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[2015] ZAGPPHC 700
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Ramoroka v Ramoroka (19051/12) [2015] ZAGPPHC 700 (14 August 2015)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE NO: 19051/12
14/8/2015
In
the matter between:
NGAKO
THEOPHILUS
RAMOROKA
PLAINTIFF
and
MOLATELA
MARIAH
RAMOROKA
DEFENDANT
JUDGMENT
MALI
AJ
[1] The plaintiff claimed
an order of divorce and an order for the division of the joint estate
of the parties. In her counterclaim
the defendant, apart from also
claiming an order of divorce, claimed a forfeiture order. The parties
were ad idem that the marriage
had irretrievably broken down and the
sole issue was whether or not the forfeiture order in respect of 50%
of the defendant’s
pension benefits should be granted against
the plaintiff.
[2] The parties were
married to each other in community of property on 13 January 1999 at
Ellisras in Limpopo. One minor child was
born out of this marriage.
[3] The defendant is a
professional nurse employed by the Department of Health. The
plaintiff is a Taxi Driver and owns Taxi business.
[4] The parties stay
together though they sleep in separate bedrooms. Both of them accuse
one another for leaving the common bedroom
first and the refusal of
conjugal rights. According to the defendant due to the 70 kilometre
distance to her workplace she rents
a room near her workstation and
that is the reason she had to leave the common home. The plaintiff
did not challenge this version.
[5] Defendant testified
that they built a house together however she contributed financially
more than the plaintiff. She even went
to the extent of making loans
to ensure the successful building of their home. The plaintiff could
not gainsay defendant’s
evidence.
[6] The defendant further
testified that they have other assets, i.e. furniture and livestock.
They had 25 cows, 10 sheep and 7
goats. The plaintiff sold the
livestock without her consent and did not share the proceeds of the
said sales. The plaintiff also
sold their motor vehicles, Mazda 323
and Trucks without her consent and also did not share proceed of
same.
[7] The defendant stated
that they owned two taxis and she found out that the plaintiff
changed ownership of the other taxi. The
taxi was later involved in a
car accident and the insurance refused to pay for the repairs of the
said motor vehicle. She further
testified that there is no
communication between them because the plaintiff instructed her not
to communicate with him accusing
her of being a witch. Further that
the plaintiff is calling her abusive and insulting names and has
physically abused her to the
extent of promising to shoot her. The
defendant obtained a court order that was served upon the plaintiff.
[8] Because of the above,
the defendant submitted that the plaintiff will be benefiting unduly
if he gets the 50% portion of the
defendant’s pension benefits.
[9] Under cross
examination the defendant admitted that the plaintiff paid for her
tuition, accommodation and other expenses for
her to qualify as a
nurse. She started working in 2006 · and if it was not for him
paying for her nursing studies; she would
be unemployed and would not
have participated in Government Pension Fund. She further admitted
that before 2011 at the time the
plaintiff’s taxi business
collapsed he was taking care of the family. Furthermore that when his
business collapsed she took
care of the family including him. The
plaintiff would out of his own choice buy himself food in small
quantities and lock it in
the safe and eat alone in the bedroom. He
would at times eat at his parents’ place.
[10] The defendant’s
claim for a forfeiture order is based on the provisions of
section
9(1)
of the
Divorce Act 70 of 1979
which
reads as follows:
‘
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 therefor, and any substantial misconduct
on the part of either 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 benefited’.
[11] The approach to be
followed by a court when dealing with a claim for a forfeiture order
was stated by Van Coller AJA in
Wijker v
Wijker
1993 (4) SA 720
(A) at 727D-F:
‘
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
the
party
will
in
relation
to
the
other
be
unduly
benefited
if
a
forfeiture
order is
not
made.
Although
the
second
determination
is
a
value
judgement,
it
is made
by
the
trial
Court
after
having
considered
the
facts
falling
within
the compass
of the
three factors
mentioned
in the
section.
‘
[12]
In
MOODLEY
v
MOODLEY
[2008]
ZAKZHC
48
at
paragraph
9,
Tshabalala JP stated
as follows:
‘
In
exercising
the
discretion
to
order
forfeiture,
a
court
is
enjoined
to ask
itself
whether
one
party
would be
unduly
benefited
were
such
an order
not be made.
For
the
purpose
of
determining
whether
one
party
will be
unduly
benefited
in
relation
to the
other
the
Court is
required
to weigh
three separate factors:
(a)
The
duration of the marriage.
(b)
The
circumstances
which gave rise
to the breakdown.
(c)
Any
substantial
misconduct
on the part
of either
of the parties.
The discretion
is
restricted
to
a
consideration
of
these
grounds
alone. No
other
factors
may
be
taken
into
account.
It
has
been
held
that
is not
necessary
for
all
three
factors
mentioned
in
s 9(1)
and
to
which
the
court must
have
regard
to be
alleged
and proved
in
order
to grant
an
order
of
forfeiture(see
Wijker
v
Wijker
1993(4)
SA
720
and
Binda
v
Binda
1993 (2) SA 123
”.
