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2014
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[2014] ZAFSHC 222
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S v S (5888/09) [2014] ZAFSHC 222 (4 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 5888/09
DATE:
04 DECEMBER 2014
In
the matter between:-
[A……]
[M….]
[S….]
.............................................
Plaintiff
And
[K….]
[T….] [S……]
..........................................
Defendant
CORAM:
MOENG, AJ
JUDGMENT
BY: MOENG, AJ
HEARD
ON: 11 and 14 November 2014
DELIVERED
ON: 4 December 2014
INTRODUCTION
[1]
These are divorce proceedings. Plaintiff issued summons against
defendant on 27 November 2009 and served same on 7 December
2009.
Defendant filed and served a notice of intention to defend the action
on 10 December 2009 and filed his plea on 4 March 2010.
A
counterclaim was later filed and served on 24 March 2010. Plaintiff
did not file a plea to the counterclaim and was resultantly
barred on
28 July 2013.
[2]
The parties were married to each other in community of property on 18
January 2001 in Bloemfontein and the marriage still subsists.
Two
children were born out of the pre-marital relationship between the
parties. They were subsequently legitimised by the marriage
of the
parties. Both children have attained the age of majority. I should
however pause to state that the second child was still
a minor when
summons was issued but has since attained majority on 8 June 2013. It
appears from the particulars of claim and counterclaim
that both
parties agree, albeit on different grounds, that their marriage
relationship has irretrievably broken down.
[3]
The plaintiff prays for a decree of divorce. She secondary thereto
prays for division of the joint estate, an order for maintenance
in
respect of both children and an order whereby she is declared to be
entitled to half of the value of the defendant’s pension
interest calculated at date of divorce. The defendant likewise prays
for a decree of divorce and subject thereto a forfeiture of
matrimonial benefits alternatively division of the joint estate. He
further in the main seeks an order that each party retain his
or her
pension interest.
BACKGROUND
[4]
This matter has a long history which culminated in a refusal for a
further postponement on 11 November 2014. The course of events
leading to the refusal of the postponement can in short be summarised
as follows:
[5]
Due to plaintiff’s inaction to set the matter down for trial,
defendant filed a notice of set down for the 18th and 19th
March
2014. Four days before the trial date, the plaintiff consulted Dr S.
Brook, a specialist psychiatrist on 14 March 2014 and
was declared
unfit to work from 14 to 20 March 2014 due to major depression.
[6]
The matter was again set down for trial on 9 April 2014 and the
plaintiff again consulted Dr Brook on 8 April 2014, a day before
the
trial, and he recommended that the proceedings be postponed for a
period of 6 months for plaintiff’s recovery from depression.
[7]
The matter was then set down for 14 and 15 October 2014. The
plaintiff consulted Dr Brook on 13 October 2014. It appears from
the
report that the plaintiff reported of feeling anxious, depressed and
was not coping. She however appeared before me on 14 October
2014 and
applied for a postponement due to her depressive state.
[8]
It also appeared from the record that her erstwhile attorney JG
Botha, withdrew as an attorney from record on 17 October 2011.
The
attorney that purportedly appeared on her behalf never filed a notice
of his appearance for the plaintiff and did not appear
on the date of
trial.
[9]
Plaintiff however indicated her willingness to apply for legal aid
and was referred to Legal Aid South Africa for assistance.
Ms.
Oosthuisen was appointed on her behalf and the matter was postponed
to 11 and 14 November 2014 for trial. She however again
on 6 November
2014 consulted a medical practitioner and was declared unfit for work
from 6 to 21 November 2014.
[10]
Mr. Steyn instructed by legal aid South Africa applied for the matter
to be postponed or alternatively removed from the roll.
He indicated
that plaintiff failed to honour her consultation with him and that
she is incapacitated due to major depression. Mr.
Khang opposed the
postponement citing the trend that plaintiff has followed in ensuring
that the trial does not reach finality.
