Law Reports
P.C v T.Y (77672/2010) [2012] ZAGPPHC 134 (28 …

P.C v T.Y (77672/2010) [2012] ZAGPPHC 134 (28 June 2012)

45 Reportability

Family Law

Brief Summary

Divorce — Maintenance — Claim for maintenance and relocation costs — Parties agreed on irretrievable breakdown of marriage — Dispute over Defendant's counterclaim for maintenance and relocation costs — Plaintiff argued Defendant capable of self-support — Court considered financial circumstances of both parties — Maintenance awarded to Defendant for limited duration based on Plaintiff's income and expenses, with relocation costs denied.

Full Judgment Text (Click to expand)

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[2012] ZAGPPHC 134
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P.C v T.Y (77672/2010) [2012] ZAGPPHC 134 (28 June 2012)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA (REPUBLIC OF SOUTH AFRICA)
Case Number: 77672/2010
DATE:28/06/2012
In
the matter between:
P
C
.....................................................................................................
Plaintiff
and
T
Y
......................................................................................................
Defendant
JUDGMENT
The
Plaintiff issued summons against the Defendant claiming a decree of
divorce, and costs, only if the action is defended. The
Defendant
filed a plea and a counterclaim in which she also claimed a decree of
a divorce and in addition thereto an order directing
the Plaintiff to
pay:
1.
Maintenance for the Defendant in the amount of R15 000,00 per month
until death or remarriage.
2.
The Defendant's medical, dental, hospital and related costs and
expenses;
3.
A sum of R250 000,00 as relocation costs to enable the Defendant to
resettle after the divorce; and
4.
Costs of suit.
It
is clear from the pleadings that the parties were in agreement that
the marriage has irretrievably broken down and that a divorce
should
be granted. What remained in dispute was the relief claimed by the
Defendant in her counterclaim.
The
Plaintiff, who was 54 years old at the date of the trial, testified
that he completed his military training in 1993, after having

graduated with a BA LLB in 1991, and after having completed his
clerkship was admitted as an attorney during June 1987. He started

working in the office of the State Attorney in Pretoria in July 1987
where he is still presently employed as a Senior Assistant
State
Attorney. He met the Defendant during 1990 and they got married on 14
November 1992 out of community of property with the
exclusion of the
accrual system. He was living alone in a house in Mountain View,
which he had bought in 1988 and which was fully
paid up, at the time.
After getting married he bought a new house in Wapadrand and he and
the Defendant moved into that house together
with the Defendant's two
minor daughters from a previous marriage, which had been living with
her at the time.
He
was earning a constant salary at the time and he described the
Defendant's earnings as "on-and-off". She was a conference

