R.C.P v R.P.P (4446/2010) [2016] ZAKZPHC 34; 2016 (4) SA 226 (KZP) (5 February 2016)

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[2016] ZAKZPHC 34
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R.C.P v R.P.P (4446/2010) [2016] ZAKZPHC 34; 2016 (4) SA 226 (KZP) (5 February 2016)

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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO.: 4446/2010
REPORTABLE
In
the matter between
[R……..]
[C…….]
[P……..]
.................................................................................................
PLAINTIFF
And
[R……]
[P……]
[P…….]
..................................................................................................
DEFENDENT
JUDGMENT
Date
delivered:  5 February 2016
MOODLEY
J
:
[1]
The parties to this divorce action were married to each other on 1
July 1972. Prior to the marriage they entered into an antenuptial

contract in terms of which community of property, community of profit
and loss and marital power were excluded from their marriage.
The
antenuptial contract was duly registered on 30 June 1972. The three
children born of the marriage have attained majority.
[2]
The plaintiff instituted the action for divorce on 17 June 2010 on
the grounds that the marriage between the parties had broken
down
irretrievably because of the defendant’s extramarital
relationships, and the parties had been living apart since November

2009.  She claimed a decree of divorce, an order for maintenance
in the sum of R40 000 per month, a redistribution order
in terms
of Section 7(3) of the Divorce Act No 70 of 1979 (the
Divorce Act) to
the effect that fifty percent of the defendant’s assets be
transferred to her, and costs. Her claim for redistribution was

premised on the grounds that she had contributed directly and
indirectly to the maintenance and increase of the defendant’s

estate in accordance with
Section 7(4).
[3]
In his plea and counterclaim the defendant did not resist the claim
for a decree of divorce. He admitted that the marriage had

irretrievably broken down, although he disputed the reason for the
breakdown. He also admitted that the plaintiff required maintenance

and tendered as reasonable, maintenance in the sum of R15 000
per month until her death or remarriage. His counterclaims in
the
alternative against the plaintiff related to an immovable property
registered in her name referred to as ‘St Patrick’s

Farm’, and a reciprocal claim in terms of
Section 7(3)
of the
Divorce Act for
a redistribution order directing the plaintiff to
transfer St Patrick’s Farm or such of her assets as the court
deemed just,
to him. During the course of the trial, the defendant
abandoned his alternative counterclaims in respect of St Patrick’s
Farm and acknowledged that the ownership of the farm vested in the
plaintiff. He persisted only with the reciprocal claim for
redistribution
in terms of
Section 7(3).
[4]
Both parties made ‘with prejudice’ tenders during the
hearing of this matter in 2013. When the trial recommenced
in May
2014 the plaintiff withdrew her tender and the defendant filed a
revised ‘with prejudice’ tender dated 9 May
2014
[1]
,
which the plaintiff did not accept.
[5]
The trial which was set down for hearing for a period of 5 days
commenced on 13 May 2013 and was adjourned on 17 May 2013. It
resumed
on 19 May 2014 and concluded on 21 May 2014.
[6]
It was common cause at that date that:
6.1
The marriage relationship between the parties had irretrievably
broken down and both sought a decree of divorce;
6.2
The plaintiff is entitled to open ended maintenance. In accordance
with the order in terms of
Rule 43
issued on 24 August 2010, the
defendant had paid her maintenance in the sum of R18 000 per
month; but he increased the payment
to R22 000 per month from
June 2014;
6.3
at the request of the plaintiff, the defendant had purchased a
sectional title unit (‘Chaseford’)
for her, which is
registered in the plaintiff’s name and in which she currently
resides. The defendant is servicing the mortgage
bond over the
property and has undertaken to settle the bond liability in full;
6.4
The defendant was residing on St Patrick’s Farm with his
partner and son and is servicing the bond over
the property;
6.5
The defendant was maintaining payments of the instalments and
insurance premiums due on
the motor vehicle used by the plaintiff and
contributions to her medical aid;
6.6
The defendant had paid R20 000 as a contribution to the
plaintiff’s costs and
a further R100 000, on the grounds
that this sum would be taken into consideration when the final order
is made; and
6.7
there was no agreement, written or otherwise, between the parties
regarding the division of their assets.
[7]
At the end of the trial, the plaintiff advised through her counsel,
Adv Bailey SC, that she accepted the defendant’s tender
only in
respect of maintenance, the conditions pertaining to payment of the
bond over the property she occupies, the motor vehicle
in her
possession and her retention on the defendant’s medical aid
scheme.
[8]
I consequently ordered a decree of divorce on 21 May 2014 but
directed that the order made
pendente
lite
in terms of Rule 43 of the Uniform Rules on 24 August 2010 would
remain effective until the judgment is finalised, as a redistribution

order in terms of section 7(3) of the Act, and a maintenance order in
terms of subsection (2) are interrelated,
[2]
and I deemed it prudent to make an order for maintenance after an
overall view of all the factors relevant to both subsections.
[9]
The issues remaining for determination are:
1
the respective redistribution claims in
terms of section 7(3) of the parties;
2
the plaintiff’s maintenance claim in
terms of section 7(2);  and
3
the reserved costs of the Rule 43
application and the divorce action.
[10]
The salient factual background is set out in the summary of the
defendant’s evidence below.
Evidence
presented during the Trial
[11]
The plaintiff did not testify but called one expert witness Mr
Vincent Varoy, a chartered accountant and registered auditor
to
testify on the value of the estates of the parties and in particular,
the values assigned to assets and liabilities in the defendant’s

estate which were disputed by the defendant.
[12]
The defendant testified and called his accountant Dr Kevin Mitchell
to testify on the disputes between the parties in respect
of the
valuation of the defendant’s estate.
The
Evidence of the Expert Witnesses
[13]
The two points of contention between the experts were the
relationship between the liability on the overdrawn capital account

in the partnership of ‘RP & RC Plunkett t/a St Patrick’s
Farm’ and the loan account in the books of the defendant’s

incorporated company, and the values of the retirement annuities of
the defendant. Both witnesses testified and were cross-examined
at
length.  However when the trial resumed on 19 May 2014, after a
further Rule 37 conference, the parties had resolved the
contentious
issues and an updated Rule 37 Bundle containing agreed values of the
financial assets was admitted as ‘Exhibit
G’.
I
will return to those values in due course.
The
Evidence of the Defendant
[14]
The following is a summary of the defendant’s testimony.
14.1
The defendant, whose highest qualification is a doctorate from the
University of Natal conferred in 1976,
commenced his professional
career as an academic and lectured for 17 years. In 1978 he started a
neuropsychology practice while
at the university and also worked at
the physiology clinic treating patients with trauma of the nervous
system. The defendant’s
professional career spanned 40 years,
of which he has been in private practice for 27 years.
14.2
He met the plaintiff in 1972, when he was 25 years old and she was 19
years old and a secretary in Johannesburg.
She relocated to
Pietermaritzburg at the defendant’s request and worked in an
art gallery and then a legal practice.
14.3
The parties lived in a flat near the university until the defendant
purchased a house with the subsidy he
received from the university.
After 3-4 years he obtained a further bond and purchased a farm at
Eston on which he started a commercial
piggery. The defendant sold
his flat and the proceeds of that sale were invested to improve the
farm. The defendant also did the
major work in building and
establishing the piggery and was responsible for the entire operation
and the financial records. He
attended to the piggery morning and
evening and worked at the university during the day.  He also
serviced the bond on the
farm. The plaintiff was pregnant with their
first child at the time and worked until about a month before the
child was born.
Thereafter by agreement she assisted in the
piggery and did not return to work elsewhere. Her contribution was
limited to minor
responsibilities and she supervised the labour in
his absence.
14.4
However the farm was not very profitable or viable, the plaintiff
felt isolated and was unhappy there and
the defendant was under
increased pressure of work at the university. The defendant sold the
farm and purchased another house near
the university with the
proceeds of that sale and the subsidy from the university, in which
they lived with their children for
about 10-12 years. During this
time the defendant conducted his consulting practice from his office
at the university and then
at a medical centre, where his practice is
still situated. The plaintiff was the primary caregiver for the
children, and the defendant
played a supportive role in bringing up
the children.
14.5
About three years after the birth of their second child, the
plaintiff began assisting twice a week with
secretarial work in the
defendant’s practice although he employed a full-time
secretary. She also assisted the defendant
for about 2 hours a day
when he worked at the clinic. She was eventually ‘paid’ a
salary by the practice as a book
entry or tax benefits but in the
interim she had unrestricted access to the defendant’s bank
accounts to which she was a
signatory and the funds in the accounts.
14.6
In 1987 the defendant resigned from his position at the university
and devoted himself to his professional
practice as a sole
practitioner. The plaintiff managed the administration of his
practice with the help of an assistant. Her salary
was formalised at
this time and fixed, irrespective of the hours she worked, at a
substantially higher rate than that of the fulltime
employee.
She also assisted the defendant briefly with the editing of his
forensic reports. She continued in this capacity
until she started
her own business. An accountant was then employed to administer the
practice and the defendant edited his reports
himself.
14.7
The plaintiff continued to draw a salary from the practice while
running her clothing boutique. The funding
to start up the boutique
came from the defendant’s business, although the defendant was
not sure whether she may have also
taken a small bank loan.
After the first two years the business ran at a loss but the
defendant continued to fund the business
from his own professional
income as the plaintiff accessed funds in the sum of more than R2.2
million from his accounts to keep
her business afloat as she did not
want her business to fail.
14.8
As result of the manner in which the plaintiff administered and
withdrew funds freely from the defendant’s
accounts, on
occasion the defendant found himself under financial constraints. One
such occasion occurred when there were insufficient
funds to settle
the defendant’s tax liability; the plaintiff decided that they
should sell paintings they had received as
gifts from her family to
pay off the debt.
14.9
Around 1987/1988 when the defendant went into private practice, the
parties decided to develop and move to
a property in Howick given to
the plaintiff by her mother. The property was undeveloped and valued
at R45 000 when transferred
to the plaintiff. The defendant sold
his property in 1987 and utilised the proceeds towards the home built
for their family on
the Howick property. Further funds for
improvements on the property were accessed through a mortgage bond in
the plaintiff’s
name because the property was registered in her
name. But the defendant provided the suretyship for her liability
under the bond
and serviced the bond.
14.10
However the property had some drawbacks. The defendant had by then
also acquired horses and joined a riding club. He
decided to breed
sports horses to give rein to his passion for horses. He then heard
about the property known as St Patrick’s
Farm which would suit
his needs. The property was purchased in the name of the plaintiff on
the advice of the parties’ accountant
at the end of 2002 at a
price of R300 000.
14.11
The plaintiff sold the Howick property for R1 075 000 in
July 2004. The proceeds of the sale were R978 221,
R700 000
of which was deposited into the bond account in the name of St
Patrick’s Farm. The parties together consulted
with the
architect on the design of the house built on the property. The
defendant attended to obtaining water supply on the property
and the
re-erection of fences. The plaintiff assisted with the installation
of electricity on the property. The funds for the improvements
and
construction of the house were obtained from the bond which the
defendant serviced while the plaintiff attended to the disbursements

