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[2018] ZAFSHC 194
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L M v F M (4410/2016) [2018] ZAFSHC 194 (8 November 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no
.
4410/2016
In
the matter between:
L M
and
F M
Plaintiff
Defendant
CORAM
:
I VAN RHYN AJ
HEARD
ON
: 14, 15 AUGUST 2018 AND
16
AND 17 OCTOBER 2018
JUDGMENT
BY
:
I VAN RHYN AJ
DELIVERED:
8 NOVEMBER 2018
INTRODUCTION:
[1]
The issues for determination in this divorce action are whether the
Defendant should forfeit the marital benefits in terms of
the
provisions of Section 9(1) of the Divorce Act 70 of 1979 (“
Divorce
Act&rdquo
;) read with the provisions of Section 9 of the Matrimonial
Property Act (“MPA”) 88 of 1954 and the issue of costs.
[2]
The divorce action was instituted by the Plaintiff, Mrs L M against
the Defendant, whom she married out of community of property
subject
to the accrual system on 28 March 1987. The two children born
from the marriage relationship have both attained majority
although
their son, F is a full-time student and is therefore not yet self-
supporting.
[3]
The grounds relied upon by the Plaintiff for the forfeiture
claim are succinctly that the, the Defendant became an alcoholic,
he
failed to support his family financially, he fraudulently caused a
bond to be registered over the Plaintiff’s immovable
property
which necessitated the sale of the property in order to repay some of
the debts incurred by the Defendant.
[4]
Mr Badenhorst on behalf of the Defendant argued that a party who
sought a forfeiture order had first to establish what the nature
and
extent of the benefit was. He argued that Plaintiff failed to prove
the extent of the benefit the Defendant stands to forfeit,
as a
result the Plaintiff’s claim for forfeiture of all the benefits
from the accrual stands to be dismissed.
[5]
Section 9(1)
of the
Divorce Act provides
as follows:
“
When a Decree
of Divorce is granted on the grounds of irretrievable breakdown of a
marriage the Court may make an order that the
patrimonial benefits of
the marriage be forfeited by one party in favour of the other, either
wholly or in part, if the Court having
regard to the duration of the
marriage, the circumstances which gave rise to the break-down thereof
and any substantial misconduct
on the part of either of the parties,
is satisfied that, if the order for forfeiture is not made, the one
party will in relation
to the other be unduly benefitted.
”
[6]
In interpreting
Section 9
of the
Divorce Act, Van
Coller AJA stated
as follows in
Wijker
v Wijker
[1]
:
“
It is obvious
from the wording of the section that the first step is to determine
whether or not the party against whom the order
is sought will in
fact be benefitted. That will be purely a factual issue.
Once that has been established the trial
Court must determine, having
regard to the factors mentioned in the section, whether or not that
party will in relation to the
other be unduly benefitted if a
forfeiture order is not made. Although the second determination
is a value judgment, it is
made by the trial Court after having
considered the facts falling within the compass of the three factors
mentioned in the section.
”
[7]
Once it is held that the Defendant will indeed be benefitted, the
Court may proceed to determine whether such benefit will be
undue.
Mr Groenewald, on behalf of the Plaintiff argued that where a
claim for forfeiture of benefits of the marriage in
community of
property is formulated, the full particulars upon which such a claim
is based, including the nature and extent of
“
benefits
”,
must be pleaded and proved. However where the parties are married out
of community of property subject to the accrual system,
the grounds
upon which such a forfeiture order are sought must be pleaded, but
the “
benefit
” does not need to be quantified.
[8]
Section 3(1)
of the MPA reads as follows:
“
3. Accrual
System
(1) At the dissolution
of a marriage subject to the accrual system, by divorce or by death
of one or both 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 other
spouse or his estate for an amount equal to half of the difference
between the accrual of the respective
estates of the spouses.
”
THE
MARRIAGE AND BREAKDOWN THEREOF:
[9]
The parties met while still at school and continued their
relationship throughout university until their marriage on 28 March
1987. Prior to their marriage they concluded an antenuptial
contract incorporating a scheme of separate property, brought
about
by the exclusion of community of property and exclusion of community
of profit and loss subject to the accrual system.
[10]
The net value at the commencement of the accrual for Plaintiff
amounted to R56 500.00 and consisted of a motor vehicle,
immovable property, furniture and a piano worth R10 000.00. The
commencement value of the Defendant’s estate was R1 000.00.
