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[2013] ZAGPPHC 303
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Thine v Mabuza (59191/2009) [2013] ZAGPPHC 303 (17 October 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 59191/2009
DATE:17/10/2013
IN
THE MATTER BETWEEN
SAMUEL
THINE
..........................................................................
PLAINTIFF
AND
ZANELE
PATRICIA
MABUZA
................................................
DEFENDANT
JUDGMENT
LEDWABA,
DJP:
[1]
The plaintiff and the defendant entered into a customary marriage on
28 April 2007 and they have no children. The parties are
domiciled
within the area of Jurisdiction of this court.
[2]
Both parties agree that the marriage relationship between them has
irretrievably broken down and there are no prospects of a
reconciliation. Their evidence in court confirms the same.
[3]
The disputes raised by both Counsel are whether an order of
forfeiture under section 9 (1) of the Divorce Act 70 of 1979 (The
Act) should be granted in favour of the plaintiff and whether the
defendant is entitled to be paid maintanance by the plaintiff.
[4]
In paragraph 7 of the particulars of claim the plaintiff stated the
following:
“
7.1
Having regard to the duration of the marriage relationship between
the parties, the circumstances which gave rise to the breakdown
thereof and the Defendant’s gross misconduct as set out above,
the Defendant will in relation to the Plaintiff be unduly
benefitted
should an order that the Defendant forfeit the entire patrimonial
benefits arising out of the marriage In Community
of Property not be
granted in favour of the Plaintiff.
7.2
The joint estate of the parties is the owner of an immovable property
situated at 8 JA HOFMAN STREET, PHILLIP NEL PARK, PRETORIA
WEST,
which immovable property is registered in the name of the plaintiff
and which immovable property is the subject of a mortgage
bond in
favour of Nedbank Limited.
7.2
In order to give effect to the provisions of paragraph 7.2 supra, it
may be necessary for the Defendant to be ordered to transfer
her half
share of the immovable property into the name of the Plaintiff the
Plaintiff's costs and for the Defendant to be ordered
to sign all
necessary documentation on demand for this purpose failing which the
sheriff for the District of Pretoria Central be
authorized to sign
same on the Defendant's behalf on the basis that the Plaintiff shall
be liable for the payment of the outstanding
amount payable to
Nedbank Limited in respect of the aforesaid mortgage bond. ”
[1]
The order sought by the plaintiff in respect of the forfeiture of the
benefits
arising
out of the marriage reads as follows:
“
That
the Defendant forfeit the benefits arising out of the marriage In
Community of Property in favour of the Plaintiff and to give
effect
to the aforesaid and for insofar as same may be necessary, that the
Defendant transfer the Defendant’s 50 % interest
in the
aforesaid immovable property into the name of the plaintiff at the
Plaintiff’s costs and that the Defendant sign all
necessary
documentation on demand for this purpose failing which the sheriff
for the District of Pretoria Central, be authorized
to sign same on
the Defendant’s behalf on the basis that the Plaintiff shall be
liable for the payment of the outstanding
amount payable to Nedbank
Limited in respect of the aforesaid mortgage bond. ”
[6]
The defendant in her plea denies that the plaintiff is entitled to an
order of forfeiture in his favour. In her counter claim
she alleged
that the plaintiff is a member of the Governmental Employees Pension
Fund and in terms of section 7(7) of Act 70 of
1979 she is entitled
to half of the value of the Plaintiffs interest in the said Pension
Fund as at the date of divorce. The necessary
endorsement is to be
made in the record of the Pension Fund.
[7
]The defendant in addition to a decree of divorce seeks the
following:
“
2.
Division of the joint estate;
3.
The Defendant is entitled to 50% of the Plaintiffs right in the
GOVERNMENT EMPLOYEES PENSION FUND calculated on the date of the
divorce and the Defendant shall be entitled to payment when the
benefits accrue to the Plaintiff;
4.
An endorsement is to be made against the records of the Pension Fund
to give effect to the provisions of par 3;
5.
