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[2014] ZAGPPHC 505
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M.S.R v P.P.R and Another (20741/2011) [2014] ZAGPPHC 505 (14 May 2014)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case No.:
20741/2011
Date: 14 May 2014
In the matter
between:
R[...], M[...]
S[...]
.............................................................................................................................
PLAINTIFF
and
R[...], P[...]
P[...]
..............................................................................................................
FIRST
DEFENDANT
D[...], P[...]
P[....]
........................................................................................................
SECOND
DEFENDANT
JUDGMENT
HIEMSTRA AJ
[1] This is a
divorce action in which the plaintiff sued the first defendant for
divorce, forfeiture of the patrimonial benefits
arising from the
marriage in community of property and relief in respect of the minor
children bom from the marriage. The plaintiff
also sued the second
defendant for damages suffered as a result of his adultery with the
first defendant.
[2] The action
against the second defendant was settled and is no longer in issue.
The principal issue in dispute is the plaintiffs
claim for forfeiture
of patrimonial benefits arising from the marriage in community of
property. Also in dispute are the amount
of maintenance to be paid by
the first defendant in respect of the children and a minor issue
relating to the second defendant’s
right of access to the
children. These are ancillary issues and I shall deal with them at
the end of the judgment.
[3] Since the second
defendant is no longer a party, I shall refer to the first defendant
as “the defendant”, except
where it is necessary to refer
to both defendants in the course of the narrative.
[4] The parties were
married to each other at Virginia in the Free State on 5 January 1992
in community of property. Three children
were born of the marriage,
all still minors. The marriage lasted for 19 years. By agreement, the
children’s primary residence
will be with the plaintiff,
subject to the defendant’s rights of reasonable access and
maintenance payable by the defendant
in respect of the children.
[5] The marriage
relationship between the parties has broken down irretrievably and
there are no prospects or the restoration of
the relationship.
[6] Counsel for both
parties submitted substantial heads of argument, including lengthy
dissertations on the basic principles of
the
Divorce Act, 70 of 1979
,
the onus of proof, the nature of the concept of community of
property, the legal aspects surrounding forfeiture of benefits of
a
marriage in community of property and the law on maintenance of
children. The heads are supported by a host of judicial precedent
on
these subjects. I do not propose to undertake a similar exposition of
the law.
FORFEITURE OF
BENEFITS
[7] In considering
whether a party to a marriage in community of property should forfeit
the benefits arising from such a marriage,
the point of departure is
section 9(1)
of the
Divorce Act, which
reads thus:
“
Section
9
- Forfeiture of patrimonial benefits of marriage
(1) When a decree of
divorce is granted on the ground of the irretrievable break-down 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 break-down thereof
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.”
[8]
It was held in
Wijker
v Wijker
1
that the court should first determine whether or not the party
against whom the order is sought will in fact be benefitted if the
order is made. There is no doubt that the defendant would in fact
benefit from the marriage in community of property, hence the
plaintiffs insistence on an order for the forfeiture thereof and the
defendant’s vigorous defence against it. The question
to be
considered is whether the defendant would benefit unduly. The
subsection spells out the factors the court must consider in
deciding
this question. They are tthe 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.
[9]
It is not necessary that any or all the considerations mentioned in
the subsection be present before a forfeiture order may
be made. The
crucial question remains whether the one party would unduly benefit
from the marriage regime. In order to answer the
question the court
must have regard to the factors mentioned.
2
[10]
The Supreme Court of Appeal said in
Beaumont
v Beaumont
3
:
“
...ln
many, probably the most cases, both parties will be to blame, in the
sense of having contributed to the break-down of the
marriage... In
such cases, where there is no conspicuous disparity between the
conduct of the one party, and that of the other,
our Courts will not
indulge in an exercise to apportion the fault of the parties, and
thus nullify the advantage of the “no-fault”
system of
divorce.”
[11]
It must at all times be kept in mind that a marriage in community of
property is “a “universal economic partnership
of the
spouses.”
4
That is the marriage regime the parties had agreed to when they
entered into the marriage, and like any other agreement, it should
not be disturbed save for substantial and compelling reasons.