A marriage settlement in the form of a donation by the Defendant
(
donatio propter nuptius
) to the Plaintiff included all gifts
received at the wedding, furniture and household appliances to the
value of R10 000.00
and an Old Mutual policy to be taken out by
the Defendant to the value of R20 000.00.
[11]
The Plaintiff obtained a position as a teacher at President Brand
School in Bloemfontein and was so employed until the end
of 2013 when
the parties relocated to Mossel Bay. She, as a qualified school
teacher, initially earned more than the Defendant
who was employed as
a salesman at Russels in Bloemfontein. Defendant, even though he
throughout his testimony appeared to be uncertain
and vague about the
specific time periods, testified that he, within the first three
years of their marriage earned more than the
Plaintiff.
Subsequent to resigning his employment at Russels, the Defendant
joined his father-in-law’s business and
while so employed he
started a part-time business installing and cleaning carpets.
[12]
Defendant left his employment with his father–in-law after
approximately two years and continued full-time with the carpet
business called “Matkor”. Initially his brother
joined him but within six to eight months, according to the Defendant
while Plaintiff estimates a period of between four to five years,
their ways parted and Defendant continued on his own under the
name
“M[…]” until the beginning of 2013.
[13]
Two or three years after their marriage the parties purchased a
property from Plaintiff’s father situated in Langenhoven
Park,
Bloemfontein. The property was registered in Plaintiff’s
name and subject to a mortgage bond. Defendant attended
to paying the
bond registered over the property. In 1993 the initial property
in Langenhoven Park was sold and a house situated
in E Crescent,
Pellissier, Bloemfontein (“
E Crescent property
”)
was purchased and again registered in Plaintiff’s name.
[14]
A bond was registered over the E Crescent property and the Defendant
paid the monthly instalments. By agreement between
the parties
the Respondent was also responsible for instalments on the parties’
respective vehicles, insurance premiums as
well as other household
expenses relating to rates and taxes as well as groceries. The
Plaintiff was responsible for the children’s
school fees, all
extramural activities such as dancing classes of their daughter,
extra math classes, sport clothes and outdoor
activities. She
was a member of GEMS Medical Scheme and had the members of her family
included as beneficiaries. Each party’s
contributions were
guided by their respective income.
[15]
According to both parties they were happily married and enjoyed a
reasonable standard of living. During 2004 a second
bond was
registered over the E Crescent property to purchase a property at the
Van der Kloof Dam (“
Van der Kloof property
”) in
the Northern Cape. The purchase price of the Van der Kloof
property amounted to R150 000.00. This property
was also
registered in Plaintiff’s name and Defendant continued to pay
the increased bond repayments on the E Crescent property.
Defendant
purchased a boat and the family enjoyed numerous happy days with
friends at the Van der Kloof property.
[16]
During 2005 the Defendant’s mother suffered from serious health
problems. Plaintiff testified that her mother-in-law
had a drinking
problem and while their mother was in hospital, the Defendant’s
two brothers reprimanded him about his alcohol
abuse. Defendant
denied that he was reprimanded by his brothers and was corroborated
to a certain extent by his brother, even though
his brother indicated
that he does not have any recollection that a discussion regarding
the Defendant’s drinking habits
occurred at that stage. The
Plaintiff explained that the Defendant used to be conscious of his
fitness and even participated in
the Argus Cycle Tour. He was a
dedicated father and a good husband. However since 2005 his
drinking habits changed
from being a normal social drinker to abusing
alcohol.
[17]
Over a period of several years his normal social drinking eventually
developed into a habit that caused him to withdraw himself
socially,
show a lack of interest in his family and neglected his previous
fitness regime. He complained of being tired or
unwell when he
returned from work and would immediately retreat to the parties’
bedroom without spending any time with the
family. On numerous
occasions he appeared intoxicated, empty liquor bottles were found
and during 2011 to 2013 he was involved
in three different motor
vehicle accidents, palpably while under the influence of alcohol.
Plaintiff pleaded with the Defendant
to stop drinking on numerous
occasions and threatened to leave him, but often resorted to
protecting her husband by allowing him
to retreat to their bedroom
where he would fall asleep. On several occasions he promised to
refrain from using alcohol but
his excessive and inappropriate
consumption of alcohol continued.
