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[2016] ZAGPPHC 1220
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M v M (62488/15) [2016] ZAGPPHC 1220 (1 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 62488/15
1/12/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
M
Plaintiff
and
M
Defendant
JUDGMENT
OPPERMAN
AJ
[1]
This is an action for a decree of divorce in which the Plaintiff
seeks payment of half of the accrual of the Defendant's estate
in
terms of an antenuptial contract entered into on 26 May 2007 which
reflects the net commencement values of the parties' respective
estates as nil
("the antenuptial contract").
The
Plaintiff initially sought maintenance, which claim, at the
commencement of the trial, was abandoned. The Defendant in his
counterclaim seeks rectification of the antenuptial contract to the
effect that the commencement value of his estate be rectified
from
"nil
"to
"R 2 768 198."
[2]
In the alternative, the Defendant contends that he is entitled to
lead evidence as to the actual value of his estate at the
commencement of the marriage by virtue of the provisions of section 6
of the Matrimonial Property Act 88 of 1984
("the MPA").
The Defendant also seeks an order that the Plaintiff forfeits her
right, either wholly or in part, to share in the accrual of his
estate.
[3]
For reasons that will become apparent I consider it appropriate not
to furnish the names of the parties in the heading to this
judgment
because this might have an adverse effect on the children and cause
unnecessary distress to them. I will refer to the
Plaintiff as "Mrs
M" and to the Defendant as "Mr M", or as "Plaintiff'
or "Defendant" respectively.
[4]
The parties agreed that the accrual of the Defendant's estate amounts
to R 7.5 million from date of the marriage, being 2 June
2007, to
date of the trial.
[5]
At the conclusion of the evidence, I granted a decree of divorce, I
set aside an interim maintenance order granted in the Middelburg
Regional Court under case number MRCB557/2014, and I reserved my
judgement on certain aspects of Defendant's counterclaims, namely:
(a)
his claim for rectification of the
antenuptial contract;
(b)
his claim for a declaratory order regarding
the commencement value of his estate as recorded in the antenuptial
contract;
(c)
his claim that the Plaintiff should forfeit
the benefits of the marriage; and
(d)
costs.
I
refer to these as
"the reserved issues".
[6]
In the trial the Plaintiff testified and called one witness, Mrs
Wentzel. The Defendant testified and he too called one witness
Mr
Maritz.
COMMON
CAUSE FACTS (OR FACTS WHICH ARE UNDISPUTED)
[7]
The following facts are undisputed in any material respect and are
relevant to the reserved issues. The private lives of the
litigants
have been laid bare in the proceedings. Their actions, many of which
seem to have been motivated at the time by desire,
affection and
generosity, have become the ammunition in their war where all
available ammunition seems to have been used, irrespective
of the
emotional, reputational and material costs to the adversaries. It is
my duty to apply the principles of the law to it.
[8]
During mid-2005 the Plaintiff was married to her then husband, Dr V.
They, Plaintiff and Dr V, were introduced to another married
couple,
the Defendant and his then wife, Mrs H. Both the Plaintiff and the
Defendant were in their third marriages at the time.
There is some
dispute as to the facts relating to their first meeting. It does
appear to be common cause that the Plaintiff and
Dr V were at the
time known to engage in sexual practices with persons other than
their spouses. They were colloquially known as
"swingers".
The two couples visited one another's homes and exchanged partners,
both couples engaging in this practice.
This lead to an extra
marital affair between the Plaintiff and the Defendant.
[9]
During December of 2005, the Defendant divorced Mrs H. The Plaintiff
separated from Dr V and moved in with the Defendant at
his home in
Marblehall, without taking her 4 year old son from her marriage with
Dr V with her.
[10]
During 2006 the M Trust (a trust created by the Defendant during or
about 2004)) purchased a cosmetic treatment machine for
the Plaintiff
which she used to generate an income. The purchase price of the
machine was approximately R180 000.
[11]
During March 2006, the Plaintiff divorced Dr V. The Defendant paid
for all the legal costs of that divorce as well as those
of the
custody dispute relating to the minor son of the Plaintiff and Dr V,
who were involved in a dispute over the residence of
the child.
During this time the Plaintiff submitted a written complaint to the
South African Revenue Services as well as to the
Medical Health
Professions Council in respect of the conduct of Dr V. During July of
2006 the Plaintiff had approached the Magistrate's
Court for a
protection order in terms of the Prevention of
Domestic Violence Act,
1998
, alleging that Dr V had emotionally and physically abused her
and had made threats to her.
[12]
The Defendant produced in evidence a wad of letters, which had been
written by the Plaintiff to him over the years. The content
of such
letters is not in dispute. However, the sincerity of the
communications, as well as the interpretation of such communications,
is. I will, from time to time, quote from these letters but do not at
this stage, express any views with regard to whether or not
the
Plaintiff was sincere when writing these letters or whether she was,
as the Defendant contends, extremely manipulative and
insincere. It
will be appreciated that the question of forfeiture of the benefits
of the marriage is directly implicated in these
facts. The
implications of forfeiture are serious and it is therefore necessary
to consider these facts in some detail.
[13]
On 22 August 2006 (before they were married), the Plaintiff wrote to
the Defendant saying:
"I'm so
thankful me luv(sic), and sometimes feel that I
am
not able to show my gratitude. The house
we live in, the cars we drive, the furniture in the house, those are
all secondary things.
It makes your life easy, but not happy. To sit
next to you with my head on your shoulder, to
lie beside you in bed, you holding me,
your hugs, your kisses, that is LIFE.
.........
I know I sometimes do something or don't
do something that bring( sic)
a
cloud
in your eyes. For that I
am
so
sorry. I just want you to know that I won't do anything on purpose to
make you unhappy.
.....
I
love you my prince and will love you until the end of time."
When
asked in evidence about what it was that would 'bring a cloud' to the
Defendant's eyes, as referred to in her letter, the Plaintiff
explained that she could sometimes do the wrong thing, like not close
the garage doors or, on one occasion, she was making food
and the
Defendant had accused her of speaking about him to her son, which
annoyed him. It was this type of conduct which apparently
brought a
cloud to Defendant's eye, and for which she had been tendering her
apology in her letter.
[14]
On 22 October 2006 the Defendant wrote another love letter to the
Defendant in which she expressed her love for him, as well
as her
gratitude for his love and patience with her. She explained that it
was a big privilege to be loved by him. She opined that
he was
probably tired of her, who caused so much conflict and all the
apologies but acknowledged that he had a lot of patience
with her.
She explained that he conducted the song in her heart and that if all
went well with him, then she was also on top of
the world.
[15]
On 26 May 2007 the Plaintiff and the Defendant signed a power of
attorney for purposes of the antenuptial contract and on 30
May 2007
the antenuptial contract was signed by a notary. In terms of such
antenuptial contract the commencement values of both
parties' estates
were nil. On 2 June 2007 the Plaintiff and the Defendant married.
[16]
During 2007 the Plaintiff wrote to the Defendant and discussed having
children with him. At the time of writing the letter
they had clearly
already been receiving IV fertilisation. The Plaintiff implored the
Defendant to accompany her when she was going
to be subjected to the
implanting procedure. She reassured him that she was supportive of
him and that he was not alone in his
unhappiness with his son
B.