[13]
In
MOLAPO v MOLAPO [441/10)
[2013]
ZAFSHC 29
(14 March
2013)
it was held that the purpose of a forfeiture order is not
to punish the guilty spouse. The element of fault has been removed.
It
exists only in the limited extent circumscribed in
section 9(1).
Courts are reluctant to make forfeiture orders because the fault
principle is no longer part of our law. Forfeiture orders made
by
trial courts were set aside in
Wijker
even though substantial
misconduct was found against the appellant. Also in
ENGELBRECHT
V
ENGELBRECHT
1989 (1) SA 597
forfeiture order was set
aside. In
SINGH V
SINGH 1983(1) SA 781
a forfeiture of
only 20% was ordered.
[14]
In casu
the
plaintiff denied that he left their bedroom, however testified that
it is the defendant who left their bedroom and refuses
him conjugal
rights. He testified that the defendant did not stay at home and he
did not know her whereabouts. Under cross examination
he conceded
that he knew and accepted that defendant had to stay closer to her
workplace. Furthermore the fact that she works and
stays more than 60
kilometres from home has contributed to the breakdown. He denied
abusing the defendant in whatsoever manner.
However he could not
dispute that the defendant obtained a court order against him, that
was served upon him.
[15] The plaintiff
further stated that his business collapsed in 2011 because both taxis
were involved in accidents. He admitted
that he sold the livestock to
maintain himself and for his survival. He did that without the
defendant’s consent. He testified
that he also sold firewood to
survive hence he sold some of the assets of the joint estate. He
could not explain the reason for
not involving the defendant in the
said disposal of assets. He denied ever owning a Mazda 323 and
neither owning a truck. He also
denied changing any car ownership
without the defendant’s consent.
[16] The plaintiff
contradicted himself in respect of the number of livestock of the
joint estate. In his evidence in chief he said
that he had no cows
remaining as he sold them to buy himself food. Under cross
examination he was at pains to explain an offer
he made to the
defendant a day before the trial. The plaintiff’s offer was
that he was willing to give defendant 6 cows as
he had 12 cows. It is
surprising that within a space of 24 hours 12 cows were no longer in
existence without any explanation. It
is difficult not to believe
that the plaintiff is concealing some of the assets of the joint
estate if not all. It is highly probable
that he sold other assets of
the joint estate without defendant’s consent and did not share
the proceeds with her. I find
the plaintiff not be a satisfactory
witness.
[17] This marriage lasted
for 16 years. For the first 7 years the plaintiff was a breadwinner
because the defendant was not working.
He even paid for the education
of the defendant. The defendant upon completion of her studies
started working and contributed to
the building of the house more
than the plaintiff. She also took care of the family when the
plaintiff’s taxi business crumbled.
This is not disputed by the
plaintiff. According to the plaintiff serious problems occurred when
the defendant stayed closer to
her workplace.
[18] Two important
aspects of the duration of the marriage are that the plaintiff paid
for the qualification of the defendant and
maintained the family
until he could not as his taxi business crumbled as confirmed by the
defendant. But on the other hand he
sold the assets of the joint
estate, i.e. livestock without defendant’s consent and also did
not share proceeds with the
defendant. This is a misconduct on the
part of the plaintiff.
[19] The other misconduct
alleged by defendant against the plaintiff is that she abused her
physically and emotionally and as a
result she had to obtain a
protection order. Having regard to the above I find that the
plaintiff perpetuated substantial misconduct
against the defendant.
[20] The first enquiry is
whether the plaintiff will be benefited if an order for forfeiture is
not made. The plaintiff will receive
50% of defendant’s pension
benefits if forfeiture is not made. That constitutes a benefit.
[21] The next enquiry
involves a value judgment taking into account the three factors
mentioned in
section 9.
In my view the scale is tipped heavily, but
not entirely in the defendant’s favour. Just as in Singh I
believe, in the principle
of
pact
sunt
servanda,
the agreement to share equally between the
parties. In my view the defendant’s nursing career should
provide for her needs
and survival even after the plaintiff had
shared in her pension benefits. The plaintiff contributed towards
defendant’s qualifying
as a nurse and was maintaining the
family for a period of more than 5 years; that should entitle him to
salvage something from
his contribution. The fact that he dissipated
the assets without sharing with the defendant should reduce his
rights
[22] In my view a fair
order would be that the pension benefits due to the defendant be
shared between the parties on the basis
that the plaintiff gets 40%
of the pension benefits and the plaintiff retains 60%
[23] With regard to the
minor child and other assets the parties have agreed to a draft
order.
ORDER
[24]
1.
Draft order marked “X” attached is made a court order.
2.
The plaintiff is to forfeit 10% of the Government Employee Pension
benefits belonging to the defendant. The Government Employees
Pension
Funds is ordered to pay 40% of the defendant’s pension benefits
to the plaintiff as at the date of this order.