from the bond account.
14.12
To fund the building of the stables which cost approximately
R110 000, the defendant sold antiques which he inherited
from
his mother and also paid the shortfall when the sale did not realise
sufficient funds. He also personally assisted in the
completion of
the stables.
14.13
By this stage the defendant had decided to breed thoroughbred
racehorses. The plaintiff’s contribution to this
operation was
some administration, and the parties together participated in the
social events associated with racing horses. The
defendant alone was
involved in the breeding, handling and training of the horses.
14.14
The expenditure on St Patrick’s Farm included the purchase of
equipment, and a tractor, but the defendant was
uncertain of the
source of the funds stating only that the payments were in cash.
Another major expense on St Patrick’s Farm
was the conversion
of a portion of the house into bed and breakfast units and the
construction of additional cottages for a similar
use. Although the
defendant was involved in this project, once the construction was
completed the plaintiff was solely responsible
for the bed and
breakfast operation, which terminated in 2009.
14.15
Neither the horse breeding nor the bed and breakfast operation were
highly profitable, but offered tax benefits.
14.16
The defendant confirmed the testimony of Mr Varoy and Dr Mitchell
that the activities on the farm were conducted as
a partnership
venture, in which the defendant had a 90 percent interest and the
plaintiff a 10 percent interest, as reflected in
the financial
statements.
14.17
The defendant admitted that he had an extramarital relationship
during the period 1996 – 2000. The relationship
lasted four
years until the woman’s husband found out and informed the
plaintiff. The plaintiff was extremely upset and angry.
The defendant
was remorseful and guilt-ridden and remained committed to the
plaintiff and their marriage and did not contemplate
divorce.
Under cross-examination he added that had he been completely happy in
his marriage he probably would not have had
an affair; he and the
plaintiff had different personalities, values and needs.  He
also clarified later that they had differing
attitudes to money (he
was more frugal while she ‘abused’ the bank facilities
and funds available to her), and to intimacy
in their personal
relationship. The plaintiff was also more inclined to an active
social life while he preferred a more isolated
life.
14.18
After prolonged discussions the parties decided that the marriage
would continue, but despite their decision, the plaintiff
subjected
the defendant to sustained physical and verbal abuse and anger for
nearly 4 years until the relationship achieved a measure
of harmony
and stability. By that time they had moved to St Patrick’s
Farm. But the plaintiff became suspicious of the defendant’s