During her evidence she explained that B had, at the time, been
staying with his biological mother in Cape Town.
[17]
During 2009
I
2010 the Defendant appointed the Plaintiff as a
trustee of his family trust.
[18]
During 2010 the Defendant and Mr Maritz started a business enterprise
called M Lodge.
[19]
On 13 July 2010 the Plaintiff wrote to the Defendant:
"My liefste
...
mag
jou toekoms wat voorle (saam met my natuurlik) vir jou net blessings,
geluk en voorspoed inhou! Ek het jou innig innig lief
my man en ek
waardeer alles wat jy vir my en die kids doen! Al is ek soms so
selfsugtig en self-centred ....".
Loosely translated this means -
"My dearest
...,
may
your future which lies ahead (with me of course) be filled with
blessings, happiness and prosperity! I love you dearly, dearly
my
husband and appreciate everything that you do for me and the
children! Even if I
am
sometimes
selfish and self-centred."
[20]
On 13 September 2010 the Plaintiff wrote to the Defendant. It
commences with:
"My liewe,
liewe, liefste
...,
my
man, my koning, my priester en profeet",
translated
this means -
"My dear,
dearer, dearest ..., my husband, my king, my priest and prophet”.
This
is a 3 page letter typed in 1.5 line spacing, in which the Plaintiff
discussed her past and her religious beliefs. She praised
the
Defendant and towards the end of the letter recorded the following:
"En my man
ek is lief vir jou, ek is trots daar op
om
jou vrou te wees. Maar dit maak my seer
as
jy
te
vee/ drink, want dan verander jy en ek
weet nie hoe om dit
te
hanteer
nie. My hoop en begeerte is dat ons 'n oplossing kan vind, wat vir
ons altwee aanneemlik is. My hoop en begeerte is dat
ons 'n sterk
koord sat wees wat
saam
gevleg
is wat niemand, niemand kan verswak of breek nie." (own
emphasis)
Translated
this means -
"And my
husband I love you, I
am
proud
to be your wife. It hurts me when you drink too much because then you
change and I don't know how to deal with it. My hope
and desire is
that we can find
a
solution
that is acceptable to both of us. My hope and desire is that we will
have
a
very
strong bond which no one can weaken or break."
The
letter continues with the Plaintiff expressing empathy and
understanding for the Defendant's background and the hurt that he
has
experienced during the course of his life.
[21]
During October of 2010 an incident occurred at the M Lodge which was
witnessed by Mr Maritz. The Defendant and Mr Maritz testified
that
the Plaintiff had slapped the Defendant across the face, had thrown
the contents of his glass at him and that due to this
assault, the
Defendant had sustained an injury to his eye. The Plaintiff had
denied the facts in relation to this assault and had
contended that
the Defendant had sustained the injury to his eye when he, in an
inebriated state, had stumbled and had fallen into
the car door.
[22]
The following day a further incident occurred at the home of the
Plaintiff and the Defendant and in the presence of Mr Maritz.
Mr
Maritz had arrived at the matrimonial home at about 11hOO in the
morning. According to him the Plaintiff was standing on the
balcony
and had opened the gate for him remotely. He entered the home, took
two beers from the fridge, walked to the bedroom and
woke the
Defendant. He didn't exchange one word with the Plaintiff. Mr Maritz
and the Defendant drank the beers on the balcony.
The Plaintiff and
the Defendant started arguing and the Plaintiff became physical with
the Defendant.
[23]
On 2 November 2010 at 23h00, the Plaintiff wrote a letter to the
Defendant, in which she asked for his forgiveness for saying
hurtful
things to him but explained that she did so when she felt offended by
his conduct. She again expressed her love for him.
[24]
On 11 December 2010, the Plaintiff wrote to the Defendant. She asked
for forgiveness for those occasions when she treated him
unfairly.
She asked him to forgive every mean word, every time she shouted at
him or hurt him or threw things around. She said
that she did not
want to conduct herself in such a manner anymore.
[25]
On 8 October 2011, the Plaintiff admitted herself to the Benmar
Clinic for counselling.
[26]
For the period 31 January 2013 to 11 March 2013 the Plaintiff
received therapy at the Vista Clinic.
[27]
On 2 May 2014, the Plaintiff obtained interim domestic violence
interdictory relief against the Defendant. The parties then
reconciled, the Plaintiff moved back to the Defendant's home during
the period 5 to 10 May 2014 and on 10 May 2014 she wrote another
letter thanking him for all the energy and passion that he had put
into their marriage.
[28]
On 20 May 2014 the interim interdict was set aside and on 25 May 2014
she gave the Defendant a note in which she expressed
her love for him
referring to him as her king. During May of 2014 the parties attended
marriage guidance counselling.
[29]
Over the weekend of 5 to 6 July 2014, the Plaintiff together with her
son and the Defendant's daughter, went away for the weekend.
The
Plaintiff had asked the Defendant to accompany them but he had
declined the invitation. On Saturday evening the 5th of July
at about
24h00, the parties sent WhatsApp messages to one another and the
Plaintiff sent the Defendant an email containing two
proposals: They
should get divorced or the Defendant should buy the Plaintiff a
townhouse in Groblersdal and a car, they would
thus not get divorced
but continue seeing one another whilst resident at separate
residences.
[30]
During the evening of 6 July and the morning of 7 July the parties
had had various telephone discussions. Some of these were
transcribed. It is not in dispute that the telephone discussions have
been correctly transcribed. What is in dispute is whether
all of the
telephone discussions were transcribed. It is clear from the content
of the transcriptions that the Defendant suspected
that the telephone
calls were being recorded. He also confirmed during his evidence that
he thought during the time of the telephone
calls that such calls
were being recorded.
[31]
During the conversations the Defendant accused the Plaintiff of
stealing his money, gold and files. He accused the Plaintiff
of an
extra marital relationship with Dr
V.
He called her a prostitute. He told her that she was pathetic, that
she was a thief, that she was a dog, that he would get her,
that she
was materialistic and that she just wanted his money. I quote some of
the portions:
“
The
Defendant: Ag, fokken is, jou hoer.
The Defendant: Jou fokken pateet
The Defendant:
Ja, dis hoe jy is jou hoer.
......
jou
fokken dief
The Defendant:
....
Ja,
omdat jy
so
fucked
up is jou fokken hond. Ek sal jou fokken
......
ek gaan jou op fok, ek se vir jou
I
consider it unnecessary to provide a precise translation of this
abuse.
[32]
On 8 July 2014, the Plaintiff collected the remainder of her
belongings. On 13 July 2014 it was the Defendant's birthday. The
Plaintiff left a note for him together with a gift of a pipe which
had his name engraved on it, next to his bed.
[33]
On 31 July 2014 the Plaintiff issued summons from Middelburg Regional
Court. The action in Middelburg was not pursued save
to obtain the
maintenance order referred to in paragraph (5) above. Instead, this
action was instituted in the Pretoria High Court.
