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[2016] ZAGPPHC 686
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K.K.T v M.S.R (4081/2013) [2016] ZAGPPHC 686; [2016] 4 All SA 251 (GP); 2017 (1) SA 97 (GP) (10 August 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 4081/2013
DATE:
10/8/2016
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
IN
THE MATTER BETWEEN:
K K
T PLAINTIFF
AND
M S
R DEFENDANT
JUDGMENT
KOLLAPEN
J:
1.
The parties to these proceedings are engaged in a
divorce action and one of the issues in dispute was whether the
parties were married
in accordance with the tenets of customary law
as contemplated in
Section 3
of the
Recognition of Customary
Marriages Act 120 of 1998
.
2.
The question as to whether the parties were
married or not in accordance with customary law was dealt with and
decided as a separated
issue in terms of
Rule 33(4)
and on the 4th of
April 2014, after a trial on the issue, MAKGOKA J found that a
customary marriage was concluded between the parties
on the 2nd of
May 2011. The consequence of that order was that the marriage between
the parties was regarded as being one in community
of property.
3.
Following that finding the parties agreed, and it
was ordered in terms of
Rule 33(4)
again, that the issue of whether
the defendant was entitled to an order claiming forfeiture of the
patrimonial benefits of the
marriage, be dealt with and decided as a
separated issue.
4.
The trial on the separated issue proceeded and
the defendant and the plaintiff testified in support of their case,
while Mrs Ledibane,
the mother of the plaintiff was also called as a
witness on behalf of the plaintiff.
Background
facts
5.
At the time of their marriage in May 2011, both
parties could be described as successful professionals who were
reasonably well-secured
financially. The plaintiff was employed as a
director in the Department of Public Works, while the defendant was a
businessman
I
consultant
in the employ of Sekela Xabiso Consultants in Pretoria.
6.
At the time of their marriage, the plaintiff was
the owner of an immovable property situated in the Irene View Country
Estate and
which in 2012 was valued at R2 million. The defendant on
the other hand was the owner of two immovable properties situated in
Highveld
Estates Centurion and Afrique de Estate, Hartebeespoort Dam
and which in 2012 were valued at R2.9 million and Rl.5 million
respectively.
The Highveld Estates property was acquired in 2002
while the Hartebeespoort Dam property was purchased in 2010. The
defendant also
held various shareholdings in a number of entities and
owned a number of motor vehicles including a Mercedes Benz AMG, a
Range
Rover Sport and Harley Davidson motorcycle.
7.
The defendant acquired a further property during
the course of the marriage in 2011 and this property, located in the
Midstream
Estate, was valued at R5.5 million in 2012.
It
is not in dispute that the defendant used his own resources to
acquire all of the various assets to which reference has been
made
and that the plaintiff did likewise in respect of the Irene View
home. The defendant was also responsible for bond payments
and
maintenance and upkeep of the various properties and after the
marriage, he assisted the plaintiff in paying the bond and with
other
payments in respect of the Irene View property.
8.
The property values described above appear from a
draft unsigned Antenuptial Contract prepared by Attorneys Van Greunen
and Associates
in late 2012 and it was not in dispute that the
parties provided the attorneys with the property valuations which
appear in the
draft contract and to which reference has been made.
9.
The Antenuptial Contract was never finalised
largely as a result of a dispute relating to the inclusion of the
Midstream property
in the separate estate of the defendant as at the
commencement of the marriage. It appeared that but for this, the
plaintiff may
have been willing to sign the Antenuptial Contract.
10.
It warrants mention that the contract was styled
as an Antenuptial Contract largely as a result of the attorneys
working on the
assumption that the parties were not married at the
time. The declaration that they were indeed married on the 2°d of
May 2011
was only made in April 2014 following the trial on the
separated issue relating to the existence of the marriage.
11.
The marriage between the parties started
experiencing difficulties from an early stage. As indicated, both
parties owned their own
homes at the time of the marriage in May 2011
and while it is common cause that they lived together in the Highveld
property from
about August 2011, there is a dispute as to whether
they lived together or separately in the period May 2011 to July
2011. Not
much turns on this in my view as it is not directly
relevant to any of the issues on which a determination is required.
12.
Be that as it may, in August 2011 the defendant
sought the assistance of the plaintiff s mother to address what he
says was the
conduct of the plaintiff whom he said failed to cook and
properly take care of her daughter born of a previous marriage. The
plaintiff
disputed this and states that the problems in the marriage
then and thereafter were largely on account of the defendant's
behaviour
in staying out late and coming back home often inebriated
and at very late hours. The evidence of Ms Ledibane, the plaintiff s
mother, appears to confirm this as a constant and ongoing problem in
the marriage which required the intervention of the elders
in the
family.
13.