THE
POSTPONEMENT
[11]
The court has a discretion, which must be exercised in a judicial
manner as to whether an application for a postponement should
be
granted or refused. An applicant for a postponement seeks an
indulgence and where his unreadiness to proceed is not due to
delaying tactics, and where justice demands that he should have
further time for the purpose of presenting his case, a postponement
may be granted.
[12]
The course of events painted above is indicative of such delaying
tactics. A trend of depression, before each trial date, is
created.
The medical certificate dated 8 April 2014 recommended that the trial
be postponed for six months to enable the plaintiff
to recover and
proceed with the trial. The matter was indeed postponed for six
months.
[13]
The next report dated 13 October 2014 did not recommend that sick
leave be granted. This report recommended that plaintiff
continue
with intensive psychiatric treatment and be admitted to hospital
should her mental condition deteriorate. Plaintiff however
insisted
on the court appearance, dated 14 October 2014 that her mental
condition did not allow her to proceed with the case. A
legal
representative was assigned to her to take instructions but she did
not honour her consultation appointment.
[14]
Plaintiff is dominis litis and defendant was hauled to court to
defend this action. Summons was served on7 December 2009 and
no
action was taken by plaintiff to have the matter reach finality.
Defendant initiated the finality of this matter and set it
down for
trial on four different occasions, only to be met with applications
for postponement due to depression. This is in my
view prejudicial to
the defendant who not only has to incur legal costs but is also
entangled in a marriage that plaintiff admittedly
regards as having
been irretrievably broken down. Plaintiff further failed to honour
her appointment for a consultation with her
attorney. This is
indicative of her lack of interest in seeing this matter reach
finality. The prejudice suffered by defendant
can in my view not be
compensated by an appropriate order of costs.
[15]
All these medical certificates were obtained days before the
respective trial dates and defendant never obtained proper notice
of
the intended applications for postponement. A pattern is created
whereby she consults doctors’ days before the trial.
It does
not appear that her condition is so serious that it warranted
hospitalisation. These certificates, except for the one dated
8 April
2014, do not specify that the plaintiff is not in a position to
conduct her case.
[16]
Having regard to her long history of illness and postponements, I
would have expected her to produce evidence and not merely
rely on
unsworn certificates. (See Hanson, Tomkin and Finkelstein v Dbn
investments (Pty) Ltd
1951 (3) SA 769
(N). Illness will usually be
regarded as an adequate ground for postponement. Proper medical
evidence must be produced, directly
and positively to the effect that
a party cannot attend, and disclosing the nature of his illness and
the date when he will probably
be able to appear. This should be
preceded by a formal application so as to afford the opponent the
opportunity to oppose the application
and lead evidence in rebuttal.
[17]
The contents of these medical certificates are untested and may be
regarded as hearsay, in the absence of the testimony of
the doctor
that examined the patient. Plaintiff was under the misapprehension
that the mere submission of medical certificates
would warrant
postponements. An applicant for a postponement seeks an indulgence
and a postponement does follow as a matter of
course.
[18]
In Joshua v Joshua
1961 (1) SA 455
(GW), the defendant applied for a
postponement of a trial on the ground of his ill-health. The
application was opposed by the plaintiff
who pointed out that no
formal notice of motion of the application for a postponement had
been given and that no costs had been
tendered. Defendant’s
counsel asked for leave to hand in a doctor’s certificate from
the Bar. It appeared that the
defendant’s attorneys had been
aware for a week prior to the application for the postponement being
made of the defendant’s
alleged ill-health. In refusing the
postponement De Vos Hugo J stated as follows at 457A–C:
“
I
can see no reason why the defendant could not have given proper
notice of her intended application and produced evidence in the
proper manner to support the application. In the exceptional
circumstances which existed in Hanson, Tomkin and Finkelstein’s
case, supra, I can agree that a doctor’s certificate can be
handed in from the Bar but where there is time enough to prove
such a
certificate in the correct manner it should be done and the
certificate cannot be accepted from the Bar. The result is,
therefore, that there is no proper proof of ill-health to justify a
postponement.”