RECTIFICATION
OF THE ANTENUPTUAL CONTRACT
[34]
To oppose the claim for rectification of the antenuptial contract, in
which defendant claimed that the commencement value of
his estate
should not have been recorded as "nil" but at a sum of
"R
2
768
198"
the Plaintiff called as a witness Mrs
Wentzel, an attorney, notary and conveyancer, who in her testimony
explained that she had
represented the Plaintiff in her divorce from
Dr V. Mrs Wentzel testified that both the Plaintiff and the Defendant
had consulted
her about concluding an antenuptial contract. She had
also assisted the Defendant with his will and aspects relating to the
M Trust.
[35]
The parties had come to her stating that they wanted to be married
out of community of property but subject to the accrual
with nothing
excluded from the accrual sharing. She testified that she had
explained to them that what they wanted was essentially
a marriage in
community of property as everything would be shared equally at the
dissolution of the marriage. After the consultation
and after a
thorough discussion Mrs Wentzel was instructed to prepare the
appropriate documents. Mrs Wentzel explained that she
was conscious
of the fact that they both had just been divorced. She took great
care to explain it all to them. She recalled however
that there was
no conflict and that the parties were in agreement about the content
of the antenuptial contract, which was to reflect
the commencement
values of their respective estates as nil.
[36]
A few days later on 26 May 2007 the parties again met with Mrs
Wentzel when she explained the content of the documents to them
and
they signed the special power of attorney authorising a
representative to do all that was necessary to conclude the
antenuptial
contract which reflected the commencement values of their
respective estates as nil. She was present when they signed the power
of attorney.
[37]
Mrs Wentzel was later, and by agreement, recalled to testify about
her receipt book in respect of her trust account that reflected
receipt from Mr M of the amount of R1254 in respect of services
rendered for the preparation of an antenuptual contract. At that
stage the Plaintiff still used the name of her previous husband Dr V
and accordingly the reference to Mr M on the receipt could
only be a
reference to the Defendant. The receipt reflected that a 'direct'
payment had been made i.e. an electronic transfer had
been done. The
receptionist, who would have completed the receipt, has since passed
away.
[38]
The Defendant denied most of Mrs Wentzel's evidence. He denied that
the parties had met with Mrs Wentzel to discuss the content
of the
antenuptual contract (this conflicted with what had been put in this
regard to Mrs Wentzel being that he
could not recall
such a
meeting), he denied that she had explained the nature of the contract
they were about to enter, that they had returned to
her offices on 26
May 2007 and that they had signed the power of attorney in her
presence. He also denied that he had paid for
this service. He
testified that the Plaintiff had suggested that they marry subject to
the accrual. He had been in agreement with
that provided that his
assets, as at the commencement of the marriage, were excluded. He was
told that the antenuptual contract
had been prepared. When he arrived
at Mrs Wentzel's offices on the relevant day, the document was lying
on the table. Neither Mrs
Wentzel nor the Plaintiff were present and
he was told, by some other person, where to sign. He did not read the
document presented
to him for signature.
[39]
This Court is to approach the factual disputes which exist between
the evidence adduced on behalf of the Plaintiff, and the
evidence
presented on behalf of the Defendant, by applying the principles
enunciated in the decision of
Stellenbosch Farmers Winery Group
Ltd and Another v Martell et Cie and Others
2003 (1) SA 11
at
141-150 where Nienaber JA held as follows:
"To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities.
As
to (a), the court's finding on the
credibility of a particular witness will depend on
its
impression about the veracity of the
witness. That in turn will depend on a variety of subsidiary factors,
not necessarily in order
of importance, such
as
(i) the witness' candour and demeanour
in the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his
evidence, (iv) external contradictions with
what
was
pleaded
or put on his behalf, or with established fact or with his own
extracurial statements or actions, (v) the probability or
improbability of particular aspects of his version, (vi) the calibre
and cogency of his performance compared to that of other witnesses
testifying about the
same
incident
or events.
As
to
(b), a witness' reliability will depend, apart from the factors
mentioned under (a) (ii), (iv) and (v) above, on (i) the
opportunities
he had to experience or observe the event in question
and (ii) the quality, integrity and independence of his recall
thereof.
As
to
(c), this necessitates an analysis and evaluation of the probability
or improbability of each party's version on each of the
disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will then,
as
a
final step, determine whether the party burdened with the onus of
proof has succeeded in discharging the hard case, which will
doubtless be the rare one, occurs when
a
court's credibility findings compel it
in one direction and its evaluation of the general probabilities in
another. The more convincing
the former, the less convincing will be
the latter. But when all factors are equipoised probabilities
prevail."
[40]
I have grave difficulties on the probabilities in accepting the
Defendant's version in regard to the events leading up to the
conclusion of the antenuptual contract. The Defendant had testified
how important it was that his assets be protected for the benefit
of
his two children from his first marriage as their biological mother
was not in a financial position to assist them. Despite
this, he
didn't read the document presented to him in the boardroom for
signature. One would have thought that he would ensure
that the
attorney, with whom he had, on his version, not consulted at all, had
recorded the terms of the antenuptual contract correctly.
On his
version, he did no such thing. He is an astute businessman who runs a
lodge and has created a trust. Also, if his version
were correct, the
Plaintiff deliberately mislead him.
[41]
According to the Defendant they had discussed the exclusion of his
assets and had agreed that this would be embodied in the
antenuptual
contract. The Plaintiff would then have had to have approached Mrs
Wentzel and have untruthfully told her that the
commencement values
of their respective estates should be recorded as nil. The Plaintiff
under these circumstances ran enormous
risks that would have included
that the Defendant would contact Mrs Wentzel to discuss the contract
and/or that he would read the
completed contract before he signed the
power of attorney. Assuming the Plaintiff were bold enough to take
these risks (which I
don't find she is), I find it improbable that
Mrs Wentzel would come to court to perjure herself in respect of
these issues. It
made no difference to her whether the commencement
value of the Defendant's estate as at 26 May 2007 was recorded to be
nil or
R 2 791 729, she would in both scenarios have marked a fee of
R 1254. Mrs Wentzel's evidence is corroborated in all material
respects
by the evidence of the Plaintiff. I have no hesitation in
finding that in so far as the Defendant's evidence conflicts with
that
of Mrs Wentzel, her evidence is accepted.
[42]
In consequence I find that there exists no basis in fact to find that
the commencement values of the respective estates of
the parties were
recorded to be nil in error.
INTERPRETATION
OF
SECTION 6
OF THE
MATRIMONIAL PROPERTY ACT 88 OF 1984
Conflicting
Judgments
[43]
This reserved issue relates to whether the Defendant could rely on
Section 6
of the MPA to prove that the commencement value of his
estate in the antenuptial contract should, even if not rectified, be,
in
effect, not "nil" but the sum of
R 2 768 198
as
contended for by him.
Section 6
of the MPA provides:
6
Proof of commencement value of
estate
(1)
Where
a
party to an intended marriage does not
for the purpose of proof of the net value of his estate at the
commencement of his marriage
declare that value in the antenuptial
contract concerned, he may for such purpose declare that value before
the marriage is entered
into or within six months thereafter in
a
statement, which shall be signed by the
other
party,
and cause the statement to be attested by
a
notary and med with the copy of the
antenuptial contract of the parties in
the protocol of the notary before whom the antenuptial contract was
executed.