[18]
Defendant, even though he admitted to lying about his drinking habits
to the Plaintiff, conceded that he drank secretively
and switched to
consuming Vodka as he believed that the Plaintiff would not detect
the smell of alcohol that easily. He furthermore
testified that
he, for a long period has not consumed any alcohol but then admitted
to having a few beers only two weeks prior
to his testimony in Court.
The Defendant denies that he suffers from alcohol dependency.
[19]
When alcohol is consumed it alters the levels of certain chemicals in
the brain including dopamine. These chemicals controls
a
person’s impulsivity and frequent drinking copious amounts of
alcohol alters this chemical production. Dopamine,
when
released, causes pleasurable feelings like happiness and joy.
If a person then tries to stop drinking alcohol, the brain
is
deprived of the alcohol’s effect which results in unpleasant
symptoms. Defendant testified that due to his financial
problems he resorted to using alcohol to stabilize his depressed mood
and emotions. It made him feel better and relieved
the feeling
of being in a “deep black hole”.
[20]
During 2007 the Defendant started experiencing severe financial
difficulties. Prior to 2007 he at times battled to keep
up with
his financial commitments due to cash flow shortages but even though
he sometimes fell behind on bond payments or other
accounts, he
succeeded in maintaining his financial obligations to a certain
extent. He however refrained from informing the Plaintiff
of his
financial difficulties. According to the Plaintiff’s
explanation the stress and financial difficulties suffered by
the
Defendant was due to his practice of using a client’s deposit
for payment of another client’s order. Defendant
admitted
to this practice.
[21]
In 2009 and due to the fact that the immovable property was
registered on the Plaintiff’s name, she submitted to debt
review proceedings because of Defendant’s failure to fulfil his
financial obligations regarding the bond payments as well
as monthly
instalments on their two motor vehicles. Plaintiff contributed
R3 000.00 per month and Defendant the same
amount per month in
the hope of retaining the family home and other assets.
[22]
Plaintiff had at times, when the Defendant was not financially able
to meet all his commitments, made payments to ensure that
the
insurance premiums on the movable and immovable property were
covered, paid the salary of the domestic worker as well as salaries
of the Defendant’s employees. She also, on numerous
occasions, fulfilled the Defendant’s obligations towards
purchasing groceries and saw to the payment of other household
expenses. Defendant would then repay the Plaintiff as soon
as
he was financially able to do so but more often than not it occurred
that she received no repayment. Plaintiff’s
parents, on
several occasions, provided financial assistance. Defendant also
borrowed an amount of R40 000.00 from the Plaintiff’s
brother. According to the Plaintiff the Defendant only repaid
an amount of R20 000.00 to her brother. Defendant admitted
to
borrowing the said amount from Plaintiff’s brother but
explained that he installed carpets to the value of R20 000.00
for Plaintiff’s brother and repaid the balance of R20 000.00.
[23]
Regarding the amount of R20 000.00 that Defendant borrowed from
his father-in-law during 2012, he testified that due to
the
installation of a Trellidor, two devil’s fork gates and other
improvements at his father-in-law’s property in Mossel
Bay, he
was exempted from repaying the loan to his father-in-law.
Plaintiff testified that Defendant indicated that he would
repay her
father with the proceeds of the sale of a boat he owned, but she
later discovered that he had sold the boat but failed
to repay her
father.
[24]
The parties’ daughter studied to be a dietician at the
University of the Free State. The course over four years
amounted to approximately R50 000.00 per year and was paid in
full by the Plaintiff. She opened a savings account for each
child
and made monthly deposits into these accounts over many years, not
only to pay for the children’s education but also
made
available an amount of R50 000.00 towards their daughter’s
wedding in 2016. She paid for and provided both
children with
motor vehicles. She is currently paying all expenses relating
to their son’s studies at the University
of the Free State. He
is studying to become a physiotherapist. He is currently
residing with her in a rented townhouse and
receives maintenance in
the amount of R1 500.00 from the Defendant in terms of an order
of this Court made in terms of the
provisions of
Rule 43.
[25]
Defendant testified that he was under the impression that their
children’s tertiary studies were financed by his
parents-in-law.
According to the Defendant his parents-in-law,
on numerous occasions when the children were still at school,
indicated that they
would finance their grandchildren’s studies
at university. He therefore never enquired whether this was
indeed the
position when his daughter started with her studies
several years ago and accepted that it would be the same for his son,
who is
presently a second year student. Defendant’s
evidence in this regard seems improbable and implausible. It is
furthermore
in contradiction with the version contained in his plea
that his son is not in need of maintenance due to proceeds derived
from
a study policy which covers his maintenance as well as all
expenses at university.
