacated the matrimonial home and that she
was presently residing with and being maintained by
Mr D., there
exists no tangible evidence before this court to sustain such
allegations. The only evidence before court is that
the defendant was
informed that the plaintiff left with a white haired gentleman on the
day she vacated the matrimonial home; that
the plaintiff refused to
disclose her residential address and Mr D. paid the deposit for the
guesthouse where the plaintiff resided
after she left the matrimonial
home.  To the contrary, the evidence of the defendant’s
witnesses buttresses the version
of the plaintiff to the extent that
Mr D. never stayed at the guesthouse during the period the plaintiff
resided there and he returned
to his partner every night up until
their relationship ended in December 2017.  I remain unpersuaded
that the defendant has
shown that the plaintiff on a balance of
probabilities caused the breakdown of the marriage nor am I convinced
on the evidence
before me that the plaintiff alone is responsible for
the breakdown of the marriage. It becomes manifest that the marriage
progressively
worsened and both parties, whether by omission or
commission were responsible for its disintegration.
[74]
Having said that, this court is content to grant a decree of divorce
on the ground of the irretrievable breakdown of the marriage
having
satisfied itself that the marriage relationship between the parties
to the marriage has reached such a state of disintegration
that there
is no reasonable prospect of the restoration of a normal relationship
between them.  In the perculiar circumtances
of this divorce
action, I have come to the conclusion that if an order for forfeiture
is made, the plaintiff, will in relation
to the defendant be unduly
prejudiced and thus matrimonially disadvantaged.  It is my
considered view that the defendant has
not adduced sufficient
evidence and made out a case to justify his prayer that the plaintiff
should forfeit in whole or partially
the patrimonial benefits of the
marriage.  I would therefore exercise my discretion to withhold
making such an order having
due regard and accorded sufficient weight
to the duration of the marriage of approximately 24 years, the
circumstances which gave
rise to the breakdown thereof, the absence
of any substantial misconduct on the part of either of the parties,
the contributions
both directly and indirectly made by the plaintiff
and the fact that the plaintiff does not have a home, she does not
earn an income
presently nor does she possess a pension for her old
age. Accordingly, half of the accrued estate inclusive of half of the
defendant’s
pension interest is assigned to the plaintiff in
satisfaction of her accrual claim in respect of the accrued estate
and the pension
interest of the defendant.
[75]
While the defendant was indeed forthcoming with regard to his means
and eventually conceded that the plaintiff was entitled
to some share
in the accrual,
albeit
half of
what the plaintiff actually claimed, he was however resolute in his
stance that she should be entitled to rehabilitative
maintenance
only. From the evidence, it is patent that the defendant has a stable
and regular income. Notwithstanding his impending
retirement in
approximately two years, he will receive a monthly pension
albeit
a lesser amount as compared to the income he yields presently.
He owns property and has two cars, he has a pension interest,

policies and annuities and there is no evidence that he lacks any
financial resources to fund his lifestyle.  It also manifest

that the plaintiff has no income and is financially dependent on what
she receives in terms of the
Rule 43
order. She presently has no
means to maintain herself and cannot survive without the assistance
of the defendant. This must of
course tempered by the potential of
the plaintiff to earn an income and maintain herself.
[76]
Sufficient evidence was placed at the disposal of the court regarding
the factors embodied in
section 7(2).
The plaintiff is a
long-standing wife who clearly assisted her husband in building up
materially his separate estate and
thus entitled to some form of
maintenance. She remained at home for approximately half of her
married life at home, managing the
home and helping with church
administration and building his position in the church. It is
noteworthy that the plaintiff was content
to rely on her advanced age
and medical history as a reason to disqualify her from securing
employment. It is also correct that
this court must not be too quick
to proclaim the need of the plaintiff to be financially independent
of the defendant with due
regard to her medical history. However,
this was indeed the opportune time to present such medical evidence.
There exists no convincing
medical evidence before this court that
effectively precludes the plaintiff from seeking, obtaining and
maintaining employment.
Furthermore, there was no tangible evidence
of any attempts, concerted or otherwise of the plaintiff attempting
to secure employment
with remuneration.