(2)
A notary attesting such
a
statement shall furnish the parties with
a
certified
copy thereof on which he shall certify that the original is kept in
his protocol together with the copy of the antenuptial
contract of
the parties or, if he is not the notary before whom the antenuptial
contract was executed, he shall send the original
statement by
registered post to the notary in whose protocol the antenuptial
contract is kept, or to the custodian of his protocol,
as the case
may be, and the last-mentioned notary or that custodian shall keep
the original statement together with the copy of
the antenuptial
contract of the parties in his protocol.
(3)
An antenuptial contract contemplated
in subsection (1) or
a
certified
copy thereof, or
a
statement
signed and attested in terms of subsection (1) or
a
certified copy thereof contemplated in
subsection (2), serves as prima facie proof of the net value of the
estate of the spouse
concerned at the commencement of his marriage.
(4)
The net value of the estate of
a
spouse at the commencement of his
marriage is deemed to be nil if-
(a)
the liabilities of that
spouse exceed his assets at such commencement;
(b)
that value was not declared
in his antenuptial contract or in
a
statement in terms of subsection (1) and
the contrary is not proved.
[44]
In
Olivier vs Olivier,
1998 (1) SA 550
(D &
CLO)
, Combrink J, held at 555 I, in respect of
Section 6
of the
MPA, the following:
"In my
view, the provisions of the subsection were only intended to be
applicable as against third parties. This is the only
interpretation
which would give efficiency to it and would not offend against
accepted legal principles. Third parties with an
interest in the
initial value of the estates of the parties would be heirs and
creditors at the dissolution of the marriage."
[45]
In
J
ones and Another vs Beatty N.O. and Others,
1998
(3) SA 197
(T)
, MacArthur J at 1100 G - I held that
Section 6(3)
of the MPA has no application where the parties declared the
commencement values of their estates in their antenuptial contract.
[46]
In
T
homas vs Thomas,
1999 JDR 0296 (NC)
,
Buys J, held that
section 6(3)
of the MPA was applicable to parties
to an antenuptial contract
inter
se.
[47]
On the very same day that this matter was argued before this court
and unbeknownst to all, a judgment was handed down in this
division
by Fourie AJ, in the matter of
Maria Magdalena Gonsalves
Erasmus v Geraldene Jayde Erasmus N.
0.
Case number
54914/2014, in terms of which Fourie AJ aligned herself with the
reasoning of Buys J in
Thomas
(supra). It does not appear from
her judgment that Fourie AJ considered
Jones
(supra). She
would have been bound by the decision of
Jones
unless she held
the view that such court was clearly wrong, which does not
appear
to be the case.
[48]
I turn then to deal with the various interpretations. Before doing
so, I set out some general principles applicable to statutory
interpretation.
Principles
applicable to statutory interpretation
[49]
In
Coo/
Ideas 1186 (CC) vs Hubbard and Another,
2014(4)
SA474 (CC)
at para 28 the Constitutional Court held:
[28] A
fundamental tenet of statutory interpretation is that the words in
a
statute must be
given their ordinary grammatical
meaning, unless to do so would result in an absurdity. There are
three important interrelated riders
to this general principle,
namely:
(a)
that statutory provisions
should always be interpreted purposively;
(b)
the relevant statutory
provision must be properly contextualised; and
(c)
all statutes must be
construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions ought
to be interpreted
to preserve their constitutional validity. This proviso to the
general principle is closely related to the purposive
approach
referred to in (a)." (footnotes omitted).
[50]
Section 39(2) of the Constitution of the Republic of South Africa
requires that when interpreting any legislation, every court
must
promote the spirit, purpose and objects of the Bill of Rights. This
duty is one in respect of which "no court has a discretion"
and must "always be borne in mind" by the courts. This is
so even if a litigant has failed to rely on Section 39(2),
see
Phuma/ale/a Gaming and Leisure Limited vs Grundlingh and Others
2007(6) SA 350 (CC)
at para 26 to 27.
[51]
The Constitutional Court has repeatedly pronounced on the obligation
arising from Section 39(2) for the interpretation of legislation.
There are 3 independent obligations that emerge from the
Constitutional Courts jurisprudence in this regard:
51.1
If a provision is reasonably capable of two
interpretations and one interpretation would render it
unconstitutional and the other
not, the courts are required to adopt
the interpretation that would render the provision compatible with
the constitution. See
Investigating
Directorate; Serious Economic Offences vs Hyundai Motor Distributors
(PTY) Limited: in re: Hyundai Motor Distributors
(Pty) Limited vs
Smit N.O.
[2000] ZACC 12
;
2001 (1) SA 545
(CC)
at paras 22 to 23;
51.2
If a provision is reasonably capable of two
interpretations, Section 39(2) requires the adoption of the
interpretation that "better"
promotes the spirit, purpose
and object in the Bill of Rights. This is so even if neither
interpretation would render the provision
unconstitutional. See
Wary
Holdings (Pty) Limited vs Stalwo (Pty) Limited and Another
[2008] ZACC 12
; ,
2009
(1) SA 337
(CC)
at paras 46, 84 and
107;
51.3
Where a court is faced with an
interpretation of legislation that limits fundamental rights and one
that does not, it is required
to adopt the latter interpretation. See
National Union of Metal workers of
South Africa and Others vs
Bader
Bop (PTY) Limited and Another
[2002] ZACC 30
; ,
2003
(3) SA 513
(CC)
at para 37.
Olivier
decision
[52]
In
Olivier
(supra), Combrink J, at 4450 held as follows:
"On the
face of it therefore, s 6(3) is not applicable to a case such as this
where the parties have in their antenuptial contract
expressly
declared the value of their estates, because it specifically refers
to an antenuptial contract in which the net asset
value of the
party's estate
is
not
declared. Counsel argued, however, that if the antenuptial contract
referred to in
ss
(3)
was to be restricted to only an antenuptial contract in which no
value of a party's estate was declared it would lead to an
absurdity.
The absurdity lies in the fact that read literally, the
subsection would provide that an
antenuptial contract in which for the purpose of proof of the net
value of the estate of a party
at the commencement of the marriage
nothing
is
said,
it will serve as prima facie proof of the net value of the estate of
that party. Saying nothing cannot in logic constitute
prima facie
proof of net asset value. The antenuptial contract referred to, so it
was submitted, must refer to contracts where
the net asset values of
the parties is declared." (own emphasis)
[53]
What is clear from the "absurdity argument" is that the
court did not have regard to the provisions of Section 6(4)
of the
MPA which provides that where the net value of the estate of a spouse
at the commencement of the marriage was not declared,
it would be
deemed to be nil. It is correct that "saying nothing cannot in
logic constitute
prima facie
proof of net asset value"
but where, saying nothing, is deemed to be that the commencement
value is nil, saying nothing can
indeed constitute
prima facie
proof of the net asset value as at commencement date. In such
circumstances the commencement value is clearly nil and no absurdity
arises. Section 6(4) was not considered at all in
Olivier
(supra)
and in my view explains away the absurdity.
[54]
The court reasoned that because there was a written document, which
governed the position between the parties, such written
document
(being the antenuptial contract) constituted conclusive proof of such
term. At 555 E of
Olivier,
Combrink J found that this was the
position at common law and no authority needed be quoted for so basic
a principle. He then argued
that if the legislature had intended to
change the common law, it was required to have done so in clear
language. It did not do
so, Combrink J could think of no sound reason
why the legislature would intend to alter the common law by Section
6(3) and thus
concluded that the Section is applicable only as
against third parties.