relationship with a member of her book club with whom the defendant
started riding horses from about 2001.  The defendant
denied
that he was romantically involved with the woman at the time, but to
appease the plaintiff sold his horse and stopped riding
with the
woman. Despite their efforts not to get involved with each other, the
defendant and the woman began a relationship in
2006 (2003 under
cross- examination). The defendant admitted the affair to the
plaintiff, left the matrimonial home and lived in
a bed and breakfast
for over a year. Attempts at reconciliation failed and in 2008/9 the
parties decided that their relationship
was at an end.
14.19
Subsequently, after the defendant left St Patrick’s Farm, the
plaintiff decided that she could not live there
anymore and requested
the defendant to purchase for her a home of her own. He purchased the
unit in Chaseford in March 2010 in
her name. The bond over Chaseford
is in the name of the plaintiff but the defendant furnished the
suretyship, paid the shortfall
and is servicing the bond.
14.20
The parties placed no restrictions on each other in respect of their
respective occupations of the properties. The defendant
resides on
the farm with his partner and son.
14.21
The parties initially considered selling St Patrick’s Farm but
because of the slump in the property market they
decided that the
defendant would keep the farm going until it could be sold. They had
expressly agreed that the proceeds of the
sale of the property would
be shared although they had not agreed on the shares to be allocated
to each of them.
14.22
At the age of 67 and because of certain medical conditions for which
he is on medication, the defendant is unable to
work the hours he
previously did.  He acknowledged the history between himself and
the plaintiff, that they raised children
together and that she was a
good mother. He expressed regret for the unhappiness he had caused
her and felt a responsibility to
provide for her.  He explained
that his tender to the plaintiff reflected his emotional attachment
to St Patrick’s Farm,
and he wanted his three children to
inherit the property in due course.
14.23
Under cross-examination the defendant agreed that the proceeds from
the sale of the Howick property had been injected
into St Patrick’s
Farm but disclaimed any knowledge of the financial details.  He
also persisted that except for the
Bed and Breakfast business, the
plaintiff had not been involved with St Patrick’s Farm because
she was occupied with the
running of her boutique.
[15]
The defendant made a good impression as a witness. He refrained from
attempts to exculpate himself in respect of his adultery
or adverse
comments about and criticism of the plaintiff until pressed under
cross-examination and re-examination. There was no
reason to
disbelieve or reject his evidence as false, especially in the absence
of any testimony from the plaintiff herself without
an explanation
for her failure to testify.
[3]
However given his apparent intellectual capacity, it was remarkable
that he disclaimed a stricter control over the income he generated
in
his professional work and from his business ventures. Nevertheless
his testimony was clear in several pertinent respects and
established
that:
15.1
through the income earned during his professional career which
spanned 40 years the defendant was the major
breadwinner and
financial mainstay throughout the subsistence of the marriage.
15.2
In addition to his financial contribution to the establishment of the
piggery and the horse breeding operations,
the defendant was
personally involved in setting up and running the operations; the
stables on St Patrick’s Farm were his
personal undertaking and
funded partially through the sale of inherited assets.
15.3
The defendant is currently fully responsible for the upkeep of St
Patrick’s Farm and is servicing the
bond on the property, on
which he is residing with his partner and the elder son of the
parties. The defendant desires to live
out his days on the property.
15.4
The purchase of and improvements on St Patrick’s Farm were
partially funded by a portion of the proceeds
of the sale of the
Howick property. The remaining costs were borne by the defendant, as
the income from his practice was utilised
to defray the withdrawals
from the access bond over the farm, which was, according to Dr
Mitchell, ‘utilised like a cheque
account’.
15.5
The business operations on St Patrick’s Farm were conducted in
the name of a partnership: RP &
RC Plunkett trading as St
Patrick’s Farm. The plaintiff held a 10% owner’s interest
and the defendant 90%, as reflected
in the financial statements of
the partnership.
15.6
The financial statements of the partnership reflect as a financial
liability a substantial loan from Dr RP
Plunkett Incorporated, the
defendant’s practice.
15.7
The plaintiff’s financial contribution to the household ended
when she left work just before the eldest
child was born. Thereafter
she became the primary caregiver of the children and was a good and
caring mother. But the plaintiff
also contributed to the defendant’s
practice, both part-time and full-time, through her secretarial
services and administration.
Albeit to a lesser extent when compared
to the responsibilities assumed and contribution made by the
defendant, the plaintiff assisted
in the piggery (while caring for
the children), horse breeding operations and the establishment of
services on St Patrick’s
Farm.
15.8
The parties made joint decisions about their homes and business
enterprises. St Patrick’s Farm was
purchased in the plaintiff’s
name on the advice of their accountant.
15.9
The plaintiff had full control over the parties’ finances and
attended to financial administration
of the defendant’s
business operations.
15.10
The plaintiff established her own business, the Lady Saumarez
boutique, mainly with funds from the defendant’s
accounts.
Financial statements for St Patrick’s Farm record as an asset,
an interest free loan with no fixed repayment date
in the sum of
R426 999 to Lady Saumarez Emporiums CC. The defendant continued
to fund the ailing business until it was shut
down and his estate
sustained a loss in excess of R2 million consequent to the failure of
the business.
The
plaintiff also established and ran the bed and breakfast business on
St Patrick’s Farm, which showed a measure of profit.
The
business was terminated in 2009.
15.11
When the plaintiff was given the Howick property by her mother, it
was vacant, unimproved land valued at R45 000.
The improvements
on the property, including the house in which the Plunkett family
lived, were funded from the proceeds of the
sale of the defendant’s
house and a mortgage bond which he serviced.
15.12
The plaintiff sold the Howick property for R1 075 000 in
July 2004 which realised approximately R978 000.
The balance to
discharge the existing bond was approximately R18 000.
There is no information as to what happened to
balance of
approximately R278 000 after R700 000 was paid into the St
Patrick’s Farm access bond account.
15.13
The 4 paintings which were sold for R285 000 to pay the
defendant’s tax liability at the plaintiff’s
suggestion
were anniversary gifts to both parties from the plaintiff’s
parents.
15.14
The plaintiff does not find living on a farm conducive to her
wellbeing: she was unhappy on the Eston farm with the
piggery and on
St Patrick’s Farm and requested the plaintiff to purchase
another home for her. She is currently living in
a sectional title
unit referred to as the Chaseford property. The mortgage bond over
the unit is serviced by the defendant.
15.15
The plaintiff has since the separation of the parties in November
2009 not assisted in or performed any services for
the defendant’s
businesses.
15.16
The defendant has had two extramarital relationships during the
course of the marriage, which contributed to the breakdown
of the
marital relationship.
Redistribution
: The Law and Legal Principles
[16]
Section 7
of the
Divorce Act provides
:
‘
Division
of assets and maintenance of parties
(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.
(2)
In the absence of an order made in terms of subsection (1) with
regard to the payment of maintenance by the one party to the
other,
the court may, having regard to the existing or prospective means of
each of the parties, their respective earning capacities,
financial
needs and obligations, the age of each of the parties, the duration
of the marriage, the standard of living of the parties
prior to the
divorce, their conduct in so far as it may be relevant to the
break-down of the marriage, an order in terms of subsection
(3) and
any other factor which in the opinion of the court should be taken
into account, make an order which the court finds just
in respect of
the payment of maintenance by the one party to the other for any
period until the death or remarriage of the party
in whose favour the
order is given, whichever event may first occur.
(3)
A court granting a decree of divorce in respect of a marriage out of
community of property-
(a)
entered
into before the commencement of the
Matrimonial Property Act, 1984
,
in terms of an antenuptial contract by which community of property,
community of profit and loss and accrual sharing in any form
are
excluded; or
(b)
………
..
may,
subject to the provisions of subsections (4), (5) and (6), on
application by one of the parties to that marriage, in the absence
of
any agreement between them regarding the division of their assets,
order that such assets, or such part of the assets, of the
other
party as the court may deem just be transferred to the
first-mentioned party.
(4)
An order under subsection (3) shall not be granted unless the court
is satisfied that it is equitable and just by reason of
the fact that
the party in whose favour the order is granted, contributed directly
or indirectly to the maintenance or increase
of the estate of the
other party during the subsistence of the marriage, either by the
rendering of services, or the saving of
expenses which would have
otherwise have been incurred, or in any other manner.
(5)
In the determination of the assets or part of the assets to be
transferred as contemplated in subsection (3) the court shall,
apart
from any direct or indirect contribution made by the party concerned
to the maintenance or increase of the estate of the
other party as
contemplated in subsection (4), also take into account-
(a)
the
existing means and obligations of the parties,……….;
(b)
any
donation made by one party to the other during the subsistence of the
marriage, or which is owing and enforceable in terms of
the
antenuptial contract
concerned;
(c)
any
order which the court grants under
section 9
of this Act or under any
other law which affects the patrimonial position of the parties; and
(d)
any
other factor which should in the opinion of the court be taken into
account.’
[17]
There are several seminal cases which have clarified the legal
principles in accordance with which a claim for redistribution
in
terms of s 7(3) should be determined by the courts. The principles
restated briefly are :
17.1
the Court must be satisfied on the facts that the claimant spouse has
contributed to the maintenance or increase
of the estate of the other
during the subsistence of the marriage, and by reason of such
contribution it would be just and equitable
to make such
redistribution order.
[4]
17.2
The contribution of a spouse may be direct or indirect and may
consist in services, including services rendered
at home and in a
business venture, saving of expenses through such services which
obviates the employment of someone to render
the service, or may be a
financial contribution.
[5]
17.3
Where there are competing claims, each claim must be assessed
separately on its own merits unless the claim
and counterclaim are so
inextricably linked that a globular approach is appropriate.
[6]
17.4
The court ought to take an overall view and make a just order in
terms of subsections (2) and /or (3), bearing
in mind the existing
means, obligations and needs of the parties and all other relevant
factors.
[7]
17.5
The granting of redistribution is discretionary and the courts are
vested with a very wide discretion to
ensure that a just order is
made,
[8]
as circumstances in each claim for redistribution may be widely
divergent. Further section 7(5)(d) authorises consideration
of ‘any
other factor which should in the opinion of the court be taken into
account’.
17.6
The courts should avoid ‘guidelines’ or ‘starting
points’ when determining redistribution.
[9]
The English approach that the parties should share their joint net
assets equally, absent any contrary indication, has been rejected
by
our courts.
[10]
The known and
unequal contributions of the parties are relevant and cannot be
disregarded.
[11]
17.7
No limits are placed on the form and mechanics of the
redistribution
[12]
nor is a meticulous mathematical calculation required
[13]
,
nor should there be an attempt to quantify the weight to be accorded
to every relevant factor.
17.8
The ‘clean break’ redistribution is desirable but
frequently not practical because the resources
are not available to
achieve such a settlement.
[14]
17.9
Misconduct of the parties may be taken into account in determining
the equities of a section 7(3) redistribution
if the conduct is such
that it would be inequitable to disregard it. Where there is no
conspicuous disparity between the conduct
of the parties, no fault
will be apportioned. But where the misconduct of one party is ‘gross
and prolonged’ it may
constitute a relevant factor, but it
should not be unduly emphasized. A failure on the part of a party to
furnish available information
relevant to a determination required of
the Court may constitute misconduct.
[15]
The
claims for redistribution:
[18]
In
Beaumont
,
Botha JA held
[16]
that :
‘
It
is certainly a very prominent and important feature of ss7(4) that
ultimately, when once the factual requirements of ss(3) and
(4) are
satisfied, the determination of whether a redistribution order is to
be made at all is entrusted by the Legislature to
the wholly
unfettered discretionary judgment of the Court as to whether it would
be equitable and just to do so.’
[19]
That the factual requirements of section 7(3) are satisfied is common
cause.
[20]
The plaintiff’s claim for fifty percent (50%) of the
defendant’s estate is premised on her contribution to the

increase and maintenance of his estate in her role as primary
caregiver of the children while he was establishing his professional