On the other hand the plaintiff also testified
that her work commitments often took her out of town and as a result
she would also
return home late and at times, she would be required
to stay out of town when visiting regional offices of her employer.
In my
view the professional demands of their respective careers meant
that both parties would often have to work late and the ideal of
a
structured and predictable family routine was indeed difficult to
achieve although the stance of the plaintiff was that the defendant's
late-coming was largely social rather than business in nature.
14.
The plaintiff s further testimony was that on an
occasion in July 2012 she found condoms in his briefcase and a till
slip evidencing
the purchase of condoms from which she drew the
conclusion that he was involved in an extra marital affair. The
defendant
denied this and it does appear from the evidence that apart
from this incident there were no other allegations or evidence of any
extra-marital impropriety. The plaintiff however was aggrieved by the
defendant's lack of intimacy with her for a period between
April 2012
and December 2012 which apparently was ascribed to problems of
erectile dysfunction. The parties however went on a vacation
to Cape
Town during late December 2012 to early January 2013 which was an
acrimonious trip.
In
early January 2013, the defendant left the common home apparently
after burning the couple's wedding photographs and has not
returned
to the common home since then.
15.
Accordingly the plaintiff s view was that the
reason for the breakdown of the marriage was the unacceptable
behaviour of the defendant
and in particular his late-coming and
socialising. On the other hand the plaintiff was steadfast in her
evidence that the defendant
provided adequately for the needs of the
family, including the minor child born of the marriage in September
2012 as well as the
daughter of the plaintiff born of her previous
marriage. She did not regard the defendant as being a violent person
even though
on Valentine's Day in 2012, he allegedly throttled her
after an argument.
The law
16.
Section 9(1)
of the
Divorce Act 70 of 1979
provides as follows:
'9. Forfeiture of patrimonial benefits of marriage
-
(1) When a decree of divorce is granted on the
ground of the irretrievable breakdown of a marriage the court may
make an order that
the patrimonial benefits of the marriage be
forfeited by one party in favour of the other, either wholly or in
part, if the Court,
having regard to the duration of the marriage,
the circumstances which gave rise to the breakdown thereof and any
substantial misconduct
on the part of the parties, is satisfied that,
if the order for forfeiture is not made, the one party will in
relation to the other
be unduly benefitted'
17.
In
WIJKER v WIJKER
1993(4) SA 720
(A)
the Court set out the following approach to be adopted in hearing of
a forfeiture claim:
'It is obvious .from the wording of the section that
the first step is to determine whether or not the party against whom
the order
is sought will in fact be benefitted. That will be purely a
factual issue. Once that has been established the trial court must
determine, having regard to the factors mentioned in the section,
whether or not that party will in
relation
to the other be unduly benefitted if a forfeiture order is not made.
Although the second determination is a value judgment,
it is made
by the trial court after having considered the
facts falling within the compass of the three factors mentioned in
the section.
'
18.
It is apparent and it was not disputed that
absent an order of forfeiture the plaintiff will in fact be
benefitted. This is a factual
issue and when one has regard to the
undisputed evidence that the defendant acquired all of the assets of
the joint estate from
his own resources and most of them even before
the conclusion of the marriage in May 2011, then the conclusion that
factually,
the plaintiff will be benefitted in the event of a
division, is inescapable.
In
ENGELBRECHT v ENGELBRECHT
1989(1) SA 597 (C)
the
Court in dealing with this factual determination said that:
'Unless the parties (either before or during the
marriage) make precisely equal contributions the one that contributed
less shall
on dissolution of the marriage be benefitted above the
other if forfeiture is
not ordered.'
I am
satisfied that on the evidence before me, the above will be the case
in this instance. This however is not the end of the matter.
19.
The second and most significant enquiry that must
follow is whether, regard being had to the duration of the marriage,
the circumstances
giving rise to its breakdown and any substantial
misconduct on the part of the parties, such a benefit will be an
undue one. This
is a value judgment.
20.
I now proceed to deal with those three factors:
§
The duration of the marriage:
20.1.
It is
common cause that the marriage effectively endured from the 2nd of
May 2011 until mid-January 2013 when the defendant left
the common
home, a period of approximately twenty months and that for most of
that time it was a marriage characterised by conflict.
Given the
persistence of the problems and the inability of the parties to
effectively resolve them, the writing was on the wall
from an early
stage.
§
The circumstances that gave rise to the
breakdown
20.2.
While the
lack of intimacy and the suspicion of an extra-marital affair were
raised in evidence, it appears from the perspective
of the plaintiff,
that the overwhelming reason for the breakdown was the absence of the
defendant from the marital home and the
pressure such absence brought
into the relationship. On the other hand, the work demands of the
plaintiff also meant that she would
often return late or be required
to be away, which in turn was a cause of concern and discontent for
the defendant.