coordinator, organising conferences for the previously TBVC, and
self-governing countries in Southern Africa. During the course
of
their marriage, the Defendant was never formally employed but was
nevertheless able to publish three booklets, i.e. Get Wise,
Domestic
Wise and Huiswerkers Wysheid during the mid-nineties and also
coordinated a annexure to the Pretoria News during 2004.
Prior to
this, and during 1997 to 2000 the Plaintiff and the Defendant were
engaged in cost consulting.
He
testified that they decided during 2005 on a change of a lifestyle
and decided to take up an opportunity to run a Guest House
in
Jeffrey's Bay. He said that he was considering leaving his position
at the State Attorney at that stage and had applied for
a "package
deal" which was a possibility at the time. This application was
not successful but they nevertheless decided
to buy the Guest House
which was for sale for approximately R6 million. The Guest house was
registered in a private company known
as Stratos Guest House (Pty)
Ltd and they made an offer to buy its shares which were to be divided
50/50 between Plaintiff and
the Defendant. They made an offer for R5
million which offer was accepted. The purchase price was financed by
the Plaintiffs own
efforts and the Defendant did not contribute
anything. She was not earning an income at the time. The Plaintiff
testified that
he sold the house in Mountain View, obtained an
additional bond on the property in Wapadrand and a new bond was
obtained on the
Guest House property from Standard Bank for R3.44
million. There was a nett shortfall of approximately R32 000,00. In
order to
finance the relocation to Jeffrey's Bay, as he intended to
resign from his position at the State Attorney in any event be
utilized,
the proceeds of his life assurance policies, which he
surrendered. The interim arrangement between the parties was that the
Defendant
would move down to Jeffrey's Bay permanently and manage the
Guest House and he would go down as often as possible.
The
Defendant started managing the Guest House in Jeffrey's Bay during
October 2005. He testified that although they did reasonably
well
during the Festive Season from November 2005 to January 2006, it was
already during March 2006, that they realised that, financially,
the
Guest House was in dire straits. By then, the house in Wapadrand
stood empty, because all the furniture were moved to the Guest
House,
as they intended to rent out the Wapadrand property. He said that he
returned to Pretoria after the Festive Season and temporary
moved
into a colleague's house. The Defendant remained at the Guest House
until May 2007 after which they decided to abandoned
the project. The
Defendant moved back to Pretoria and the parties moved back into the
Wapadrand House. The Guest House stood empty,
the furniture having
been moved back to Pretoria, until October 2007 when it was re-opened
again until April 2008, then being managed
by a certain Marieta who
moved her own furniture into the Guest House.
The
Plaintiff testified that the final nail in the coffin as far as the
financial viability of the Guest House was concerned, was
the fact
that could not service the bond of Standard Bank. It also became
apparent during the course of 2006 that he would not
benefit from the
package deal at the State Attorney from which he hoped to get
anything between R1,2 and R1,4 million which could
have been injected
into the Guest House. Towards the end of 2006 they defaulted on the
Standard Bank bond. He testified that Standard
Bank instituted action
on the bond during 2007 but they withdrew the action in July 2008 and
re-issued summons in the North Gauteng
High Court, Pretoria during
July 2008. This matter will go on trial during August 2012. He
testified that the outstanding balance
on the bond is between R6,4
and R6,8 million. There is presently also a case pending in
Humansdorp for the arrear rates and taxes
on the property.
From
March 2008 he began defaulting also on the Wapadrand bond and the
house was eventually sold on an auction during November 2008
for R800
000,00. The bond on the house was then R1,6 million. He testified
that ABSA wrote off R500 000,00 and for the balance
of R271 000,00 he
and the Defendant signed an acknowledgement of debt which he is
presently repaying in instalments of R2 710,00
per month. They left
the Wapadrand property during March 2009 and since December 2009 they
live in the property they were occupying
at the time of the trial.
They have to vacate the property by 31 May 2012 when the lease was
due to expire.
The
Guest House was rented out to a certain Mr Roos from 1 February 2011
at R15 000,00 and he was also supposed to pay 50% of the
rates and
taxes. The lease agreement included an option to purchase and
according to the Plaintiffs testimony the option was exercised
and a
sale agreement was concluded for a purchase price of R7,1 million.
The
Plaintiff was adamant that the Defendant can procure an income to be
self-supportive and said that he did not feel obliged to
pay any
maintenance towards the Defendant's subsistence. He also testified
that he could not afford to make any contribution towards
the
Defendant's relocation costs and was of the view that the Court
should order each party to pay his or her own costs.
The
Plaintiff provided a schedule reflecting his income and expenditure
as at the time of the trial. The income, apart from his
nett salary,
also reflected an amount of R1 500,00 as a contribution being made by
the tenant, who is living with the parties at
the common home. The
expenditure reflects inter alia the living expenses of three people.
According to this schedule his nett income
was R29 243,00 and his
total expenditure R29 522,00.
It
appeared however, during cross-examination that his financial
position will change drastically when he leaves the common home
at
the end of May. He should be able to save R2 000,00 a month, which is
a penalty he pays to SARS because of his failure to file
his income
tax statements since 2006 to the present.
Further
savings, which he conceded to and which seems reasonable could easily
amount to R10 787,00. To this should be estimated
saving of R4 000,00
on his medical aid contribution, once the Defendant is removed as a
member.
The
Defendant, who was born on 14 September 1955 and was therefore 56
years old at the date of the trial testified that after matriculating

