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[2017] ZAGPPHC 106
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K.K.T v M.S.R (4081/2013) [2017] ZAGPPHC 106 (10 March 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
10/3/2017
CASE
NO: 4081/2013
REPORTABLE:
NO
OF
INTEREST TO OTHERS JUDGES: NO
In
the matter between:
K.
K.
T.
Plaintiff
and
M.
S.
R.
Defendant
JUDGMENT
DAVIS,
AJ:
[1]
NATURE
OF
THE
ACTION:
1.1
This is a divorce action wherein the Plaintiff
is the wife and the
Defendant the husband. There is one child born of the marriage, a boy
currently 4½ years old.
1.2
The issue as to whether the parties were married
in accordance with
the tenets of customary law as contemplated in
Section 3
of the
Recognition of Customary Marriages Act, 120 of 1998
, was dealt with
as a separated issue in terms of
Rule 33(4)
in a 7-day trial before
Makgoka J who found on 4 April 2014 that a customary marriage had
indeed been concluded between the parties
on 2 May 2011.
1.3
As to the proprietary consequences of the marriage
and the parties'
impending divorce, Kollapen J on 10 August 2016 in terms of yet
another separated issue in terms of
Rule 33(4)
found that the
Plaintiff forfeited all the patrimonial benefits of the marriage in
favour of the Defendant except those arising
out of a certain
immovable property which the Plaintiff had owned prior to the
marriage and in respect of which she remained entitled
to 50% of the
nett value thereof. This judgment has subsequently been reported as
KT v
MR
2017(1) SA 97 (GP).
[2]
OUTSTANDING DISPUTES:
2.1
After some debate and, with reference to
the pleadings and the
various pre-trial minutes, the following issues remained in dispute
and required adjudication:
2.1.1
The amount of maintenance payable by the Defendant
in
respect of the parties' minor child;
2.1.2
Whether the Plaintiff was entitled to rehabilitative
maintenance and,
if so;
2.1.3
The amount of such maintenance.
2.2
The issues of the incidence of primary residence
and the rights of
contact with the minor child were no longer in dispute and the terms
thereof are reflected in the order made
at the end of this judgment.
2.3
There was also, at the inception of the trial,
a separate application
for an
"anti-dissipation
interdict”
pending finalisation of the appeal processes initiated by the
Plaintiff against the forfeiture order referred to in paragraph 1.3
above. This application was separately argued and written Heads of
Argument were submitted on behalf of the parties after the conclusion
of the trial and the outcome thereof is dealt with in a separate
judgment.
[3]
SUMMARY
OF
FACTS:
3.1
Only the Plaintiff testified. During the examination
of her evidence,
reference was made to affidavits filed in a prior application in
terms of
Rule 43
and an interim settlement agreement reached between
the parties and made an order of court.
3.2
Much was made at the inception of the trial as
to the Plaintiff's
lack of proper discovery for this final portion of the trial. The
Plaintiff was also challenged in
cross-examination
to produce documents in respect of
certain aspects of her evidence, bundles
of which were produced on
the second day of the trial. In the end not much turned on this.
3.3
The relevant parts of the Plaintiffs evidence can
be summarised as
follows:
She
has a Bachelor's degree in communication
and an
Honours degree in psychology.
At
the time of her marriage to the
Defendant
she was a director in the Department of Public Works with an own
home (bonded), a
Z4
BMW
motor
vehicle
and
a nett
monthly
income
of
R30 000,00 and with an own medical aid.
She
had a
daughter
from a
previous
marriage
which was cared for by the child's father.
Upon
her becoming
pregnant
with
her
child with the
Defendant,
she
resigned
from
her
employment
and
became
a
housewife
(this
was
either by
agreement
with the Defendant or at his insistence. The Defendant also
undertook to pay her a monthly equivalent
of
her
previous
nett
income
and
to
retain
her on
his
medical aid, which
he
did during
the period that they lived together as husband and wife).
The
Plaintiff
and the
Defendant
lived
together
as
husband
and wife
from date
of
the
marriage
until
January
2013
when the
Defendant moved out of the common home.