practice, the secretarial and administrative services she rendered in
his practice, her management of the finances of the defendant
and the
various financial enterprises the parties established during the
course of their marriage, and the services she rendered
to the
enterprises which included a piggery, horse breeding, and a bed and
breakfast business. She also made a direct financial
contribution
because the proceeds of the sale of the property given to her by her
mother were paid into the bond which provided
the funds for the
purchase and development of St Patrick’s Farm.  Further
the parties effectively conducted their affairs
akin to a partnership
and made joint decisions in respect of their homes and businesses.
Finally, as pointed out by Ms Bailey,
that the defendant confirmed
that he had acknowledged in paragraph 21.5 of his affidavit in the
Rule 43 application, that in the
event of a dissolution of the
marriage a capital payment would be due to the plaintiff.
[21]
From the summary of the defendant’s testimony, it is clear that
while the defendant confirmed the contribution by the
plaintiff and
that they made joint decisions about their properties and businesses,
he also drew attention to the limited nature
of her contribution of
services to the administration of his practice, the piggery and the
establishment and operation of the horse
breeding business, and her
financial contribution to the properties which were registered in her
name.
[22]
I remain mindful that ‘it is a prerequisite to a successful
claim under the sub-section(4) that, on a balance of probabilities,

the conduct relied upon by a claimant as a contribution in fact
caused the alleged maintenance or increase of the other spouse’s

estate. The conduct must be the
causa
causans
,
and not merely the
causa
sine qua non
,
of the alleged maintenance or increase’.
[17]
But I am satisfied even on the defendant’s version, that the
plaintiff has satisfied the factual requirements of subsection(4).
[23]
The defendant’s claim for a redistribution order directing the
plaintiff to transfer St Patrick’s Farm or such
other component
of her assets as deemed just,  is premised in the fact that he
contributed to the maintenance and increase
of the plaintiff’s
estate by the contribution of his time, effort and funds, in
particular his funding of the acquisition,
improvement and
maintenance of St Patrick’s Farm of which the plaintiff is the
registered owner and by saving her expenses
which she would otherwise
have incurred.
[24]
It is common cause that the defendant generated the income which was
utilised to improve the plaintiff’s Howick property,
and the
payments into the access bond over St Patrick’s Farm utilised
to purchase and improve the property.  He also
assisted her in
funding the failed Lady Saumarez Emporium. Therefore although the
estate of the defendant exceeds that of the plaintiff,
given the
uncontroverted testimony of the defendant, the undisputed facts in
respect of his contribution to the increase and maintenance
of the
estate of the plaintiff and the manner in which the parties conducted
their affairs during the subsistence of their marriage,
the defendant
has established that his claim for redistribution is well-founded and
the factual requirements of subsection 7(4)
satisfied.
[25]
I am also satisfied that it is just and equitable to order
redistribution in this matter. Further the facts relevant to both

claims are so closely interrelated that a ‘globular’
approach to redistribution is appropriate.
[26]
However there are three related issues which expedience dictates
should be dealt with prior to the determination of an appropriate

redistribution order viz the effect of clause 6 of the antenuptial
contract, the misconduct of the defendant and the date at which
the
estates of the parties ought to be valued for the purposes of
redistribution.
Clause
6 of the Antenuptial Contract
[27]
Ms Bailey contended that because the parties had agreed to the
exclusion of the plaintiff’s assets from any community
in
clause 6 of the antenuptial contract concluded by them, the estate of
the plaintiff, including her immovable property viz St
Patrick’s
Farm, was not susceptible to redistribution. Therefore only the
estate of the defendant could be redistributed
and the plaintiff
sought an order for payment of the sum of R2 914 162 being
50 % of the value of the defendant’s
estate as computed by the
plaintiff.
Mr
Hunt SC who represented the defendant, responded that the clause 6
was a standard clause in antenuptial contracts concluded prior
to the
promulgation of the
Matrimonial Property Act of 1984
which introduced
the accrual system and did not have the effect contended for by the
plaintiff.
[28]
The relevant portions of the antenuptial contract read:
‘
And
these Appearers did declare, that whereas a marriage hath been agreed
upon, and is intended to be forthwith had and solemnized
between the
said RORY
PATRICK
PLUNKETT AND RECIA CAREY VINNICOMBE they have contracted and agreed,
as by these presents they do contract and agree, each
with the other,
as follows to wit:-
FIRST………..
SIXTH.-That
the said RECIA CAREY VINNICOMBE shall have and continue to hold,
possess, and enjoy the
sole exclusive
and uncontrolled administration and alienation
of all the property and effects which she is now possessed of, and
entitled to, and of all other property which she may hereafter

acquire during the subsistence of the said marriage
without
the interference, control or assistance of the said and every marital
power
which the said RORY PATRICK
PLUNKETT shall or may have, or be entitled to acquire by virtue of
the said marriage, shall be and
the same
is hereby excluded from all the property estate and effects of the
said RECIA CAREY
VINNICOMBE
as fully and absolutely as if the said intended marriage had not
taken place.’
(
my
emphasis
)
[29]
In interpreting the clause, as an antenuptial contract is interpreted
in the same way as any other contract
[18]
,
the following excerpt from the judgment of Wallis JA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[19]
proved
useful:
‘
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or non-business
like results or undermines the apparent purpose of the document.
Judges must be alert to, and guard
against, the temptation to
substitute what they regard as reasonable, sensible or businesslike
for the words actually used. To
do so in regard to a statute or
statutory instrument is to cross the divide between interpretation
and legislation; in a contractual
context it is to make a contract
for the parties other than the one they in fact made. The 'inevitable
point of departure is the
language of the provision itself', read in
context and having regard to the purpose of the provision and the
background to the
preparation and production of the document.’
[30]
Clause 6 must therefore be construed within the context of the
antenuptial contract as a whole, the prevailing law relating
to
proprietary consequences of the marriage when the marriage took
place, the intention of the parties in concluding the antenuptial

contract and the purpose for which the provisions of clause 6 was
included in the contract.
[31]
At the time when the parties married, there were two main matrimonial
property systems in South Africa: marriage in community
of property
with marital power and marriage out of community of property with the
exclusion of community of profit and loss and
marital power.
[32]
The primary matrimonial property system which automatically applied
to a civil marriage was that of community of property with
marital
power
[20]
. The general rule,
subject to a few exceptions, was that a joint estate was created upon
marriage by the merging of all the assets
and liabilities of the
parties, and any assets or liabilities acquired during the marriage
also became part of the joint estate
for the duration of the
marriage. In consequence of this universal community of property,
ownership in the assets and liabilities
vested in the parties jointly
in undivided and indivisible half-shares until the dissolution of the
marriage. A further consequence
of the marriage was that the husband
acquired marital power which gave him the authority to deal with the
joint estate while the
wife effectively acquired the legal status of
a minor who had to be assisted by a parent or guardian in the
administration of his/her
estate and in any act bearing legal
consequences.
[33]
This proprietary regime of the marriage could however be varied to
one of out of community if the parties concluded an antenuptial

contract in which they expressed their intention to marry out of
community, and agreed to exclude community of property and profit
and
loss from the marriage. However as such exclusion did not exclude the
husband’s marital power over his wife, which would
have eroded
the very objective of the parties maintaining two separate estates
and prevented the wife from administering her own
estate, clauses
specifically excluding such marital power were incorporated in
antenuptial contracts so that the wife would be
invested with the
necessary legal status to acquire and deal with her own property.
[34]
Therefore the provisions in the antenuptial contract entered into by
the parties is standard to the antenuptial contracts executed
prior
to the commencement of the
Matrimonial Property Act No 88 of 1984
and
the introduction of the accrual system.  The condition contained
in clause 6 merely stipulates that the plaintiff may
administer and
alienate any property she owned at the time of the marriage or
acquires at any time during the subsistence of the
marriage
independent of and without the assistance of the defendant, and
excludes any marital power which the defendant may have
acquired over
the plaintiff’s estate by virtue of the marriage between the
parties, had they not concluded the antenuptial
contract. The
provisions of clause 6 in effect protected the plaintiff from
acquiring on marriage, the status of a minor as she
would not have
been able
inter alia
to enter into contracts, purchase
property or alienate her assets without the consent of her husband
had the marital power not
been excluded.
[35]
But there is nothing in this clause to suggest even remotely, as
contended by Ms Bailey, that the clause precludes the plaintiff’s

