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[2017] ZALMPPHC 11
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T.M v N.M (1070/2014) [2017] ZALMPPHC 11 (19 June 2017)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 1070/2014
Not
reportable
Not
of interest to other judges
Revised.
19/6/2017
In
the matter between:
T
M
PLAINTIFF
and
N
M
DEFENDANT
JUDGMENT
MOKGOHLOA
DJP
1.
These are divorce proceedings. The parties have lived together as
husband and wife. They are now on the verge of parting ways.
Both of
them agree, albeit on different grounds, that their marriage has
irretrievably broken down.
2.
The parties were married to each other in community of property in
Giyane on 3 April 1981. The marriage still subsists. Four
children
were born of the marriage, which children are all majors. There is no
written agreement devolving the patrimonial benefits.
3.
In here particulars of claim, the plaintiff claimed a decree of
divorce, division of the joint estate, half of the defendant’s
pension fund, maintenance for herself and the defendant retains her
as beneficiary in his medical aid, and costs of suit. During
the
trial, the plaintiff abandoned a claim on the defendant’s
pension fund, maintenance and medical aid.
4.
The defendant on the other hand, alleged in his counter claim that:
4.1 during 1984 the plaintiff
admitted to having committed adultery which resulted in the birth of
one of the children;
4.2 the plaintiff on numerous
occasions falsely accused the defendant of physical abuse and
threatened to summon family members
and/or the police in order to
humiliate and damage the defendant’s good name and reputation
in the community;
4.3 since 1987 the plaintiff
would absent herself from the parties’ common home at Chavani
village over weekend and failed
to inform the defendant of her
whereabouts;
4.4 the plaintiff on numerous
occasions falsely accused the defendant of having extra marital
relationships. This was done in front
of the children in order to
humiliate the defendant and caused a gradual deterioration in the
relationship between the defendant
and the children;
4.5 the plaintiff locked the
defendant out of the parties’ common home at Chavani village
resulting in the defendant having
to find alternative place to sleep;
4.6 the defendant was prompted
to approach his employer for subsidised housing and consequently
purchased the immovable property
at […] T. street, Louis
Trichardt;
4.7 the plaintiff never
visited, resided or contributed towards the purchase of the Louis
Trichardt house.
These
allegations serve as justification for the defendant’s prayer
of forfeiture of the benefits arising out of the marriage
in
community of property and in particular the house at Louis Trichardt.
The plaintiff denies the defendant’s allegations.
Evidence
5.
Both parties testified without calling witnesses. The defendant
stated that he was employed as a magistrate but has since retired.
He
reiterated the allegations contained in his counter claim regarding
the plaintiff’s conduct during the marriage. According
to him,
he was forced to leave the plaintiff at the Chavani home and
purchased the Louis Trichardt house during 2000 or 2001. A
bond of
R330 000.00 was registered over this property.
6.
At some stage, he was informed by the chief in Chavani that their
house at Chavani was left unattended or abandoned and has become
a
haven for criminals. He proceeded to Chavani where he found that
valuable furniture had been removed and the house was vandalised.
He
was not financially able to maintain both properties.
7.
During August 2013 he approached a certain Abdul also known as Oupa.
They had a discussion on the Louis Trichardt house and agreed
that
Oupa would settle the bond on the Louis Trichardt house and the
defendant would occupy that house for fourteen or sixteen
months
without paying rent. He did not know Oupa’s surname. According
to the defendant, Oupa passed away during April 2016.
He does not
know what happened to the house and does not know the value of the
house at present.
8.
The defendant conceded that the plaintiff renovated the Chavani house
and contributed towards the financial needs of the children.
He
further conceded that the plaintiff was the primary caregiver of the
children and that he was an absent father. The defendant
is currently
cohabiting with another woman in the Chavani house.
9.
The plaintiff stated that during 1980 she was employed as a teacher
and that defendant was a clerk in Malamulele Magistrates
Court. He
was busy with his law degree in Zululand University. He finished his
studies in 1981 the same year their first child
was born. They were
residing in Malamulele township. At some stage the defendant was
promoted and appointed as a magistrate. During
1982 the plaintiff
fell pregnant again. The defendant was angry and insisted that she
abort the child. The plaintiff and the doctors
refused. He started to
abuse her physically and verbally. The third child was born on 7
April 1983. The same year that she fell
pregnant with their fourth
child. The abuse continued and he denied paternity of the fourth
child. He started to accuse the plaintiff
of being unfaithful to him
and stated that his own uncle was the father of their fourth child.
10.
The defendant had numerous girlfriends and even informed the
plaintiff about one of them being Pakkie. At some point the plaintiff
met with Pakkie who confirmed her relationship with the defendant but
informed the plaintiff that she did not intent to marry him.
11.
During 1986 the family moved from Malamulele and relocated to Chavani
village. They started building a house in Chavani together.