[76]
That the plaintiff is not without skills is patent.  In addition
to being proficient with the computer and being in possession
of
strong administrative skills, the evidence clearly evinces that the
plaintiff possesses numerous skills and talents. She operated
a
printing business,
albeit
its unsuccessful conclusion, she held permanent employment at a mine
and an electric company for numerous years doing administrative
work
and bookkeeping, she has the ability to fashion and sew
garments, she has intimate knowledge and experience in breeding

birds, she showcased dogs and did volunteer work as a caregiver to
cancer patients, all of which serve to buttress the attitude
of this
court that the plaintiff has the potential to be gainfully employed.
[77]
Absent any substantial misconduct on the part of the plaintiff,
justice requires that it should be the defendant who receives
a
salary and in two years a pensionable income who must pay an amount
of maintenance and medical aid,
albeit
of a
rehabilitative nature rather than to allow the plaintiff to suffer
the hardship of an inadequate income if in fact she does
not find
employment immediately.  Having said that, I remain unpersuaded
that the plaintiff is unable to secure employment
and find myself
reluctant to make an order for the payment of permanent maintenance
inclusive of medical aid.
[78]
I am inclined to disagree that the defendant’s entire case for
resisting a claim for permanent maintenance inclusive
of medical aid
was premised only on the fact that the plaintiff was living with and
being maintained by Mr D..  It is indeed
one of the grounds on
which he counterclaims for forfeiture and resists the claim for
maintenance.  It is   putative
that the mere fact that
a wife is co-habiting with another man is not a bar to a claim for
maintenance.
[20]
However, this court finds it unnecessary to canvass or delve further
with this aspect in the absence of any convincing evidence
tendered
before this court that the plaintiff in fact cohabited with or was
being maintained by Mr D..
[79]
There is indeed no evidence, tangible or otherwise before this court
to show that Mr D. provided in the plaintiff’s needs,
put a
roof over her head and in all factual respects treated her as his
life partner. Notwithstanding the evidence surrounding
the monthly
pension of Mr D. or that Ms V. was supporting him financially towards
the end of their relationship, this argument
is neither here nor
there as there is no evidence regarding his finances. It is also
noteworthy that the version of the defendant
vacillates from the
allegation that the plaintiff is presently residing with and being
maintained by Mr D. to ascribing the non-
payment of guesthouse
account as  evidence that Mr D. is not in position to pay for
the plaintiff and wants the defendant
to look after them.
[80]
It is further noteworthy that both parties are clearly not averse to
moving forward with their lives and engaging in meaningful

relationships. The age of the parties and their medical dispositions
indeed present no bar as is borne out by their individual
testimonies
and that of their witnesses. To that extent, the evidence of the
nature of the relationships with the witnesses are
relevant.  It
however has no bearing on what occurred during the subsistence of the
marriage. It is also noteworthy that both
parties vacillated in terms
of their initial prayers and made concessions during the course of
the trial. This was clearly done
in the attempt to cut all ties and
put an end to the marriage. In these circumstances, achieving a clean
break finds resonance
with this court.
[81]
At the commencement of the trial Advocate Van Aswegen that this court
does not have the power to determine the accrual.
That is
indeed correct as regards the issue of quantum.  This court is
not empowered to adjudicate in the calculation of the
accrual in the
estate of the parties. This court is however empowered to adjudicated
on and decide on the plaintiff’s interest
in the accrued estate
in terms of the pleadings as at date of divorce and especially in
light of the forfeiture counterclaim. It
is putative that in the
deciding on the counterclaim for forfeiture the court will invariably
determine the division of the accrued
estate.
[82]
I do not consider it necessary to entertain the arguments advanced by
Advocate Van Aswegen that the pleadings fell short of
a proper case
for forfeiture in that there was no single allegation that there is a
benefit and that the benefit is undue.
Nor do I consider it to
prudent to canvass the argument that the counterclaim for forfeiture
should fail because the defendant
ultimately conceded that the
plaintiff should partially forfeit her right to share in the accrual.
It bears mentioning that the
plaintiff also vacillated in her prayers
to the extent that she was content to abandon her claim for permanent
maintenance in lieu
of a lump sum settlement. What is clearly
dispositive of the matter before me is that both parties have made
concessions and deviated
from their prayers with the intention of
achieving a clean break.
[83]
Consistent with principle of a clean break that resonates through our
judgments, it is incumbent upon this court to equip the
plaintiff to
live independently of the defendant and to focus on developing and
empowering herself to secure and sustain her future.
