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2012
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[2012] ZAKZDHC 92
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K.S v S.S (4948/2009) [2012] ZAKZDHC 92 (21 December 2012)
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO: 4948/2009
In the matter between:
K S
.......................................................................................................................
Plaintiff
and
S S
...................................................................................................................
Defendant
JUDGMENT
________________________________________________________________
Henriques
J
Order:
1. That the bonds of marriage
subsisting between the plaintiff and the defendant be and are hereby
dissolved.
2. That the Defendant pay all the
Plaintiff's medical, dental and optical costs reasonably incurred,
including all costs of hospitalization,
surgical treatments,
spectacles, prescribed medication and allied expenses, and to this
end that the Plaintiff be retained as a
dependant on the Defendant's
medical aid benefit scheme and that the Defendant pay the premiums
therefor, but that in respect of
the Plaintiff’s medical
expenses, the Plaintiff is directed to pay any medical surcharges and
medical excesses consequent
thereon.
3.
3.1 That the property situate at 1020
Kensington, 311 North Ridge Road, Durban ("the property"),
be sold by private treaty
on terms and conditions acceptable to the
Plaintiff and the Defendant;
3.2 That, in the event that the
property is not sold by private treaty within sixty days of the date
of this order, then the property
be sold by public auction, without
reserve, and upon such conditions as the Plaintiff and the Defendant
shall agree;
3.3 That the expenses incurred in
advertising the property for sale by public auction and incurred in
the sale by public auction
shall be paid from the proceeds of the
sale;
3.4 That the nett proceeds from the
sale are to be divided equally between the Plaintiff and the
Defendant.
4 That the Plaintiff is entitled to
one-half of the Defendant's pension interest, determined at the date
of divorce, in the Transnet
Retirement Fund administered by
Metropolitan Retirement Administrators, of which the Defendant is a
member with Membership No CFC933R,
Employee No 44344.
5.
That the Managers of the Transnet Retirement Fund are directed to:
5.1 endorse the records of the said
fund and to reflect the Plaintiff's entitlement as aforesaid;
5.2 pay to the Plaintiff any accrual
of interest thereon as provided for in Section 37D(i)(e)(v) of the
Pension Funds Act No 24
of 1956 ("the Act") as amended;
5.3 pay to the Plaintiff within a
period of sixty days of the date of the Plaintiff exercising an
election either to be paid the
said funds directly or that the said
funds be transferred to an approved pension fund on her behalf, on
receipt of this order,
as provided for in Section 37D(i)(e)(v) of the
Act.
6. Each party is directed to pay his
or her own costs of suit, including the costs occasioned by the Rule
43 application
,
which costs are limited to
those allowed by Rule 43 (7) and 43 (8).
7
.
That the Registrar of
this court is to transmit a copy of this Order and the judgment to
the defendant via email at Ca
ptsen@telkomsa.net
and
Sanjoy.Sen@transnet.net
.
Introduction
1. This is a divorce action, in which
the plaintiff seeks inter alia the relief set
out
in the
Draft
Order Prayed
,
annexed as “A”.
2. The defendant terminated the
mandate of his legal representatives and indicated that he would
conduct his own defence. This was
after an application for a further
adjournment was refused by the Judge President at trial roll call.
3. Before the trial commenced, I was
advised by Mr M Naidoo, who appeared for the Plaintiff, and Mr
Govender, who had represented
the defendant, that the parties had
narrowed some of the issues in the divorce action and that the only
issues to be determined
were:
3.1 the plaintiff’s right to
maintenance in the sum of R5000.00 per month until her death or
remarriage;
3.2 the plaintiff’s right to be
retained on the defendant’s medical aid scheme and the payment
by the defendant of any
excesses not covered by his medical aid
scheme.
4. At a pre-trial conference the
parties had settled the issues relating to the endorsement in the
records of the defendant’s
pension fund, and the sale of the
immovable property. In addition, the defendant had abandoned his
counter-claim for a forfeiture
of benefits by the Plaintiff. This was
formally recorded in the minutes of the pre-trial conference held and
is reflected in Exhibit
“D”.
5. During the course of the trial the
defendant was provided with an opportunity to again secure legal
representation and with a
sufficient opportunity to have access to
any documentation that he wanted to use and which was of relevance to
the issues in the
trial. The matter stood down on several occasions
and also ran over two days for this purpose.
The issues for determination
6. At issue before me is:
6.1 whether the marriage has
irretrievably broken down;
6.2
the circumstances leading to the breakdown of the marriage;
6.3
whether the plaintiff is entitled to maintenance in the sum of
R5000.00 for the remainder of her life or until she remarries;
6.4
whether the defendant ought to retain the plaintiff as a dependant on
his medical aid and pay any excess not covered by his
medical aid.