20.3.
It would
be relatively easy with the benefit of hindsight to contend that a
family regime characterised by a level of predictability
should be
the hallmark of all marriages. However reality and the demands of
work may not always make this possible. People at the
high end of the
employment ladder often have to work long and late hours and make
additional sacrifices in order to be and to remain
successful and
competitive. Whether that is always desirable and compatible with a
healthy family life may well be debatable, but
in truth and reality
it has become a feature of modern life with all the attendant
consequences that go with it.
20.4.
In my view
the reasons for the breakdown of the marriage, certainly on the
parties' own versions, relate in the main to the time
spent outside
of the marital home by both of them and their inability to find an
acceptable manner of dealing with this source
of the ongoing tension
and conflict in the marriage. I would not on the evidence before me
ascribe much weight to the plaintiff
s suspicion of an affair - it
remained at best a suspicion, and was a once-off incident after which
it appears to have been laid
to rest, albeit unsatisfactorily and
without resolution.
20.5.
Thus even
though the evidence points strongly in the direction that the
defendant could have done more during the marriage to devote
dedicated time to the marriage, this factor in itself was not the
only reason for the breakdown of the marriage. The plaintiff
s own
work demands coupled with the unpredictable nature of the demands
their respective employment put on them was an exacerbating
factor in
fuelling the discontent that had set in.
§
Substantial misconduct
20.6.
The
plaintiff took the position that the conduct of the defendant,
consisting of his persistent late-coming and socialising, the
condoms
found in his possession, his lack of intimacy, his throttling of the
plaintiff on a single occasion and his burning of
the couples'
wedding photographs constitute substantial misconduct.
20.7.
It is
trite that the misconduct must be substantial in nature and in this
regard all of the complaints of the plaintiff (but for
the
late-coming) relate to single incidents which did not repeat
themselves. Without suggesting that such conduct is acceptable
between spouses, I would not characterise them as constituting
substantial misconduct. To the extent that they occurred, it is
clear
that the throttling incident as well as the burning of the
photographs took place after an argument and there was no evidence
to
suggest that it was thought out or deliberate. In fact the plaintiff
accepted that violence was not a feature of the marriage
between
herself and the defendant and that the defendant diligently
discharged the financial obligations of attending to the needs
of the
plaintiff, the child born of the marriage and the plaintiff s child
born of her previous marriage.
20.8.
The condom
incident remained at best a suspicion which was never resolved and
the parties appeared to have moved on after the incident
and the
allegation of infidelity never emerged again.
20.9.
With
regard to the late-coming, I have already dealt with that and my view
is that even if the defendant was remiss in this regard
in not paying
sufficient attention to the needs of his family, it could hardly
constitute substantial misconduct.
20.10.
For these
reasons and even on the plaintiff s version I am not satisfied that
it could be said that there was substantial misconduct
on the part of
the defendant.
That
being the case, the only ground on which a claim for forfeiture then
stands to be considered is the duration of the marriage.
§
Duration of the marriage
20.11.
This was
a short marriage and given the substantial estate the defendant has
built up, most of it prior to the marriage, the question
is whether
the benefit the plaintiff stands to gain can be considered to be an
undue benefit.
20.12.
While it
is so that a marriage in community of property is a universal
economic partnership where the assets and liabilities of
the parties
are merged in a joint estate (see Hahlo and Kahn
The
South African Law of Husband and Wife
5th
edition at pages 157 to 158, referred to in
Wijker
v Wijker
supra), the enactment of
Section
9(1)
of the
Divorce Act contemplates
a departure from this principle
upon the dissolution of a marriage in defined circumstances.
20.13.
In
determining whether a benefit will be undue, the Court in
WIJKER
also cautioned that the equitable
principle of fairness cannot be used to justify an order of
forfeiture as it runs counter to the
basic concept of community of
property. The Court, without defining what an undue benefit would
constitute, pointed out however
that in determining whether it was
undue, regard must be had to the three factors set out in
Section
9(1)
and to which reference has already been made. Interestingly the
Court in
KLERCK v KLERCK
1991
(1) SA 265
(W) in dealing with a claim for
forfeiture based solely on the duration of the marriage said:
'Ek
beskou dit as onbehoorlik en onbillike bevoordeling vanwe
ë
diefeit dat die huwelik so kort geduur het ..."
(at
273B).
20.14.
Clearly
implicit in the concepts of what is
'onbillik
en onbehoorlik'
are notions of equity and
fairness but the Court in
WIJKER
was
clear that these have no relevance in the determination of what would
constitute an undue benefit.
20.15.
