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[2009] ZAGPJHC 76
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MB v NB (2008/25274) [2009] ZAGPJHC 76; 2010 (3) SA 220 (GSJ) (25 August 2009)

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IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO. 2008/25274
In
the matter between :
B,
M (born D P)
Plaintiff
And
B,
N G
Defendant
JUDGMENT
BRASSEY
AJ:
Introduction
Marriage
is, typically, born out of such love and solemnized with such hope
that its termination by divorce cannot but be tragic.
But the death
of this marriage, or at least the manner in which the last rites
have been pronounced over it, represents a tragedy
of an especially
painful sort.
So
much was rightly acknowledged by counsel for one of the parties and
would, I think, have been evident to anyone sitting in
court
throughout the days, sometimes seemingly endless, when which the
evidence was presented, challenged and minutely examined
in
argument. I cherish no hope that this judgment will diminish the
acrimony between the parties, for I suspect only time can
do this;
but, beyond settling the outstanding issues between the parties
(which is of course my primary task), I do entertain
the hope, vain
though it may be, that what I say will reduce the risk of a
repetition of this tragedy.
The
marriage and its consequences
The
plaintiff, a widow with a son of fourteen, married the defendant on
24 October 1998 in Johannesburg. In the early years the
commitment
between them was so strong that the defendant agreed to adopt S, the
son, with whom he had by then formed a strong
bond. The process of
adoption was not pursued, perhaps because the parties considered
that a change of name would suffice, but
in September 2000 S took
the surname of B in consequence of an official entry in the
Births
and Deaths Registration Act 51 of 1992
.
In
2007 the plaintiff and the defendant, on a visit to the Eastern
Cape, looked over St Andrew’s College in Grahamstown.

Excited by what they saw, they completed and signed, as father and
mother, the application forms for his admission to the school
as a
boarder. The application was successful. At the beginning of 2008 he
took up a place in Grade 8 at the school and, if all
continues as
originally contemplated, he can expect to matriculate and leave the
school in three years time.
Education
at senior level at a private school is, according to the plaintiff,
the path the parties envisage for J, the daughter
born of the
marriage in March 2002.
At
present she is a day scholar in a state-funded school and lives with
her mother. There is no quarrel with this arrangement,
for these and
other matters of parental rights and responsibilities are, happily,
the subject of agreement between the parties.
It
was shortly after J was born that the defendant began to stray.
According to the plaintiff, he would go out on his own and
return,
late at night, in a drunken and repellent state. Her pronounced
disapproval of his conduct had little effect on his conduct
and
seems to have done nothing to improve the relationship. At some
point – the date is unclear – the defendant
embarked
upon a secret, long standing relationship with another woman, a
liaison that he may or may not have augmented by other
dalliances.
Her
suspicions aroused, the plaintiff hired a private detective and
together they raided the flat he had acquired for his affairs.

Enough was found there to confirm her suspicions and the defendant
was put on terms to leave the matrimonial home, which he did
in
mid-2008. The plaintiff lost no time in bringing divorce
proceedings and, acting with commendable speed, the lawyers
contrived
to secure a hearing of the matter, hotly contested though
it was, in just over a year.
The
issues
Matters
of custody and access having been all but completely agreed, the
case presented to the court concerns the patrimonial
entitlements
and obligations of the parties. Some items, such as the maintenance
payable for J, have been conceded and they will
be recorded in the
order ultimately made by me. One claim is, moreover, formally
contested but is met by no defence that is valid
in law. It is the
claim for repayment of an amount of R191 000, together with
interest, paid by the plaintiff to the defendant
under a scheme
designed to maximize the income of the plaintiff’s erstwhile
mother in law. The defendant admits that the
payment took the form
of a loan that was repayable on demand and, demand having been made
at the end of August 2008, the defendant
has no legal right,
questions of set-off aside, to refuse to repay it. All that is
contested is the duty to pay interest on the
amount, but the law is
clear on the point, and plaintiff is entitled to
mora
interest from the date of demand, which is 31 August 2008.
What
the defendant does contest is the plaintiff’s claim for
maintenance for herself; he says she earns, or will be able
to earn,
enough to be self-supporting. Also contested is the plaintiff’s
claim that he should pay S’s school fees
for so long as the
boy remains at St Andrew’s College. In addition the plaintiff
claims that the defendant should make
corresponding payments for J
at the point when she becomes old enough to go to senior school.
In
addition, the plaintiff has a fairly significant claim under the
so-called system of accrual. One defence originally mounted
to this
claim was for forfeiture of benefits, to which the plaintiff
responded by a defence in equivalent terms, but these contentions