In the
circumstances, I am of the view that the required result which is the
ultimate self-sufficiency of the plaintiff will be
achieved by
rehabilitative maintenance.  I am further of the view that a
proper analysis of the rationale behind the awarding
of
rehabilitative maintenance will conclude that an arbitrary period of
the payment of rehabilitative maintenance will not address
the
ultimate achievement of self-sufficiency.  A two year period of
rehabilitative maintenance is justified in the circumstances.
[84]
This approach is further buttressed by the fact that there are indeed
assets of sufficient worth in the accrued estate to enable
both
parties to be self-sufficient in the event of division of those
assets.  Furthermore, the plaintiff has at her disposal
numerous
administrative skills and talents which will enable her to secure
future employment.  There is also a conspicuous
absence of
medical evidence that effectively precludes the plaintiff from
securing and maintaining such employment. It is also
evident from the
expenditure of the defendant that he will be in a financial position
to pay the plaintiff rehabilitative maintenance.
The plaintiff’s
alleged inability to properly manage her finances or Mr D.’s
ability to influence her expenditure does
not negate the plaintiff’s
right to her share of the accrual as per the marital regime nor can
it influence the court in
its determination for an award of
maintenance.
[85]
As regards the issue of costs, while the plaintiff has successfully
staved of the claim for forfeiture and has proved successful
in her
claim for maintenance, albeit rehabilitative maintenance, it is not
axiomatic that a court is bound to make an order for
costs in favour
of the successful party
[21]
.
The breakdown of the marital relationship was never an issue. Having
due regard to the individual means of the parties and their
conduct
in so far as it may be relevant to make such order, there exists no
reason why both parties should not be responsible for
their
individual costs. This court thus considers it just that the costs of
the proceedings be apportioned between the parties
in equal measure
with due regard to their individual future means and the reasons that
led to the breakdown of the marriage
[22]
.
[86]
ORDER
In
the result, the following is ordered:
1.
That the
bonds of marriage subsisting between plaintiff and defendant be and
are hereby dissolved.
2.
That the
defendant to pay rehabilitative maintenance to the plaintiff in the
amount of R8000 (EIGHT THOUSAND RAND) per month from
the first day of
the month following the month on which the date of divorce is granted
and thereafter on or before the first day
of each following month for
a period of 24 months.
3.
That the
defendant to retain the plaintiff on his medical aid and shall be
responsible for all medical, dental and ophthalmic expenses

reasonably incurred by the plaintiff, such to include but not limited
to, all costs of hospitalisation, surgical treatment, spectacles,

contact lenses, prescribed medication and allied expenses for a
period of 24 months from the date of the decree of divorce.
4.
That the
plaintiff to ensure that all chronic medication be registered as such
under the applicable medical aid scheme.
5.
That the
plaintiff is entitled to 50% of the defendant’s pension
interest calculated as at the date of divorce.
6.
That the
defendant is ordered to ensure that an endorsement is made in terms
of
section 7(8)
of the
Divorce Act of 1979
in the records of the
defendant’s Pension Fund to the effect that the plaintiff is
entitled to half of the pension interest
of the defendant as at the
date of divorce.
7.
That the
Pension Fund to which the defendant belongs is ordered to make
payment to the plaintiff of 50 % of the defendant’s
pension
interest calculated in accordance with the rules of the Fund, as at
the date of the decree of divorce, being 30 July 2018.
8.
That the
plaintiff is entitled to 50% of the accrued estate of the defendant
as per the marital contract (ANC with accrual) inclusive
of but not
limited to the matrimonial home, policies and annuities.
9.
That the
plaintiff’s claims insofar as they do not accord with what is
contained in this order is dismissed.
10.
That the
defendant’s counter claim insofar as it does not accord with
what is contained in this order is dismissed.
11.
Each party
to pay their own costs.
_______________
Q,
NULLIAH, AJ
On
behalf of the Plaintiff: Adv. Van Aswegen
Instructed
by: McIntyre and Van Der Post
BLOEMFONTEIN
On
behalf of the defendant: Adv. P. Heymans
Instructed
by:
EG
Cooper Majiedt Inc. Attorneys
BLOEMFONTEIN
[1]
Section
3
and
4
of the
Matrimonial Property Act 88 of 1984
.
[2]
Section
4
of the
Divorce Act 70 of 1979
:  Irretrievable breakdown of
the marriage.
[3]
Section
9
of the
Divorce Act 70 of 1979
.
[4]
See
State v Guess
1976 (4) SA 715
(A) and Stellenbosch Farmer’s
Winery Group Ltd and Another v Martell and Cie SA and Others 2003(1)
SA 11 (SCA at para [5].
