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[2018] ZANCHC 88
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E.L.H v E.H (712/2015) [2018] ZANCHC 88 (23 November 2018)
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IN THE HIGH COURT OF SOUTH
AFRICA
NORTHERN CAPE DIVISION,
KIMBERLEY
Case number:
712/2015
Date heard:
24 & 25-10-2018
Date delivered:
23-11-2018
In
the matter between:-
E
L
H
PLAINTIFF
and
E
H
DEFENDANT
Coram:
Groenewaldt, AJ
JUDGMENT
GROENEWALDT AJ
INTRODUCTION
1.
This is an action for divorce in which
the plaintiff prays for an order incorporating the following terms:
1.1
A final decree of divorce.
1.2
An order that the defendant renders
to the plaintiff an account supported by documentary proof containing
full particulars of the
value of the defendant's estate in order to
determine the difference in the accrual between the parties'
respective estates, within
twenty days of date of service of the
summons.
1.3
Debatement of the aforesaid account.
1.4
Payment to the plaintiff of any
amount to which the plaintiff may be entitled in terms of the
provisions of Chapter 1 of the
Matrimonial Property Act 88 of 1984
.
1.5
That the defendant be ordered to pay
maintenance to the plaintiff in respect of herself at the rate of R16
070 - 00 per month until
her death or remarriage, whichever date
occurs first.
1.6
Costs of suit.
1.7
Further and/or alternative relief.
2.
The defendant filed a counterclaim in
which he claims the following relief:
2.1
A decree of divorce.
2.2
Forfeiture of the plaintiff's right
to share in the accrual of the estate of the defendant.
2.3
Costs of suit in the event of
opposition.
2.4
Further and/or alternative relief.
3.
The defendant abandoned his forfeiture
of the accrual claim and the parties concurred that the determination
of the right to share
in the accrual be adjourned for later
adjudication. In addition hereto the parties were ad idem that the
marriage relationship
has broken down irretrievably such that there
are no prospects of the restoration of the relationship and that it
be dissolved.
The only issue which requires determination therefore
is whether the plaintiff is entitled to alimony, if so the period and
amount
thereof.
APPLICATION FORA
POSTPONEMENT
4.
The matter was previously set down for
trial on 8
th
and 9
th
of May 2018. On 25 April 2018, the plaintiff's erstwhile attorneys
withdrew as attorneys of record. The plaintiff appeared in person
on
8 May 2018 requesting postponement of the matter to 24 and 25 October
2018 for hearing and for the purposes of obtaining legal
representation. The matter was henceforth postponed.
5.
On the day of the trial, the plaintiff
moved for another postponement citing the need to appoint a legal aid
attorney. She appeared
in person to move for the postponement of the
matter and was later joined by Mr B Sampson of the Legal Aid Board in
Kimberley.
He was not prepared to go on record until such time that
the plaintiff's application for legal aid had been properly assessed.
6.
The plaintiff submitted that she had
approached the Legal Aid Board in Kuruman where she resides for legal
assistance who then referred
her application to their Kimberley
branch. Mr B Sampson conveyed to the Court that the plaintiff had
only approached the Kuruman
Legal Aid Board on 23 October 2018 for
assistance. The said application had however not been considered yet.
No relief was sought
by Mr Sampson.
7.
The plaintiff contended that she had
suffered a heart ailment recently as well as a lower tract infection
and depression. For the
latter illnesses (infection and depression),
she relied on a note issued by the Kimberley Hospital Complex dated
11 October 2018.
8.
The veracity of these illnesses and how
it incapacitated the plaintiff, were not expounded upon neither were
her conditions used
as an excuse for not appointing attorneys
timeously.
9.
It serves mention that during the course
of litigation in this matter, the plaintiff had enlisted the services
of three sets of
attorneys who at some point in time withdrew as her
attorneys of record.
10.
She had more than five months to employ
attorneys to assist her in this matter and waited a day before the
trial before she acted.
The only reasonable inference the Court can
draw is that she twiddled thumbs to the prejudice of the defendant.
11.
A costs order issued against the
plaintiff when the matter was postponed at her instance on 8 May
2018, remains unsatisfied. Hence
another costs order will not remedy
further prejudice the defendant will suffer if the matter is
postponed again.
12.
It is trite that a litigant has a
constitutional right to have a dispute that can be resolved by the
application of law decided
in a fair public hearing
[1]
.