were jettisoned during the trial. As matters stand, the defendant,
while accepting the application of the accrual principle,
contends
that the plaintiff’s claim reflects an inflated assessment of
the value of his estate at the date of trial.
In
issue, finally, is the question of costs. It is a matter on which I
shall have quite a lot to say at the end of this judgment.
S’s
school fees
No
contractual right
In
the particulars of claim, the plaintiff pleads that the defendant,
by agreement, undertook a general duty to maintain S and
that this
specifically encompassed a duty to pay his school fees. In the
course of preparing for trial, the plaintiff abandoned
the general
claim for maintenance and elected to proceed only for the school
fees. In making this concession, she was, I have
little doubt,
persuaded by the prevailing principle that a spouse has no general
duty to support a child born of another marriage
unless the child
is, in consequence of formal adoption, deemed to be his or her own.
In
proceeding for the school fees, however, the plaintiff placed
reliance on the agreement to pay maintenance that, she contended,

was implicit in the defendant’s agreement to pay S’s
school fees. The plaintiff said that the agreement constituted
a
contract that bound the defendant to pay the school fees until S
left St Andrew’s school. She based this conclusion on
the
defendant’s endorsement of the decision to send S to the
school and his formal undertaking, expressed in the application

form, to be jointly and severally liable for the school fees that
she, as applicant, was under an obligation to pay. In addition,
she
pointed out that the defendant had in fact made some payments to the
school, but in argument this point was rightly accepted
as neutral
on the issue of contractual liability.
None
of this supports an inference that, as between the two spouses, the
defendant made a contractual commitment to pay the school
fees. The
decision was the product of a domestic arrangement and so does not
sustain the inference that the defendant’s
concurrence was
given with intention to contract. Pothier, according to RH Christie
The
Law of Contract
4 ed (2001) 34, illustrates the extra-contractual nature of such
arrangement by giving an example, instructive in the present
case,
of a father’s promise to reward his son who does well at
college. This, Pothier makes plain, may be an undertaking
of sorts,
but it does not generate a binding contract since it is not given
animus
contrahendi.
Still
less does the defendant’s promise constitute an undertaking to
pay the fees for so long as the plaintiff elects to
keep S at the
school. An undertaking so far-reaching in effect would have
subjected the defendant, whatever his financial position,
to the
unfettered discretion of the plaintiff, and such an arrangement is
scarcely probable between spouses even when (as these
were not) they
are on the best of terms. In terms of the application form, S’s
enrolment at the school was subject to a
term’s notice. If,
contrary to my finding, the defendant was under a contractual
obligation to pay the fees, the obligation
would endure only until
the expiry of a term following the fact of repudiation. This would
be so even if the defendant gave the
plaintiff no formal notice of
his intention to terminate the contract. In
Honono
v Willowvale Bantu School
1961 (4) SA 408
(A), a schoolmaster was obliged to treat his
summary dismissal, unlawful in itself since no misconduct was proved
against him,
as though it were expressed to expire at the end of the
period, an entire term, for which notice might lawfully have been
given.
The
duty of maintenance and support
But
the matter does not begin and end within the parameters of the law
of contract. The defendant’s obligation to pay S’s

school fees was pleaded as a species of maintenance, and the
question that now presents itself is whether the defendant has the