The
Plaintiff
and the
child remained
living in
the common
home where
they are still living to date.
After
the
parties'
separation
the
Plaintiff,
with the
assistance
of her
mother,
departed
to
the
United
States
of
America
where she
attended
a
post-graduate
school
of
psychology
in order
to obtain
her
Masters'
degree
and
qualify
as
a
forensic
psychologist.
She
explained
that,
although
there
were
many
clinical
psychologists
practising
in
South
Africa
with
South
African
qualifications,
forensic
psychology
is a rare
and sought after qualification (only obtainable in
Europe
and
the United
States) and which would not only result in self-improvement
and
ambition
fulfilment,
but
also
increase
her
chances
of
obtaining
employment or even establishing an own practice.
She
returned
to
South
Africa
during
semester
breaks
and
was
ultimately
unable
to
complete
the
qualification
as
she
had
run out of
funds
needed
to
sustain
herself
for
purposes
of
completing
the
practical
requirements
of the
degree
in the
United States.
During
the time that
she was
absent
the
child was
looked
after by a
helper and her mother, lastmentioned
who was a
doctor
in
English at North West University at its Mafikeng campus
The
various
litigation
between
the
parties
as
referred
to
in the
earlier
part of
this judgment
left the
Plaintiff's
funds
depleted
to such
an
extent
that
she
had
to
sell
her
house
(with
the
necessary consent of
the
Defendant).
She
also
lost
all
her
policies and investments.
The
Plaintiff
testified
as
to
the
costs
of
maintaining
the
child. She
maintained
that
the
child
was
"
difficult”
and
hyper
allergic
and in need
of special
diet
and
medication. Some dispute
between
the
parties
existed
as
to
whether
the
child
was
maintained
on the
Defendant's
medical
fund
at
all times
and
it appears
that there
was
some
hiatus
of some
six
months
in this
regard when the Defendant switched medical funds.
Be
that
as
it may, at
the
inception
of this
part of
the trial before me
the
Defendant
tendered
payment
of
all
items
claimed
by
Plaintiff in her Particulars of Claim regarding the maintenance of
the
minor
child.
Despite
this tender, the
Plaintiff
s counsel
indicated
that
the
Plaintiff
would
still
claim
a
higher
amount
as to
the
cash
portion
of
the
amount
claimed
as
maintenance
for the
child.
This
would
be
done
without
an
amendment
to
the
rticulars
of
Claim
and
in
a
plea
to
the
court
to
exercise
its
discretion
as upper
guardian
of minors.
The
Plaintiff
very emotionally
testified
as to
the
child's
needs
but
in cross
examination
had to
concede
that
if the
Defendant
indeed
paid the
amounts
claimed
and
as
tendered,
that
the
child
would
no
longer be in need of further maintenance.
The
Plaintiff gave no
evidence
as
to
the breakdown of
the amount
of
R100
000,00 per month claimed
by her as
rehabilitative
maintenance.
She
did
testify
as
to
some
of
her
expenses but
none
came
close
to
this
amount. At
the
conclusion of the trial Mr Khela submitted on
the
Plaintiff's behalf
that
the
R100
000,00
was
made
up
of
the
R30 000,00
per
month
which
the
Defendant
had
previously
paid
in
lieu
of her
income plus a further
R40 000,00
or
R50
000,00 per month which
he
at
that
time
paid
in
respect
of
expenses
incurred
by the
Plaintiff on her credit card (but which, it must immediately be
noted,
also
included
expenses
regarding
the
common
home) and
that
the
balance
of
the
amount
is
made
up
by
"inflation"
.
The
main
thrust
of
the
argument
on
behalf
of
the
Plaintiff
was that
she was
accustomed
to these
payments
during
the
period
when
the
parties
were
still
living
together
and
in fact
remained
entitled thereto during the remainder of the marriage.