[19]
I was of the view that the application for postponement be refused.
Mr. Steyn requested to be excused due to lack of instructions
and the
matter proceeded on an unopposed basis.
SUMMARY
OF EVIDENCE
[20]
The defendant testified that he is married to the plaintiff and that
the marriage still subsists. Two children, both at an
age of
majority, were born out the marriage and that he is paying
maintenance for both based on a maintenance order granted by
the
magistrates’ court.
[21]
The marriage between the parties has irretrievably broken down due to
the infidelity of the plaintiff. They have been living
apart for the
past four years. The house that the parties lived in was auctioned
due to plaintiff’s failure to pay the bond.
He regularly sent
her money to pay but she failed to. The defendant is still burdened
with the outstanding balance of the bond.
[22]
The plaintiff was employed by two different Government departments
but she resigned. He did not share in her pension benefits.
He
considers it fair to retain his pension benefits and that the court
should not order that she be entitled to half of the value
of his
pension interest calculated as at the date of divorce. The plaintiff
left with the household furniture and he would consider
it just if
the court orders that each party keep what is in their possession.
THE
ISSUES
[23]
The marriage between the parties has admittedly irretrievably broken
down. The only issue relates to the division of the estate
and
whether plaintiff is entitled to half of the value of the defendant’s
pension interest calculated at date of divorce.
[24]
Defendant contends that each party keep what is in his or her
possession. This is however contrary to the counterclaim wherein
he
prayed for an order of forfeiture of matrimonial benefits
alternatively, division of the joint estate. Defendant did not plead
the necessary facts to support his claim for forfeiture in the
pleadings. He in my view correctly did not persist with this prayer
but in turn contended that each party keep what is in his or her
possession.
[25]
Where the parties are married in community of property, their joint
estate will be divided equally between them, provided there
is no
forfeiture order. Such division is based on the principle that the
parties to a marriage in community of property are co-owners
in
undivided shares of the joint estate. There is further no written
agreement between the parties as contemplated by
section 7(1)
of the
Divorce Act 70 of 1979
with regard to the division of their assets.
In the absence of such an agreement, a court cannot, at the behest of
one of the parties,
order a division of their assets contrary to the
marital regime in community of property.
[26]
The difficulty of granting such an order is further fortified by the
fact that these are default proceedings and save for the
ipse dixit
of the defendant that the plaintiff left with some of the furniture,
there is no evidence as to what property is in
the defendant’s
possession. Such an order would in my view be contrary to the marital
regime under which the marriage of
the parties resorts and I am
inclined not to accede to making such an order.
[27]
The second issue relates to whether plaintiff is entitled to half of
the value of the defendant’s pension interest calculated
as at
date of divorce. The legal position concerning a spouse’s claim
to pension benefits of the other spouse is that such
interest does
not automatically fall within the ambit of the division of the joint
estate. Plaintiff is in default and I was requested
to dismiss the
main claim and grant judgment in terms of the counterclaim. In his
counterclaim, defendant prayed in the main for
an order that each
party keep his or her own pension interest. I am persuaded to grant
the prayer in the absence of evidence to
the contrary.
[28]
I am satisfied, on the version of the defendant, that the marriage
relationship between the parties has irretrievably broken
down and
that there exists no reasonable prospects of restoring it to a normal
marriage relationship. The defendant contended that
each party pay
his or her own costs in spite of the history of this matter. I will
accede to this request.
[29]
In the result I make the following order:
1.
The plaintiff’s claim is dismissed;
2.
The decree of divorce is granted.
3.
The joint estate shall be divided.
4.
Each party is to pay his/her own costs.
L.B.J.
MOENG, AJ
On
behalf of the plaintiff: No appearance
On
behalf of the defendant: Attorney M. Khang
Instructed
by: Mphafi Khang Attormeys
BLOEMFONTEIN