The
defendant was always absent and came home on weekends until he left
permanently. The plaintiff stated that the defendant abused
her
physically and verbally in the presence of the children and her
colleagues. He told her that she was ugly and short. He denied
her
conjugal rights. He ultimately left her in the village and moved to
the township where he bought the Louis Trichardt house.
12.
In 2004 the plaintiff lost sight of one of eyes and in 2008 she
turned totally blind. She underwent four operations and regained
sight in one of her eyes. This led to her being declared medically
unfit to work with effect from 31 December 2009. She received
her
pension funds which she utilised to renovate the Chavani house,
invested some and paid off the tertiary fees of one of the
children.
She then bought a motor vehicle for herself.
13.
On 7 April 2012, the children hosted a birthday party for her at
Chavani. The defendant was invited. It was at this party when
the
defendant told the plaintiff to take her children and move out of the
house because he wanted to move in the Chavani house
with his
beautiful new wife and children.
14.
On 17 December 2012 she went on religious tour to Israel. Upon her
return, she decided not to return to Chavani home and instituted
these proceedings in January 2013.
15.
In the light of these facts, I must now determine whether an order of
forfeiture should be granted in favour of the defendant
against the
plaintiff. In this regard section 9 of the Divorce Act
[1]
provides:
“
When a decree of
divorce is granted on the ground 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 breakdown thereof
and any substantial misconduct
on the part of either of the parties,
is satisfied that, if the order for forfeiture is not made, the one
party will in relation
to the other be unduly benefited.”
16.
In Engelbrecht v Engelbrecht
[2]
the court stated:
“
Joint ownership of
another party’s property is a right which each of the spouses
acquires on concluding a marriage in community
of property. Unless
the parties (either before or during the marriage) make precisely
equal contributions the one that contributed
less shall on
dissolution of the marriage be benefited above the other if
forfeiture is not ordered. This is the inevitable consequence
of the
parties’’ matrimonial property regime. The Legislature
(in
s 9
of the
Divorce Act 70 of 1979
) does not give the greater
contributor the opportunity to complain about this. He can only
complain if the benefit was undue.”
17.
In Wijker v Wijker
[3]
the court stated that:
“
the proper approach
in determining whether an order of forfeiture should be made is to
first determine whether or not the party
against whom the order of
forfeiture is sought will in fact be benefited if the order is not
made. Once it is determined that the
party will in fact be benefited,
the next enquiry is whether such benefit will be an undue one.”
18.
The court in Engelbrecht stated that a party who seeks a forfeiture
order must establish what nature and extend of the benefit
was.
Unless that is proved, the court cannot decide if the benefit was
undue or not. Only if the nature and ambit of the benefit
is proved
is it necessary to look to the three factors which may be brought
into consideration in deciding on the inequity thereof.
19.
In
casu
,
the value of the Louis Trichardt house at the time the summons were
issues and at dissolution of the marriage is not proved. The
defendant only stated the value of the house when the house was
bought during 2000 or 2001. I find that he had not proved the nature
and extent of the plaintiff’s benefits at the dissolution of
the marriage; a fortiori he had not proved that such benefit
was
undue in the circumstances.
20.
The defendant argued further that the plaintiff should forfeit the
Louis Trichardt house because she did not make any contributions
towards the acquisition thereof.
21.
It has to be noted that in a marriage in community of property, all
the properties acquired and all that the parties acquired
and
accumulated during the subsistence of the marriage forms the joint
estate of the parties. Furthermore, when dealing with a
marriage in
community of property the parties have agreed before the marriage
that they would share in the proceeds of the marriage
equally. To
determine whether one spouse will benefit if the forfeiture order is
not granted the court must determine the respective
contributions by
the spouses to the joint estate. As to what constitute a contribution
towards the joint estate is a question of
fact. In Gates v Gates
[4]
the court held that the services of the wife in managing the joint
estate and caring for the children constitutes a contribution
and
should be taken into account.
22.
In
casu
,
the plaintiff testified that she worked as a teacher throughout their
marriage until she was declared medically unfit to work
on 31
December 2009. She gave the defendant her salary cheque for the first
18 years of their marriage until 1999 when the department
of
education started to deposit their salaries into their bank accounts.
Both the plaintiff and the defendant built the house in
Chavani where
they resided since 1990. The defendant was always away from home and
only visited them on weekends until 2004 when
he stopped visiting.
She was left alone to maintain the house and provided for her and the
children’s needs.
23.
She was declared medically unfit to work due to her loosing sight of
one of her eyes. She took part of her pension fund monies
to renovate
the Chavani house and paid the debt owing on one of the children’s
tertiary education. She bought herself a motor
vehicle so that it can
be easy for her to attend the eye specialists in Gauteng.
24.
It is clear from the plaintiff’s evidence which is not disputed
by the defendant, that she contributed towards the joint
estate.