[26]
Due to his escalating financial difficulties and the mounting
pressure by suppliers for payment of their accounts, Defendant
resorted to borrowing an amount of R200 000.00 from a friend, Mr
Delport. In a written loan agreement concluded between
the
Defendant and Mr Delport’s business, Venerdi Eighteen CC,
Defendant fraudulently indicated to the moneylender that the
Plaintiff, being the owner of the property situated at Van der Kloof
Dam, agreed to a bond being registered over the said property
as
security for the loan.
[27]
It is common cause that Defendant forged Plaintiff’s signature
on the power of attorney to register the covering bond
over
Plaintiff’s aforesaid property. Defendant utilized the
proceeds of the loan to settle accounts of suppliers, to
update
payments on the bond of the E Crescent property and instalments on
the parties’ motor vehicles.
[28]
Early in 2013 the Defendant suffered a complete emotional breakdown
due to stress and was convinced by the Plaintiff to undergo
medical
treatment at Bloemcare Hospital. After two weeks the Defendant
was released from hospital on his own accord and testified
that he
received treatment for depression while hospitalized. He received a
prescription for antidepressants but due to the sickening
feeling it
caused he soon stopped using the medication. Plaintiff
testified that the Defendant continued to use alcohol with
the
prescribed antidepressants even though he was advised by the
physician not to do so since it may be detrimental to his health.
[29]
During June 2013 Defendant could not ward off further demands for
repayment of the loan by Mr Delport and resorted to requesting
his
brother’s financial assistance. On realizing what
Defendant did, and understanding the possible consequences of
Defendant’s actions by fraudulently having a bond registered
over the Plaintiff’s property his brother, Mr D M advised
the
Defendant to discuss the problem with the Plaintiff without further
delay. Mr D M was called as a witness by the Defendant
and
confirmed that he immediately realized the severity of the problem
and that he advised the parties to sell the property at
Van der Kloof
Dam in order to cancel the bond and to repay the loan to Venerdi
Eighteen CC.
[30]
Mr D M further proposed that the Plaintiff also sell the family home
situated at E Crescent, and relocate to Mosselbay, where
he offered a
position as a manager of one of his businesses to the Defendant to
financially assist him. At the time and due to
the Defendant’s
remark that he will most probably be incarcerated for fraud,
Plaintiff without any other available options
agreed to the
proposals.
[31]
The Defendant testified that, although Plaintiff was initially
disappointed, she agreed to the sale of the properties and was
enthusiastic and excited to resign her position at the school and
relocate to Mossel Bay. His testimony in this regard is
unconvincing. Plaintiff testified that their son was in the
middle of his Grade 10 year at school in Bloemfontein, she had
to
resign her position as a teacher after a period of almost thirty
years and without being able to secure employment in Mossel
Bay she,
as a last resort in an effort to save her marriage and assist her
husband, agreed to the proposal of her brother-in-law.
[32]
The property at the Van der Kloof Dam was sold for an amount of
R200 000.00 and the proceeds were paid over to settle
the
Defendant’s debt to Mr Delport. The E Crescent property was
sold for an amount of R1 244 000.00. An amount
of
R996 718.99 was paid to Absa Bank for cancellation of the bond
and an amount of R105 000.00 was paid to the estate
agent.
Plaintiff made an amount of R87 397.14 available for paying
debts incurred by the Defendant and she received
an amount of
R54 883.87 from the sale of the E Crescent property. On 7
August 2013 a further amount of R35 000.00
were transferred from
Plaintiff’s Capitec Bank account to the Defendant’s
account to settle further accounts. An amount
of R15 000.00 were
used to pay for the relocation costs to Mossel Bay. Apart from an
amount of approximately R5 700.00
which Plaintiff utilised when
the parties moved to Mosselbay to pay for household expenditures, she
did not receive any financial
benefit from either the sale of the E
Crescent property or the Van der Kloof property. The Defendant and
their son moved to Mosselbay
during the middle of 2013 while
Plaintiff remained in Bloemfontein until the end of the school year
when she too relocated to Mosselbay.
[33]
During January 2014 the Plaintiff was fortunate to obtain a position
at a school in Mossel Bay and continued with her profession
as a
teacher. The Defendant started off with a monthly income of
approximately R25 000.00 in the employment of his brother.