[55]
What underpins this reasoning however, and why he concludes that the
section is applicable to third parties only is an acceptance
of the
absurdity argument relating to an agreement in which the parties had
not declared the commencement values being considered
prima facie
proof. As already indicated, this premise is incorrect, if
Section 6(4) is read together with Sections 6(3) and 6(1), no
absurdity
results as then the deeming provision kicks in and the
commencement values of nil constitute
prim
a
facie
proof.
[56]
The common law presumption that statutes do not contain invalid or
purposeless provisions has met with constant approval in
the case
law. The interpretation by Combrink J in
Olivier
(supra) that
the words "contemplated in s(1)" were inserted into Section
6(1)
in per curiarum,
offends the principles formulated by
Cameron J in
National Credit Regulator
(supra)
,
where he remarked at paras 99 and100:
"[99] A
longstanding precept of interpretation is that every word must be
given
a
meaning.
Words in an enactment should not be treated as tautologous or
superfluous. This is for good reason. Interpretation is
a
cooperative venture between legislature
and judge, bounded by mutually understood rules, in which the latter
seeks to give meaning
to the text enacted by the former. The mutual
suppositions, and the constraints of principle and constitutional
precept on the
judge's role, enable the joint process to reach
a
.
coherent and practical outcome. For
this, it has to be assumed that the legislature's enacted text
includes only words that matter.
For to enact words that do not would
violate the most basic supposition of the shared enterprise. Hence
none can be ignored.
[100] The shared
enterprise is imperilled if this precept is too readily ignored. It
could seem to license judges to pick and choose
among words and
phrases, and to omit those considered inconvenient. That cannot be.
Everything the legislature has enacted must
be included in the
meaning assigned to the whole. The rule performs
a
boundary-setting function. Its
observance shows that judges are staying within their assigned role
of interpretation, and not straying
outside it into amendment,
enactment or innovation. As this court pointed out in its very first
judgment, if the language used
by the lawgiver is ignored in favour
of other pursuits, the result is not interpretation but divination'.
Though said in
a
different
context, the point is that constitutionalism has not upended the
basic rules of interpretation."
Proposed
Interpretation
[57]
In my view, section 6 of the MPA, contemplates 2 situations. They
are:
57.1.
The commencement value of a party's estate
is not declared in the antenuptial contract concerned - in this
instance the nett value
of the estate of such spouse at the
commencement of the marriage is deemed to be nil. This presumption
serves as "proof' of
the commencement value but only constitutes
prima facie
proof.
57.2.
A party to an antenuptial contract who has
not declared the commencement value of her estate in the antenuptial
contract concerned,
may, prior to the marriage being entered into or
within a period of 6 months after the marriage is entered into in a
statement,
unilaterally declare what she contends the commencement
value of her estate to be. This act is not consensual and merely
requires
notification to the other party who must sign acknowledgment
of receipt of such declaration.
[58]
This latter declaration is submitted 'for the purpose of proof (as
envisaged in Section 6(1)) and serves as
prima facie
proof of
the nett value of the estate of the spouse concerned at the
commencement of her marriage. However, the written document
i.e. the
written antenuptial agreement concluded between the parties is
conclusive proof of the terms of the parties' agreement
and it can
only be attacked on the recognised grounds of misrepresentation,
duress, undue influence, etc. This, as Combrink J,
held in
Olivier
(supra) 'is the position at common law and no authority need be
quoted for such basic a principle.' If a statute intends to alter
the
common law, its language should be clear. In my view, quite the
contrary is clear from the provisions of the statute. Section
2 of
the MPA provides that:
"every marriage out of community of
property in terms of an antenuptial contract by which community of
property and community
of profit and loss are excluded, which is
entered into after the commencement of the Act, is subject to the
accrual system specified
in this Chapter, except in
so
far
as
that system is expressly excluded by the antenuptial contract."
And Section 4 where the accrual of the estate is dealt with
provides in Section
4(b) (ii):
"an asset
which has been excluded from the accrual system in terms of the
antenuptial contract of the spouses,
....
is not taken into account
as
part of that estate at the commencement
. . .. of his marriage."
[59]
In my view, Sections 2 read with Sections 4 and 6 contemplates the
following situations:
59.1.
Where the parties are married out of
community of property but are silent about whether or not the accrual
system is applicable,
such marriage is subject to the accrual system
(Section2). In such circumstances the question will arise what the
commencement
value of the respective estates were. The presumption
that the commencement values is nil will kick in (Section 6(4)) but
this
will only constitute
prima facie
proof and the parties will be entitled
to dispute the correctness thereof;
59.2.
Where the parties are married out of
community of property and expressly include the accrual system but
are silent in respect of
the commencement values, the situation will
be as follows: The commencement value of the respective estates is
deemed to be nil
(Section 6(4)). Such commencement values will only
constitute
prima facie
proof.
59.3.
Where the parties get married out of
community of property, expressly include the accrual system and agree
and record commencement
values, the situation will be as follows:
These agreed commencement values constitute conclusive proof of the
commencement values.
The parties are precluded from relying on the
provisions of Section 6.
[60]
What should not be confused is the objective value of the
commencement values of the parties' estates and the subjective
agreement
that is reached in respect of such commencement values.
This principle is perhaps best explained by way of example: party A,
being
a very wealthy businessman, whose estate objectively and at the
commencement of the marriage is worth R 50 million, enters into
an
antenuptial agreement with party B. He decides to be generous and
agrees that the commencement value of his estate is to be
recorded in
the antenuptial agreement to be R 25 million. It is not open to party
A, at the dissolution of the marriage, to contend
that the objective
value was R 50 million. His agreement with party B constitutes
conclusive proof of the commencement value. It
is only when the
parties have not agreed what the commencement values of the
respective estates should be, that Section 6 avails
them.
[61]
That this construction accords with the intention of the legislature
is also to be gleaned from the provisions of Section 4(1)
(b) (ii),
which provides that where an asset is to be excluded from the accrual
system in terms of the antenuptial contract of
the spouses, such
excluded asset is not to be taken into account as part of that estate
at the commencement or the dissolution
of such marriage. The
legislature has clearly not curtailed or removed the parties'
contractual freedom. They can regulate their
affairs as they deem fit
and as long as their agreement bears constitutional scrutiny, will be
enforced and respected by our courts.
Thomas
decision
[62]
The court in
Thomas
(supra) examined Sections 2 to 6 of the
MPA and concluded that such sections govern the relationship of the
spouses
inter partes
and that the legislature did not intend
Section 6 to be applicable to third parties only as was held in
Olivier
(supra). This conclusion appears to be sound.
[63]
The court reasoned further that a literal interpretation of Section
6(3) leads to an absurdity because where the parties indicate
the
commencement value in an antenuptial agreement, such commencement
value would be conclusive proof but where the parties declare
the
commencement values in a subsequent declaration, it would only
constitute
prima facie
proof. As already indicated
hereinbefore, I hold the view that Section 6(3) applies to:
63.1.
antenuptial contracts in which there is no
declaration of the commencement value and the deeming provision thus
has application
(Section 6(4)); or
63.2.
the situation where there was a unilateral
statement made by one of the parties, either prior to the marriage
ceremony or within
a period of 6 months thereafter, in which event
section 6(3) applies to such unilateral statement or declaration.