5
[12] Both parties
testified and there are numerous factual disputes, few of which can
be conclusively resolved. The court can at
best form a view as to the
nature of the marriage relationship and the conduct of the parties
and conclude from that whether grounds
exist for declaring the
defendant’s patrimonial benefits, if any, forfeit.
[13] The plaintiff
is a 52-year old man. At the time of the separation of the parties,
on 27 September 1011, he was 49 years old.
He is the Chief Executive
Officer of Umalusi, the National Quality Assurance Authority in
education. He has had a flourishing career
during which he was
promoted on regular basis until he reached his current position. He
has a doctorate in education and is a published
author of a book on
the 1976 Soweto uprisings.
[14] The plaintiff
is a tall imposing man. He is a devout Seventh Day Adventist, and
expounds adherence to the dictates of this
faith and the authority of
the church elders. He is also a traditionalist, who adheres to his
views of African culture in respect
of the relationship between
husband and wife, in particular the duty of the wife to obey her
husband. As will appear below, he
is an authoritarian who does not
countenance defiance of his authority as a husband. It appears also
from the evidence that the
defendant had regularly defied him and
refused to adhere to his strictures.
[15] The defendant
is the plaintiffs junior by 10 years. When the parties married, she
had just made her matric. She is a feisty,
attractive woman, who has
also made her mark as an educator and administrator in the field of
education. She ascended from her
position as a teacher in a rural
primary school to her current position as Deputy Director: Artisan
Development in the Department
of Higher Education.
[16]
It is common cause that the defendant had committed adultery with a
mutual friend, the second defendant. In her pleadings and
throughout
pre-trial conferences the defendant steadfastly denied the adultery.
She admitted it for the first time on the morning
of the first day of
the trial. Mr Smith SC, appearing for the plaintiff criticised her
for her dishonesty in this regard. It must,
however, point out that
she had not denied the adultery under oath. Mr Haskins SC, appearing
for the defendant referred me to E.
Morris: Technique in Litigation
6
where the learned author said:
"If
you are in doubt about an admission the natural reaction is to plead
a denial. In other circumstances
a
denial may be
pleaded if the defendant thinks that the plaintiff may be unable to
prove a material allegation in his case, or where
the pleader knows
that the plaintiff will be able to prove the allegation, but prefers
to deny it in order to force the plaintiff
to testify. Such denials
are referred to, with varying degrees of disrespect, as “tactical
denials. It is, accordingly, permissible
to plead a tactical denial
and this must be distinguished from a denial under oath of matters
which ought to be admitted.”
Despite the above,
in my view the defendant’s persistent denial reflects
negatively on her credibility as a witness. However,
it is not so
scandalous as to taint all her evidence. As will appear later in this
judgment, I find the testimony of both parties
lacking in
truthfulness in important respects.
[17] Adultery
manifestly constitutes substantial misconduct within the meaning of
s
9(1)
of the
Divorce Act. Adultery
may, however, in some instances not
be the cause of the breakdown of a marriage; it may be the
consequence of an unhappy or abusive
relationship. The defendant
contended that the plaintiff had assaulted her, raped her, and
mentally abused her during the marriage.
If I find that the plaintiff
had also committed substantial misconduct during the course of the
marriage, I shall consider on all
the evidence whether the
defendant’s misconduct outweighs the misconduct of the
plaintiff to such an extent that her patrimonial
benefits arising
from the marriage in community of property should be declared
forfeit.
The evidence
[18] The plaintiff
maintained that the marriage had been a satisfactory one until about
5 years before the separation. This is,
however, not borne out by the
evidence. It had evidently been a deeply troubled marriage from at
least one year after the marriage.
[19] The plaintiff
admitted that he had assaulted the defendant as early as January 1993
barely a year after the marriage. The nature
and gravity of the
assault, and where it took place are disputed and I shall not attempt
to resolve the factual differences. However,
the nature of the
disagreement that led to the assault is significant in providing
insight into the parties’ relationship.
The plaintiff had
instructed the defendant to wear more modest pants while his father
visited the couple at their home. She refused
to do so. This
infuriated the plaintiff. However, he did not assert his authority
there and then, but assaulted her the following
day, presumably to
punish her for her disobedience.