During
cross-examination
it
emerged
that
pursuant
to
the
settlement
of the
Rule 43
application
referred
to previously,
the
Defendant
retained
the
Plaintiff
on
his
medical
aid
and
paid
(in
addition to some maintenance for the child which was
less than
that
now
later
claimed
by
the
Plaintiff
in
her
action
and
subsequently
tendered
by the
Defendant
as set out
above)
the
monthly amount of R6 000,00
for a
helper and R400,00
for
swimming
pool
maintenance
for
a period
of 6 months.
He also
agreed to
be liable
for
the
payment
of the
bond,
levy and
rates and
taxes
payments
for
the
common
home (but
also
limited
for a period of 6 months).
As
to the 6 month period, the
Plaintiff
testified
that this
was
but
an
interim
measure
to
maintain
the
status
quo
at
the
time
and so
as
to
tide
her
over
until
the
first
part
of
the
then
contested
part
of
the
trial
pertaining
to
the
recognition
of
the
customary
union had been determined.
In the
end, the
period of
6 months was
far
exceeded
and
although
the
payments
to
the
Plaintiff
stopped,
the
payments
by
the
Defendant
regarding
the
bond and
levy
and
rates
and
taxes
payments
of
the
common
home
continued to this day.
The
Plaintiff
s
attitude
during
cross-examination
was
this:
She came
into the
marriage
with
a
house
and
she
intended
staying in the
common
home
indefinitely
or
until
an
alternate
house
is
provided for
her since
she
had lost
her own.
She had
lost
her
investments and policies and wished to recover same by way of the
rehabilitative maintenance.
[4]
THE
APPLICABLE LAW:
4.1
It is an accepted principle of South African law
that neither spouse
has a right to maintenance upon divorce and the reciprocal duty of
support which is one of the invariable consequences
of marriage comes
to an end when the marriage terminates. (cf.
Botha v Botha
2009(3) SA 89 (WLD))
4.2
Post-divorce maintenance between spouses is on
a different footing
than the obligation to maintain children and is a creature of
statute.
Section 7
of the
Divorce Act, 70 of 1979
, is clearly
discretionary and an ex-spouse has no right to maintenance as such.
The factors to be taken into account by a court
in making a
maintenance order include the existing or prospective means of each
of the parties, their respective earning capacities,
their financial
needs and obligations, their age, the duration of the marriage, their
standard of living prior to the divorce,
their conduct insofar as it
may be relevant to the breakdown of the marriage, an order for the
division of assets and any other
factor which in the court's opinion
should be taken into account. None of these factors are
individually dominant.
[5]
APPLICATION OF
THE
LAW TO
THE
FACTS:
5.1
Insofar as the existing or prospective means of
each of the parties
is concerned, it was never the Defendant's case that he was unable to
maintain the Plaintiff or even to pay
the amount claimed. No evidence
was led in this regard and there was not even such a suggestion made
to the Plaintiff in cross-examination.
5.2
The Plaintiff testified that prior to the marriage,
she was the owner
of a house worth R2 million and with bond
payments of some R12 000,00
but in respect of which
she subsequently obtained a rental income of R 10 000,00. She had the
aforementioned BMW Z4 motor vehicle,
funeral policies, various
clothing accounts, her own medical aid and investments and policies.
She was able to pay all these expenses
and maintain the investments
as well as paying the levies and the rates and taxes on her house.
5.3
The BMW Z4 motor vehicle has subsequently made
way for a cheaper
vehicle with lower monthly instalments. She currently has an
overdrawn credit card and has lost all her investments.
Substantial
legal fees had been incurred which was partially paid by the proceeds
of the sale of her immovable property, leaving
her still with an
outstanding debt of some R245 000,00. She also has the obligation to
repay her mother for the R500 000,00 loan
which her mother took to
assist her overseas studies. There is some dispute whether the
Defendant had previously timeously paid
for hospitalisation and other
medical procedures for the minor child and whether the Plaintiff had
to pay shortfalls on the medical
aid fund as well as the fact as to
whether any maintenance was paid in respect of the minor child for
December 2016 and January
and February 2017. Apart from the Plaintiff
s say-so, this was not corroborated by any documentary evidence but
neither was any
proof of payment produced by the Defendant.