[64]
The distinction that Buys J fails to draw in
Thompson
(supra) is that the conclusion of an
antenuptial contract, is a bilateral consensual act whereas the
declaration envisaged in Section
6(1) is a unilateral act. It does
not require the consensus of the other spouse. It is exactly because
it does not require the
consensus of the other party that such
declaration merely constitutes
prima
facie
proof. The spouse who omitted to
state his commencement value in the antenuptial contract is afforded
a further opportunity to advise
the other spouse what he
contends
the commencement value of his (or the other spouses) estate at the
commencement of the marriage was.
[65]
The signature of such declaration by the other party, does not
constitute agreement with the value placed on such estate by
the
party issuing the declaration, but represents acknowledgement of
receipt of such communication. In other words, such party
is given
notice of what the spouse contends the commencement value of his or
her estate should be. Of paramount importance is the
distinction
between the consensual act which is embodied and fundamental to the
act of concluding the antenuptial agreement on
the one hand and the
unilateral act of declaring the commencement value on the other.
[66]
Buys J in
Thomas
(supra) held that the legislature expressly
changed the common law i.e the commencement values of the respective
estates is not
to be considered conclusive proof as per the parties'
antenuptial agreement but is to be considered
prima
facie
proof as provided for in Section 6(3) of the MPA. In my view, if the
legislature had wanted to amend the common law principle
being that
agreements are to be enforced (unless the terms of such agreements
are contrary to public policy having regard to Constitutional
values), should have done so expressly. It did not.
[67]
If the parties do not know what the commencement values are when the
antenuptial agreement is concluded, they do not have to
record
anything in respect thereof. If no agreement is reached in respect of
commencement values, the deeming provision has application
(section
6(4)) which is that the commencement values are nil but such deeming
provision only constitutes
prima facie
proof. If, however, the
parties agree that the commencement value of their respective estates
is nil, such written document constitutes
conclusive proof of the
terms of their agreement and it should only be capable of attack on
the recognised grounds of misrepresentation,
duress, undue influence
etc.
[68]
If the antenuptual agreement does not correctly reflect the agreement
between the parties due to common error, then rectification
can be
sought. In my view such a construction is in line with the values
that underlie our Constitution. Such an interpretation
would promote
the spirit, purpose and objects of the Bill of Rights.
[69]
For these reasons I do not align myself with the
Thomas
decision.
I consider it to be clearly wrong and accordingly do not consider
myself bound by the judgment that followed
Thomas (supra),
the
aforesaid
Erasmus
judgment of Fourie, AJ.
[70]
Even if I were wrong in the aforegoing interpretation, the Defendant
failed to prove the value of his estate at the commencement
of the
marriage.
THE
COMMENCEMENT VALUE OF THE DEFENDANT'S ESTATE
[71]
The Defendant relied on his annual financial statements for the year
ended 28 February 2007 produced by his accountants on
2 August 2007,
for proof of the value of his estate at the date of commencement.
[72]
These financials purportedly recorded the value of the Defendant's
estate as at 28 February 2007 to be R2 791 729. It also
recorded the
Defendant's nett profit for the 2007 year to have been R201 831 and
his drawings to have been R262 793. The financials
reflected that the
Defendant had lent R 687 340 to the M Trust during that financial
year. With the net profit and the drawings
being what they are, there
appears to be insufficient funds available to justify the loan to the
M Trust. Without an explanation
the financials do not appear to be
reliable.
[73]
The Defendant argued that because the Plaintiff's expert did not
comment in his report on the correctness or otherwise on the
commencement value of the Defendant's estate as recorded in the
Defendant's expert summary, and because the Plaintiff did not place
this value in dispute during her evidence in chief, therefor it
follows that such value has been admitted. I find such reasoning
flawed. Firstly, the Plaintiff s expert did not testify. His report
was not received as evidence and has no evidential weight.
Secondly,
it is for the Defendant to prove his case. Neither the Defendant nor
the Plaintiff are qualified to express opinions
on the values as
recorded in the financials. Had the Plaintiff attempted to comment on
such value, the Defendant, on the basis
that she was not an expert in
this regard, would no doubt have met her evidence with an objection.
The financials as they stand
constitutes inadmissible unreliable
opinion evidence.
[74]
It is common cause what the Defendant's assets were as at the
commencement of the marriage. I find that no reliable evidence
has
been placed before this court as to what the value of these assets
were at the commencement of the marriage though.
FORFEITURE
OF BENEFITS
[75]
In terms of section 9 (1) of the Divorce Act, 70 of 1979
('the
Divorce Act')
a
court may grant an order that the patrimonial
benefits of a marriage be forfeited, either wholly or in part, by one
of the spouses
in favour of the other.
[76]
At the conclusion of the trial, the Defendant sought forfeiture
wholly alternatively that the Plaintiff forfeit 70% of her
share in
the accrual.
[77]
At the commencement of the matter, I drew counsels' attention to the
judgment of
MC v JJC
case A231/2014
in which
Semenya, AJ with whom Jansen, J concurred, held that
section 9(1)
of
the
Divorce Act might
infringe upon a variety of rights and thus be
unconstitutional. The Defendant argued that the
MC v JJC
(supra)
matter was not in accordance with
Wijker v Wijker,
1993
(4) SA 720
(AD)
at 7291 - 730A.
Wijker
(supra) was
delivered pre Constitution and is therefore not necessarily authority
for the contrary view. Neither party though, relied
upon the
unconstitutionality of
section 9(1)
of the
Divorce Act. That
does of
course not mean that I should not
mero moto
raise it. Because
of the findings I make herein, it is unnecessary for me to consider
this issue.
[78]
In
Wijker
(supra) at 727 E - F, the following was held:
"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 benefited. 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 benefited 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."
[79]
It is common cause that the Plaintiff will be benefitted. The parties
agreed that the value of the Defendant's estate as at
the date of the
hearing was R7,5 million. Two scenarios were sketched:
79.1.
If the commencement value of both parties'
estates were accepted as being nil, then the benefit to which the
Plaintiff would be
entitled would be: R 7,5 million/2 = R 3,75
million.
79.2.
If the commencement value of the
Plaintiff's estate were accepted as being nil and the commencement
value of the Defendant's estate
were accepted as R 2 791 729, then
the CPI inflation rate adjusted value as contended for by the
Defendant would be R 4 784 151.16
(this amount was actually
calculated on the amount of R 2 768 198 but the difference is
negligible and I ignore it for purposes
of this calculation) and then
the benefit to which the Plaintiff would be entitled would be: R7,5
million - R 4 784 151 = R 2 715
848.84 /2 = R 1 357 924.
[80]
Thus, the Plaintiff would either benefit by R 3 750 000 or by R 1 357
924. As I have already found that the commencement value
of the
Defendant's estate as at date of marriage was nil, the amount the
Plaintiff stands to forfeit is R 3 750 000. To determine
whether the
Plaintiff will be unduly benefited if a forfeiture order is not made,
the court must have regard to the duration of
the marriage, the
circumstances which gave rise to the breakdown of the marriage and
any substantial misconduct on the part of
either of the parties.