in 1972 she enrolled at the University of Pretoria for a course in
Welfare but terminated her studies after 3 months because of
a lack
of financial support. She then attended a course in photography at
the Technicon in Pretoria during 1973/1974 during which
period she
met a certain Mr G Newton whom she married in 1975. This marriage
lasted only for a period of 1 year. She obtained employment
as a
secretary at ICI in Johannesburg during 1975 but resigned in 1979 to
take up a position as a secretary at Claassen Auret &
De Lange.
During this period she met her second husband, Mr Y to whom she was
married on 8 April 1980. She and Mr Y moved to Wilderness
where she
took up a position as household manager at the Holiday Inn Hotel for
a period of 8 months. She resigned from this position
when she fell
pregnant with her first child which was born on 22 May 1982. Her
second child was born on 22 September 1984. During
this period she
began doing pottery from her home.
She
testified that she and Mr Y got divorced during 1985 and the custody
and control of the two minor children were awarded to her.
Mr Y paid
maintenance for the two minor children but she herself received no
maintenance. She then moved to Graskop where she continued
her
pottery activities from which she earned sufficient income, together
with the maintenance received from Mr Y for the two minor
children to
support herself and the two children. She married her third husband
during 1987 but the marriage lasted only one year
and she obtained a
divorce after discovering that he had made advances towards her two
minor daughters.
She
then moved to Potgietersrus where she obtained a half-day work as a
receptionist at Road Runners. She also became involved in
publishing
an advertising brochure. From 1990 she started arranging conferences
for the old TBVC and self-governing countries.
During this period she
met the Plaintiff and after they got married she and the two minor
children moved to Pretoria and they then
moved into the Wapadrand
home bought by the Defendant.
She
testified that although she managed to arrange and coordinate six
conferences during the period 1990 to 1994 the situation changed

dramatically after the elections in 1994 when the TBVC and previously
self-governing countries were again incorporated into the
Republic of
South Africa. By then, however, she had accumulated a significant
amount of information and therefore decided to publish
and distribute
a booklet with the title "Get Wise". Since 1995 to February
2003 two additions of the booklet "Get
Wise" were published
as well as two editions of a booklet called "Domestic Wise".
She also published an Afrikaans
version called "Huiswerkers
Wysheid" in November 2002. She testified that the market for
these booklets virtually disappeared
as more and more people gained
access to the internet. She confirmed the Plaintiff's evidence that
they were engaged in cost consulting
during the period 1997 to 2000.
She said that her two daughters left home in 2001 and 2003
respectively but she confirmed that
even after they became
self-supportive their father (Mr Y) continued to pay the maintenance
in respect of them to her and that
at the time of the trial he was
still paying an amount of R3 500,00 every month. She said he was not
obliged to pay the maintenance
and she was unsure for how long he
will continue to pay same.
She
confirmed that they decided during 2005 to relocate to Jeffrey's Bay
and to buy the Guest House which they intended to run as
a joint
venture. She confirmed the Plaintiffs evidence regarding their move
down to Jeffrey's Bay and their move back to Pretoria
during May 2007
by which time it became clear that the Guest House business had
turned into a financial disaster. A new account
was opened for the
Guest House at ABSA Bank and the rental received for the Guest House
was paid into this account from which she
paid herself a salary of R3
000,00 per month because she still did some marketing and bookings
for the Guest House.
She
testified that she suffered a stroke on 28 February 1998 and had a
recurrence in January 2011 and again in February 2012. She
testified
that she had been trying to get gainful employment since 2009 and
various applications and efforts in this regard were,
to the date of
the trial, unsuccessful.
The
defendant in a document reflecting her projected monthly expenses
after the divorce estimated that she would need an amount
of R21
584,10 to be able to cater for her needs. It soon appeared however,
during cross-examination that substantial savings can
be made which
brought the amount down to R11 869,00.
I
have not dealt with the evidence or the cross-examination of the
Plaintiff or the Defendant regarding their needs once the divorce
has
been finalised in detail, and I do not find it necessary to do so.
Suffice it to say that if the evidence of both parties in
this regard
is scrutinized it would be fair to say, in my view, that after
catering for his own needs, after the divorce, the Plaintiff
would
have approximately between R14 000,00 and R16 000,00 per month
available from which he may well be financially able to pay