obligation to support S in this way.
In
the passage from
Christie
I have referred to, Pothier is said to put the father’s
promise of a reward on the footing that it is ‘only the
expression of polite sympathy or made by way of a compliment’,
but Pothier then goes on to say that it is ‘an offer
to
render assistance when called upon.’ Brought up to date, as
Christie says the example must be, this is suggestive of
some kind
of duty of support, and the facts of the present case bear out such
a duty emphatically. By agreeing to give S his
name, the defendant
impliedly represented to S, to the plaintiff and to the world at
large, that he proposed to stand in relation
to the boy as a father
to a son. Confirmation of this, if confirmation is required, is to
be found in the documents pertaining
to S’s schooling,
including but not confined to the St Andrew’s application
form, to which he appended his signature
as ‘father’
without reservation or qualification.
The
representation, far from being made lightly, was given with all the
solemnity that compliance with the formalities entails.
Documents
had to be completed, signed and sent off; the family had then to
wait for the outcome; and the defendant was doubtless
as happy as
the rest of the family to celebrate the successful outcome of the
process. In assuming the role of parent, the defendant
was,
according to the un-contradicted evidence of the plaintiff, simply
giving effect to his feelings towards the boy, with whom
he had
formed a loving relationship. Little wonder, then, that the spouses
saw no need to proceed with formal adoption; by conveying
to one and
all that he regarded S as his son, the defendant, supposing always
that he was honest and trustworthy, dispensed with
the necessity to
translate appearance into fact.
During
the course of the marriage the defendant, it seems, faithfully
performed the functions and discharged the duties of a father
in his
dealings with S. His willingness to agree to S’s enrolment in
an expensive private boarding school and bear at least
his share of
the costs testifies eloquently to this fact. Being willing to place
himself, literally,
in
loco parentis
when the family was still intact, it is scarcely right for him to
renounce his obligations now that he has fallen out with his
wife.
Considerations of propriety and morality would be offended if he
did, and while they do not determine the law, they certainly
inform
it. Section 28(1) of the Constitution states,
inter
alia
,
that every ‘child has the right … (
b
)
to family care or parental care, or to appropriate alternative care
when removed from the family environment’. S, having
become
the ostensible son of the defendant, had the right expect him to
provide the family and parental care that the section
contemplates.
To
find that the defendant is obliged to pay S’s school fees I do
not have to conclude that he was
de
facto
adopted,
that such a relationship is or should be recognized under the
operative statute, or even that he is under a general duty
to
maintain the boy. It is enough that I conclude, as I have, that the
defendant held himself as S’s father; that both
S and his
mother relied on this representation; and that, in pursuit of the
obligations implicit in this ostensible relationship,
the defendant
joined with the plaintiff in deciding to place S in St Andrew’s
College and undertaking to pay the school
fees that the decision
entailed. To find that, in such circumstances, the defendant bears
the obligation to contribute towards
S’s private school
tuition gives due recognition to the constitutional rights and
protections to which children are entitled
in terms of the clause in
the Bill of Rights I have cited above. The defendant had in effect
promised to do this, and the law
would be blind if it could not hold
him to his promise.
No
need to characterize the relationship as a
de
facto
adoption
One
can, if one wishes, say that the defendant, by making the promise,
assumed a duty to support and maintain S. As a fact, this
is so,
but the words are typically employed to designate duties arising out
of status relationships recognized in family law
and, as I have
already said, I see no reason to say that S must be treated as
though he were the defendant’s child by adoption.
Were
it necessary for me to make this finding in order conclude that the
defendant is bound to look after S, I should have little
hesitation
in doing so. As the decision in
Flynn
v Farr NO & others
2009 (1) SA 584
(C) shows, courts do recognize
de
facto
adoptions and treat them, at least for some purposes, as the
equivalent of legal adoptions. At para 44 of the judgment, the
court, quoting from a decision in the High Court of American Samoa
(
Estate
of Tainanau
Fuinaono
(deceased)
)
that a remarkably resourceful counsel had contrived to unearth,
stated that an ‘equitable virtual or
de
facto
adoption … exists when a descendant performs parental duties
towards a child in his household and that child performs
filial
obligations
in
rerum
exactly equivalent to a formally adopted child.’ In
Flynn
the court was asked to find, on the basis of this decision, that a
de
facto
adoptive child was, like the
de
jure
equivalent
,
entitled
in law to inherit from the intestate estate of his adoptive father.
To make this finding, the court had to interpolate
the applicable
statute so that it might, by the process of reading in sanctioned by
the principles of constitutional construction,
be made to govern
adoptive relationships created
de
facto
as well as
de
jure
.
The court held that no such interpolation was justified.
In
argument before me, the defendant’s counsel treated this
decision as authority for the proposition that a
de
facto
adoptive relationship enjoys no recognition in our law and thus
cannot provide a basis for concluding that the adoptive parent
is
under a duty to support the child in question. I do not read the
decision as going as far as that; rather, I see it as ultimately

establishing no more than that, firstly, a
de
facto
adoption cannot always be equated with a
de
jure
one
and, secondly, that it should not be recognized for the purposes of
intestate succession. The context in which a claim based
on
de
facto
adoption
is made is important and the practical implications of the claim
must be considered. So much was clear from the affidavit
filed by
the National Department of Social Development and quoted at length
in the judgment: in it, the deponent pointed out
that, if the law
were to equate the two relationships for all purposes, the rights of
the natural parent might potentially be
compromised, the protections
against child exploitation provided by the statutory procedures
governing
de
jure
adoptions might be by-passed, and the value of certainty implicit
in the current system of formal recognition would be undermined.
In
the case then before court, matters of context and implication
militated against recognition of the factual adoption: the