This includes the right to have the dispute adjudicated upon without
delay. Fairness also dictates that due regard should be made
to the
prejudice a litigant suffers where litigation continues without end.
In the end justice delayed is justice denied.
13.
After careful consideration of the
circumstances of the parties, the issue in dispute and the inordinate
delay to date, it would
not be in the interest of justice that the
matter be delayed further. The plaintiff's request for another
indulgence was denied.
FACTUAL MATRIX
14.
The parties were married on 22 February
2002 out of community of property with the accrual and that marriage
still subsists. The
plaintiff testified and painted a dim picture of
a marriage between her and the defendant that was not made in heaven.
She testified
that the parties started experiencing marital tension
when the defendant saw fit to engage in an extra marital affair with
a certain
Joey. The plaintiff forgave the defendant for his
infidelity much to her despair as the defendant engaged in another
affair thereafter.
No children were born out of the marital
relationship between the parties.
15.
The tension escalated with charges of
domestic violence and assault being laid by the parties against each
other. The plaintiff
came to Court armed with documents to
demonstrate a pattern of physical abuse. She however intimated that
the defendant was never
convicted on any of the charges that were
proferred against him. It is not clear whether any of those cases
went on trial.
16.
In her testimony, the plaintiff
intimated that she would be satisfied with maintenance of R5 000 - 00
per month until her death
or remarriage although she became
accustomed to spending R15 000 - 00 per month during the subsistence
of the marriage.
17.
The plaintiff revealed the following
monthly living expenses to support her claim for maintenance:
Food
-
R 3 000-00
Water and Electricity
-
R 2 000-00
Pharmacy
-
R 1 500- 00
Petrol
-
R 2 000-00
Total expenses
-
R 8 500-00
18.
The
plaintiff testified that the only income she currently enjoys is a
state subsidised pension of R1,600-00 per month and that
she further
lives off hand-outs from family members. A property she owns on the
Wild Coast in an area known to as Umgazana is yielding
no income.
19.
According to the plaintiff, she erected
on the premises of the defendant in Kuruman flats from her own
finances and that she derived
a monthly income from the rental of
those flats. It was due to this business venture that she was able to
spend R15 000 - 00 per
month during the marriage. On 30 June 2015,
the parties entered into an agreement as part of a settlement held in
the domestic
violence Court in Kuruman in terms whereof the defendant
was entitled to the rental income derived from the aforesaid flats.
20.
The plaintiff testified that her work
experience included nursing, running an antique business in East
London and being a secretary
to the defendant at SA Crane. She was
however dismissed from the secretarial position at the behest of the
defendant.
21.
According to the plaintiff, she holds a
standard seven (grade 9) school qualification. On completion of her
standard seven qualification
she started nursing though she never
qualified for it. After that she ventured into the antique business
in East London which she
describes as "a successful business".
The business came to an abrupt end after the untimely death of her
daughter which
caused her to sell the lucrative business for next to
nothing. She then moved to Kuruman in the Northern Cape where she met
the
defendant. She lived with the defendant in a love relationship
for two years whereafter they married.
22.
She testified that she suffers from
asthma, hypertension, cholesterol, allergies and suffered a light
heart attack a month or so
ago.
23.
The plaintiff testified that the
defendant forbade her to start another antique business in Kuruman.
She in any event stressed the
view that the economic climate in
Kuruman is not conducive to such a business venture.
24.
The plaintiff then called her daughter C
A S as a witness. She testified how unhappy the plaintiff was in the
marriage and that
she had to provide her mother with food parcels to
sustain herself.
25.
The defendant chose not to testify. His
attorney merely placed his defence on record by putting it to the
plaintiff. He also stated
his defence to the allegations of physical
abuse by putting it to the plaintiff that she used the assault
charges and the domestic
violence interdicts as leverage to make his
marital life intolerable and unbearable.
26.
In an open offer to Court, the
defendant's attorney conveyed a proposal from defendant to pay to the
plaintiff the sum of R5 000
- 00 per month in the form of
rehabilitative maintenance until the immovable property on which the
flats are erected and which
is registered in the name of the
defendant, is sold and the net proceeds thereof are divided equally
between the parties. The plaintiff
rejected this offer as she
insisted that the rental business has a goodwill value for which she
must be compensated for.