The Evidence
7. The plaintiff testified that she
married the defendant in a religious ceremony in Kolkata, India on 8
December 1978, the civil
ceremony having occurred on 14 July 1978.
The parties have been married for approximately 34 years and they
have two sons.
8. She testified further that she did
not have a happy marriage as, in India, the defendant abused alcohol
and abused her physically.
She had left the marital home on two
occasions and lived with her parents. Their parents intervened and
mediated a settlement between
them and she returned to the
matrimonial home on the understanding that alcohol would not be kept
in their home.
9. Whilst in India the marriage seemed
to work. They arrived in South Africa during December 1994 and lived
in Brickfield Road in
Durban. In March 1995, they purchased the
matrimonial home, being the flat in North Ridge Road, Durban. She
secured employment
and would travel to India frequently to visit her
family.
10. Whilst in South Africa, she
testified that the defendant would belittle her, abused alcohol, and
would be verbally and physically
abusive towards her. He was not a
supportive husband at all and would blame her for the abuse he
inflicted upon her.
11. At the end of 2007 she visited her
family in India and made a decision to finally leave the defendant.
She did not have access
to her bank account or any money that she
earned. She would give her paycheque to the defendant.
12.
As indicated earlier, she had travelled to India on a number of
occasions prior to this and on some of these occasions she was
accompanied by the Defendant’s aged mother. She testified that
she looked after his mother and cared for her whilst she was
alive
and she lived with them until she was no longer able to care for her.
13. On her return to South Africa in
early 2008, she lived with friends for a while and in March 2008 she
took occupation of a “bachelor”
flat, and has lived apart
from the Defendant continuously since then.
14.
The Defendant testified that the breakdown in their marriage was due
to the fact that the Plaintiff had engaged in an extra
marital affair
with her former employer. He testified that her trips to India were
to visit her family and her new partner. He
also testified that the
Plaintiff not only lived with her new partner in India, but he also
visited her in South Africa and would
stay with her.
15. The Plaintiff denied the
accusations of being involved in an extra marital affair and
reiterated that the Defendant was the
cause of the breakdown of the
marriage. She did not, however, dispute receipt of a letter sent to
her by the defendant’s
former attorney’s regarding the
relationship. She testified that she handed the letter to her
attorney for him to deal with.
The Defendant’s evidence that
she was engaged in a relationship and that their respective families
knew of this was not disputed.
From the pleadings it is clear that
the Plaintiff is involved in a relationship, the only issue in
dispute relates to when the
relationship commenced.
16. The Plaintiff confirmed that she
had expended huge sums of money to cover legal fees which she says
were necessitated by the
previous adjournments of the matter. She
testified that she had no investments and no insurance policies from
which to derive an
income and that, when she retires from her current
employment, she would not receive a pension. She confirmed that the
Defendant
is in receipt of a bonus incentive from his employers and
that he will receive a pension on retirement. She also said that
their
eldest son lives with the Defendant and that the Defendant
supports him. She did not dispute the Defendant’s evidence that
their son is mentally “challenged” with the consequence
that he cannot take care of himself financially. She did not
dispute
that the Defendant takes care of their son’s financial needs
and receives no contribution from her.
17. The Plaintiff testified that her
monthly income was the sum of R10 192.50, that her monthly expenses
totalled the sum of R15
192.50, and that consequently there is a
shortfall of R5 000.00 per month. The Defendant challenged the
Plaintiff’s list
of expenses and indicated which items, in his
view, were not necessities, but instead were luxurious.
18. The Defendant also provided
details of his income and expenditure. His evidence that he supports
their mentally “challenged”
son financially was not
disputed, nor was it disputed that he paid for the Plaintiff’s
overseas trips and that the incentive
bonus was used to settle any
debts which they had incurred and to enable them to travel to India
to visit their families.
19.
The Plaintiff did not dispute that she owns property in India, but
disputed that she derived an income therefrom. The affidavit
filed in
support of her Rule 43 application confirms she derived rental income
until September 2008.
Has the marriage irretrievably
broken down?
20. Section 3, of the Divorce Act, 70
of 1979 (“the
Divorce Act&rdquo
;) provides for a court to
dissolve a marriage where there has been an irretrievable breakdown
of the marriage as contemplated in
Section 4
of the
Divorce Act.
Section
4 of the
Divorce Act provides
that the Court must be
satisfied that the marriage relationship between the parties has
reached such a state of disintegration
that there is no reasonable
prospect of the restoration of a normal marriage relationship between
them.
21. Among the
factors which are indicative of the irretrievable breakdown of a
marriage are that the parties have not lived together
as husband and
wife for a continuous period of at least 1year prior to the
institution of the divorce action
1
.