[20] In June 1999
the plaintiff had to travel to Pretoria from Bloemfontein for a
three-day business engagement. He had to arise
at 04:00 in the
morning to catch a flight. He instructed the defendant the previous
evening to pack his bags for the trip. She
had been watching an Oprah
Winfrey show on television and told the plaintiff that she would do
it after the programme. He regarded
it as disobedience and he gave
her a frightful beating. According to the defendant, he had pinned
her down and pummelled her face.
She said that he had in the process,
even urged their child to slap her because she had been disobedient
to him. That aspect of
her evidence is not admitted and I make no
finding in that regard. The plaintiff, however, admitted the assault.
He also did not
dispute that the defendant had sought medical
assistance and that the doctor had been so concerned about her
injuries that he had
x-rays taken to establish whether she had
sustained fractures to her facial bones. The defendant testified that
it had fortunately
happened at the beginning of school holidays and
that she had six weeks to recuperate. The plaintiff confessed to the
defendant’s
family that he had assaulted the defendant and
sought their forgiveness. However, in his testimony he brazenly
defended his actions
and said that in his culture a woman had to obey
her husband and that she had defied him. He regarded the incident as
a normal
tiff that arises in all marriages.
[21] The defendant
testified about other assaults, but the plaintiff denied them, or
said that he could not remember the incidents.
His denials are,
however, not convincing. He had been blatantly untruthful in his
evidence regarding the alleged assaults. He asserted
emphatically at
the outset that he had assaulted her only once during the course of
the marriage, but under cross-examination admitted
at least one other
very serious assault. Some of the alleged assaults, he said he could
not remember. This makes it worse for him.
It creates the impression
that he had so regularly assaulted her that he could not remember
each specific instance. If he had only
assaulted her once or twice,
he would have denied the all other assaults categorically.
[22] The defendant
further testified that the plaintiff had forced himself sexually on
her on several occasions. The plaintiff’s
response to this
allegation is ambiguous. He denied that he had raped her, but on the
other hand defended his actions by saying
that she had been cold and
aloof towards him, and that he had pleaded with her for sexual
relations. I can, however, not make a
categorical finding on this
allegation.
[23] The defendant
testified that the plaintiff had in general been aggressive, moody,
quarrelsome, belittling, bombastic and humiliating
towards her. He
tried to dictate her clothing and hairstyle, when and how to smile
and where she may go and where not to go. He
even disapproved of the
music she liked to listen to and insisted that she rather listen to
Gospel music. My impression is, however,
that she mostly defied him,
sometimes openly and sometimes times surreptitiously. The plaintiff
found a compact disk on which she
had written the names of gospel
songs. However, it contained popular secular music.
[24] The plaintiffs
evidence is that since about 5 years before the separation the
defendant had become cold, distant and aloof
towards him. He said
that she arrived home late from work in the evenings with dubious
excuses as to her whereabouts. He suspected
her of having an affair
with someone else, but could not prove it at the time. I accept that
there is truth in these contentions.
[25] The plaintiff
and the defendant had been close friends with the second defendant
and his wife. They visited each other regularly
and held vacations
together. Unbeknown to the plaintiff, the first and second defendant
had started an adulterous relationship.
On 5 March 2011 the second
defendant’s wife intercepted an sms message from the second
defendant to the first defendant in
which he used endearing terms
such as “sweetheart - mokapelo”, “my love”
and “miss you baby”.
The plaintiff immediately called a
meeting with the defendant’s family in Virginia and confronted
the defendant with the
evidence in front of her parents and siblings.
The defendant admitted that she had an adulterous relationship with
the second defendant.
They met with the plaintiffs family thereafter
and she again admitted it. The plaintiff insisted on knowing when it
had started
and where they had conducted their relationship. The
defendant was not forthcoming with these facts and it embittered the
plaintiff.
[26] The plaintiff
thereafter sought the intervention of their pastor, the church elders
and a psychologist. The defendant at first
refused to participate in
these meetings, later participated reluctantly and eventually
withdrew again. She said that the plaintiff
had put her on trial
before all these people.