relationship between putative father and son had consequences for
third parties – the heirs whose entitlement to inherit
was
regulated by the Act - and the court held that the legislature, in
deciding to confine the class of beneficiaries to
de
jure
members of the family, had made a policy choice that could not
properly be attacked as unreasonable or irrational. In the case

before me, none of these important considerations comes into play:
the point of concern is simply the rights of putative father
and son
inter
partes
.
To
be sure, some passages in the
Flynn
judgment do tend to suggest that a
de
facto
relationship
should
not be given legal recognition where, as here, nothing prevents the
creation of the its
de
jure
equivalent
.
In making this point, the court invoked the decision in
Volks
NO v Robinson & others
[2005] ZACC 2
;
2005
(5) BCLR 446
(CC) (and see, in the same vein,
Singh
v Ramparsad & others
2007 (3) SA 445
(D)). In
Volks
the Constitutional Court declined to recognize the cohabitation of a
couple as a marriage when they could, had they so chosen,
have duly
solemnized their relationship under law. The decision was, however,
handed down after the same court’s judgment
in
Daniels
v Campbell NO & others
[2004] ZACC 14
;
2004 (5) SA 331
(CC), in which the court recognized a Muslim
marriage, effective at common law but not solemnized within the
contemplation of
the statute, as enough to make the parties
‘spouses’ within the contemplation of the very statute
with which
Flynn
was concerned. Within this domain context and consequence are
everything.
What
are the distinguishing features of the present case? First, it is
clear from the evidence that the parties agreed upon a
de
jure
adoption but neglected to proceed with this step for no better
reason than that they saw no need for it. In
Volks
,
moreover, the parties had the capacity to make the choice whereas,
in the present case, S’s affairs are entrusted during
his
minority to a third party, his mother. Non-compliance with
statutory formalities was not seen to be an insuperable obstacle
to
the recognition of the an adoption pursuant to customary law in
Metiso
v Padongeluksfonds
2001
(3) SA 1142
(T), and I see no reason why it should operate as a
barrier when all that is at stake are the rights and obligation of
putative
child and father
inter
se
.
In the instant case there are no competing claims of paternity - S’s
natural father is dead – and, on the facts,
there can be no
suggestion that the adoption is abusive or exploitative.
Counsel
for the defendant cited
Botha
v Botha
2009 (3) SA 89
(W) in support of the submission that a defendant is
under no obligation to support the child, whether minor or major, of
his
spouse by another union, but in the case there was no issue of
promise or
de
facto
adoption. She helpfully referred to
Heystek
v Heystek
2002 (2) SA 754
(T) as well, a decision that might have been thought
to be against her case, but correctly distinguished it one basis
that the
decision was concerned with the duty of support
pendent
lite
.
Scope
of the duty
In
the present case, in any event, the issue is not whether the
defendant has a general duty to support and maintain S, but whether

