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[2016] ZAGPPHC 575
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Tsebe v Tsebe (39138/2014) [2016] ZAGPPHC 575 (24 June 2016)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
HIGH
COURT OF SOUTH AFRICA (GAUTENG
DIVISION,
PRETORIA)
Not
reportable
Not
of
interest
to
other
Judges
In the matter between:
CASE
NO:
39138/2014
DATE: 24 JUNE 2016
MAHLAKO
MARIA TSEBE
Plaintiff
and
MAGOGE
NELSON TSEBE
Defendant
J
U D G M E N T
MAKGOKA,
J
[1] This is a divorce action. The only
issue in dispute is whether the plaintiff is entitled to an order
against the defendant for
forfeiture of 50% of the plaintiff's
pension interest. The defendant was employed by Toyota SA He was
dismissed from his employment
in 2013. He received his pension fund
payout in the amount of R125 000. The plaintiff alleges that the
defendant spent his pension
money exclusively for his own benefit.
The defendant, on the other hand, alleges that part of the money was
utilized to start a
business which was not successful, and that
another portion was utilized for household expenses and necessities.
The plaintiff
has been in the employ of the South African Post Office
since 1995, and is a member of the Post Office Retirement Fund, as a
result
of her employment. It is half of her pension interest that she
claims the defendant is not entitled to.
[2]
Section
7(7)(a)
of
the
Divorce
Act
provides
that
in
the
determination
of
the patrimonial
benefits
to which the
parties to
any
divorce
action
may
be
entitled, the
pension
interest of a
party shall
be deemed
to
be part of
his assets.
Section B(a) of the
Divorce
Act,
on
the
other
hand,
provides
that
the
court
granting
a
decree
of divorce
in respect of a member of
a pension fund,
may
make an
order that any
part of the
pension
interest
of that
member which,
by virtue
of
subsection
(7),
is due or assigned
to
the
other
party
to
the
divorce
action
concerned,
shall
be
paid
by that
fund to that other party
when any pension benefits accrue in respect of that member.[3] A
claim
for
the
forfeiture
of
benefits
arising
from
a
marriage
is governed
by
section 9(1) of the
Divorce Act 70 of
1
979
which
reads
as follows:
'(1)
When a
decree
of
divorce
i
s
granted
on
the
ground
of
the
i
rretrievable
break-down of the
marriage
the court may
make
an
order
that
the patrimonial
benefits
of
the
marriage be
forfeited by one party in
favour of the other, either wholly or in part, if the court, having
regard
to
the
duration
of
the
marriage,
the
circumstances
which
gave
rise
to
the
break-down
thereof
and
any
substantial
misconduct
on
the
part
of
either
of
the
parties,
is
satisfied
that,
i
f
the order for forfeiture
is not made, the one party will in relation to the other be unduly
benefited.'
[4]
The
following
are
common
cause
facts.
The
parties are originally
from
Limpopo
Province.
Before
they
got
married
to
each
other,
they
courted
for
about
seven
years.
During their
courtship,
in
1995, the
plaintiff
had an
intimate affair with
one
Mr Thomas
Mokwatlho (Mr
Mokwatlho).
Despite
this, the
parties
made
up and
married
each
other
on
27
December
2002
i
n
Mankweng, near
Polokwane.
Two children
were
born of
their
marriage,
of
which
one
is still
a
minor.
The
other
child, though
a
major,
i
s
not
self-sufficient
yet.
Both
live
with
the
plaintiff
in
the
parties' common
home in Midrand, Gauteng
Province. The defendant
l
eft
the common home during 2013/2014, after losing his employment,
and returned to Mankweng,
Limpopo Province,
where
he
currently
lives.
Before
he
lost
his
employment,
the
defendant was
responsible
for
the
bond
repayments
on
the
parties'
common
home.
After
he
lost his employment. the
plaintiff has been responsible for that expense.
[5] I now refer briefly to the evidence.
Both parties testified and closed their respective cases without
calling further witnesses.
It is not necessary to set out their
respective testimonies in detail. Only the relevant aspects thereof
would suffice. The plaintiff
testified that the defendant had
extra-marital affairs with various women during the course of their
marriage, and fathered a child
each with two of such women. According
to the plaintiff, the defendant fathered a child with Ms Diketso
Moselana (Ms Moselana),
in 2008, and another child with Ms Manhlwa
Nokeri (Ms Nokeri). When she confronted the defendant about him
fathering a child with
Ms Moselana, the defendant stated to her that
he did that because the plaintiff had an affair, and that he found a
shoulder to
cry on from Ms Moselana.