estate from redistribution in terms of
section 7(3)
, or being taken
into consideration in the determination of the competing
redistribution claims.
The
objective of
section 7(3)
is to ensure, at the end of a marriage out
of community of property, a just and equitable distribution of assets
acquired by parties
who despite the terms of the antenuptial contract
which governed their marriage, built up individual estates from
pooled resources
and/or with the contribution of the other party.
[21]
To achieve such equitable distribution, recourse must be had to the
existing means, obligations and assets held by each party,
and any
other factor considered relevant by the court ordering
redistribution,
[22]
although
respective claims for redistribution in the event of conflicting
claims under
section 7(3)
must each be considered separately on its
merits, unless the facts relevant to such claims are so closely
interrelated that a ‘globular’
approach is
appropriate.
[23]
To
commence such consideration by excluding an asset in the estate of
the plaintiff will therefore, in my view, constitute
a misdirection
and lead to inequity.
[36]
I am also unable to find merit in Ms Bailey’s submission that
immovable property is not susceptible to a redistribution
order by
virtue of the
Alienation of Land Act No 68 of 1981
, as that Act does
not preclude the Court from ordering the redistribution of immovable
assets. To the contrary, redistribution
of assets by way of
registration of transfer of immovable property in compliance with the
Alienation of Land Act regularly
occurs pursuant to settlement
agreements between the parties to a divorce action, awards by
receivers appointed in matrimonial
disputes and orders of court. Ms
Bailey’s reliance on the case of
De
Ujfalussy v De Ujfalussy
[24]
as authority for this proposition is without merit. In
De
Ujfalussy
the transfer of the immovable property pursuant to ‘a consent
paper’ being made an order of Court in a marital dispute,
was
hindered by a misconception of one of the parties as to the
causa
for registration which did not comply with the formalities prescribed
by the Act. It was not prohibited by the legislation.
[37]
It appears appropriate to note at this stage that the antenuptial
contract is also inconsistent with any accrual sharing or
by
implication, excludes accrual sharing between the prospective
spouses.
[25]
Misconduct
[38]
In
Beaumont
,
Botha JA was in favour of a conservative approach towards the weight
to be accorded to the misconduct of a party in relation to
the
breakdown of the marriage; misconduct should not be overemphasized
and given weight in circumstances where it would be inequitable
to
disregard it.
[26]
In
Kritzinger,
Milne
JA disapproved the weight accorded to the appellant’s
‘misconduct’ by the court
a
quo
.
The learned Judge analysed in some detail the impact of the
appellant’s success on the sexual relationship of the parties

and concluded that the conduct of the appellant, a strong and
successful businesswoman, in having an extramarital affair was not

promiscuous or brazen, but that both parties were the victims of
prevailing social attitudes.
[27]
In
Buttner,
Van Heerden JA expressed the view that the misconduct of one or both
the parties should only influence the outcome of the case
where it
would be unjust to disregard it.
[28]
The Courts have also recognised that in a ‘normal marriage’
both parties would have contributed to the breakdown of
the marriage.
[39]
Ms Bailey submitted that the defendant’s misconduct was not
restricted to his adultery, but his failure to make full
disclosure
of available facts particularly in relation to his financial
situation was also an element of his misconduct. She contended
that
as he had caused the breakdown of the marriage through his
misconduct, he should not continue to reap benefits.
[40]
Mr Hunt conceded that the defendant’s first affair severely
damaged the parties’ marriage relationship. Not only
did it
cause intense anger and unhappiness for about 4 years, but the
marriage relationship was not restored to its former level
of
intimacy. It was under these circumstances that the defendant
reluctantly became embroiled in the second affair which ended
the
marriage. However, Mr Hunt argued, the defendant was not solely to
blame for the breakdown of the marriage. The defendant’s

testimony revealed the differing personality traits of the parties
which created discord in their relationship. Nevertheless the

defendant still suffers pangs of guilt. Except for the affairs, he
has been generous and well-intentioned and has continued to
respect
the plaintiff and take care of her material needs.  Therefore
his extramarital misconduct should not play a significant
role in any
redistribution ordered.
[41]
The assessment of the factors relevant to misconduct must be
conducted with an awareness of prevailing social
mores
and attitudes. Unfortunate as it may be, extramarital affairs instead
of an observance of marriage vows, particularly faithfulness
to one’s
spouse, are prevalent irrespective of the age of the parties or the
duration of their marriage. As a consequence
the disapproval and
stigma once attached to adultery has diminished and extramarital
affairs no longer receive the censure they
used to.
[29]
Nevertheless this relaxed attitude towards infidelity ought not
unduly diminish the significance of such misconduct in the exercise

of a Court’s discretion in determining an equitable
redistribution. The effect of the betrayal on an aggrieved party who

has remained committed to her/his marriage remains a relevant factor,
and the general rule that each case must be evaluated on
its own set
of facts applies.
[42]
The marriage of the parties endured 37 years until their separation
in 2009. As the plaintiff did not testify the only evidence
about the
relationship between the parties was offered by the defendant. I
cannot quibble with Mr Hunt’s submissions that
he did not
express any criticism of the plaintiff or downplay his affairs by
laying the blame for his straying on her. Instead,
relying on his
professional expertise, the defendant sought to ascribe their
incompatibility to their disparate upbringing.
He also drew
attention to the inequality in their professional qualifications when
he testified that he was attracted to his first
extramarital partner
through their interaction at a conference.
[43]
However despite accusations of the plaintiff’s profligate
spending there is no evidence that the defendant tried to rein
her in
and it is evident from the defendant’s testimony that the
plaintiff was devastated when his first affair was exposed.
But the
defendant’s evidence that he remained committed to his marriage
is sustained by the plaintiff’s decision to
remain in the
marriage and his persistence, despite a stormy period of 4 years
during which the plaintiff exacted penance from
him through physical
and emotional abuse. However as the plaintiff chose to save her
marriage by forgiving the defendant, it would
be unfair to ascribe
undue weight to the defendant’s conduct up to this stage.
[44]
Mr Hunt sought to diminish the subsequent defendant’s
misconduct in entering into the second affair. But I am not persuaded

that the defendant did in fact respect the plaintiff or care enough
to spare her the further humiliation of embarking on an affair
with a
member of her book club during the course of their marriage which had
just attained a measure of harmony. Although passion
is seldom
fettered by common sense and selflessness, having experienced the
bitter consequences of his first affair, one would
have expected the
defendant to be more circumspect and honest with the plaintiff. His
second affair undoubtedly ended the marriage,
leaving the plaintiff
the proverbial ‘woman scorned’, whose anger and pain has
been fanned by the litigation and the
fact that the defendant lives
on St Patrick’s Farm with his partner.
[45]
The defendant has, to an extent, redeemed himself by ensuring that
the plaintiff has material comforts and the security of
a home, and
has increased the maintenance paid to her without an amended order of
court, pending finalisation of this judgment.
[46]
I am of the view that while the misconduct of the defendant may not
be termed ‘gross’ his two affairs which spanned
some 10
years until his separation from the plaintiff may indeed be
considered ‘prolonged’, and were undoubtedly the
major
cause of the breakdown of the marriage. Despite the current attitude
of society and our courts, his misconduct cannot be
ignored in the
determination of the redistribution to be ordered.
[47]
Insofar as the defendant’s alleged failure to place before the
Court available information is concerned, there are no
facts to
sustain this argument. Full disclosure was made by the commencement
of the trial although values remained in dispute and
were only
resolved in May 2014. Consequently I am not persuaded that misconduct
can be ascribed to the defendant as contended.
The
Date at which the Estates of the Parties should be Valued
[48]
The parties were again unable to reach agreement on this issue, with
the plaintiff contending for the date of divorce and the
defendant,
the date of
litis contestatio
.
[49]
Ms Bailey submitted that a court can only decide whether it should
exercise its discretion to make a redistribution order and
what order
it should make ‘pursuant to the leading of evidence and a
factual enquiry into the circumstances of the case’
and that
the Courts have always decided such matters on the facts that existed
at trial. Further the Court in making an order in
terms of Rule 7(3),
must have regard to the net asset value of the respective parties
estates at the date of trial and subsequent
order.
[50]
In response Mr Hunt pointed out that there are four seminal cases
which have considered and clarified the implications and
application
of
section 7(3)
of the
Divorce Act
[30
]
.
But little guidance is to be found in reported cases dealing with
section 7(3)
as to ‘precisely what estate of the “target
“ party, composed and valued as at what time, the court is
entitled to distribute under that section.’
Having
submitted that it is clear law that
litis
contestatio
occurs at close of pleadings, and has the effect of freezing the
plaintiff’s rights as at that moment
[31]
,
Mr Hunt advanced the argument that the reasoning of Brassey AJ in
M.B.
v N.B.
[32]
in respect of the
valuation of the parties’ estates in an accrual claim in terms
of
section 3(1)
of the
Matrimonial Property Act No 88 of 1984
[33]
may properly be applied to a claim for redistribution. The
conclusions reached by Brassey J have been approved in this division