[81]
It is now established law that the factors mentioned in
section 9
(1)
of the
Divorce Act should
not be looked at cumulatively, see
Wijker
(supra) at 729 E- F and
Botha v Botha,
[2006] ZASCA 6
;
2006
(4) SA 144
(SCA)
at par
[6]
. What the court is required to do is
to make a value judgment.
[82]
The marriage lasted for 7 years, from 2 June 2007 to 8 July 2014,
when the Plaintiff left the common home. The parties were
together
from December 2005. The Plaintiff argued that one and a half years
should be added to the duration of the marriage. In
my view,
section
9
(1) does not permit this. The duration of the marriage should be
calculated from the commencement of such marriage which is the
date
of marriage.
[83]
The Plaintiff contended that the marriage started to suffer when the
Defendant and Mr Maritz started the M lodge which occurred
in 2010.
She explained that he started abusing alcohol and would sometimes
loose consciousness as a result. She would find him
sleeping on the
stairs to the bedroom. She explained that when inebriated his
personality would change. He would become verbally
abusive. This
would escalate into a full on confrontation resulting in, in some
instances, her throwing objects such as crockery
against the walls.
[84]
The Defendant testified that the Plaintiff would assault him, on
occasion in public. The Defendant suspected that the Plaintiff
had
formed and had conducted extra-marital relationships with other men.
He explained that the Plaintiff often threatened to commit
suicide
and that she would behave in an aggressive, moody, quarrelsome and
manipulative fashion towards him.
[85]
Having regard to the evidence presented on behalf of both parties I
conclude that the marriage broke down as a result of the
parties'
inability to deal with one another's conduct and insecurities. The
Plaintiff was nervous, sensitive and submissive in
the extreme. The
Defendant was controlling, rigid, without any insight into any
wrongdoing on his behalf and consequently unable
to take any
responsibility for their marital problems.
[86]
The Defendant testified that the Plaintiff dressed provocatively in
that she did not wear the appropriate under garments. I
accept his
evidence (which was not, in this respect, disputed). What is clear
though is that the Defendant had met the Plaintiff
when she had
dressed in the manner complained of. It had caused friction prior to
them getting married but the Defendant had nonetheless
married her.
The Defendant argued that it was not his case that the Plaintiff had
to obtain permission from the Defendant to dress
in a certain way. It
was the Defendant's case that the manner in which the Plaintiff
dressed, embarrassed the Defendant, this gave
rise to arguments and
subsequent assaults on the Defendant by the Plaintiff and this
conduct contributed towards the breakdown
of the marriage.
[87]
No argument was advanced which could justify the entitlement to
dictate to one's spouse a clothing regime. The acceptance of
such a
principle would amount to this court endorsing a gross infringement
of a parties' right to privacy and dignity. Not even
the marital
powers which have now been abolished, countenanced this. Such powers
were limited to the proprietal aspects of the
marriage relationship
only. This evidence supports my conclusion that the Defendant was
controlling of every aspect of the Plaintiffs
being. Her
unwillingness to submit to his power, frustrated the Defendant and
gave rise to arguments and friction.
[88]
The Defendant yielded the economic power in the relationship and was
very generous towards the Defendant. However, he used
this to control
her and would withdraw gifts or privileges when the Plaintiff engaged
in conduct of which the Defendant disapproved.
The Plaintiff brought
very little material goods into the marriage. She brought a piano
into the marriage, which, she testified,
she had had from childhood.
The Defendant repaired it. Because he had spent money on it, he laid
claim to it. He still has it.
The Defendant bought the Plaintiff an
IPL machine which the Plaintiff contended had been gifted to her by
him. During the trial
he testified that an agreement had been
concluded between the Plaintiff and the M Trust in terms of which the
Plaintiff had to
repay the capital sum to the M Trust.
[89]
I do not have to find whether such agreement was concluded but do
find, that to contend that such an agreement was concluded
almost 9
years prior to the trial hearing when no demands had been made for
repayment during the existence of the marriage, seems,
prima
facie,
not to support a finding that such an agreement had been
concluded. Be that as it may, the threat of taking the Plaintiffs
only
source of income away, was a powerful weapon in the hands of the
Defendant, who in fact used this weapon to its full potential to
attempt to force the Plaintiff to tow the line and submit to his
controlling ways.
[90]
On 2 July 2014, the Plaintiff recorded the following in one of her
final mails to the Defendant:
' ..
.jy weet ek
is nie baie goed met woorde nie. Ek gaan vir jou probeer verduidelik.
Ek weet ek het al baie met JOU baklei . .
..
maar as ek reg
onthou was dit meestal omdat jy laat en gedrink by die huis aangekom
het. Ek weet wel dat my optrede van skree en
slaan nie daardeur
regverdig kan word nie. Dan het ek telkemale vir jou gese jy f my op.
En dis hoe ek dan gevoel het. Het dit
gese want dis hoe ek dit ervaar
het. En wat my op maak is dat ek in moeilikheid is by jou en jy /elik
is met my oor niks. Voorbeelde
is daar wat ek Jou kan gee. En ek het
altyd gedink dis omdat ek sensitief is. Maar ek besef dat dit nie so
is nie. Ek kan nie meer
so /eef nie. En elke keer se jy vir my ek
moet iemand dan kry wie my nie op f nie en dat jy my nie keer
om
te gaan nie en dat ek moet f off. En dis altyd ons geld en ons
huis en ons plaas ....totdat ons baklei. Jy het die IPL masjien vir
my gekoop en ek is dankbaar daarvoor .....maar nou is dit ook nie
meer myne nie.....die k/avier wat jy vir my reggemaak het ook
nie
meer myne nie ....my geskenke nie meer myne nie.
So
ek het
niks eintlik nie. Niks is myne nie ....net wanneer jy so se."
(quoted as it appears in mail. Ellipses as per original text)
Loosely
translated and without the foul language:
'you know I am
not very good with words. I am going to attempt to explain. I know I
have fought with you a lot ....but if I recall
correctly, it was
mostly when you arrived late at home and in an inebriated state. I
know this does not justify my screaming and
hitting. I have told you
repeatedly that this conduct messes me up. I said so because that is
how I felt and that is how I experienced
it. What really gets to me
is that I am in trouble with you and that you treat me badly for no
reason. Examples I can give you.
I always thought it was because I
was sensitive. I have realised that is not so. I can't live like this
anymore. And then you always
say I must find someone who does not
mess me up, that you don't prevent me from leaving and that I should
leave. And it is always
our money and our house and our farm
....until we fight. You bought me the IPL machine and I am so
appreciative .... But now it
is also not mine anymore ...my piano
which you repaired is also not mine anymore .....my gifts are also
not mine. So I don't have
anything really. Nothing is mine...just
when you say so."
[91]
The Plaintiff denied that she had assaulted the Defendant as
regularly or as violently as described by the Defendant. She admitted
to only two incidents where she had hit the Defendant with her fists
on his back. The Plaintiff s counsel conceded, quite rightly
in my
view, that this court should find that the Plaintiff did indeed
assault the Defendant from time to time. He argued though
that the
court should find that this occurred under circumstances of extreme
provocation when the Defendant was inebriated or unbearably
controlling in dictating to the Plaintiff how she should conduct
herself in every aspect of her being. I agree with this assessment.