LEGAL FRAMEWORK
27.
The
right to claim maintenance post-divorce is regulated by
Section 7
of
the
Divorce Act No 70 of 1979
.
Sections 7(1)
and
7
(2) of the
Divorce
Act declares
as follows:
27.1
"(1)A
Court granting
a
decree
of divorce may in accordance with
a
written agreement between the parties
make an order with regard to the division of the assets of the
parties or the payment of maintenance
by the one party to the other.
27.2
(2)ln
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 capacity,
financial needs
and obligations, the age of each of the parties, the duration of the
marriage, the standard of living of the parties
prior to the divorce,
their conduct in so far as it may be relevant to the breakdown
of
the marriage, an order in terms
of
section (3) and any other factor
which in the opinion
of
the
Court should be taken into account make an order which the Court
finds just in respect
of
the
payment
of
maintenance
by the one party to the other for any period until the death or
remarriage
of
the
party in whose favour the order is given, whichever event may first
occur".
28.
From the reading of the aforesaid
provisions, it is clear that the factors to be considered by a Court
are not exhaustive and the
Court is enjoined with a wide discretion
whether or not to grant maintenance and the period for which
maintenance can be granted.
This discretion should be exercised
judicially and supported by the facts of the matter.
29.
The defendant's offer of R5,000-00 per
month as a form of rehabilitative maintenance until the immovable
property is sold and the
net profits thereof are divided between the
parties is not sustainable. This Court is unable to predict what the
proceeds of the
sale of the immovable property would yield and I am
therefore not persuaded to grant such an order. It is however trite
that a
maintenance order in a divorce matter, whether arising from an
agreement or from an order of Court, may be rescinded, varied or
suspended if there is justification for doing so. There is therefore
no reason why any maintenance order I make cannot be revisited
or
discharged at a later stage if the circumstances changes or warrants
it.
[2]
30.
I am inclined to accept the plaintiff's
evidence that save for her government pension aid she receives no
other income nor does
she derive an income from the Umgazana property
despite the respondent's aspersions that the property is a holiday
mecca. In essence,
the plaintiff's testimony in this respect was not
rebuffed by any evidence to prove the contrary. I therefore find that
the plaintiff
has a need for maintenance and in light of the
defendant's offer, that he is in a position to pay the sum of R5 000
- 00 per month.
I am also satisfied that the amount of R5 000 - 00
per month that the plaintiff was prepared to accept is adequate to
meet her
needs.
31.
I have taken into account that the
plaintiff is 67 years of age and the defendant 53 years old. She has
no formal educational qualification
and the parties have been married
for 16 years. Prior to these years they were living together for 2
years in a love relationship.
The plaintiff is in the sunset years of
her life and is in frail health. I am satisfied that a maintenance
order of R5 000 - 00
per month until her death or remarriage would be
a just order.
COSTS
32.
As the parties are in agreement that the
marriage be dissolved and further that the issues in dispute were
limited, I am of the
view that no order for costs is justified under
the circumstances.
I
MAKE THE FOLLOWING ORDER:
1.
THAT
THE BONDS OF MARRIAGE SUBSISTING BETWEEN THE PLAINTIFF AND THE
DEFENDANT BE AND ARE HEREBY DISSOLVED.
2.
THAT
THE DEFENDANT PAYS TO THE PLAINTIFF MAINTENANCE IN THE SUM OF
RS,000-00 PER MONTH UNTIL HER DEATH OR REMARRIAGE WHICHEVER EVENT
MAY
OCCUR FIRST.
3.
THAT
LEAVE BE GRANTED TO THE PARTIES TO APPROACH THE COURT ON THE SAME
PLEADINGS, AMENDED IF AND AS REQUIRED TO ADJUDICATE ON A
CLAIM AS
ENVISIONED BY
SECTION 3
OF THE
MATRIMONIAL PROPERTY ACT 88 OF 1984
.
4.
THAT
THE DETERMINATION OF PARAGRAPH 3 ABOVE BE POSTPONED SINE DIE.
5.
NO
ORDER AS TO COSTS.
S
J GROENEWALDT
ACTING
JUDGE
Northern
Cape Division, Kimberley
[1]
Section 34 of the Constitution of the Republic of South Africa.
[2]
Richardson v Richardson
[2013] JOL 31025
[ECG]in para.18