5.4
Be that as it may, it appears that the Plaintiff
has very little
assets, if any, to maintain herself and as she is currently
unemployed, has no means to otherwise support herself
or to make good
her outstanding liabilities and debts.
5.5
During this cross-examination of the Plaintiff,
counsel for the
Defendant accused the Plaintiff of being the author of the increased
legal costs incurred by herself. He put it
to the Plaintiff that this
was particularly so due to her proceeding with the claim for division
of the joint estate and the opposition
to the Defendant's
counterclaim for forfeiture despite having been forewarned by Makgoka
J that her victory in the proving of the
marriage might be a hollow
one.
5.6
At the time when the accusation was levelled, I
was not in possession
of the relevant judgment (I was told that it was reported and that
the reference would be furnished. This
was incorrect, it was not
reported and in fact it was a judgment of Kollapen J referred to
above which had been reported.) Upon
receipt of the judgment of
Makgoka J after the conclusion of the trial and upon a reading of it,
his
"warning"
appears not to be one after
all. The sole reference to costs in his judgment is the following:
"[64]
In summary, I find that the Plaintiff
has discharged her case on a balance of probabilities
that a
customary marriage was concluded between herself and the Defendant.
The requirements of the Act have been met. There was
consent, the
marriage was negotiated and celebrated in accordance with customary
law. She is thus entitled to a declaratory order
she seeks. With
regard to costs, I am of the view that costs should be decided with
the determination of the remaining issues.
This should be so,
especially in view of the Defendant's counterclaims. Should, for
example, his forfeiture counterclaim succeed,
the Plaintiff's victory
in this part of the case would be hollow and a costs order in her
favour would not be equitable and fair."
5.7
The abovementioned findings can hardly be a
"warning"
to
the Plaintiff to desist from exercising her constitutional rights of
access to a court and neither was any opinion expressed
regarding the
merits of the counterclaim. In fact, the Plaintiff s evidence before
me to the effect that the Defendant's audacity
in denying the
customary union and his defence of that issue was astounding, was
echoed in the judgment of Makgoka J. The Defendant
was found to be a
poor and unsatisfactory witness and to having been garrulous,
argumentative, obtuse and evasive. He was found
to have failed to
directly answer simple questions instead electing to pick up
unnecessary and idle philosophical arguments with
counsel. His two
corroborating witnesses were also found not to be credible. Having
regard to the largely discretionary nature
and the multitude of
possibilities concerning the forfeiture issue, balanced by the
Plaintiff's own claim for division of a joint
estate, she was well
within her rights to proceed with her action which she described as
an attempt to at least come out of the
marriage with as much as she
went into it.
5.8
The criticism of the Plaintiff regarding the incurring
of legal costs
was therefore misplaced and unwarranted. The depletion of her funds
and assets due to the incurrence of legal costs
did however leave her
with scant resources and negatively impacted on her ability to
maintain herself and this is a factor which
should be taken into
account.
5.9
The fact that, if the forfeiture order stands,
there would be no
division of assets is also a factor which should be taken into
account.
5.10
On behalf of the Plaintiff much was made of the
conduct of the
Defendant and it was argued that this was also a factor to be taken
into account in
the
Plaintiff's favour. Apart from
accusations regarding a lack of sufficient
interest in the
wellbeing of his child and the understandable reaction of the
Plaintiff regarding her changed circumstances for
which she blames
the Defendant, little else was testified in this part of the trial
regarding the conduct of the Defendant other
than his conduct in
denying that a marriage had in fact taken place as already referred
to above. The circumstances which led to
an irretrievable breakdown
of the marriage relationship between the parties were dealt with in
the reported judgment of Kollapen
J referred to above and although
much has been said in various cases regarding the extent to which
disapproved conduct should go
before it can justify a maintenance
order or the increase thereof, I am of the view that it is not the
case here.