he must be required to contribute to the boy’s school fees.
Above I have concluded that, in consequence of his promise
to treat
S as his son, he does have such a duty. The duty can, however, go no
further than the one that the defendant would owe
his natural son.
In the present context, it does not require the defendant to do more
than help keep S at St Andrew’s College
for so long as the
family, striking appropriate balances, can be expected to afford the
fees. If the burden becomes excessive,
as I believe it has, the
defendant should only be expected to contribute towards an
appropriate but less expensive alternative.
In the present case,
this entails private schooling as a day boy provided, as appears to
me to be so, this option is available
and sustainable.
At
what level should the contribution be made? From the evidence it is
clear that S’s natural father bequeathed a significant
amount
to his wife and, were he alive today, I have little doubt that he
would expect (as it were) to pay his share of the schooling.
In
taking up this stance he would be recognizing that in law he has,
aside from his moral responsibilities, a duty of support
that is
transmitted to his estate upon death. The plaintiff has a comparable
duty and should, out of her own earnings, also bear
a share of the
schooling. Taking this approach, I consider it would be fair if the
defendant were to contribute 1/3
rd
of the cost of S’s schooling at a day-boy rate for the three
years that have still to elapse before S matriculates. From
the
evidence the fees for a day boy at a private school are in the
region of R60 000 per year, so his obligation under this head
is to
pay one third of this amount for three years – R60 000
precisely.
Since
the separation the plaintiff has borne all S’s school fees (so
far amounting to just short of R80 000). Consistent
with what I
have held above, the defendant must pay for some of these fees.
Since it has only now become clear that a boarding
school education
is too costly, I consider that it would be fair if he bore
approximately half this charge. In consequence, the
defendant must
pay an amount of R100 000 towards S’s education. This amount,
together with the contribution of R120 000
that the plaintiff must
make, will be put into a separate bank account and be earmarked for
use as contemplated. The plaintiff
can of course supplement the
account or the drawings from it if she wishes to keep S at boarding
school. In terms of my order,
she will be given the right to
administer the fund, but must account to the defendant, upon
request, for the manner in which
the fund is being used.
I
turn now to the question of J’s education at a private school.
The plaintiff says I should make provision for this now,
but I
cannot say what the financial position of the parties will be at the
point, some years from now, when the girl is ready
to go to senior
school. I believe that this matter should be left over to be
regulated when the occasion arises.
Maintenance
for the plaintiff
In
the course of her evidence, the plaintiff set out her earnings and
said that, even if the amount tendered by way of maintenance
for J
were brought into account, the amount would not be enough to defray
her expenses.
Cross-examination
by counsel for the defendant seemed to be directed at showing that
some of her listed expenses were too high
if judged by some
supposedly objective standard of reasonableness. If this was indeed
the approach, then I must say that I think
it is wrong. Fairness is
the test and, in the absence of factors justifying a deprivation of
the right to be maintained, the
proper approach is to postulate that
the parties should each continue, following divorce, to live in the
style to which they
have become accustomed for so long as this was
permitted by the resources at their disposal. If, as so often
happens, the capital
and income are insufficient to meet this
standard, then each should abate their requirements accordingly. In
this limited sense
the touchstone is subjective: the issue is not
what people generally would regard as reasonable, a standard far too
amorphous
to be useful, but what the parties have come to depend on,
subject always to the criterion of affordability.
In
a case such as the present, the first step is to determine the
claimant’s past and potential income from employment or
any
other source – that is, current and potential future earnings
– in order to determine whether they are or will
become
sufficient to maintain the prevailing lifestyle. The next step is to
decide whether the other spouse earns enough, after
making proper
provision for the maintenance of a comparable lifestyle, to make
good any shortfall in the claimant’s income
that is exposed by
the initial assessment. In the process, due allowance has to be made
for much more than just the party’s
personal expenditure: for
instance, the cost of providing for dependants has to be brought
into account, and this may range
beyond those with a legal claim and
embrace moral claims by siblings, parents and even friends. If the
available funds are sufficient
to meet both sets of demands, well
and good; but if not, each party must make a sacrifice in order to
accommodate the legitimate
demands of the other. The process is
somewhat indeterminate, for a persons’ expenses from month to
month are variable
and the traditional list must never be regarded
as more than a general projection of needs. In
Hard
Times
Charles Dickens portrays a character, Gradgrind, who is obsessed
with facts and figures to the exclusion of the people they are

supposed to serve. If there was a place for such mechanical
thinkers 150 years ago, their utility is much diminished today.
That
said, the court must have facts to work with, and with facts I was
plentifully provided. In the course of cross-examining
the
plaintiff, the defendant’s counsel wrested some concessions
from her and when the dust had settled, it emerged that
she had a
shortfall of some R6 500 in her monthly income. The spotlight then
turned on the defendant’s financial position,
especially his
income, but he provided no direct evidence on this issue, being
content to rely on concessions made by the plaintiff.
Since no
admission was made concerning his monthly income, he was forced to
accept the evidence on the issue (assuming always
that it was
reliable) least advantageous to his case. This proved to be a
completed application for vehicle financing, a document
of
undeniable solemnity, in which he put his net earnings at R60 000.
What net meant in the circumstances is debatable, given
that he gave
the same figure for his gross earnings, but I cannot conclude that
it was ever intended to exclude the very expenses
that had to be
incurred in order to produce the income to which he was attesting
(such as bond repayments on rent producing properties).
In these
circumstances, I do not think it is unfair to hold him to his
statement and, once this is done, his earnings are undeniably