The
Defendant however soon relocated the business of manufacturing
devil’s fork fences to another property and even though
he
started the business with equipment and machinery provided free of
charge by his brother and without any debt, he continued
with the
business for approximately a year before closing it down. Plaintiff
testified that her brother-in-law remarked that the
Defendant failed
to fulfil his obligations at the business and sometimes did not show
up for work. The Defendant hinted that his
brother accused him of
spending too much time at his son’s rugby games, but denied
that he left his brothers employment due
to disgruntlement about his
performance at the business. According to the Defendant the process
of manufacturing galvanized devil’s
fork fences were
time-consuming and became non-profitable.
[34]
Plaintiff indicated that Defendant even after obtaining employment
with his brother in Mosselbay, failed to make regular payments
on the
insurance premiums of their motor vehicles and often borrowed money
from her to pay his employees’ salaries.
He also
regularly failed to pay the rent to her parents who provided housing,
initially in a town house and later in a residential
property. She
realized that the Defendant’s drinking habits continued to
cause strain and unhappiness and contributed to
the final breakdown
of the marriage. During 2015 Plaintiff decided to end the marriage
and to move back to Bloemfontein.
She was re-employed at
President Brand School in Bloemfontein and continued her profession
as a teacher. Defendant fell back
on his carpet cleaning
business and expanded the business to include the general cleaning of
premises in the Mossel Bay area.
He earns approximately
R6 000.00 to R9 000.00 per month.
ASSETS
OF THE PARTIES:
[35]
Plaintiff’s and Defendant’s net values of their
respective estates at the date of the marriage on 28 March 1987
were
R56 500.00 and R1 000.00 respectively. There is no
indication that there are any disputes concerning the commencement
value or the current value of the assets nor the debts of either
parties. To counteract the effect of inflation and the concomitant
depreciation in the value of money, the MPA provides that, when
calculating the accruals, the commencement value of a spouse’s
estate must be adjusted in accordance with any change in the value of
money from the commencement of the marriage to the dissolution
thereof.
[2]
For this purpose the
weighted consumer price index as published from time to time in the
Gazette
serves
as
prima
facie
proof of any fluctuation in the value of the money.
[36]
The Plaintiff testified as to the updated values of assets and
liabilities in her estate during the course of her evidence.
The Plaintiff’s net value assets at the time of the trial as on
14 August 2018 were a pension interest in the amount of approximately
R1 600 000.00 held in a Classic Preservation Pension Plan,
pension from the last four years in an amount of approximately
R96 000.00, her furniture valued at R30 000.00, R1 000.00
in a Capitec Savings account and the Aveo motor vehicle
valued at
more or less R55 000.00 with an amount of approximately
R35 000.00 still owing on the motor vehicle.
She also
holds a Liberty Life Retirement Annuity in the amount of R200 000.00.
[37]
Plaintiff indicated that many of their furniture were sold when they
moved to Mossel Bay. During that time she discovered that
Defendant
sold her piano for an amount of R5 000.00 without her consent.
She did not receive the proceeds of the sale.
Due to its high
fuel consumption the Tucson motor vehicle was sold during 2016 and
Plaintiff is currently borrowing a vehicle from
her son-in-law.
The Cherry motor vehicle was also sold for an amount of R20 000.00
to pay her son’s studies which
have been settled in full for
the 2017 and 2018 academic years.
[38]
During cross-examination Plaintiff was confronted with the fact that
she was able to save due to the financial input made by
the
Defendant. She admitted that she throughout the marriage
continued to open savings accounts for both children and also
saved
an amount of more than R10 000.00 in a Nedbank savings account
which she eventually used to purchase a lounge suite
for the communal
home. The saldo of her Absa Bank account amounted to approximately
R5 000.00. In her Capitec Bank account
she saved an amount of
approximately R70 000.00 which has now been utilized for legal
costs.
[39]
During cross examination Plaintiff was confronted with the fact that
she travelled overseas during 2014, which according to
the Defendant
happened to be within his darkest financial period which lasted from
2008 to 2016. Plaintiff explained that
she joined other mothers
who raised money by selling “hot dogs” at sport
gatherings. The profit was deposited into
a savings account and the
total savings were utilized by the group of mothers to enjoy a
holiday overseas. There is no indication
of the cost associated with
the overseas holiday, but strangely Defendant obviously blamed the
Plaintiff for spending money on
herself in this way. Defendant
obviously ignores his own behaviour by selling his boat, valued at
R45 000.00 and Plaintiff’s
piano, a gift from her father
and failed to properly account for his spending of the money.