Whilst the defendant went on and acquired the house in Louis
Trichardt, the plaintiff remained in Chavani. She maintained
the
Chavani house and took care of the children. I therefore find that
she is entitled to her equal share in the joint estate which
includes
her share in the Louis Trichardt house.
25.
However, the buck does not stop here, consideration has to be taken
to the factors stated in
section 9
(1) of the
Divorce Act which
are:
the duration of the marriage, factors that led to the breakdown of
the marriage, and substantial misconduct on the part of
either of the
parties.
Duration
of the marriage
26.
The marriage between the parties was of a fairly long duration of
approximately 23 years when they separated in 2004. The important
aspect is that they both contributed to the joint estate. When the
defendant left, the plaintiff remained with the children maintaining
and taking care of them. She maintained and renovated the Chavani
house.
Factors
that led to the breakdown of the marriage
27.
Generally a marriage relationship seldom breaks down as a result of
the conduct of one spouse. The parties’ marriage is
no
exception. In this regard I accept the plaintiff’s version that
she was in an abusive relationship where she was belittled,
assaulted
and disrespected. The defendant disserted her and the children. I
find that it is the defendant’s conduct that
led to the
breakdown of the marriage.
Substantial
misconduct
28.
The defendant alleges that the plaintiff committed adultery which
resulted in the birth of one of their children. This, according
to
the defendant, occurred during 1984. He further alleged that the
plaintiff absented herself from the common home without informing
him
of her whereabouts. He however did not inform his or her family about
this. He decided to leave the family home without discussing
this
with his or her family. The plaintiff denied having committed such
adultery and I believe her version. She impressed me as
a candid
witness whose evidence was credible and reliable. I can therefore not
find that there is or was any substantial misconduct
on her part that
would warrant the granting of a forfeiture order against her.
29.
In the circumstances, I come to a conclusion that if an order of
forfeiture is made, the plaintiff will, in relation to the
defendant,
be unduly prejudiced and thus matrimonially disadvantaged. On the
facts it is my considered view that the defendant
has not made out a
case to justify his prayer that the plaintiff should forfeit the
patrimonial benefits arising out of the marriage.
I would, therefore,
exercise my discretion to withhold making such an order.
30.
In conclusion, I am satisfied that the marriage relationship between
the parties has broken down irretrievably and that there
exists no
reasonable prospects of restoring it to a normal marriage
relationship. Therefore, I am inclined to decree an order of
divorce.
I do so primarily on the version of the plaintiff. The defendant’s
plea, counter claim and testimony stand dismissed
to the extent of
their inconsistency with the plaintiff’s plea and testimony.
31.
As regards the division of the joint estate, the parties agreed
during argument that if division of the estate is granted, then
a
liquidator be appointed to assist in this regard. The parties further
suggested that Mr Makgaleng be appointed as such.
32.
In the result the following shall issue:
Order
1. The decree of divorce is
granted.
2. The joint estate shall be
divided.
3. Mr MM Makgaleng of Makgoba,
Kgomo Makgaleng Attorneys is appointed as the Receiver and Liquidator
in the joint estate of the
plaintiff and the defendant, with full
power to:
a. realise the whole of the
joint estate in accordance with the duties and powers conferred a
Receiver and Liquidator and to be
exempted from furnishing security
for the proper performance of his duties as Liquidator;
b. receive, liquidate and
distribute the assets in the joint estate according to the law with
full powers to divide/distribute the
joint estate;
c. institute legal proceedings
against any person for the delivery to him/her of any assets, deed of
document which vests in the
estate, in whatever Court it shall be
appropriate to bring such proceedings;
d. instruct and appoint
attorneys and/or counsel to institute proceedings on her/his behalf
for the purpose of obtaining delivery
of any assets alleged to vest
in the joint estate and to claim such alternative relief as the
circumstances may require;
e. sell and dispose of any
assets of whatever nature, movable or immovable, corporeal or
incorporeal of whatever nature that comprise
the joint estate either
by private treaty, public auction tender or such manner as he may
deem fit under such terms or conditions
as he may deem fit;
f. sign and execute documents,
deeds or any other papers that may be necessary to effect transfer of
any of the assets or properties
in the joint estate to whoever may
acquire same from the receiver and liquidator.
4. Defendant to pay plaintiff
costs of suit.
MOKGOHLOA
DJP
REPRESENTATIONS
1.
For
the Plaintiff : Ms M.C De Klerk
Instructed
by : DDKK Attorneys Inc
2.
Counsel
for the defendant : Mr M.A Letaba
Instructed
by : Mabu Letaba Inc Attorneys
3.
Date
of hearing : 3 May 2017
4.
Date
handed down : 19 June 2017
[1]
70 of 1979
[2]
1989 (1) SA 597
(A) Headnote
[3]
1993 (4) SA 720 (A)
[4]
1940 NPD 361