The Plaintiff to pay maintenance for the Defendant in the amount of
R1000-00 per month;
6.
Cost of suits.”
[7]
In respect of the defendant’s allegation in the counter claim
that she is entitled to half of the Plaintiff’s Interest
in the
Pension Fund the Plaintiff pleaded as follows:
"
Save as to aver that the Plaintiff is praying that the above
Honourable Court ought orders the Defendant to forfeit the
patrimonial benefits arising out of the marriage in Community of
Property more specifically regard being had to the duration of
the
marriage relationship which exists between the parties, the reason
which gave rise to the brakedown thereof and the Defendant’s
willful misconduct as more fully set out in the Plaintiff’s
Particulars of Claim and that the Plaintiff’s pensionable
interest is a benefit arising out of the marriage in Community of
Property and as such each and every allegation as contained herein
is
denied as if specifically traversed and the Defendant is put to the
proof thereof. ”
[8]
The Plaintiff further denies that the Defendant is entitled to be
paid any maintenance.
FORFEITURE
OF PATRIMONIAL BENEFITS
[9]
Section 9 (1) of the Act reads as follows:
“
(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 order be unduly benefited. ”
[10]
It is trite that the factors which the court should take into account
when deciding whether the party against whom forfeiture
is sought
would be unduly benefited or not are the following:
(i)
The duration of the marriage;
(ii)
Circumstances that gave rise to the break-down of the marriage and
(iii)
Any substantial misconduct on the part of either of the parties.
[11]
It is common cause that the date of the marriage is the 28 April
2007, the Plaintiff left the common house in December 2008,
and he
issued divorce summons in September 2009.
PLAINTIFF’S
EVIDENCE
[12]
When the Plaintiff testified he stated that the defendant was
quarrelsome and aggressive towards him. In 2008 she assaulted
him and
threatened to pour boiling water on him and he was forced to report
the incident to the South African Police Service.
[13]
He further said the defendant accused him of having an extra marital
relationship and insisted that he must test for HIV but
she refused
to undergo the said test.
[14]
He denied having extramarital affairs and admitted that he has a
child, who was born in January 2008, with another woman with
whom
that he had an intimate relationship with before he entered into a
marriage relationship with the defendant.
[15]
The Plaintiff also intimated that he was made uncomfortable in the
marriage by the fact that the defendant did not disclose
her correct
date of birth to him and he later discovered that she was about six
years older than him.
[16]
The plaintiff has been employed by the SAPS from 1988.
DEFENDANT’S
EVIDENCE
[17]
The Defendant testified that the intimate relationship between him
and the plaintiff started in July 1992 and the plaintiff
paid lobolo
for her in the year 2002. They have been staying together since July
1998.
[18]
The fact that the plaintiff had a child with another woman was not an
issue to her.
[19]
She said during the marriage the plaintiff had an adulterous
relationship with the mother of his child.
[20]
She further said she use to work from 2006 - 2007 and was earning
R1200 per month. She supported the plaintiff emotionally
and brought
some furniture with part of the monies she earned.
[21]
She is now doing piece jobs twice per week and is earning about R100
per day.
[22]
She went to school up to grade 10. It is difficult for her to be
gainfully employable.
EVALUATION
OF THE EVIDENCE
[23]
It is clear that the parties are blaming each other for the
breaking-down of their marriage.
[24]
Marriage is not a bed of roses and has its ups and downs. The parties
must build it on strong foundations of love so that when
the storms
of life come they can withstand them. Parties should be able to have
meaningful communications and solve their problems
in a mature
manner.
[7]
In my evaluation of the evidence the assaults and threats, the
accusations by the defendant that he has extramarital relationships
and the fact that it later, transpired that the defendant is about
six years older than him made him to lose interest in the marriage.
He left the common house in December 2008.
[8]
The defendant testified that she did not have a problem with the fact
that the plaintiff had a child out of the marriage but
her concern
was the fact that he had an adulterous relationship with the mother
of his child. The defendant could not corroborate
her evidence
regarding the said relationship.