22.
It would appear from the evidence that the marriage relationship
between the parties has irretrievably broken down and that
there is
no prospect of the restoration of a normal marriage relationship
between them. The parties have lived apart for a considerable
period
of time.
23.
The reasons for such breakdown become relevant to the issue of the
defendant’s obligation to pay maintenance to the plaintiff.
Maintenance
24. On divorce the reciprocal duty of
support between spouses terminates.
25.
Section 7(2)
of the
Divorce Act
provides
:
‘
In
the absence of an order made in terms of subsection (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 break-down of the
marriage, an order in terms of subsection
(3) and any other factors
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 re-marriage of the party
in whose favour the order is given,
whichever event may first occur.’
26. A party claiming maintenance must
establish a need to be supported and
the
duration for which such support is required.
27. The Plaintiff has been employed
since 1995. Since 2007, she has lived on her own and, it appears, has
managed to support herself
from her income.
28.
The Defendant has maintained the payments on the mortgage bond in
respect of the matrimonial property and the levies charged
thereon.
He has also financially supported their son without any contribution
from the Plaintiff.
29.
The Plaintiff will continue to work after the divorce and on
retirement will not receive a pension. She will however, on divorce,
receive half the Defendant’s pension interest immediately. In
addition to her salary, she receives an annual bonus. Whilst
the
Plaintiff does not have a pension interest of her own, she does own
life and retirement annuity policies.
30. Our Courts have
also given recognition to the “clean break” principle in
considering matters of maintenance and
the division of a joint estate
– ultimately it depends on the facts of a case and the Court’s
assessment of what would
be just
2
.
31. The Plaintiff seeks maintenance
for the rest of her life she and relies on the defendant’s
treatment of her throughout
their marriage and his financial position
for such claim.
32. It would appear
that our Courts have considered that “permanent maintenance”
is reserved for a woman who is considered
“elderly”,
“unlikely to remarry” and who is “too old to earn
her own living”
3
.
33. Despite the
duration of a marriage, Courts do not readily award maintenance where
a party claiming such is capable of working
after divorce
4
.
34. In determining whether to grant
the Plaintiff maintenance until her death or remarriage, the
following must be considered:
34.1.
the parties have lived apart continuously since December 2007;
34.2 the Plaintiff is engaged in an
extra marital relationship since at the very least the end of 2008;
34.3
the Plaintiff is employed and self-supporting and appears to have
been self-supporting during the marriage;
34.4
the Defendant supports and financially maintains their son;
34.5
both parties will suffer hardship once the divorce is granted;
34.6
the Plaintiff will have access to some capital resources once the
matrimonial property has been sold and on divorce is entitled
to half
the Plaintiff’s pension – payment of which will occur
once the divorce order is granted and the necessary claim
documents
submitted;
34.7
both parties have incurred debt to fund their legal expenses;
34.8
the parties own immovable property in India from which income can be
derived;
34.9
the parties do not appear to have enjoyed a lavish lifestyle apart
from the overseas trips to India which were paid for by
the
Defendant;
34.10 given the Plaintiff’s age
and her pre-existing medical condition she may have difficulty in
obtaining medical aid of
her own;
34.11
the Plaintiff obtained an interim maintenance Order on 7 September
2009, but did not seek to enforce same.
35. I align myself
with the remarks of Satchwell J in
Botha
v Botha
5
where it was
held that one is required to go further than “financial and
need“ and ‘existing means’ and
“ earning
capacities” to do justice between the parties.
36. This approach
is also in keeping with the “clean break” principle and
that adopted by the Full Bench of this division
in the matter of
Venter
v Venter
6
.
Given the facts of this matter, I am
of the view that to do justice between the parties no order in
respect of maintenance for the
Plaintiff must be made against the
Defendant.
Costs
37. In so far as the costs of a
divorce action are concerned,
Section 10
of the
Divorce Act is
apposite. It provides that “… [i]n a divorce action the
court shall not be bound to make an order for costs in favour
of the
successful party, but the court may, having regard to the means of
the parties, and their conduct in so far as it may be
relevant, make
such order as it considers just, and the court may order that the
costs of the proceedings be apportioned between
the parties”.
38. The question of costs is a matter
which falls largely within the discretion of a Court based on the
facts of each matter. The
general rule is that costs follow the
result. The costs which have to be determined are the costs of the
action and the
Rule 43
application.