He merely testified that he settled
debts. He furthermore caused the
family to lose their holiday home at Van Der Kloof Dam. They
similarly lost the security of owning
immovable property after
retirement. The proceeds were consumed by the Defendant’s
inability to handle the family’s
finances and fulfil his duty
to sufficiently support his family albeit that the Plaintiff had a
similar duty which duty she duly
fulfilled.
[40]
Plaintiff furthermore occupied the position of secretary of the South
Free State Tennis Association and received an income
in that
capacity. She received a separate income from sewing and
provided extra classes to students which rendered an income
of
approximately between R5 000.00 and R6 000.00 per month.
She was confronted with the fact that the Defendant
suffered extreme
financial difficulties because he owed an amount of approximately
R170 000.00 to suppliers of carpets.
Strangely enough the
Defendant never explained why he submitted orders to the value of the
said amount without explaining what
happened to the stock. If
the contracts fell through the stock would still be available for
re-sale, but no explanation other
than his vague indication that his
business was not BEE compliant resulting in him not being granted new
contracts were proffered.
[41]
Plaintiff’s total debts at the time of the trial was less than
stated in the Request for Further Particulars for trial
because the
2017 and 2018 tuition fees for their son were already settled.
Even though the precise amount is not known it
should be
approximately R61 000.00.
[42]
Defendant’s assets and the net value thereof at the time of the
trial are his camping equipment valued at R5 000.00,
a carpet
washer valued at R3 000.00, other equipment valued at R2 000.00
and clothes valued at R10 000.00 with a
total value of
R20 000.00. His retirement annuity fund from Sanlam is valued at
approximately R51 000.00. Defendant’s
Volkswagen
Amarok motor vehicle was repossessed during 2016. He is currently
renting a fully furnished flat and a vehicle.
During June 2018
he was indebted to Vodacom in the amount of R12 570.38.
[43]
On 27 July 2016 the Old Mutual Flexi pension Retirement Annuity
policy (with date of commencement 1 September 1987) donated
to the
Plaintiff by the Defendant in the antenuptial contract, amounted to
R134 663.00. However during October 2017
this policy as
well as a retirement annuity with the Liberty Group Limited were paid
up and Defendant received an amount of R110 354.93
which he
utilized to fund the divorce proceedings. Counsel on behalf of
the Plaintiff argued that the Old Mutual policy belonged
to the
Plaintiff and the Defendant’s blatant disregard of the
provisions of the antenuptial contract also amounted to substantial
misconduct. During cross examination the Defendant conceded that he
lost everything. He,
inter alia
blamed the financial collapse
during 2008, the fact that his business was not BEE compliant and
that he made several wrong decisions
for his financial demise.
[44]
From the particulars in the pleadings, documents in the Court bundle
and evidence adduced during the trial it is possible to
calculate the
accrual. It is apparent that the Plaintiff’s estate
showed a larger accrual than that of the Defendant.
Furthermore it
was argued by counsel on behalf of the Defendant that it was common
cause that Plaintiff’s estate showed a
larger accrual and in
consequence the Defendant acquired a claim against the Plaintiff for
an amount equal to half of the difference
between the accrual of the
respective estates.
[45]
During her evidence, and obviously without the prior knowledge of her
legal team, Plaintiff indicated that even though she
sought an order
that the Defendant forfeits the patrimonial benefits in totality, she
is willing to abandon the forfeiture claim
as pleaded in the
particulars of claim and is merely requesting an order whereby
Defendant forfeits the right to share in the benefits
of her pension
interest which amounts to approximately R1.7 million. Counsel on
behalf of the Defendant argued that with this concession
the
Plaintiff failed to make out a case as pleaded in the particulars of
claim. Plaintiff had, so the argument goes, the opportunity
to apply
for an amendment of her claim in between the time she gave evidence
until the trial resumed, approximately 2 months later
but failed to
do so.