sufficient to make good the shortfall for the plaintiff contends.
On
the basis of this reasoning I consider that the defendant should pay
the plaintiff maintenance in the sum of R5 000 per month.
That said,
I do not think that the payments should be made for the indefinite
future. The plaintiff impressed me as a person
of considerable
talent and I have little reason to doubt that, even taking into the
fetters on her career that result from having
to discharge of her
duties as the principal custodian of the minor children, she will be
able to make good the shortfall by her
own enterprise fairly soon. I
also bear in mind that the plaintiff has capital resources at her
disposal that will be swollen
by the amount she receives in terms of
this judgment in consequence of her claims underf the accrual
system. In all the circumstances
I think that a cap on this
maintenance of three years will meet the requirements of the case.
The
plaintiff’s accrual entitlement
Under
the accrual system contemplated by the Matrimonial Property Act 88
of 1994, the parties have an interest in the amount by
which each
other’s estate improves in value over the marriage. The
interest is purely equitable for, questions of dissipation
aside, it
becomes exigible only ‘at the dissolution of the marriage …
by death or divorce’ in terms of s 4(1)
of the Act. Simply
put, the effect of the provision is that each party receives, in
terms of the operative order, a half share
of the amount by which
the other spouse’s estate has increased in value during the
course of the marriage.
On
one thing the parties were agreed, and this was the applicability of
the accrual system to the realignment of their respective
estates;
but what was hotly contested was the value to be assigned to the
defendant’s estate for the purposes of this claim.
In opening
address the plaintiff’s case was put on the basis that the
defendant had, since the separation, been hiding
his assets so as to
reduce his liability under this head. In addition it would be
contended, so I understood, that he had been
squandering assets in
the knowledge that might by these means attain the same result. On
the basis of these submissions, I was
invited to bring these amounts
back into account for the purposes of the claim. Faced with a
lengthy and by no means easy inquiry
into this issue, I asked the
parties why they did not simply take the date of separation as the
point at which the valuation
should be made. Besides considerations
of convenience, this approach seemed to do justice to the principle
underlying the system.
It is that marriage is, if not a partnership,
then at least a kind of joint venture in which, to put the matter
loosely, the
parties go some way towards pooling their resources and
making them the subject of joint decision-making. Such relationships

are the norm: see, for instance, the description of the relationship
between the parties in the case, quite different though it
is in its
legal provenance, of
Buttner
v Buttner
2006 (3) SA 23
(SCA) at para 25. As the court said in
Kritzinger
v Kritzinger
1989 (1) SA 67
(A) at 77B-C, likewise distinguishable in the nature
of the claim, every marriage is a partnership in one sense of the
word:
the parties live together and contribute to each other’s
physical and mental well-being.
Defendant’s
counsel, no doubt understandably, firmly denounced this suggestion
as contrary to law. She relied on
Reeder
v Softline Ltd & another
2001 (2) SA 844
(W), a case in which a wife sought an interdict to
restrain the transfer of shares to her husband, with whom she was
locked
in divorce proceedings, on the grounds that he would
dissipate the assets in question. The application was framed on the
basis
that she had a vested, rather than merely contingent, right to
participate in the benefits of the shares. In refusing the
application,
Cloete J held that the wife has no vested right in the
shares or their proceeds. At 848I-849B the learned judge explained
the
legal position in these terms: ‘Subsection 3(1) of the Act
makes it clear that the right of a spouse to claim half of the
nett
accrual of the other spouse's estate is acquired “at the
dissolution of the marriage . . . by divorce or death”
and ss
3(2) provides that (subject to the provisions of s 8(1)) “a
claim in terms of ss (1) arises at the dissolution of
the
marriage.”’.
The
decision establishes the moment at which the contingent right
becomes perfected and, in consequence, the spouses become invested