Costs of the action
39. The matter was initially enrolled
for trial on 26 October 2011. It was adjourned to 28 October 2011 and
the Defendant was directed
to pay the wasted costs of the adjournment
on an attorney and client scale. On 28 October 2011, the trial was
adjourned
sine die
with no order as to costs. That then leaves
the costs occasioned on 22 and 23 October 2012. I am of the view that
the Defendant
was entitled to oppose the Plaintiff’s claim for
maintenance until death or remarriage. Give this, and considering
section 10
of the
Divorce Act, I
am of the view that a just order
would be to direct that each party bear her or his own costs insofar
as the trial is concerned.
Cost of the
Rule 43
application
40. Insofar as the costs of the
Rule
43
application are concerned, on 7 September 2009,
Mokgohloa
J
reserved the costs for decision of the trial court as is the
practice. Despite the fact that the Defendant opposed the
Rule 43
application, when the matter came before
Mokgohloa
J, there
was no appearance by the Defendant and an Order was granted in terms
of the relief sought by the Plaintiff.
41.
I was advised by Mr Sichel, that despite the issue of the Order, the
defendant has not complied therewith and the plaintiff
has not sought
to execute upon that order. This is due to the fact that a dispute
arose regarding whether the Defendant received
service of the notice
of set down of the
rule 43
application.
42.
The costs of the
rule 43
application are regulated by the tariff as I
am of the view that the provisions of
rule 43(7)
and
43
(8) ought to
apply. That would limit those costs. Consequently, a just order would
be to also direct that each party bear his or
her own costs
occasioned by the
rule 43
application.
In
the result the orders I make are the following:-
1. That the bonds of marriage
subsisting between the plaintiff and the defendant be and are hereby
dissolved.
2. That the Defendant pay all the
Plaintiff's medical, dental and optical costs reasonably incurred,
including all costs of hospitalization,
surgical treatments,
spectacles, prescribed medication and allied expenses, and to this
end that the Plaintiff be retained as a
dependant on the Defendant's
medical aid benefit scheme and that the Defendant pay the premiums
therefor, but that in respect of
the Plaintiff’s medical
expenses, the Plaintiff is directed to pay any medical surcharges and
medical excesses consequent
thereon.
3.
3.1 That the property situate at 1020
Kensington, 311 North Ridge Road, Durban ("the property"),
be sold by private treaty
on terms and conditions acceptable to the
Plaintiff and the Defendant;
3.2 That, in the event that the
property is not sold by private treaty within sixty days of the date
of this order, then the property
be sold by public auction, without
reserve, and upon such conditions as the Plaintiff and the Defendant
shall agree;
3.3 That the expenses incurred in
advertising the property for sale by public auction and incurred in
the sale by public auction
shall be paid from the proceeds of the
sale;
3.4 That the nett proceeds from the
sale are to be divided equally between the Plaintiff and the
Defendant.
4 That the Plaintiff is entitled to
one-half of the Defendant's pension interest, determined at the date
of divorce, in the Transnet
Retirement Fund administered by
Metropolitan Retirement Administrators, of which the Defendant is a
member with Membership No CFC933R,
Employee No 44344.
5.
That the Managers of the Transnet Retirement Fund are directed to:
5.1 endorse the records of the said
fund and to reflect the Plaintiff's entitlement as aforesaid;
5.2 pay to the Plaintiff any accrual
of interest thereon as provided for in Section 37D(i)(e)(v) of the
Pension Funds Act No 24
of 1956 ("the Act") as amended;
5.3 pay to the Plaintiff within a
period of sixty days of the date of the Plaintiff exercising an
election either to be paid the
said funds directly or that the said
funds be transferred to an approved pension fund on her behalf, on
receipt of this order,
as provided for in Section 37D(i)(e)(v) of the
Act.
6. Each party is directed to pay his
or her own costs of suit, including the costs occasioned by the Rule
43 application, which
costs are limited to those allowed by Rule 43
(7) and 43 (8).
7
.
That the Registrar of
this court is to transmit a copy of this Order and the judgment to
the defendant via email at Ca
ptsen@telkomsa.net
and
Sanjoy.Sen@transnet.net
.
______________
HENRIQUES J
DATE
OF HEARING: 22 & 23 OCTOBER 2012
DATE
OF JUDGMENT: 21 DECEMBER 2012
PLAINTIFF’S
ATTORNEYS: RETHA MEIRING ATTORNEYS
8
ON EIGHTH AVENUE
MORNINGSIDE
DURBAN
PLAINTIFF’S
COUNSEL R SICHEL
DEFENDANT:
IN PERSON
1
Section
4(2) (a)
2
1987
(1) SA 967
(A)
3
Grasso
v Grasso
1987 (1) SA 48
(C) at 57 H-I
4
Kroon
v Kroon
1986 (4) SA 616
(E) at 632 G
5
2009
(3) SA 89
(WUD) @ 98 G-H
6
AR
561/09 delivered on 2 September 2011 (NPD).