[6] According to the plaintiff, the
defendant left the common home in 2013 and went to live in Mankweng.
She testified about an
occasion when she visited the defendant's
place in Mankweng. On the defendant's cellphone, she found a picture
of Ms Nokeri. When
she confronted the defendant about it, the latter
stated to her that Ms Nokeri was his 'next wife.' She obtained the
number of
Ms Nokeri, and contacted her. Ms Nokeri confirmed to her
that she was in deed in a love relationship with the defendant.
As
stated earlier, the plaintiff testified that the defendant
also fathered a child with Ms Nokeri.
[7] She further testified that the
defendant kept the details of his income secret, and apart from
paying the bond, the defendant
did not contribute to the maintenance
of the children and other household expenses. Regarding the
circumstances under which the
defendant lost his employment, the
plaintiff testified that the defendant absconded from work, as a
result of which he was dismissed.
The plaintiff also testified that
her affair with Mr Mokwatlho during the parties' courtship continued
to permeate their marriage.
According to her, although the defendant
later married her despite the affair, he never really forgave her,
and actually suspected
that the affair never terminated. It appears
that the plaintiff works with Mr Mokwatlho at the South African Post
Office. She testified
that Mr Mokwatlho is her immediate boss, but
denied that she had a role in securing a position for him at the Post
Office.
[8] The defendant testified that the
reason for the breakdown of the marriage was that the plaintiff never
terminated her relationship
with Mr Mr Mokwatlho. He discovered this
in 2012 when the plaintiff inadvertently sent him her son's
curriculum vitae, which bore
Mr Mokwatlho's name and contact details.
He also stated that the plaintiff had Mr Mokwatlho's contact details
stored in her cellphone.
He denied that he had extra-marital affairs
or that he fathered children out of wedlock. The women with whom the
plaintiff alleges
he had intimate relations, Ms Mosealana and Ms
Nokeri, were his colleagues, and not lovers. Regarding his pension
money, the defendant
testified that he used part of the money to
build a house in Mankweng, which is not completed yet. Regarding the
other part of
the money, the defendant testified that after he was
dismissed from his employment, he wanted to engage in a business
venture with
a friend. The contract fell through and he lost the
money as a result of the business failure. He also bought food for
the household,
as well as a bicycle and cellphone for the children.
According to the defendant, he was unemployed, and was totally
dependent on
the benevolence of extended family for survival.
[9] It is against the above factual
matrix that I have to determine whether the plaintiff is entitled to
an order for forfeiture,
bearing in mind the twin considerations,
namely that parties must be held to their ante-nuptial agreements,
[1]
and that s 9 does not provide for the application of the principle of
fairness in order to deviate from the nature of community
of
property.
[2]
I must therefore consider the plaintiff's claim for forfeiture within
the narrow ambit of the three factors mentioned in s 9(1),
namely,
the duration of the marriage, the circumstances that led to the
breakdown of the marriage and any substantial misconduct
on the part
of the defendant.
As
explained
in
Wijker,
the above factors need not be considered cumulatively. In
other words, the presence of any one of them is sufficient for the
court
to make an order for forfeiture in terms of s 9(1). I consider
the three factors in light of the evidence.
[1O] The marriage was of a fairly long
duration, from 2002 to 2013. As to the circumstances that gave rise
to the break-down of
the marriage, it seems a fair observation that
the marriage of the parties was beset with suspicions throughout. The
parties each
suspected the other of extra-marital affairs. From the
totality of the evidence and the common cause facts on this aspect, I
accept
that the defendant probably had extra-marital relationships
with Ms Nokeri. I am not sure whether the same can be said of Ms
Moselana.
However, the extra-marital affair with Ms Nokeri, it seems,
occurred in 2013, after the defendant had left the common home to
live
in Mankweng. It is clear that by then, the marriage relationship
between the parties had broken down, such that the affair cannot
be
said to have given rise to the break-down of the marriage. It was
merely a symptom and not the cause of the marriage breakdown.
In
Beaumont v Beaumont
1987
(1) SA 967
(A) it was aptly observed that in many and probably most
cases, both parties will be to blame, in the sense of having
contributed
to the breakdown of the marriage. In such case, where
there is no conspicuous disparity between the conduct of the one
party and
that of the other, the court will not indulge in an
exercise to apportion the fault of the parties and thus nullify the
advantages
of the no-fault system of divorce. See also
Kritzinger
v Kritzinger
1989 (1) SA 67
(A).
[11] The allegation that the defendant
fathered children with these women has not been established on any
acceptable evidentiary
basis. It is the plaintiff s word against the
defendant's. I am unable to make any credibility findings on this
aspect.