in respect of accrual claims.
[34]
[51]
While recognising that the
section 7(3)
remedy is different from an
accrual claim, Mr Hunt submitted further that the both claims share
the following important characteristics
which persuaded the aforesaid
courts to the conclusion that value of an accrual should be
determined as at date of
litis contestatio
:
51.1
the rights in the claim only become perfected, vested and exigible
when the court makes the divorce order.
But procedurally, the effect
of
litis contestatio
is that it is the moment at which the
dispute between the parties crystallises and can be presented to the
court for decision;
51.2
mala fide
dissipation of the estate of the target party during
the delays of litigation and the delaying of litigation by the
claimant party
in order to profit from growth subsequent to
litis
contestatio
is discouraged;
51.3
a fixed, procedurally ascertained and consistent reference point is
established; and
51.4
at an equitable level, it reflects that by
litis contestatio
the underlying partnership between the parties to a marriage has
reached its end.
He
concluded that nothing in
section 7
of the
Divorce Act runs
counter
to the aforegoing submissions, but are in fact consistent with the
fact that the estate which the court redistributes on
divorce, is the
estate to which the claimant party contributed during the subsistence
of the marriage;
Section 7
is founded on the fair recognition of the
joint effort put into the marital relationship by both spouses, and
should not apply
to an estate to which the claimant spouse has made
no contribution whatsoever.
[52]
He therefore contended that the date of assessment of the composition
and value of the estate available for redistribution
in terms of
section 7(3)
is the date of
litis contestatio.
As accrual
claims are like
section 7(3)
claims directed at achieving economic
equity between the parties, a consistency between the principles
applied to each claim will
be achieved.
Mr
Hunt proposed that it be accepted that
litis
contestatio
was reached by the end of November 2010.
[35]
[53]
In
Beaumont
the gross value of the appellant’s assets was agreed upon by
the parties after the conclusion of the evidence in the case
[36]
;
the respondent’s assets were negligible.  In
Kritzinger
Milne
JA accepted that the values which were available to the trial court
viz the values as at the commencement of the divorce trial,
were the
relevant values, although Berman J in the court
a
quo
noted that the values furnished to him, albeit meticulously
presented, were out of date and proceeded to assess the current
values
based on the values furnished.
[37]
[54]
Generally, in applications for redistribution, the parties agree on
the values to be assigned to the assets either at the pre-trial
stage
or after the evidence is heard and the values accepted are as at the
time of the trial.
[38]
Reported judgments in the main are therefore judgments on appeal in
which the legal principles relevant to the implementation of
section
7(3)
have been restated and/or developed, and the issue of the date
at which the estates of the parties should be valued for the purposes

of redistribution has not received much attention.
[55]
However in
Katz
[39]
Milne JA accepted the trial court’s finding in respect of the
value of the net assets of the appellant at the date
of conclusion of
the trial, and in rejecting the submission on behalf of the appellant
that the parties’ assets should be
determined as at date of
separation, stated:
‘
In
my view it is quite clear that the Court, in making an order in terms
of
s 7(3)
, is required to have regard, so far as that is practicable,
to the assets and liabilities of the parties as at the date of the
order. Subsection (2), which deals with the payment of maintenance,
requires the Court to have regard to '... the existing
or
prospective means of each of the parties, their respective earning
capacities, financial needs and obligations...'. Subsection
(3),
which deals with a redistribution order, requires the Court to
consider the provisions of ss (4), (5) and (6) before making
an order
in terms of ss (3). Subsection (5) expressly refers in subpara
(a)
to 'the existing means and obligations of the parties'. There is
nothing to indicate that the Legislature had in mind any date other

than the date of the Court's order and, indeed, if the original
contention of the appellant were to succeed,
[40]
it could give rise to highly anomalous consequences.’
[56]
That decision remains binding on this court. The word ‘existing’
in subsections 7(2) and 7(5) stipulates that the
‘present or
current’ assets and liabilities of the parties at the date of
the order are to be considered by the Court
when making an order for
maintenance and/or redistribution. By the inclusion of the
qualification ‘so far as that is practicable’
Milne JA
has acknowledged that the date of the order may not always be the
appropriate date ‘to have regard to the existing
assets and
liabilities of the parties’. The appropriate date, in the
absence of agreement between the parties, is nevertheless
constrained
to the time of the trial.
[57]
The crucial distinction between an order of accrual and a
redistribution order is stated succinctly by Ploos van Amstel J in
M
v M
[41]
:
‘
[12]
There is however a fundamental difference between a redistribution
order in terms of
section 7(3)
of the
Divorce Act and
an accrual
claim in terms of
section 3
of the
Matrimonial Property Act, In
the
case of an accrual claim the Court is not required to make an
assessment of what it deems to be ‘just’. It is required

to determine, on the evidence before it, the amount equal to half the
difference between the accrual of the respective estates
of the
spouses. It is a factual enquiry.’
Therefore
although the determination of both an accrual claim and a
redistribution application has as its objective an equitable
order,
the accrual is determined by precise mathematical calculations,
whereas a redistribution order is determined by a Court
through the
exercise of its unfettered discretion and a consideration of 'the
existing means and obligations of the parties'.
In the absence
of agreement on the values of a party’s estate the court will
exercise its discretion to assign a value to
the assets and
liabilities of the parties ‘so far as that is practicable, as
at the date of the order’ or after the
hearing of evidence on
the salient issue. To fix the date of valuation far in advance of the
trial will therefore undermine the
court’s discretion and run
counter to the provisions of subsection 7(3) which, in my view,
renders the fixing of the valuation
of the estates at
litis
contestatio
inappropriate.
[58]
I am also not persuaded that the failure to establish a fixed,
procedurally ascertained and consistent reference point for
the
valuation of an estate in a redistribution claim is prejudicial to a
fair assessment of the respective contributions of the
parties to the
estate of the other. It is not unusual for the parties to separate
and the contribution of a party to the estate
of the other to cease
prior to the finalisation of the divorce. The unfettered discretion
of the Court will ensure that all the
relevant factors, including any
proven
mala
fide
dissipation of assets or deliberate delay in the finalisation of the
proceedings or the date when the contribution by one of the
parties
to the increase or maintenance of the estate of the other party
ceased, will be considered and accorded due weight, thereby

dispelling the potential for the prejudice of the parties. Further,
as held by Brand JA in
Bezuidenhout
[42]
:
‘
As
a matter of law,
s 7
(3) does not require a causal link between the
claimant's contribution and every asset in the estate of the other
spouse.’
Recognition
must therefore be accorded to the fact that although the contribution
of a party, direct or indirect, may have ceased,
the beneficial
consequences thereof do not necessarily terminate with the
contribution.
[59]
Therefore, in my view, the appropriate date for the valuation of an
estate for the purposes of redistribution ought to be determined
in
accordance with the comments of Milne JA
supra
,
with due consideration to the relevant facts of the matter and the
course of its litigation, and not at
litis
contestatio
.
Factors
Relevant to the Redistribution Claims
[60]
The
onus
is on the parties to place all factors of relevance
to the adjudication of the competing redistribution claims before the
Court.
As a result of her failure to testify, the plaintiff has not
availed herself of the opportunity to inform the Court of her version

of her marriage, the cause of its breakdown, the impact on her and
what she personally considers of significance to the redistribution

claim.
[61]
I do not intend to restate the relevant portions of the defendant’s
testimony which are set out in in paragraph [14]
supra
. Other
relevant factors are:
61.1
The plaintiff has not contributed to the upkeep or maintenance of St
Patrick’s Farm after she moved
into Chaseford in 2010.  In
her
Rule 43
application she confirmed that she was unemployed. It was
only about May 2014 that she began earning a salary of R5 000
per
month. She is currently receiving maintenance in the sum of
R22 000 per month. She has accepted the tender of the defendant

in respect of the maintenance of R22 000 per month, the
unencumbered ownership of the motor vehicle in her possession, her

retention on the defendant’s medical aid and the payment of the
mortgage bond over Chaseford.
61.2
The defendant has complied with the order of court granted on 28
August 2010 in respect of maintenance
pendente lite
and
continues to do so as at date hereof.  He is still in practice.
He resides on and maintains the farm, and services the
bond over it.
61.3
The trial which was set down for hearing for a period of 5 days
commenced on 13 May 2013.  It was adjourned
on 17 May 2013 and
resumed on 19 May 2014 and was concluded on 21 May 2014, on which
date the decree of divorce was ordered. There
was therefore a
significant intervening period of 4.5 years from date of separation
to date of divorce and subsequently to date
of this judgment.
The
Financial Value of the Parties’ Respective Estates
[62]
Counsel for each of the parties submitted in their respective Heads
of Argument a calculation of the values of the estates
of the parties
as at May 2013 based on the agreed valuations and Exhibits G, H I,
for which I am indebted to them.
[63]
According to the calculations on behalf of the plaintiff, the net
asset value of the estate of the plaintiff was R2 574 690