5.11
A factor which is, in the context of this case,
more determinative,
is the fact that the Defendant had no difficulty or objection in
maintaining the Plaintiff during the period
that the parties still
lived together as husband and wife by substituting her income from
his own pocket. Even when he terminated
this when the co-habitation
ceased, he had no objection against further contributing to the
Plaintiff s maintenance by providing
a roof over her head (albeit it
for her and the minor child) by paying the bond payments on the
common home (I interpose to state
that the Defendant has two other
immovable properties apart from various other assets and business
interests). At least the
Plaintiff was accustomed to that part
of her expenses or maintenance being paid
during the existence
of the marriage.
5.12
The Plaintiff's ability to maintain herself is dependent on her
obtaining gainful employment. She had, for a period of six months
since the termination of the co-habitation with the Defendant,
been
employed at ANN7 as a mentor for upcoming filmmakers. The employment
was however project-dependent and terminated after six
months. She
has not been able to obtain employment since but was criticised for
her lack of attempts at seeking gainful employment
and the fact that
she was not prepared to work for less than she had previously
earned. There is some merit in this criticism
but, to my mind, having
regard to the current unemployment rate prevalent in South Africa,
not to the extent that the Plaintiff
should be deprived of all
relief. There was no evidence that alternate employment had been
available which she had not availed
herself of or that her
placing herself on job listings and scrutinising advertisements and
the like should mean that she
should not be afforded a further period
of rehabilitative maintenance.
5.13
The Plaintiff is still relatively young, and presented herself in
court as an attractive, stylish and well-groomed lady with a
post-graduate qualification and prior work experience at a
directorate
level. Where she had claimed rehabilitative maintenance
for a period of 2 years, a bit more than half of
that period has already expired since
her permanent return from the United States of
America.
5.14
Taking everything into consideration, I am of the view that the
Plaintiff
is entitled to rehabilitative maintenance in an amount
equal to what the Defendant had paid her in lieu of her income during
the
period of co-habitation between the parties for the remaining
period of her initially claimed or envisaged 2 year period of
rehabilitation,
being a period of not less than a year. She has not
satisfied the onus on her to prove a need or requirement for a larger
amount
and neither can her claim for maintenance as a measure to
recompense her for whatever she may have lost during the course of
the
marriage. That is an issue which is proprietary in nature and
which formed or should have formed part of the enquiry concerning
division of the estate or the forfeiture of benefits.
[6]
COSTS:
As
is apparent from the portion of the judgment of Makgoka J quoted
above, costs of that part of the trial were reserved. As is
further
apparent from the reported judgment of Kollapen J referred to above,
the learned judge exercised the discretion vested
in him by finding
that it would be just and equitable for each party to bear their own
costs of the part of the proceedings regarding
the division of the
joint estate and the forfeiture of the benefits thereof. I have
weighed up all the facts of the case. These
include the fact
that the Plaintiff s success in claiming rehabilitative maintenance
was substantially less than that which she
had insisted on, the fact
that the Defendant had, albeit at a late stage, made a full tender of
whatever was claimed in respect
of the minor child (which tender was
not accepted by the Plaintiff) the fact that the Plaintiff had
insisted on pursuing a claim
for purposes of recovering assets or
expenditures by way of a maintenance order, which is not legally
permissible, but by taking
into account the various parties'
financial positions and means. In the exercise of my discretion, I
view it just and equitable
that each party bear his or her own costs
for this part of the trial. The same does not apply in respect of the
costs reserved
by Makgoka J. Nothing of the latter parts of the
trial, including the forfeiture order, detracts from the fact that
the Plaintiff
was substantially successful in the trial before
Makgoka J in proving the marriage between the parties. Her success
therein enabled
her to proceed with her claim for maintenance as well
as seeking to enforce the rights of the parties' minor child from his
father
as her then soon to be ex-spouse. For purposes of exercising
my discretion I also took into account the nature of the Defendant's
opposition in the trial before Makgoka J as well as the credibility
findings made by the learned judge. Despite his comments regarding
costs quoted above, I do not find those comments as indicating that
those costs should be costs in the cause or of necessity follow
later
costs orders. Had this been what was intended, the learned judge
would have said so. The fact of the matter
is further that the issues before
Kollapen J were separated from the remainder of the disputes. I
do
not find compelling reasons for deviating from the customary
principle that costs should follow the event in respect of the
costs
of the trial before Makgoka, J.