[5]
The
provisions of
section 7(2)
and (4) of the
Divorce Act 70 of 1979
, as
amended by
section 36
of the
Matrimonial Property Act 88 of 1984
which deals with the division of assets and maintenance of the
parties as well
section 9
which deals with forfeiture of benefits
has application.
[6]
Section
9
of the
Divorce Act 70 of 1979
:
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 , wither 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
will unduly be benefitted.
[7]
Beaumont
v Beaumont
1987 (1) SA 967
(A) at 987.  See also Archer v
Archer
1989 (2) SA 885
(E) at 895.
[8]
Section
3(1)
and
4
(1)(a) of the
Matrimonial Property Act 88 of 1984
.
Section
3:
Accrual system
(1)
At the dissolution of a
marriage subject to the accrual system, by divorce or by death of
one of the spouses, the spouse whose
estate shows no accrual or a
smaller accrual than the estate of the other spouse, or his estate
if he is deceased, acquires a
claim against the estate of the other
spouse or his estate for the amount equal to half of the difference
between the accrual
of the respective estates of the spouses.
Section
4:
Accrual of Estate
(1)
(a) The accrual of the estate
of a spouse is the amount by which the net value of his estate at
the dissolution of his marriage
exceeds the net value of his estate
at the commencement of the marriage.
[9]
See
section 7(7) (a) of the Divorce Amendment Act of 1989.  Section
7(7):  in the determination of the patrimonial benefits
to
which the parties to any divorce action may be entitled, the pension
interest of a party shall be deemed to be part of his
assets.
In
Wiese
v Government Employees Pension Fund and others
[2012] ZACC 5
;
2012
(6) BCLR 599
(CC)
paras5-9, the Constitutional Court in dealing with the history and
object of the amendment, analysed the legislative enactments
that
had preceded it and pointed out the following:
During
1989, section 7(7)(a) was added by the Divorce Amendment Act to deal
with certain problems. Under the
Divorce Act, non- member
spouses
were, in certain circumstances, entitled to payment of part of the
pension interest due, or assigned to, the member of
the Government
Pension Fund when any
pension
benefit accrued to that member.  A pension interest which has
not yet accrued was not considered an asset in the
spouse’s
estate. To cure this defect, the amendment, provided that a pension
interest is deemed to be an asset in the estate
for the purpose of
determining patrimonial benefits.
[10]
Section
7(8)(a)(i)
of the
Divorce Act 70 of 1979
.
[11]
Section
37D(4)
of the
Pensions Fund Act 24 of 1956
.
[12]
Section
9(1)
of the
Divorce Act deals
with Forfeiture of Benefits:
When
a decree 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 another 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 benefitted.
[13]
Section
7(2)
of the
Divorce Act 70 of 1979
:
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 insofar 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 death or remarriage
of the party in whose favour the
order is given, which ever event may first occur.
[14]
B
v B 2009(3) SA 89 (W).
[15]
Conduct
as a factor in the award of maintenance was discussed in detail in
Swart
v Swart 1980 (4) SA 364 (O).
[16]
In
Joubert
v Joubert [2004] 1 All 426 SA( C)
a 46 year old women who had not worked for 17 years was awarded
rehabilitative maintenance.. See also
P
v P 1990(1) SA 998 (E)
where Mullins J stated that ‘[a] woman’s ability to earn
an income does not
per
se
,
in my view, disentitle the court from ordering her former husband to
pay her maintenance (at 1003-G).
[17]
K
v K
2006 (6) SA 127
(C ).
[18]
AV
v CV
2011 (6) SA 189(KZP).
See also VW v VW (SE) (unreported
case number 136/2005), 4-4-2006).
[19]
PGJ
v AEJ
delivered
on 19 May 2016, Free State Division, Case number 4949/2013.
[20]
In
the matter of EH v SH
2012 (4) SA 164
(SCA) the respondent had for
almost 8 years prior to the divorce lived as another man’s
wife:  a man who provided
for her needs, put a roof over her
head and in all factual respects treated her as his partner in
life.  The situation was
regarded as permanent and they
intended it to remain so.  In that case the respondent was
being fully maintained by her
new partner in life and had no need
for maintenance to be supplemented in any way.
[21]
Section
1
of the
Divorce Act 70 of 1979
.
[22]
Section
10
of
Divorce Act 70 of 1979
: 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 insofar 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.