with legally enforceable entitlements. This is, as the learned judge
makes clear, at the moment when the divorce court makes
the
applicable order. What the decision does not do is establish the
moment by reference to which the respective estates of the
parties
must be assessed. This problem is one of procedure, not substance,
and owes its origin to the fact that litigation takes
time to
complete. On this matter the established principle is that the
operative moment is
litis
contestatio
,
for that is the moment when the dispute crystallizes and can be
presented to the court for decision. See, by way of analogy,
Road
Accident Fund v Mtati
2005 (6) SA 215
(SCA) (right of child to sue for pre-natal injuries
becomes complete at
litis
contestatio
,
but not before).
Since
litis
contestatio
is the lodestar for the applicable decision, transactions after this
moment are irrelevant and should be left out of account.
By saying
this, I do not mean to suggest, of course, that the pleadings are
fixed in stone; if they erroneously reflect the true
state of
affairs, they can (subject to the normal exceptions) be corrected so
that they accurately state the facts. What cannot
be done, however,
is to make amendments or otherwise tender evidence in order to bring
transactions into account that occurred
only after close of
pleadings.
Besides
expediting the trial, this principle will do much to limit the
temptation to squander assets that some spouses seem to
find
irresistible. This is particularly true if it is coupled with the
principle that a spouse cannot, by his or her conduct,
willfully
deprive the other party to the marriage of the benefits of the claim
under the accrual system. So much is clear from
the cases. Whether
they extend beyond fraud an into the realms of recklessness
(sometimes equated with fraud) is a matter on
which, I suspect, the
courts have yet to finally pronounce; see, for instance,
Govender
v Chetty
1982
(3) SA 1078
(C). For present purposes it is enough to say that
transactions outside the ordinary course of household management
will naturally
be subject to careful scrutiny during the interregnum
between anticpated separation and close of pleadings.
In
the present case the pleadings in respect of the plaintiff’s
claim in convention closed once the time for the filing
of a
replication to the plea had come and gone, that is, fifteen court
days after the plea was filed (see Rule 25(2)). On the
papers before
me, I cannot determine precisely when this occurred (for the
original plea has been removed from the court file),
but it must
have been before the end of November 2008, since this is when the
plea in reconvention was filed. The best evidence
of the value of
the defendant’s assets at this point s to be found in his
formal notice in terms of s 7 of the Matrimonial
Property Act filed
on 11 September 2008. It puts the net accrual of his estate at
R3 167 688.01. Since the defendant did
not give evidence, it is
impossible to say whether this assessment was correct at the time or
not, so I must take it for what
it purports to be – an
accurate admission, against interest, of the extent of the accrual
in his estate.
As
it happens, the parties came to an agreement in the course of
pre-trial preparations on most elements of their respective estates,

and this consensus is of course binding on me. The plaintiff does
not ask me to find that the net accrual to the defendant’s

estate exceeds R2 186 440, and this (subject to what I say below) is
the figure I propose to work with. From it I must deduct
the loan
that, in terms of this order, is repayable to the plaintiff, leaving
a total of R1 995 440. The plaintiff’s estate
must be taken to
be swollen by the same amount and its accrual becomes, on her
version, R387 476 and, on the defendant’s,
R522 476.
Two
items account for the difference. The first is the value of the
household furniture, which the plaintiff puts no higher than
R30
000. Since the defendant himself valued this item at this amount
for insurance purposes, I see no reason why, in the absence
of
countervailing evidence, this figure should not be accepted. The
second is a ring whose increase in value is agreed to be
R65 000.
The plaintiff contends should be left out of account as a donation
under the Act, but on the evidence it appears that
this ring was
given to her by her late husband on the occasion of her engagement.
Since the donation appears to fall under neither
of the exemptions
contemplated by s 5, the amount must be brought back into account.
It follows that the accrual of the defendant’s
estate amounts
to R452 476.
The
difference between the two accruals is R1 542 964 and half of this
is R771 482. This is the amount that the defendant
must pay
the plaintiff in terms of the accrual system.
From
what I have said, it will be observed that I make no allowance for
the capital amounts payable in respect of S’s schooling.
Since
they represent the capitalized version of maintenance and support,
they are, I believe, properly to be left out of account.
Costs
In
the opening paragraphs I said that the process by which this case
had been resolved had been a tragedy. So it is, not so much
because
of the time taken to resolve the issues (as I have already said, the
parties were commendably efficient in making the
case ready for
trail) but because of the legal costs that the parties will have to
bear unless something is done to mitigate
them. From the evidence it
seemed to emerge that the cumulative costs will be at least R500 000
and may be as much as R750 000.
That a sum of this nature might
have been put to better use by the parties – for example, to
defray the cost of private
schooling for the children – goes
without saying.
One
of the matters that must be considered in a pre-trial conference is
whether the dispute should be referred for possible settlement
by
mediation. In the present case the legal representatives of the
parties had no hesitation in answering this question in the

negative. As a result, the judge to whom this matter was originally
allocated felt obliged to try to perform the role himself.
Whether
he is trained for the role is a matter into which I neither can nor
wish to enquire. All that need be recorded here is
that, in the
course of the settlement process, he expressed views on the
respective entitlements of the parties that prompted
an application
by the plaintiff for his recusal. In the normal way, the response of
the other side should be neutral, for the
issue is essentially one
between the applicant for recusal and the court, but in the present
case the respondent had no compunction
in registering his opposition
to the application. The case scarcely met the test for recusal,
which is objective: a reasonable
person is expected to know that
judges are trained to divorce themselves from their preconceptions,
especially those expressed
in chambers. In the exercise of his
discretion, however, the judge decided to grant the application lest
the subjective apprehensions
of the applicant should bedevil the
effective resolution of the case.
When
the plaintiff was busy testifying, I asked her whether the
resolution of the case through mediation had been mooted by her