maintenance, should he be ordered to do so.
The
Defendant, in my view, on a consideration of her evidence as a whole,
need no more than approximately R12 000,00 per month to
cater for her
needs. The mere fact however, that a person in the position of the
Defendant can say "/ need and you can pay"
is however, not
sufficient in itself to justify an order directing the Plaintiff to
pay maintenance for the Defendant.
Section
7(1)
and (2) of the
Divorce Act, 70 of 1979
set out when a Court can
order a party on divorce to pay maintenance to the other party and
also set out the factors which should
be taken into account when
making such a determination. The said section reads as follows:
"7(
1) A Court granting a decree of divorce may in accordance with a
written agreement between the parties make an order with
regard to
the division of the assets of the parties or the payment of
maintenance by the one party to the other.
(2)
In the absence of an order made in terms of sub-section (1) with
regard to the payment of maintenance by the one party to the
other,
the Court may, having regard to the existing or prospective means of
each of the parties, their respective earning capacities,
financial
needs and obligations, the age of each of the parties, the duration
of the marriage, the standard of living of the parties
prior to the
divorce, their conduct insofar as it may be relevant to the breakdown
of the marriage, an order in terms of sub-section
(3) and any other
factor which in the opinion of the Court should be taken into
account, make an order which the Court finds just
in respect of the
payment of maintenance by the one party to the other for any period
until the death or remarriage of the party
in whose favour the order
is given, whichever event may first occur".
As
pointed out by Botha JA in Beaumont v Beaumont, 1978(1) 969 (AA) at
987E:
"At
this stage I would merely point to the very wide discretion which the
sub-section confers upon a Court in deciding upon
an order which the
Court finds just..., which is underscored by the words 'and any other
factor which in the opinion of the Court
should be taken into
account'".
See
also Swiegelaar v Swiegelaar, 2001(1) SA 1208 (SCA) at 1211G and
Botha v Botha 2009(3) SA 89 (WLD) at 95D etc.
THE
EXISTING AND PROSPECTIVE MEANS OF EACH OF THE PARTIES:
At
the time of the marriage the Plaintiff owned a house in Mountain View
which had been fully paid off and had he purchased a new
house in
Wapadrand which he financed with a 100% bond. He also had a Honda
motor vehicle which he bought as a previously owned
vehicle and apart
from that he had certain furniture and household effects. The
Defendant had an Opel Monza vehicle at the time
of the marriage which
was eventually paid off by the Plaintiff after which she repaid him
the amount of approximately R12 000,00.
During 2005 however, she won
a Toyota RAV motor vehicle in the lotto. It appeared during the trial
that the parties between themselves
have already divided the movable
assets and it would seem that the bulk of the furniture and household
effects will, after the
divorce has been granted, belong to the
Defendant. The items that the parties agreed the Plaintiff could
remove from the common
household were mentioned during the evidence
but seemed barely enough to furnish a bachelor's flat. As a result of
the unsuccessful
joint venture in buying the Guest House in Jeffrey's
Bay the Plaintiff sold the house in Mountain View, lost the house in
Wapadrand,
in respect whereof he is still paying of an agreed
outstanding balance at R2 710,00 per month.
The
exact details surrounding the Guest House and the financial
complications the parties got involved in leading to the bond in

favour of Standard Bank obtained on the Guest House property being
foreclosed, which is the subject matter of the High Court action
due
to be heard in August of this year, have never been disclosed to me
and neither was it ventilated in detail. Suffice it to
say at this
stage that it would appear that, even should the sale of the Guest
House property for a purchase price of R7,1 million
eventually be
implemented, the Plaintiff was adamant that after the full
outstanding balance of the bond has been settled, which
he estimated
between R6,4 and R6,8 million, and after provision has been made for
additional costs, notably the costs of the estate
agent which would
appear to be R410 000,00 as commission, there would be nothing left
which could be shared between the parties
as a profit. It will be
remembered that there is also the pending case in the Magistrate's
Court in Humansdorp by the Kouga Municipality
for arrear rates and
taxes.
It
appeared from the evidence of the Defendant that the two time share
properties in Cabana Beach, described as No. 426 and No.
C11 were
realised by her and after certain medical and other costs, including
attorneys costs have been paid the remaining balance
was R27 623,00.
There is also the existing account at ABSA Bank in the name of
Stratos Guest House, which account was opened after
the Standard Bank
account was closed when the parties closed down the Guest House
during May 2007 and thereafter decided to rent
out the Guest House,
and the current available net balance in that account as at the time
of the trial was approximately R35 000,00.
The Plaintiff indicated to
the Defendant, while she was under cross-examination, that he did not
lay claim to that amount or any
portion thereof and that the
Defendant should feel free to utilize the whole amount for her own
account. The Defendant therefore
would seem to have for her immediate
financial needs an amount of approximately R62 000,00.
THE
RESPECTIVE EARNING CAPACITIES OF THE PARTIES:
The
Plaintiff is employed as an Senior Assistant State Attorney in the
State Attorney's office in Pretoria and there is nothing
to suggest
that he will not remain to be so employed until retirement age which
he, during his evidence in chief, stated to be
65 years. He will
therefore continue to earn his salary with yearly increments until
retirement age and upon retirement will receive
a pension towards
which he and his employer will contribute until he retires.
The
Defendant however, at the time of the trial, was unemployed. It
clearly appeared from the evidence that the last time that she
was
formally employed, and that she received a regular salary was when
she was employed at Road Runners during 1989. Prior to that,
she
worked periodically from time to time and when she met, and got
married to the Plaintiff, she was conducting and coordinating
the
conferences for the former TBVC and self-governing countries. She
testified that she arranged approximately 6 of these conferences