[92]
I find too that there is no conspicuous disparity between the conduct
of the Plaintiff and the conduct of the Defendant and
to indulge in
an exercise to apportion the fault of the parties, would nullify the
advantages of the 'no fault' system of divorce,
see
Wijker
(supra) at 730 E - F and
Beaumont v Beaumont,
1987 (1) SA 967
(A)
at 9941.
[93]
In
JW v
SW,
2011 (1) SA 545
(GNP), Makgoka J held as
follows in respect of assault:
"Any
substantial misconduct on the part of either party
[29] I have
already found that the defendant assaulted the plaintiff. That
constitutes substantial misconduct on the part of the
defendant.
Domestic violence, in particular against women, strikes at the
foundation and premise of
a
non-sexist
and democratic order. It is
a
repulsive
phenomenon which has no place in
a
society founded on the values of
freedom, dignity, honour and security.
[30] That I have
found substantial misconduct on the part of the defendant, does not,
on its own, justify
a
forfeiture
order: see Engelbrecht (supra) at 602J
-
603A."
[94]
The conduct of the Plaintiff in having assaulted the Defendant
clearly constitutes substantial misconduct however, it does
not on
its own, justify a forfeiture order. The court is obliged to make a
value judgment having regard to all the evidence. (The
court in
JW
v SW
(supra) did not make a forfeiture order. This was not
because of a value judgment, but rather because of the proportion in
which
the parties had contributed towards the immovable property and
the renovations in relation thereto.)
[95]
This court was urged to make a finding that the Defendant suffered
from battered husband syndrome. During argument an academic
article
was referred to entitled:
"Psychological Effects of Partner
Abuse Against Men: A Neglected Research Area"
Psychology of
Men & Masculinity 2001, Vol 2, No 2, p 75 - 85 authored by Hines
DA & Malley-Morrison K (Boston University).
The article discusses
the research on abuse against men in intimate relationships with a
primary focus on the effects of abuse.
It seems as though what was
requested by the Defendant's counsel in this regard was for the court
to read the article and then
to apply the learning to the facts of
this case.
[96]
I find this approach and this request extraordinary. One would have
thought that expert evidence would be presented to explain
the
theories embodied in the article and to apply those principles to the
specific facts underpinning this case. The court was
requested to
find that the Defendant suffered from this syndrome if regard is had
to the abusive nature of the letters written
by the Plaintiff to the
Defendant over the years. On my reading of the letters I see very
little support for such an inference.
The submissiveness of the
Plaintiff shining from the letters, is striking. The Plaintiff almost
worships the Defendant: she refers
to him as her king, her prophet. I
don't see any verbal abuse in the letters.
[97]
I see a person with very low self-esteem, struggling to communicate
frankly for fear of incurring the Defendant's wrath. This
is
particularly evident from her 3 page letter written on 23 September
2010 where she, only towards the end of the letter, plucks
up the
courage to address the Defendant's drinking habits and then does so
in the humblest of ways.
[98]
The Defendant accused the Plaintiff of extra marital relationships.
There was absolutely no evidence to support this. When
confronted
with this, the Plaintiff explained that she was not even permitted to
have coffee with her friend at the Wimpy. That
the Defendant was very
controlling of her is supported by this throw away line.
[99]
The Defendant sought to prove the Plaintiff's infidelity by
introducing as evidence a document, which by agreement between
the
parties, reflected, amongst other things, the following information:
that, during their marriage the Plaintiff had used her
own sim card,
another as a
modum
, her son's sim card on 27 August 2013, 13
December 2013 and 26 May 2014 and another sim card, a fourth, on one
occasion being 26
May 2014 (the same day she had used her son's). She
could not explain the identity or origin of this sim card. This then,
according
to the Defendant, proved that the Plaintiff was conducting
extra marital relationships as the only reason she could possibly
have
utilised other sim cards was because she was contacting other
men with whom she was having adulterous relationships.
[100]
In my view, the existence and use of the four sim cards proves no
such thing. For one, the Plaintiff had very little opportunity
to
consider these facts. It was presented to her during cross
examination. The matter stood down and within a short period of time,
the Plaintiff could explain three of the four numbers. One wonders
why the Defendant waited until the trial before exploring the
identity of the holders of the sim cards. Be that as it may, I cannot
find that any of this points to the Plaintiff having conducted
extra
marital relationships.
[101]
I cannot on the evidence before this court conclude that the
Plaintiff will in relation to the Defendant be unduly benefitted
should forfeiture not be ordered either wholly or in part. The
parties met under circumstances where they were breaching their
wedding vows to their then partners. They then started a secretive
relationship culminating in the Plaintiff marrying the Defendant
and
Dr V marrying Mrs H. The couples swopped partners. The Defendant
mistrusted the Plaintiff throughout their marriage and towards
the
end even accused her of having a relationship with Dr V. He
mistrusted her sincerity in every respect to the point that he
argued
in this court that the court should conclude that the Plaintiff only
married the Defendant in order to gain a financial
advantage for
herself. There exists not a shred of evidence to support such a
conclusion. To the contrary, the Plaintiff tried
extremely hard to
save this marriage.
[102]
It is clear that these two parties had a great affection for one
another at some point. The Defendant was at times very generous
with
his money and his emotional energy. It is unfortunate that the
parties could not work through their difficulties and break
the cycle
they were locked into.
COSTS
[103]
The Plaintiff abandoned her claim for maintenance during the opening
address. The Defendant had to prepare on this issue.
The abandonment
of this feature at such a late stage should carry with it the
appropriate costs order.
[104]
The Plaintiff conceded that her current partner is paying her legal
costs. This, the Defendant argued, precluded this court
from making a
costs order in favour of the Plaintiff. No authority for this
proposition was referred to.
[105]
The Plaintiff has been substantially successful and the costs order
should reflect this.
[106]
No order in respect of interest on the capital sum, which this court
will order Defendant to pay the Plaintiff, has been sought
and I
accordingly will make no order in that regard.
CONLCUSION
[107]
I accordingly grant the following order:
107.1.
It is declared that the commencement value
of the Defendant's estate for purposes of calculating the accrual is
nil.
107.2.
The Defendant's claim for rectification of
the antenuptual contract concluded on 26 May 2007 is dismissed.
107.3.
The Defendant is ordered to pay to the
Plaintiff the amount of R 3 500 000 (three million five hundred
thousand rand) being her
benefit in respect of the accrual to which
she is entitled.
107.4.
The Defendant is ordered to pay the costs
of this action (sa
107.5.
107.6.
ve as qualified in para 106.5 hereof)
including the costs consequent upon the employment of senior counsel.
107.7.
The Plaintiff is ordered to pay all costs
relating to the spousal maintenance claim including the costs
consequent upon the employment
of two counsel.
I OPPERMAN
Acting Judge of the High Court
Gauteng
Division, Pretoria
Heard:
29 August 2016
Judgment
delivered:
1 December 2016
Appearances:
For
Plaintiff:
Adv AF Arnoldi SC
Instructed
by:
Couzyn Hertzog & Horak
For
Defendant:
Adv LC Haupt
Adv GT Kyriazis
Instructed
by:
De Beer Attorneys