[46]
The argument that a party to litigation’s case during the trial
differs from the version stated in the pleadings, is
often applicable
during an appeal and the principles applicable to such a situation
have been restated several times. In Robinson
v Randfontein Estates
G.M. Co Ltd
[3]
Innes CJ held as
follows;
“
The object of
pleadings is to define the issues; and parties will be kept strictly
to their pleas where any departure would cause
prejudice
or
would prevent full enquiry. But within those limits the court has a
wide discretion. For the pleadings are made for the court,
not the
court for the pleadings”
[47]
The above principles were discussed and decided upon by the Appellate
Division in the matter Marine & Trade Insurance Co
Ltd v Van der
Schyff
[4]
. It was found that
where the court (in this case, a court of appeal) has all the
material before it on which to form an opinion
upon the real issues
emerging during the course of the trial, it will be proper to treat
the issues as amplified or enlarged where
this can be done without
prejudice to the party against whom the enlargement is to be used.
Corbett, AJA (as he was then) explained
and elaborated upon the
principle as follows:
“
Arguments halwe
aanvaar ek ten gunste van die verweerder dat die eiser se saak so
wesentlik afgewyk het van die tersaaklike bewerings
in sy
besonderhede van vordering dat die bogemelde regsbeginsel ter sprake
kom. Ek is egter die mening toegedaan dat hierdie beginsel
nie sonder
voorbehoud op ‘n saak soos die onderhawige toegepas kan word
nie. Een van die vernaamste oorwegings wat aan hierdie
beginsels ten
grondslag lê is dié van die benadeling wat die een party
mag ly as die ander toegelaat word om buite
die bestek van sy
pleitstukke te gaan. Sodanige oorweging is nie hier ter sprake nie,
want ‘n party wat ten volle besef dat
sy teenparty se saak
buite die bestek van die pleitstukke gaan en wat swyg en doelbewus
nalaat om met die veranderde geskille te
handel – òf by
wyse van kruisondervraging òf deur middel van die aanvoering
van getuienis – kan daarna
beswaarlik toegelaat word om te kla
dat hy deur die teenparty se optrede in dié opsig benadeel
word.
[48]
At the close of Plaintiff’s case the Defendant launched an
application for absolution of the instance on the basis that
not
enough evidence was placed before Court to adjudicate whether a
forfeiture order can be made. It was contended that the
duration of the marriage, being thirty one years of which the last
thirteen years, were problematic as well as the fact that no
evidence
was placed on record concerning the exact nature and extent of the
accrual, the Court was not in a position to make a
proper finding
relating to forfeiture as requested. The Plaintiff’s concession
that the Defendant suffered from depression
also fuelled the argument
that the Defendant’s conduct cannot be condoned, but that due
to his state of mind his conduct
does not constitute substantial
misconduct.
[49]
I agree with Mr Groenewald’s argument that although the
formulation of the claim for forfeiture and the grounds must
be
pleaded and proved, the “benefit” does not need to be
quantified. It merely consists of the right to share in the
accrual.
As indicated, the Plaintiff testified as to the nature and extent of
her assets and liabilities at the time of the trial.
Her evidence was
supported by documentation. On the other hand it appears as if the
Defendant’s assets amounted to R125 000.00
in 2014 but has
since dwindled to an amount of R20 000 during 2016.
[50]
I therefore find that at the time of the hearing during August 2018
and October 2018 it would have been possible to compile
a list of
assets belonging to each of the parties with their respective values
as well as the liabilities to calculate the nett
value of each
estate. The commencement value of the respective estates is available
and the accrual can therefore be determined.
[5]
[51]
However
section 3(1)
and
3
(2) of the MPA determines that “…
at
the dissolution of a marriage subject to the accrual system…the
[beneficiary] spouse, acquires a claim against the other
spouse of
his estate …”
In
Le Roux v Le Roux
[6]
Olivier J held that the implication of the provisions of
Section 3
of
the MPA was that a beneficiary spouse could not sue for an accrual
computation until after a decree of divorce was ordered.
Sutherland J
in JA v DA
[7]
held that it is
plain that there cannot be any basis to calculate the value of the
estates at a moment earlier than the dissolution
of the marriage.
[8]
Even though it is possible to calculate the extent of the accrual,
there is no need for such a calculation to be done at this stage
of
the proceedings.
[52]
Counsel on behalf of the Defendant argued that for a period of two
thirds of their marriage Defendant contributed to the growth
of the
Plaintiff’s estate by settling the bond payments of the
immovable property and providing for the family’s household
expenses. This contention was duly admitted by the Plaintiff.
However during 2015 she realized that her children’s
relationship with their father were under constant strain due to his
alcohol abuse and she, after ten years of pleading with him
to stop
drinking, lost hope of any improvement and returned to her
former teaching position in Bloemfontein. The parties’
daughter
severed all ties with the Defendant and denies him any contact with
his grandchild, whom he has not yet met.