during a period 1990 - 1994 and as already stated earlier in this
judgment, the bottom fell out of this market, when these states

rejoined the new Republic of South Africa, created after the
elections which took place in 1994. Her efforts to generate an income

thereafter, consisted of the booklets that she published from which
she received certain royalties. From the first issue she received

approximately R22 000,00, from the second issue R20 000,00. For the
last issue thereof she received nothing because the publisher
went
bankrupt. She also received R6 000,00 from the annexure that she
compiled for the Pretoria News. From 2005 onwards, and during
the
periods the Guest House had an income, she took R3 000,00 per month
from that income as a salary for managing the Guest House
and for
doing certain related work. Since the Guest House was rented out to
Mr Roos in January 2011 she also took a salary from
the ABSA account
of R3 000,00 per month for the administrative work and the bookings
that she obtained for the Guest House from
time to time, from which
bookings she also sometimes received a 25% commission. As pointed out
earlier in this judgment she also
presently still receives an amount
of R3 500,00 per month from Mr Y which he has been paying to her
gratuitously in lieu of the
maintenance he was obliged to pay towards
his two minor children, who has since become independent. It is safe
to assume that the
R3 000,00 per month salary that she paid herself
from the rental income from the Guest House will cease once the sale
of the Guest
House is finalised. Exactly when this will be is unsure
as the Court was never fully apprised of the full facts surrounding
the
implementation of the sale agreement, but I think, one can safely
assume, that the final implementation of the purchase price is
some
way or another linked to the finalisation of the Court case of
Standard Bank against the parties which is due to be finalised
in
August this year. This will leave her with only the R3 500,00 per
month that she is presently receiving from Mr Young.
Although
the Plaintiffs future income therefore would seem to be secure, the
same cannot, in my view, be said of the Defendant.
Mr Botes, who
appeared for the Plaintiff, cross-examined the Defendant at length on
her potential to create an income and in developing
his argument in
this respect, he emphasized the various activities in which the
Defendant was involved after she entered the labour
market as a
editions of a booklet called "Domestic Wise". She also
published an Afrikaans version called "Huiswerkers
Wysheid"
in November 2002. She testified that the market for these booklets
virtually disappeared as more and more people
gained access to the
internet. She confirmed the Plaintiff's evidence that they were
engaged in cost consulting during the period
1997 to 2000. She said
that her two daughters left home in 2001 and 2003 respectively but
she confirmed that even after they became
self-supportive their
father (Mr Y) continued to pay the maintenance in respect of them to
her and that at the time of the trial
he was still paying an amount
of R3 500,00 every month. She said he was not obliged to pay the
maintenance and she was unsure for
how long he will continue to pay
same.
She
confirmed that they decided during 2005 to relocate to Jeffrey's Bay
and to buy the Guest House which they intended to run as
a joint
venture. She confirmed the Plaintiffs evidence regarding their move
down to Jeffrey's Bay and their move back to Pretoria
during May 2007
by which time it became clear that the Guest House business had
turned into a financial disaster. A new account
was opened for the
Guest House at ABSA Bank and the rental received for the Guest House
was paid into this account from which she
paid herself a salary of R3
000,00 per month because she still did some marketing and bookings
for the Guest House.
She
testified that she suffered a stroke on 28 February 1998 and had a
recurrence in January 2011 and again in February 2012. She
testified
that she had been trying to get gainful employment since 2009 and
various applications and efforts in this regard were,
to the date of
the trial, unsuccessful.
The
defendant in a document reflecting her projected monthly expenses
after the divorce estimated that she would need an amount
of R21
584,10 to be able to cater for her needs. It soon appeared however,
during cross-examination that substantial savings can
be made which
brought the amount down to R11 869,00.
I
have not dealt with the evidence or the cross-examination of the
Plaintiff or the Defendant regarding their needs once the divorce
has
been finalised in detail, and I do not find it necessary to do so.
Suffice it to say that if the evidence of both parties in
this regard
is scrutinized it would be fair to say, in my view, that after
catering for his own needs, after the divorce, the Plaintiff
would
have approximately between R14 000,00 and R16 000,00 per month
available from which he may well be financially able to pay