Section 9(1)
of
the
Divorce Act
[27
] This brings me
back to the provisions of
section 9
of the
Divorce Act and
the
factors that must be considered in deciding whether or not to declare
the defendant’s patrimonial benefits from the marriage
in
community of property forfeit. They are:
1. the duration of
the marriage,
2. the circumstances
which gave rise to the break-down of the marriage and
3. any substantial
misconduct on the part of either of the parties.
The duration of
the marriage
[28] The marriage
lasted for 19 years, which is substantial. The plaintiff conceded
that the defendant had been a satisfactory wife
for most of the
duration of the marriage. She had supported him in his career and
followed him to wherever his promotions took
him. She was a good
mother and was an adequate housekeeper. Although the plaintiff
created the impression during his evidence-in-chief
that the
defendant had made no or little contribution to the household
expenses, he was constrained to admit under cross-examination
that
she indeed contributed.
The circumstances
which gave rise to the breakdown of the marriage
[29] The plaintiff
maintained that the defendant’s adultery was the sole cause of
the breakdown of the marriage. He said under
cross-examination that
had it not been for the adultery, he would not have sued the
defendant for divorce. Not even her alleged
bad behaviour during the
last five years of marriage had been so serious that it caused the
marriage to break down. He does not
believe that his behaviour, even
the assaults during the marriage, had contributed to the breakdown.
He seems to regard adultery
as the ultimate outrage in a marriage and
that no circumstances could mitigate the gravity thereof.
[30]
The plaintiff regards himself as the head of the family and that his
wife and children owe him unreserved obedience. He is
mistaken. The
husband’s role as “head of the family” was
abolished by the s30 of the General Law Fourth Amendment
Act, which
amended s 13 of the Matrimonial Property Act
7
.
In any event, such a view conflicts with the equality provisions of
the Constitution. The Constitution states that it applies
to “all
law”. It also binds private persons, “if and, to the
extent that it is applicable, taking into account
the nature of the
right and of any duty imposed by the right.” Every person is
guaranteed equality before the law and the
equal protection of the
law. If it is so that in African culture a woman is unequal in a
marriage relationship and subservient
to her husband, then it is in
conflict with the Constitution and it cannot be sustained. Most
importantly, it cannot be enforced
through violence.
Substantial
misconduct on the part of either of the parties
[31] Both parties
misconducted themselves during the marriage. The defendant committed
adultery and the plaintiff committed physical
violence against a
defenceless woman. Physical violence is the act of cowardice. He is
unable to assert himself through the power
of his personality and
therefore resorts to violence enforce his will or to vent his anger.
This ranks with adultery as substantial
misconduct within the meaning
of s 9(1) of the Act. The moral blameworthiness of adultery may be
mitigated by the circumstances,
but serious assault cannot be
condoned. Mitigating circumstances for adultery include mental and
physical abuse. It is evident
that the plaintiff had physically
abused the defendant. It is also apparent from the evidence that the
plaintiff had behaved in
an oppressive and overbearing manner towards
her.
[32] Without
condoning adultery, I find that the defendant’s adultery did
not cause the breakdown of the marriage. The defendant
was deeply
unhappy in her marriage. She is a sprightly woman caught in a
marriage with an overbearing man who stifled her with
his
conservative and pious outlook on life.
[33] I shall
therefore not make and order for the forfeiture of the defendant’s
patrimonial benefits arising from the marriage
in community of
property.
DEFENDANT’S
ACCESS TO THE CHILDREN
[34] As I have said,
the issue of the primary residence of the children and the
defendant’s rights of contact have been settled
but for one
minor aspect. The defendant contends that the children should reside
with her whenever the plaintiff is away from home
on business. The
plaintiff travels outside Pretoria from time to town and once or
twice per year abroad.
[35] I find it
unnecessary to make a ruling in this regard. It may be disruptive of
the children’s routines if they have to
move to the defendant’s
home every time the plaintiff is away. The plaintiff has made
adequate arrangements for the care
of the children when he is away.