[53]
According to the Defendant he, refrained from informing the Plaintiff
of his financial difficulties until 2012, but his evidence
in this
regard contradicts the fact that Plaintiff was placed under debt
review during 2009 due to his inability to finance the
bond payments
as well as the motor vehicle instalments. As is evident from
the testimony of both the Plaintiff and the Defendant
both immovable
properties, registered in the name of the Plaintiff, were sold to
settle debts incurred by the Defendant.
[54]
With the enactment of the
Divorce Act, the
legislature decided to do
away with fault as a ground for divorce. Fault still has a role
to play in the divorce system due
to the inclusion of the
circumstances that gave rise to the breakdown of the marriage and
substantial misconduct as factors to
be considered when forfeiture of
patrimonial benefits is considered. To qualify for forfeiture based
on misconduct, such misconduct
must be “
substantial
”.
[9]
[55]
The evidence unmistakably reveals that the Defendant’s
irresponsible business dealings, illegal as well as fraudulent
conduct caused both parties and their children irreparable financial
losses, anxiety and concern regarding their future and well-being.
Plaintiff gave a detailed, truthful and reliable account of their
years spent as a family and her concerns about Defendant’s
drinking habits. She refrained from making degrading remarks
regarding the Defendant during her testimony. She clearly loved
the Defendant and respected him, but due to his alcohol abuse and
misconduct referred to above, has lost her respect for the Defendant.
There is no possibility of a reconciliation.
[56]
For most of the time the marriage was a happy one and even though the
periods of dispute and unhappiness were less, which appears
to be a
factor militating against an order for forfeiture being granted, the
Defendant’s misconduct is of a serious nature.
The Plaintiff’s
version as to the circumstances which gave rise to the breakdown of
the marriage is plausible and consistent
with the facts, concessions
and admissions made by the Defendant. Presently at the age of 54
years, the Plaintiff has lost the
security of owning immovable
property and is currently borrowing a motor vehicle. I am satisfied
that the Plaintiff has shown,
in relation to her pension interest,
that if a forfeiture order is not made the Defendant will receive a
benefit.
[57]
I do not agree with Mr Badenhorst’s argument that Plaintiff may
not, while testifying request a lesser order than pleaded
in the
particulars of claim without amending her claim. Defendant was in no
way prejudiced. He is to the contrary benefitted by
her virtuous
gesture. I am furthermore, and after considering the factors referred
to in
section 9
of the MPA and as applied in the Wijker- matter,
convinced that in relation to the Plaintiff the Defendant will be
unduly benefitted
if the order for forfeiture regarding her pension
interest is not granted.
[58]
Plaintiff has been substantially successful in her claims and should
therefore be awarded with the costs of the action.
[59]
In the result the following orders are granted
:
1. A Decree of Divorce.
2. In terms of Section
9(1) of the Divorce Act 70 of 1970 read with Section 9 of the
Matrimonial Property Act 88 of 1954 the Defendant
forfeits his
entitlement to share in the pension benefits of the Plaintiff held in
the Classic Preservation Plan with Stanlib as
well as her present
pension benefits held with the Free State Department of Education
(Member No. 990169680).
3. The Defendant is
ordered to pay the cost of the action.
_______________________
I
VAN RHYN AJ
On
behalf of the Plaintiff: Adv. W J GROENEWALD
Instructed
by: MR W PRETORIUS of SYMINGTON DE KOK ING
On
behalf of the Defendant: Adv. D J BADENHORST
Instructed
by: MARIUS VAN ZYL ING
[1]
1993 (4) SA 720
at 727 E - F
[2]
Act 88 of 1984,s 4(1)(b), read with s 21(2)(d)
[3]
1925 AD 173
at 198.
[4]
1972 (1) SA 45
(AD) at 45 B-F.
[5]
DEB v MGB 2014 JDR 2016 SCA (Juta)
[6]
[2010] JOL 26003
(NCK) at paras 34 tot 35
[7]
2014 (6) SA 233
(GJ) at 239 [20]
[8]
Reader v Softline
2001 (2) SA 844
(W); A B v J B
2016 (5) SA 211
(SCA) at paras [16] and [19]
[9]
Beaumont v Beaumont
1987 (1) SA 967
(A) at 994 D - E