maintenance, should he be ordered to do so.
The
Defendant, in my view, on a consideration of her evidence as a whole,
need no more than approximately R12 000,00 per month to
cater for her
needs. The mere fact however, that a person in the position of the
Defendant can say " I need and you can pay"
is however, not
sufficient in itself to justify an order directing the Plaintiff to
pay maintenance for the Defendant.
Section
7(1)
and (2) of the
Divorce Act, 70 of 1979
set out when a Court can
order a party on divorce to pay maintenance to the other party and
also set out the factors which should
be taken into account when
making such a determination. The said section reads as follows:
"7(
1) A Court granting a decree of divorce may in accordance with a
written agreement between the parties make an order with
regard to
the division of the assets of the parties or the payment of
maintenance by the one party to the other.
(2)
In the absence of an order made in terms of sub-section (1) with
regard to the payment of maintenance by the one party to the
other,
the Court may, having regard to the existing or prospective means of
each of the parties, their respective earning capacities,
financial
needs and obligations, the age of each of the parties, the duration
of the marriage, the standard of living of the parties
prior to the
divorce, their conduct insofar as it may be relevant to the breakdown
of the marriage, an order in terms of sub-section
(3) and any other
factor which in the opinion of the Court should be taken into
account, make an order which the Court finds just
in respect of the
payment of maintenance by the one party to the other for any period
until the death or remarriage of the party
in whose favour the order
is given, whichever event may first occur".
As
pointed out by Botha JA in Beaumont v Beaumont, 1978(1) 969 (AA) at
987E:
"At
this stage I would merely point to the very wide discretion which the
sub-section confers upon a Court in deciding upon
an order which the
Court finds just..., which is underscored by the words 'and any other
factor which in the opinion of the Court
should be taken into
account'".
See
also Swiegelaar v Swiegelaar, 2001(1) SA 1208 (SCA) at 1211G and
Botha v Botha 2009(3) SA 89 (WLD) at 95D etc.
THE
EXISTING AND PROSPECTIVE MEANS OF EACH OF THE PARTIES:
At
the time of the marriage the Plaintiff owned a house in Mountain View
which had been fully paid off and had he purchased a new
house in
Wapadrand which he financed with a 100% bond. He also had a Honda
motor vehicle which he bought as a previously owned
vehicle and apart
from that he had certain furniture and household effects. The
Defendant had an Opel Monza vehicle at the time
of the marriage which
was eventually paid off by the Plaintiff after which she repaid him
the amount of approximately R12 000,00.
During 2005 however, she won
a Toyota RAV motor vehicle in the lotto. It appeared during the trial
that the parties between themselves
have already divided the movable
assets and it would seem that the bulk of the furniture and household
effects will, after the
divorce has been granted, belong to the
Defendant. The items that the parties agreed the Plaintiff could
remove from the common
household were mentioned during the evidence
but seemed barely enough to furnish a bachelor's flat. As a result of
the unsuccessful
joint venture in buying the Guest House in Jeffrey's
Bay the Plaintiff sold the house in Mountain View, lost the house in
Wapadrand,
in respect whereof he is still paying of an agreed
outstanding balance at R2 710,00 per month.
The
exact details surrounding the Guest House and the financial
complications the parties got involved in leading to the bond in

during a period 1990 - 1994 and as already stated earlier in this
judgment, the bottom fell out of this market, when these states

rejoined the new Republic of South Africa, created after the
elections which took place in 1994. Her efforts to generate an income

thereafter, consisted of the booklets that she published from which
she received certain royalties. From the first issue she received

various efforts in this regard she has to date, been unsuccessful.
These efforts to obtain employment stand uncontradicted. There
also
remains the medical condition of the Defendant. Although no expert
evidence was put before the Court in this regard, the Defendant