If he goes away for long periods, it may be in the children’s
interests to stay with the
defendant. This is a detail that the
parties must regulate amongst themselves. The defendant has
reasonable access to the children
and such reasonable access includes
the right in appropriate circumstances to have the children with her
when plaintiff is away
for home for extended periods. It is, however,
not advisable for the court to involve itself in these details. The
court can only
hope that the parties will approach these matters with
maturity and mutual respect.
MAINTENANCE
[36] The defendant
was ordered in a Rule 43 application to pay maintenance in respect of
the children in the amount of R250 per
child per month. She failed to
do so without providing any satisfactory explanation. She is in
contempt of court. The plaintiff
now claims a contribution from the
defendant of R 2 000 per month per child.
[37] I have
considered the financial positions of both parties. Both have
substantial incomes and substantial debts. Both struggle
to meet
their monthly obligations.
[38] It is apparent
from the defendant’s evidence that she is reckless with her
money and inclined to incur huge unnecessary
debts. She has
squandered a pension payout of R209 193.62 which she received on 2
December 2013 and was dismally incapable of explaining
under
cross-examination what she had done with it. She may find it
difficult to pay R6 000 per month for the children, but with
responsible management of her finances, she should be able to afford
it. The plaintiff should not solely bear the financial burden
of the
children and a substantial contribution from the defendant is
justified.
In the result I make
the following order:
1. A decree of
divorce is granted to the plaintiff;
2. Both the
plaintiff and the defendant will retain parental responsibilities and
rights in respect of the three minor children,
subject thereto that
the primary residence of the said children shall be with the
plaintiff, subject to the defendant’s right
of reasonable
access;
3. The defendant’s
rights of contact shall be the following:
3.1 Alternate
weekends from 17:00 on Fridays to 18:00 on Sundays, such alternative
weekends to be arranged in such a fashion that
the children shall be
with the plaintiff on the weekend of Father’s Day and the with
the first defendant on the weekend of
Mother’s Day;
3.2 Alternative long
weekends, the first defendant to have the children from 17:00 at the
commencement of the long weekend up to
18:009 at the end thereof;
3.3 Alternate public
holidays not forming part of a weekend from 17:00 on the day
preceding the public holiday until 18:00 on the
public holiday;
3.4 Alternative
short school holidays to rotate on an annual basis;
3.5 One half of
every long school holiday, being the June/July and December/January
school holidays on the basis that the December/January
school holiday
shall be divided in such a fashion that the minor children shall be
with one or the other parent on an alternative
basis for Christmas
and New Year inclusive;
3.6 Reasonable
telephonic contact at all reasonable times.
4. The first
defendant shall contribute an amount of R2 000.00 per month per child
to the minor children’s maintenance, which
amount is to be paid
directly to the plaintiff into such bank account as may be determined
by him;
5. The arrear
monthly maintenance payments of the first defendant in terms of the
Rule 43 Court Order, dated 2 August 2013, shall
be paid forthwith;
6. Each party shall
pay his or her own costs.
J. HIEMSTRA
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
Date heard: 26 - 28
March 2014
Date of judgment: 9
May 2014
Counsel for the
plaintiff: Adv. D.A. Smith SC
Attorney for the
plaintiff: Morne Mostert Attorneys
67 B 11 key Street
Lynnwood Glen Pretoria
Tel: 071 146 8948
Ref.: Mostert/Mr
0217
Counsel for the
first defendant: Adv. M. Haskins SC
Attorney for the
first defendant: Shapiro & Ledwaba Inc
2
nd
Floor, Shapiro Chambers 20 Bureau Lane Pretoria
Tel.: 012 328 5848
Fax: 012 342 4288
Ref.:
DA Ledwaba/R2451/amn
1
1993
(4) SA 720
(A)
2
Klerk
v Klerk
1991
(1) SA 265
(W)
3
1987
(1)SA 967 (A) at 994
4
H. R. Hahlo,
The
South African Law of Husband and Wife,
Fifth
edition at 157-158
5
See
Engelbrecht
v Engelbrecht
1989
(1) SA 597
(C) at 601
6
6
th
Edition by J. Mullins & C. da Silva at page
94
7
88 of 1984