What then
would constitute an undue benefit? Clearly where a party enters into
a marriage with the intention that it will be of
a short duration and
with the object of extracting a benefit, such a benefit will be an
undue one. This is obviously not the case
here as there is simply no
suggestion that this is what motivated the plaintiff.
20.16.
On the
other hand the concept of a benefit that is 'due' as opposed to
'undue' has been associated with the duration of the marriage.
In
WIJKER
(supra)
the fact that the marriage endured for approximately thirty five
years appeared to have been a factor militating against
an order for
forfeiture being granted.
20.17.
The South
African Concise Oxford Dictionary (2005 edition) defines undue as
'unwarranted or inappropriate because excessive or disproportionate'.
Thus while this Court is enjoined not to consider fairness or equity
in the determination of what may be undue, my view is that
if regard
is had to the duration of the marriage then considerations of what
may be proportionate may well be valid and appropriate.
20.18.
Accepting
as a starting point that marriages in community of property evidence
a universal economic partnership of spouses, it does
appear that as
the marriage endures, the accrual of a benefit that may initially be
characterised as not due is rendered more warranted,
more
proportionate and more appropriate. Thus, in circumstances where the
other factors that relate to substantial misconduct and
the
circumstances giving rise to the breakdown of the marriage are not
decisive in determining the issue, it would appear that
the
consideration of a fault-neutral factor such as the duration of the
marriage may well and should indeed be based on considerations
of
proportionality.
20.19.
While not
cast in stone, it must therefore follow that in the determination of
whether a benefit is undue, a Court is more likely
to make such a
determination where the marriage is of short duration as opposed to
circumstances where the marriage was of a long
duration. Simply put,
the longer the marriage the more likely it is that the benefit will
be due and proportionate and conversely,
the shorter the marriage the
more likely the benefit will be undue and disproportionate.
20.20.
One must
be careful however that this does not translate into a rigid and
mechanical exercise as the Court is after all enjoined
to make a
value judgment in this regard.
20.21.
Taking
all of this into consideration my view is that the plaintiff will
indeed be unduly benefitted if an order for forfeiture
is not made.
21.
This was a short marriage and given the
substantial estate the defendant has built up, most of it prior to
the marriage, my view
is that the plaintiff will indeed be unduly
benefitted if an order for forfeiture is not made. In this regard I
am also mindful
in considering undue benefit that the plaintiff has
sold her Irene home and retained the profits from the sale for her
own benefit.
Her evidence was that part of the proceeds were utilised
to fund her litigation as well as to pay for her studies which she is
currently pursuing in the United States of America.
22.
On the other hand, I must accept that the
plaintiff s career was interrupted by the birth of her minor son and
that while she will
be able to resume employment hopefully at a
higher level with her soon-to-be-completed post graduate
studies, the marriage
and the birth of her child has also had a
detrimental effect on her own work trajectory.
23.
Under those circumstances a partial forfeiture
would be justified and it would seem that an order of forfeiture of
all the benefits
of the marriage but excluding the Highveld property
would be an appropriate order to make in the circumstances. I intend
accordingly
to make such an order. In excluding the Highveld
property, I do so not on the basis of the period when it was
acquired, nor the
means used to do so. It has been selected because
its net value would provide a suitable financial basis for the
partial forfeiture
order that I intend to make. In this regard I take
the view that while the short duration of the marriage justifies an
order of
forfeiture, there also needs to be some economic consequence
arising from the fact that the marriage endured for some twenty
months.
Sharing in the net value of the Highveld property would in my
view be appropriate when I have regard to all the circumstances.
Costs
24.
Given the discretion vested in the Court with
regard to costs, it would in my view be just and equitable for each
party to bear
their own costs. This is fortified by the conclusion
that both parties achieved some measure of success .
25.
ORDER
I.
It is ordered
that the plaintiff forfeits all the patrimonial benefits of the
marriage entered into between herself and the defendant
on the 2
nd
of May 2011 except for the benefits arising out of the property known
as Erf […] Highveld Extension 43 Township Registration
Division J.R. Gauteng Province.
II.
The
plaintiff shall be entitled to fifty percent of the net value of the
aforementioned property to be determined as at the date
of this
order, the net value being the market value of the property less the
total value of all mortgages registered against the
property.
III.
Each party
is to pay its own costs.
N
KOLLAPEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
4081/2013
HEARD
ON: 25, 26, 28 & 29 APRIL 2016
FOR THE
PLAINTIFF/RESPONDENT : ADV. D A SMITH SC
INSTRUCTED
BY: HUGO & NGWENYA INC. (ref.: Mr Hugo/H3391/Marike)
FOR THE
DEFENDANT/APPLICANT : ADV. P A VAN NIEKERK SC
INSTRUCTED
BY: L MBANJWA INCORPORATED INC. (ref.: L Mbanjwa/MM/Mulalo/R48)