testified that she suffered three strokes, the first of which was on
28 February 1998 and subsequently during January 2011 and
February
2012 respectively. The Plaintiff did not dispute the fact that the
Plaintiff did suffer a stroke in February 1998 but
as far as the two
subsequent events were concerned, preferred to refer to them as TIA
incidents. The Defendant described how these
events, and especially
the last two of thereof, affected her day to day living experience
and her confidence.
She
stated that she will do anything in her power to obtain some form of
employment but with her past experience in this regard,
was doubtful
whether she will be able to gain employment again. This she ascribed
to her age (she described herself as being past
her "sell by
date") and to her medical condition, which, according to her,
she was, as a matter of integrity and honesty,
obliged to disclose in
her application when applying for employment.
THE
AGE OF EACH OF THE PARTIES:
The
Plaintiff turned 54 on 19 February of this year and the Defendant
will turn 57 on 14 September of this year.
THE
DURATION OF THE MARRIAGE:
The
parties were married on 14 November 1992 and have therefore been
married for nearly 20 years.
THE
STANDARD OF LIVING OF THE PARTIES PRIOR TO THE DIVORCE:
It
is clear that the parties did not enjoy a lavish lifestyle, although
it would seem that prior to the Guest House experiment,
which
tragically failed, they seemed to have enjoyed a comfortable
lifestyle, with the Plaintiff, out of his salary, being able
to
provide not only for himself and the Plaintiff but also contributed
towards the maintenance of her two minor children, which
were living
with them, as she only contributed a portion of the maintenance Mr Y
paid for them towards the common household expenses.
She, throughout
the marriage never earned a regular income (apart from the R3 000,00
per month salary she received from the Guest
House as and when she
received it) neither was she apparently required by the Plaintiff to
obtain employment from which she earned
a regular and steady income.
The income she did receive from the booklets that she published, the
annexure that she compiled for
the Pretoria News and the income from
the Guest House can also in my view not be regarded as substantial,
taking account of the
nearly 20 years that the marriage lasted.
THE
CONDUCT OF THE PARTIES INSOFAR AS IT MAY BE RELEVANT TO THE BREAKDOWN
OF THE MARRIAGE:
Neither
party blamed the other party for the irretrievable breakdown of the
marriage relationship. The present case therefore leaves
no room to
allow the scales of justice to be tipped in favour of one or the
other of the parties: Beaumont v Beaumont, supra at
p994 et seq.
ANY
REDISTRIBUTION ORDER MADE IN TERMS OF
SECTION 7(3)
OF THE
DIVORCE
ACT:
No
redistribution
order is sought or will be made in this case and this
factor also therefore does not need further consideration.
ANY
OTHER FACTOR WHICH IN THE OPINION OF THE COURT SHOULD BE TAKEN INTO
ACCOUNT:
Although
the Defendant is receiving the R3 500,00 per month from Mr Y, not as
of a right but gratuitously she has been receiving
an amount from him
ever since the youngest of the two minor children became
self-supportive. He has regularly paid this amount
to her, apparently
to utilize as she sees fit, and there was no indication that this
will cease, once the divorce is granted. Although
she is therefore
not entitled thereto, it is nevertheless a factor which a Court
should take into account when determining whether
the Defendant is
entitled to be paid maintenance and in determining what the quantum
of the amount should be.
The
Plaintiff in his testimony said that he does not feel obliged to pay
any maintenance for the Defendant and he was adamant in
proclaiming
that she can generate a sufficient income on her own, to become
self-supportive and that she is therefore not in need
of any
maintenance in any event. Mr Botes strenuously argued that in view of
her past experiences the Defendant can easily obtain
some kind of
income and by making use of her entrepreneurship would become
self-sufficient. He argue that no case was made out
by the Defendant
that she was in need of maintenance and even if I should find that a
case was made out that she was in immediate
need of maintenance,
rehabilitative maintenance only should be granted for a period of
between 6 and 12 months.
He
relied on various cases in which the so-called "clean break
principle" was stressed and submitted that this was a case
where
that principle should be applied. He informed me, during argument,
that his instructions were to offer rehabilitative maintenance
of R5
000,00 for a period of 6 months but, as the Plaintiffs counsel, he
was of the view that an amount of R12 000,00 for between
12 and 24
months would not be inappropriate under the circumstances. This, so
the argument developed, would allow the parties to
make a clean break
after the said period for the rehabilitative maintenance expired,
allowing each of the parties to start a new
life independently of one
another. He also requested the Court to make no order as to costs
with the effect that each party would
have to pay its own costs.
Ms
Veldsman, on behalf of the Defendant argued that a proper case was
made out by the Defendant that she was in need of permanent