_______________________
MALI AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Counsel
for the Plaintiff:
Adv Bergentuin
Instructed
by:
LEWIES & KITCHING ATTORNEYS
Counsel
for the Defendant:
Adv Tshabalala
Instructed
by:
KGWADI NGWAKO MATHABATHE INC
Date
of Hearing:
5 June 2015
Date
of Judgment:
14 August 2015
BEFORE
THE HONOURABLE JUDGE MALI ON 4 JUNE 2015
IN THE HIGH COURT OF
SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
CASE
NUMBER:
19051/12
In
the matter between:
NGAKO
THEOPHILUS
RAMOROKA
Plaintiff
(Identity
Number: […])
And
MOLATELO
MARIAH RAMOROKA (NéE MOSHABI)
Defendant
(Identity
Number: […])
DRAFT ORDER
After
hearing counsel for the parties, it is ordered that:
1. This order may only be
uplifted once the original marriage certificate is filed;
2. A decree of divorce is
granted;
3. Pertaining to the
minor child:
3.1. Both Parties retain
full parental rights and responsibilities with regard to The care and
guardianship of the minor child as
contemplated in sections 18(2)(a),
18(2)(c) and 18(30 of the Children’s Act, 38 of 2005;
3.2. The primary care and
residency of the minor child is awarded to the Defendant;
3.3. The Parties shall
comply with the requirements as set out in sections 6(5) and 10 of
the Children’s Act, 38 of 2005,
given the age, maturity and
stage of development of the minor child by informing the minor child
of the decisions taken which will
significantly affect him;
4. Specific parental
rights and responsibilities pertaining to contact with the minor
child, as contemplated in section 18(2) of
the Children’s Act,
38 of 2005, will be exercised as follows:
4.1. Plaintiff will have
the right to have the minor child with him:
4.1.1. Every alternative
weekend, as from 17:00 on the Friday until 15:00 on the Sunday;
4.1.2. Every alternative
long weekend from 17:00 on the day preceding the first day of the
long weekend until 15:00 of the last
day of the long weekend;
4.1.3. Every alternative
public holiday, not part of a long weekend as described in paragraph
4.1.2 above and subject to paragraph
4.8 below;
4.1.4. Every alternative
short school holiday and every alternative long school holiday, July
and December holidays will be shared
or rotated between the parties
and Christmas and Easter alternated between the parties;
4.1.5. On Father’s
day, from 08:00 to 17:00 regardless of such a day constituting part
of a contact day, weekend or holiday
of Defendant and he same would
apply in Defendant’s favour on Mother’s day;
4.1.6. On Plaintiffs
birthday and the birthday of the minor child for a maximum of 3
(three) hours in case of this day not constituting
part of Plaintiffs
contact with the minor child. Same would apply in favour of Defendant
in case of the minor child’s birthday
constituting part of
Plaintiffs contact period;
4.2. Plaintiff will have
reasonable incidental contact with the minor child with regards to
academic, sport, religious, social and
cultural activities;
4.3. Plaintiff has the
right to reasonable telephonic and electronic contact with the minor
child, provided that same be exercised
between reasonable hours;
4.4. Neither party may
take the minor child out of the borders of the Republic of South
Africa without the express written consent
of the other party;
4.5. Each party undertake
to inform the other party promptly of any change of address,
telephone or cell phone numbers;
4.6. The exercise of the
rights set out in this paragraph shall be subject to the minor
child’s social, school, sport, religious
and cultural
activities and shall be exercised in such a manner that it shall not
unreasonably impede on these activities;
4.7. Should the exercise
of contact as prescribed in this clause be impossible or impractical
for either one of the Parties or the
minor child, same would be
rearranged between the parties with prior and reasonable notice from
the party who finds the arrangement
impractical or impossible to the
other party and the minor child and the consent of the latter party
will not be unreasonably withheld;
5. Maintenance of the
minor child:
5.1. Plaintiff will pay
monthly maintenance for the minor child in the amount of R 300.00
(three hundred rand) per month, said amount
to be paid into the bank
account of Defendant provided to Plaintiff, said payment to be made
on the last day of each and every
consecutive month, the first
payment to be made on the first such date following the divorce
proceedings;
5.2. The monthly amount
specified in paragraph 5.1 above is subject to an annual escalation
in accordance with the Consumer Price
Index (CPIX) said escalation to
be applied and take effect on the anniversary date of the first
payment in terms of this order,
annually;
5.3. Defendant will
register the minor child as a dependant on her medical aid scheme,
alternatively, if the minor child is an existing
dependant on
Plaintiff’s medical aid scheme, the status quo will prevail,
alternatively and only in case of none of the Parties
being
registered on a medical aid scheme, the Parties will be equally
responsible for the medical care and expenses of the minor
child;
5.4. Defendant will pay
the minor child’s school fees;
5.5. Plaintiff will pay
the minor child’s school clothes and necessary clothes and
items for extramural activities, provided
that Defendant presents
Plaintiff with a receipt for said expenses at the end of the month in
which said expenses were incurred
and Plaintiff shall pay these
expenses so proved on the same day as the maintenance payment as
specified above. Any considerable
expense described in this clause is
to be discussed with Plaintiff before incurred by Defendant.
6. An independent
liquidator is to be appointed by the Law Society to determine the
division of the communal estate;
7. Each party is to pay
his or her own costs.
_____________________
(signed)
REGISTRAR