[12] The upshot of the above is that
nothing turns on either the duration of the marriage or the
circumstances that gave rise to
the breakdown of the marriage, for
the purposes of a claim for forfeiture. I turn now to consider
whether there was any substantial
misconduct on the part of the
defendant. In this regard, the plaintiff focused on the defendant's
pension payout and how the defendant
dealt with the money. It can be
safely accepted that it would amount to substantial misconduct by the
defendant if he had used
the money exclusively on himself, and not
for the benefit of the joint estate. It was contended on behalf of
the defendant that
he has given a satisfactory explanation of how the
money was used (that he ventured into a failed business).
[13] I disagree. The defendant was
particularly vague as to how the money was used. Right through his
testimony, this Court was
no wiser as to (a) the type of business the
defendant ventured into; (b) the exact manner in which the money was
'lost'; and (c)
how much was actually lost. Did the defendant put
down money as capital investment, and if so, where, when and how
much? These
are simple questions that the defendant was supposed to
disclose with ease, for the Court to make a proper assessment of his
assertions.
There is no documentary evidence of registration of any
business, nor is there any documentary proof of any payment of a
start-up
capital.
[14] The sum total of the above is that
very little is known about how the defendant's pension money was
utilized, except the defendant's
bald, sparse and vague
ipse
dixit.
What is more, the defendant also vacillated on the issue.
In one breath he said that he used part of the money for an
undisclosed
business venture, and in another, that he had used part
of the money for building a house in Mankweng, for which no details
as
to the amounts, were furnished. The defendant's conduct is
consistent with the plaintiff's evidence that the defendant did not
consult her about how the money should be used for the benefit of the
joint estate. The defendant simply informed her of his decision
to
'start a business.' As it is often said, there is a difference
between 'consulting' a person and 'informing' them. The defendant
did
the latter. He was not entitled to do so, as the pension payout
belonged to the joint estate. He could not deal with it as
he
pleased, without conferring with the plaintiff.
[15] By failing to account properly as
to how he utilized the money for the benefit of the joint estate, I
come to the inescapable
conclusion that the defendant used his
pension money exclusively for his own benefit, to the detriment of
the joint estate, and
in particular, of the plaintiff. That, to my
mind, constitutes substantial misconduct as contemplated in s 9(1). I
find that the
defendant would, in relation to the plaintiff, be
unduly benefitted if an order for forfeiture in respect of the 50% of
the plaintiff's
pension interest is not made.
[16] The parties have reached agreement
on the immovable property of the joint estate, as set out in the
minute of a pre-trial conference,
which I intend incorporating into
the order I am about to make. An order should also be made in respect
of the care and primary
residence of the minor child born of the
marriage between the parties. The defendant is currently unemployed.
As a result, it would
serve little purpose to make an order of
maintenance in respect of the minor child. With regard to costs, I do
not intend making
any costs order, as is customary in matrimonial
proceedings.
[17] In the result the following order
is made:
1. A decree of divorce is granted;
2. Both parties retain their full
parental responsibilities and rights in respect of the minor child
born between the parties;
3. Care and primary residence of the minor child is awarded to the
plaintiff subject to the defendant's rights of reasonable
contact;
4. The plaintiff shall retain the
immovable property of the joint estate of the parties situated at
[1… Bluegum Street,
Ebony Park Ext 2, Midrand, Gauteng ](also
known as portion 24 of erf number 1…, Ebony Park Ext 2,]
registration Division
IR, Gauteng, as her sole and absolute
property, and shall be liable to pay the outstanding amount owed to
ABSA Bank Ltd in terms
of the mortgage bond which is registered
against the title deed thereof;
5. The defendant shall transfer his
half-share of the immovable property referred to above, into the
name of the plaintiff, and
shall sign all the necessary documentation
on demand to give effect hereto, failing which the Sheriff,
Halfway-House is hereby
authorized and ordered to sign such
documentation on behalf of the defendant;
6. The defendant is to forfeit his
claim to 50% of the plaintiff's pension interest held with the Post
Office Retirement Fund;
7. Each party shall pay its own costs.
Makgoka
Judge of the High Court
Dates
of
hearing: 11 February 2016 and 8 June 2016
Date of judgment: 24
June
2016
For
the
Plaintiff: Adv. M.
Fabricius
Instructed by: Shapiro
&
Ledwaba Incorporated For
the Defendant:
Mr. S.M.
Mashele
Instructed by: Polokwane Justice
Centre,
Pretoria
Justice Centre.
[1]
Enaelbrecht v Enae/brecht 1989 (1) SA 597 (C).
[2]
Wijker v Wijker 1993 (4) 720 (A).