maintenance (i.e. open-ended maintenance until death or remarriage)
and not maintenance for a fixed period only as suggested by
Mr Botes.
She furthermore contended that because the amount of R3 500,00, being
paid by Mr Y is an amount which he gratuitously
pays to her and which
payment he can stop at will, it should not be taken into account in
calculating the amount of the maintenance
payable to the Defendant.
She also referred me to a number of cases and submitted that in view
of the facts, inter alia, that the
Plaintiff is not employed at the
moment, that she do not have a medical aid fund or a pension, that it
is improbable she will ever
be in a position to make provision for
any form of pension whatsoever, the circumstances of this case does
not make it a proper
case to apply the so-called "clean break
principle".
I
respectfully agree with Botha JA where he stated in Beaumont v
Beaumont, supra at 993B "...there is no doubt in my mind that

our courts will always bear in mind the possibility of using their
powers under the new dispensation in such a way as to achieve
a
complete termination of the financial dependence of the one party on
the other, if the circumstances permit". I do not believe
that,
on the facts of this case, justice will be served if a final
determination of the financial dependence of the Defendant is
made.
After
a careful consideration of the facts before me and taking into
account the factors mentioned earlier in this judgment I am
of the
view that the Defendant has made out a proper case that it would be
just under the prevailing circumstances at the time
of the hearing to
order the Plaintiff to pay maintenance to the Defendant.
I
do not share Mr Botes' and the Plaintiffs optimism that the Defendant
will be able to obtain employment or to generate an income
to become
self-supportive within a reasonable short time, or at all. I say this
in view of the Defendant's age, the time that has
lapsed since she
has last been in formal employment (as a receptionist at the Road
Runners in 1989) and also in view of her sporadic
ability to generate
any form of income during the last 20 years. It only remains to
consider what a fair amount should be. Taking
into account the "wants
and the needs" of the Plaintiff as well as the "wants and
the needs" of the Defendant
I am of the view that ordering the
Plaintiff to pay maintenance to the Defendant in an amount of R8
500,00 per month until her
death or remarriage will be fair and just
under all the circumstances.
The
Defendant also claimed an amount of R250 000,00 towards resettling
and relocation costs following the divorce. This amount was
reduced
during the course of the trial to R43 990,00. It appeared, during
cross-examination by Mr Botes that even this amount was
in many
respects rather optimistic and although his figure, put to the
Defendant in cross-examination of R15 000,00 in this regard,
may be
on the low side, the amount of R43 990,00 also seemed to be on the
high side. The more correct figure is probably somewhere
in between
these two figures, but I need not make a specific calculation thereof
neither do I need to make a finding in respect
thereof. As pointed
out earlier in this judgment the Defendant, taking the R35 000,00
into account which at the day of the trial
was the net credit balance
of the Stratos Guest House account at ABSA Bank, has a cash amount of
approximately R62 000,00 available,
which, in my view, would be
adequate for any relocation costs which the Defendant will have to
incur when moving from the common
home.
In
my view no proper case was made out for a separate payment to be made
in this regard. See Swiegelaar v Swiegelaar supra, at 1213D
-F.
It
was common cause that the marriage relationship between the parties
has irretrievably broken down and that there are no prospects
of the
parties reconciling. A decree of divorce should therefore be granted.
It
is clear, that the real dispute between the parties was the payment
of open-ended maintenance by the Plaintiff to the Defendant.
This
would
appear
to be the only reason why the matter eventually went on trial and why
the parties couldn't come to an amicable settlement.
I am of the view
that the Defendant was substantially successful in obtaining an order
for payment of maintenance against the Plaintiff
and I can see no
reason why the normal rule should not apply that costs should follow
the event.
I
therefore make the following order:
1.
A decree of divorce is granted;
2.
The Plaintiff is ordered to pay maintenance to the Defendant in the
amount of R8 500,00 per month, until her death or remarriage

whichever shall occur first, payable as from 1 July 2012 and
thereafter on or before the 1st day of every consecutive month;
3.
The Plaintiff is ordered to pay the Defendant's costs.
VAN
DEN HEEVER AJ
CASE
NO: 77672/2010
HEARD
ON: 14 May 2012 to 17 May 2012
FOR
THE PLAINTIFF: ADV. F.W. BOTES
INSTRUCTED
BY: Mr. Paul Cavanagh
FOR
THE DEFENDANT: ADV. M. VELDSMAN
INSTRUCTED
BY: Couzyn Hertzog & Horak
DATE
OF JUDGMENT: 28 June 2012

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