[7]
THE
ORDER:
Having
considered all the aforementioned factors and in the exercise of my
discretion regarding the issue of rehabilitative maintenance
and
taking into account all the issues which were common cause between
the parties and/or which were tendered by the Defendant,
I make an
order as follows:
1.
A decree of divorce is granted.
2.
The parental responsibilities and rights to the minor child born of
the marriage between the parties as set out in
Section 18(2)
of the
Children's Act, 33 of 2005
, are awarded to the Plaintiff which
parental responsibilities include:
(a)
the primary care of the minor child;
(b)
the choice of primary place of residence of the minor child;
(c)
the decisions pertaining to the day-to-day care of the minor child,
including decisions
in respect of the education and schooling of the
minor child.
3.
The specific parental
responsibilities
as referred to
in
Section 18(2)(5)
of the
Children's Act with
reference to contact with the minor child are awarded to the
Defendant, lastmentioned contact which may be
exercised
as follows:
3.1.1
Until the child reaches the age of 6 years:
(a)
every Wednesday afternoon for a period of 2½ hours;
(b)
every alternate weekend from a Saturday evening from 17:00 until
Sunday 14:00;
(c)
telephonic contact every day between the
hours of 18:00 and 18:30.
3.1.2
From the age of 6 years:
(a)
from Friday afternoon at 17:00 to Sunday 17:00;
(b)
every alternative long and short school holiday, Christmas to rotate
between the parties;
(c)
telephonic contact at all reasonable times.
3.1.3
Contact will be exercised in such a manner that it will not
unreasonably interfere with the minor child's extramural, scholastic
and religious activities.
4.
The parental responsibilities and rights to the minor child as set
out in
Section 18(2)
of the
Children's Act, 33 of 2005
, pertaining to
guardianship of the minor child are awarded to the parties jointly.
5.
The Defendant shall pay rehabilitative maintenance to the Plaintiff
in the amount of R30 000,00 per month for a period of one year,
payable at the end of each month, commencing on 31 March 2017 and
for
the same period retain the Plaintiff on his medical aid and pay all
reasonable medical expenses not covered by the medical
aid.
6.
In respect of maintenance of the minor child, the Defendant is
ordered
to pay the following:
6.1
Maintenance in the amount of R 10 000,00 per month
which amount will
escalate at the rate of 10% annually and which amount is payable to
the Plaintiff on or before the 3rd day of
each and every month,
commencing on 3 April 2017, until such time as the child is
self-supporting;
6.2
Payment of all creche and school fees, inclusive
of registration and
books, stationery, and the like, direct to the relevant institution
which will be a private school or equivalent
thereof;
6.3
Payment of all costs in respect of extramural activities
and extra
classes, including the costs relating to the requirements and
equipment for such activities and classes;
6.4
Tertiary schooling and training which will
include university
fees, lecturing fees, expenses in respect of books, stationery and
fees for attending residential institutions
at the university, if
applicable, until such time as
the child becomes self-
supporting;
6.5
The Defendant is ordered to retain the child on
his medical aid and
to pay all medical expenses not covered by the medical aid.
7.
The Defendant is ordered to
pay the Plaintiff's costs of the proceedings
and the trial before Makgoka J.
8.
Save as aforesaid, each party shall pay his or her own costs of the
present proceedings.
_______________________
N
DAVIS
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing:
6 and 7 March
2017
Judgment
delivered: 10
March 2017
Counsel
for Plaintiff:
Adv Z Kela
Attorneys
for Plaintiff:
Ndumiso Voyi Incorporated
Counsel
for Defendant: Adv P Van Niekerk SC
Attorneys
for Defendant: L Mbanjwa Incorporated