and that of the defendant was R5 828 324. The difference in
the values is R2 574 690.  On that computation
the
plaintiff’s claim for a 50 % redistribution equates to
R1 626 817. Consequent to my conclusions in paragraphs
[34]
– [36]
supra
, I have ignored the further submissions
based on the plaintiff’s argument that assets are not
susceptible to redistribution.
[64]
Mr Hunt submitted that a globular approach to redistribution in the
matter is  warranted. He contended that given the
unequal
contributions of the party, and other relevant factors the plaintiff
should not receive more than 30% of the parties combined
net worth.
His suggested ratio is therefore 70:30 in favour of the defendant.
According to his calculation, including the
loan in Dr Plunkett Inc,
the defendant’s net asset value as at May 2013, was R2 743 924,
and that of the plaintiff
was R2 691 000. (I have ignored the
figures postulated at
litis contestatio
). The combined net
asset value of estates of the parties as at May 3013 was R5 434 924,
30 % of which equates to R1 630 477.
On
this calculation, the plaintiff would have have to pay the defendant
an adjustment to the value of R1 060 523
from the value in
her possession at that date.
On
his further mathematical calculations
vis
a vis
the tender made by the defendant in respect of the immovable
properties (the farm and Chaseford), the motor vehicle and the cash

payment,  the value by which the estate of the plaintiff would
benefit  exceeds in monetary value the 30 % ratio suggested
as
the plaintiff’s appropriate share.
[43]
The
Redistribution
[65]
As already held earlier in this judgment, a globular approach to
redistribution is appropriate.
[66]
Although the plaintiff claims 50% of the defendant’s estate, it
is apparent on a consideration of the available evidence,
both verbal
and documentary, that her claim is not sustainable. Without in any
way undervaluing her contribution as housewife and
mother, and with
due cogniscence of her contribution to the business enterprises
undertaken by the parties, including the defendant’s
practice
and on the farms, it is clear that the defendant through his
professional income provided the financial crutch throughout
the
subsistence of the marriage. This is a natural consequence of his
professional qualifications. Nevertheless given the duration
of the
marriage, her age and her commitment to her marriage, she is entitled
to commensurate financial security and material comfort.
[67]
The equities of this matter also demand that both parties should have
a home. The plaintiff lives in a secure gated estate
of her choice
with a value of approximately R1.8 million. I am satisfied that the
defendant should be allowed to remain on St Patrick’s
Farm
which has become his home, into which he has invested both effort and
money, and to which he has an emotional attachment.
[68]
Adopting the ‘globular’ approach, I have holistically
considered all the aforegoing pertinent factors, including
the means
and obligations of the parties. I am of the view that the tender by
the defendant largely addresses the conclusions I
have reached in
respect of a just and equitable redistribution order.
Costs
[69]
The plaintiff seeks costs of the suit while the defendant submits
that each party ought to bear his/her own costs.
[70]
In her
Rule 43(6)
application dated 29 August 2012 in which she
sought a contribution to costs, the plaintiff alleged that her costs
to date of trial
were estimated at R267 846.750. Provision for
her legal fees was set at R500 000 as at May 2013. The defendant
has paid
R120 000 as contribution to the plaintiff’s
costs.
[71]
The order for redistribution that follows is largely in accordance
with the ‘with prejudice’ tender made by the
defendant
dated 9 May 2014. Although the parties agreed on the values to be
attributed to their estates when the trial resumed
on 19 May 2014,
the plaintiff did not accept the tender and persisted with her claim
on the premise that her assets were not subject
to redistribution. At
the completion of the trial on 21 May 2014 she indicated her
acceptance of the tender only in respect of
maintenance, the
[C.......] property, the motor vehicle and the medical aid.
[72]
Consequently I am of the view that the defendant should bear the
costs of the litigation, including reserved costs, until the
date of
service of his tender dated 9 May 2014 and that his contribution to
costs in the sum R120 000 should be deducted therefrom.
Each
party should bear his /her costs incurred thereafter.
ORDER
1
The defendant is directed to pay
maintenance to the plaintiff in the sum of R22 000 per month.
The maintenance shall increase
on 31 January 2017 and thereafter on
31 January of each succeeding year, at a rate in accordance with the
prevailing Consumer Price
Index.
2
The defendant is directed to transfer
unencumbered and exclusive ownership in the Mercedes-Benz vehicle
Model A180CDI, in the possession
of the plaintiff, within 30 days of
the date of this order.
3
The defendant shall retain the plaintiff on
his current medical aid policy and pay the premiums for her
membership, and any increases
in the premium, as they fall due. The
plaintiff shall be liable for medical expenses not covered by the
policy.
4
The defendant is directed to pay the sum of
R500 000 to the plaintiff within 60 days of the date of this
order.
5
The plaintiff shall transfer her ownership
in the immovable property described as Portion [6.....] of [H.......]
No [1.......] (‘the
farm’) to the defendant.
Simultaneously with registration of such transfer, a security bond
shall be registered over the
farm to secure the defendant’s
obligations to the plaintiff as set out in clause 6 of this order.
The plaintiff shall simultaneously
be released from liability,
alternatively be substituted by the defendant as the debtor, in
respect of the mortgage bond currently
registered over the farm. All
costs in connection with the aforesaid transactions and registrations
shall be borne by the defendant.
The plaintiff shall sign all
requisite documentation upon presentation to her by the defendant’s
nominated conveyancer.
6
The defendant shall pay the monthly
instalments on the bond over the sectional title unit described as
Unit [1.......] of Erf [1.......]
[C.........] due to the mortgagee,
Standard Bank, on due date. The defendant shall settle the bond and
all amounts owing to the
mortgagee within 5 years of date of this
order. The plaintiff shall not increase the amount owing in respect
of the mortgage bond
over Unit [1......] [C.......] or otherwise draw
down upon any access facility available on the bond, until the
defendant has settled
his obligations in respect of the bond in full.
7
Each party shall retain the movables
currently in his /her possession as that party’s sole and
exclusive property.
8
The defendant shall pay the party and party
costs of the plaintiff, taxed or agreed, to date of service of the
defendant’s
tender dated 9 May 2014. The defendant’s
payment of R120 000 as contribution to the plaintiff’s
costs shall be
deducted from such costs.
9
Each party shall be liable for his/her
legal costs incurred thereafter.
MOODLEY
J
COUNSEL
Counsel
for the plaintiff : Adv K Bailey SC
Instructing
Attorneys : Gerhard Botha Attorneys
1
st
Floor, Unihold Building
22
Hurlingham Road, Illovo
Johannesburg
Ref:
GB/P061/12 c/o
Carter
and Associates
Suite
24, Parklane Centre
Chief
Albert Luthuli Road
Pietermaritzburg
Ref:
Mrs B Barter
Counsel
for the defendant : Adv C P Hunt SC
Instructing
Attorneys : E R Browne Incorporated
167-169
Hoosen Haffejee Street
Pietermaritzburg
Ref
:AJD/AS/070805
Mr
A Dickason
Dates
of hearing : 13-17 May 2013; 19-21 May 2014
Date
of Judgment : 5 February 2016
[1]
Exhibit
J
[2]
Katz
v Katz
1989 (3) SA 1
(AD)  per Milne JA at 10 I
:
“
The
two subsections (ie redistribution order in terms of ss(3) and a
maintenance order in terms of ss (2)) are, however,

interrelated, because one of the matters required to be taken into
account when considering the grant of a maintenance order
is 'an
order in terms of ss (3)'.”
[3]
In
MGB
v
KZN
– Durban Case No 4316/2013 Lopes J quotes Lord Lowry in
R
v Inland Revenue
Commissioner
& Another, Ex Parte TC Coombs & Co
[1991] 12 AC 283
, 300 :’In our legal system generally, the
silence of one party in the face of the other party’s evidence
may convert
that evidence into proof in relation to matter which
are, or are likely to be, within the knowledge of the silent party
and about
which that party could be expected to give evidence. Thus
depending on the circumstances, a prima facie case may become a
strong
or even an overwhelming case. But, if the silent party’s
failure to give evidence (or to give necessary evidence) can be

credibly explained, even if not entirely justified, the effect of
his silence in favour of the other party may be either reduced
or
nullified.’   Although Lopes J found this statement
appropriate to circumstances where the defendant failed
to testify
and to make full disclosure in respect of his financial affairs, the
statement  is of equal application to the
failure of the
plaintiff to testify.
[4]
Katz
v Katz
per Milne JA at 15B – E: ‘Before the Court can make an
order in terms of ss (3) it must be established
(a)
that  the party seeking such an order has made a contribution;
(b)
that such a contribution has increased or maintained the other
party's estate; and
(c)
that it would be just and equitable to make such an order because of
(a)
and
(b)
. It does not follow that the manner in which the Court is to arrive
at what is just and equitable is limited to what has been