[9]
It is clear that the main issues between the parties could not be
resolved. The fact that the plaintiff has a child with another
woman
means that they would continue communicating and/or seeing each
other. The fact that the defendant is older than the plaintiff
cannot
be reversed.
[10]
I think in consideration whether forfeiture should be granted or
not, a party against whom forfeiture is sought must have
committed a
substantial misconduct and continued to do so, to some extent, with
the aim of pushing the other party out of the marriage.
[11]
The plaintiff moved out of the house in December 2008 and the
defendant has been benefiting by occupying the house. The benefit
arose out of the marriage. Even though the defendant was sometimes
temporary employed I cannot find that she would be unduly benefited
if division of the joint estate is granted. Forfeiture order should
not be simply granted to balance the fact the one of the spouses
has
made a greater contribution than the other to the joint estate.
[12]
The plaintiff has not in my view shown that the defendant would be
unduly benefited if an order of forfeiture in respect of
the house is
not made. See Wijker v Wijker
1993 (4) SA 720
A at 731 C-H.
[31]
A party claiming forfeiture must plead the necessary facts to
support the said claim and clearly mention the assets the other
party
is to forfeit. The plaintiff did not specify in his particulars of
claim that the defendant is to forfeit the Pension Benefits.
[32]
In my view, a non-member becomes entitled to a share of pension
interests as the court may assign in terms of section 7(8)
of the
Act.
[33]
The plaintiff has been contributing to his pension fund for about 19
years before the parties entered into a marriage contract.
[34]
The parties actually stayed together for about one year eight months.
I am alive to the fact that I did find that I cannot
find that either
the plaintiff or the defendant’s substantial misconduct led to
the break-down of the marriage. Both parties
failed to resolve the
issues between them and that led to the irretrievable breaking down
of their marriage.
[35]
Section 7(7)(a) of the Act reads as follows:
“
(7)
(a) In the determination of the patrimonial benefits to which the
parties to any divorce action may be entitled, the pension
interest
of a party shall, subject to paragraphs (b) and [cj, be deemed to be
part of his assets. ”
[36]
In terms of section 7(8) of the Act the court has a discretion to
assign a share that it deems just. In casu I think the Pension
Interest of the Plaintiff should be deemed to be part of the assets
of the joint estate, however, especially considering the time
when
the plaintiff started contributing and the fact that the parties only
stayed together for about one year eight months it will
not be fair
and just to order that the defendant should be entitled to 50% of the
plaintiffs pension fund.
[37]
The plaintiff has been paying the defendant maintenance since 2009 .
Considering the benefits that the defendant is to get
from the
marriage in Community of Property the period of maintenance for the
defendant should be limited to two years after the
granting of the
decree of divorce.
[38]
I have seriously considered the issue of costs and in exercising my
judicial discression each party should pay its own costs.
[39]
I therefor make the following order:
1.
A decree of divorce is granted.
2.
Plaintiff s claim for forfeiture of the marriage benefits in his
favour against the defendant is dismissed.
3.
Division of the joint estate.
4.
The Defendant is entitled to 20% of the value of the plaintiff’s
right in the Government Employees Pension Fund (Plaintiff
salary
number 6215050, member no 96202070 ID 6712075594089) calculated on
the date of divorce.
5.
An endorsement is to be made against the records of the Pension Fund
to give effect to the provisions of paragraph 4.
6.
The plaintiff to continue paying maintenance for the defendant in the
amount of R1000.00 per month for 2 years from the date
of this
divorce.
7.
Each party to pay its own costs.
Deputy
Judge President A P Lcdwaba
HEARD
ON: 17 September 2013 I OR THE PLAINTIFF: Adv J A van Tonder
INSTRUCTED
BY: Shapiro & Shapiro Attorneys, Pretoria I OR THE DEFENDANT:
INSTRUCTED
BY: Justice Centre Legal Aid, Pretoria