contributed. In the first place this is not what the section says.
In the second place this Court in
Beaumont's
case
supra
has held quite clearly that this is not what the section means. It
is quite clear from the judgment of Botha JA that factors
other than
purely monetary ones may properly be taken into account.’
[5]
In
Beaumont
v Beaumont
1987(1)
SA 967 (A) per Botha JA at 997F it was held that the plain meaning
of the words in ss (4) was so wide that   '...
they
embrace the performance by the wife of her ordinary duties of
''looking after the home'' and ''caring for the family'';
by doing
that, she is assuredly rendering services and saving expenses which
must necessarily contribute indirectly to the maintenance
or
increase of the husband's estate'.  Kriegler J in the Court
a
quo
in
Beaumont
took
into account the services which the wife had rendered to the husband
in his business and home. See also
Kritzinger
at
88 C ‘…..some positive act by means of which one spouse
puts something into the maintenance or increase of the
estate of the
other spouse- whether by money or property, labour or skill.’
[6]
K
ritzinger
at
78 I – 79D : ‘Where, as here, a claim in convention is
answered by a claim in reconvention also relying on such
provisions
the claims are, in law, separate claims. Not only is this
historically so but it is plain from the provisions if Rule
22(4) of
the Uniform Rules, that the Court may, in certain circumstances,
direct that the claim in convention be proceeded with
before the
claim in reconvention. Even if the actions proceed at the same time,
the fact that the one party has counterclaimed
cannot deprive the
other of the right to have his or her claim separately considered.
There may, possibly be cases where the
facts relevant to both claims
are so inextricably interrelated that a globular approach is the
only possible one, but save in
such circumstances, the claims must,
at least initially, be considered separately.’  See also
comments of Van Heerden
JA in
Buttner
v Buttner
2006(3)SA23
(SCA)
at
para
[24]
[7]
Katz
at
10 I – 11A:“ What is more, it is clear that in the
Beaumont
case
supra
at 992E - F read with the passage cited above this Court
decided that the Legislature intended the Court to be able to take

'... an overall view, from the outset, of how justice could
best be achieved between the parties in the light of possible
orders
under either ss (2) or ss (3) or both subsections, in relation to
the means and obligations, and the needs of the parties,
and all the
other relevant factors'”.
[8]
Beaumont
991 E-H
[9]
Beaumont
990D-991H
[10]
Bezuidenhout
v Bezuidenhout
2005(2)
SA 187 (SCA) per Brand JA at para [19]-[26]
[11]
Bezuidenhout
[20]D-E
:
“ …..
our Courts are not entitled as a matter of course to 'divide the
joint net assets of the parties equally, regardless of their

respective known and unequal contributions' (
per
Milne JA in
Kritzinger
v Kritzinger
at
77F - G).”
[12]
Beaumont
989 G-H – Botha JA agreed with Kriegler J (the court
a
quo
at 175F) that ‘there are no express or implied limits to the
mechanics of the redistribution.’
[13]
Bezuidenhout
para [19]D
[14]
Beaumont
p993 D-E : ‘…..the constraints imposed by the facts
(the financial position of the parties, their respective means,

obligations and needs, and other relevant factors) will not allow
justice to be done between the parties by effecting a final

termination of the financial dependence the one on the other.’
[15]
Beaumont
993I
– 995D
Kritzinger
80-83
Buttner
[30]-
[35]
[16]
Beaumont
988J-
989A
[17]
Def’s
HoA page 7 para 4.9;
Kritzinger
p 87-89.
[18]
Cradock
v Estate Cradock
1949(3)SA 1120 (N)
[19]
2012
(4) SA 593
(SCA) at paragraph 18 (footnotes omitted)
[20]
Voet
,
23.2.91 Universal community is the normal matrimonial proprietary
regime
[21]
Beaumont
at 987H-I ‘What the measure was designed to remedy is
trenchantly demonstrated by the facts of the present case: the

inequity which could flow from the failure of the law to recognise a
right of a spouse upon divorce to claim an adjustment of a
disparity
between the respective assets of the spouses which is incommensurate
with their respective contributions during the
subsistence of the
marriage to the maintenance or increase of the estate of the one or
the other.’
[22]
Section
7(5)
of the
Divorce Act
[23
]
Kritzinger
at 79 B-G; Buttner [24] 34F- 35C
[24]
1989(3)SA18(AD)
[25]
Bezuidenhout
p190A
[26]
Beaumont
994
[27]
Kritzinger
80-83
[28]
Buttner
[31]
[29]
In
DE
v RH
[29]
Mogoeng
CJ (Cameron J concurring) stated
:
‘[68]
The essence of marriage and what it takes to sustain it were
captured by the
Bundesgerichtshof
as
follows:'(M)arriage is a human institution which is regulated by law
and protected by the Constitution and which, in turn,
creates
genuine legal  duties. Its essence, however, consists in the
readiness, founded in morals, of the parties to the
marriage to
create and to maintain it.'
Madlanga
J in a unanimous judgment of the Court stated further: ‘[1]
Undertakings of fidelity……are no guarantee
that
adultery will not take place in marriage. In fact, adultery is
probably fractionally younger than the institution of
marriage.’
The Court noted that over time there has been a softening of
attitudes towards adultery. But the present day
attitude does not
detract from the fact that adultery entails a significant and severe
intrusion of a third party into a person's
most intimate
relationship without their consent. Nevertheless, this potential
infringement of dignity must be weighed against
the infringement of
the fundamental rights of the adulterous spouse and the third
party to privacy, freedom of association
and freedom and security of
the person. These rights demand protection from state
intervention in the intimate choices of,
and relationships between,
people. This must be viewed in light of current trends and attitudes
towards adultery, both nationally
and internationally, which
demonstrate a repugnance towards state interference in the intimate
personal affairs of individuals.’
[30]
Beaumont,
Kritzinger,
Bezuidenhout
and
Buttner
[31]
Government
of the Republic of South Africa v Ngubane
1972(2)
SA 601 (A) per Holmes JA at 608. See also
Natal
Joint Municipal Pension Fund (
supra)
at [14]-[15] in which Wallis JA reaffirms what Holmes JA said.
[32]
2010(3)
SA 220 (GSJ) at [40]-[41]
‘
[40]
The decision establishes the moment at which the contingent right
becomes perfected and, in consequence, the spouses become
invested
with legally enforceable entitlements.  This is, as the learned
judge makes clear, at the moment when the divorce
court makes the
applicable order.  What the decision does not do is establish
the moment by reference to which the respective
estates of the
parties must be assessed.  This problem is one of procedure,
not substance, and owes its origin to the fact
that litigation takes
time to complete.  On this matter the established principle is
that the operative moment is
litis
contestatio
,
for that is the moment when the dispute crystallises and can be
presented to the court for decision ….. [41] Since
litis
contestatio
is the lodestar for the applicable decision, transactions after this
moment are irrelevant and should be left out of account……..’
[33]
“
3.
Accrual system – (1) At the dissolution of a marriage subject
to the accrual system, by divorce or by the 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.
[34]
M
B v D B
2013(6) SA 86 (KZD), and
Schmitz
v Schmitz
KZND Case 14396/2010
[35]
It
was not disputed that
litis
contestatio
occurred at the end of November 2010. The defendant filed his plea
to the amended claim in convention and his replication in

reconvention on 16 November 2010.
[36]
Beaumont
page
97F
[37]
K
ritzinger
v Kritzinger
1987(4)SA
85 (C) per Berman J at 96B-C ‘ Plaintiff's assets - as
recorded in the
Rule 37
minute - amount in all to approximately R1
076 000, whilst her liabilities amount to something of the order of
R386 000; her nett
worth is thus in the region of R690 000. (I
have employed round figures; I see no useful purpose being served by
a meticulously
prepared and apparently precise calculation of the
values to be placed on the parties' assets or of the extent of their
liabilities,
for the values and extent are certainly no longer
exactly what they were in late August 1986, when the minute was
prepared.)
[38]
Archer
v Archer
1989(2)SA
885(EC) at 891A
[39]
Katz
at 6 G- I
[40]
Counsel
for the appellant submitted that the valuation of the estates should
be at date of separation.
[41]
(9758/2011)
[2014] ZAKZPHC 15 (13 February 2014)
[42]
Bezuidenhout
[35]H-I
[43]
Defendant’s
HoA Para 12.1.3 and 12.2