legal advisers. She said it had not, but she went on to explain that
she thought mediation would have served no purpose. Though
this was
her response to a question put by me, it is ultimately a matter on
which, not being an expert, she can entertain no
informed belief.
Mediation can produce remarkable results in the most unpropitious of
circumstances, especially when conducted
by one of the several
hundred people in this country who have been trained in the process.
The success of the process lies in
its very nature. Unlike
settlement negotiations between legal advisers, in themselves
frequently fruitful, the process is conducted
by an independent
expert who can, under conditions of the strictest confidentiality,
isolate underlying interests, use the information
to identify common
ground and, by drawing on his or her own legal and other knowledge,
sensitively encourage an evaluation of
the prospects of success in
the litigation and an appreciation of the costs and practical
consequences of continued litigation,
particularly if the case is a
loser.
In
Egan
v Motor Services (Bath)
[2007] EWCA Civ 1002
the learned judge had had the following
trenchant remarks to make about the case before him, and they are
well worth quoting
at length:
‘
What
I have found profoundly unsatisfactory, and made my views clear in
the course of argument, is the fact that the parties have
between
them spent in the region of £100,000 arguing over a claim which
is worth about £6,000.  In the florid
language of the
argument, I regarded them, one or other, if not both, of them, as
"completely cuckoo" to have engaged
in such expensive
litigation with so little at stake.  At the time of writing this
judgment I rightly do not know whether
any, or if so what, attempts
have been made to settle this case and the remarks that follow are of
general application. I raise
that matter again in this judgment to
make the point, as firmly as I can, that this is a paradigm case
which, if it could not have
been settled by the parties themselves,
customer and dealer, then it behoved both solicitors to take the
firmest grip on the case
from the first moment of instruction.
That, I appreciate, may not always be easy, but perhaps a copy of
this judgment can,
at the first meeting, be handed to the client,
bristling with righteous indignation, in this case the customer who
has paid a small
fortune for a motor car which does not meet his
satisfaction, and the dealer anxious to preserve the reputation of
his prestige
product.  “This case cries out for
mediation", should be the advice given to both the claimant and
the defendant.
Why?  Because it is perfectly obvious what
can happen.  Feelings are running high, early positions are
taken, positions
become entrenched, the litigation bandwagon will
roll on, experts are inevitably involved, and, before one knows it,
there will
be two/three day trial and even, heaven help them, an
appeal.  It is on the cards a wholly disproportionate sum,
£100,000,
will be to fight over a tiny claim, £6,000.
And what benefit can mediation bring?  It brings an air of
reality
to negotiations that, I accept, may well have taken place in
this case, though, for obvious reasons, we have not sought to enquire

further into that at this stage. Mediation can do more for the
parties than negotiation.  In this case the sheer commercial

folly could have been amply demonstrated to both parties sitting at
the same table but hearing it come from somebody who is independent.

At the time this dispute crystallised, the car was practically brand
new.  It would not have been vastly different from any

demonstration car.  The commercial possibilities are endless for
finding an acceptable solution which would enable the parties
to
emerge, one with some satisfaction, perhaps a replacement vehicle and
the other with its and Audi's good name intact and probably
enhanced,
but perhaps with each of them just a little less wealthy.  The
cost of such a mediation would be paltry by comparison
with the costs
that would mount from the moment of the issue of the claim.  In
so many cases, and this is just another example
of one, the best time
to mediate is before the litigation begins.  It is not a sign of
weakness to suggest it.  It is
the hallmark of commonsense.
Mediation is a perfectly proper adjunct to litigation.  The
skills are now well developed.
The results are astonishingly
good.  Try it more often.’
If
mediation is appropriate in commercial cases, how much more apposite
is it in family disputes. They engage the gamut of emotions,
from
greed through pain to vengefulness; they generally involve the
rights of children, majors as well as minors, who can only

experience fear and bewilderment at the breakdown of the structures
of love and support on which they, as family members, have
come to
depend; and the division of the estates of the parties, intertwined
as they invariably are, can be very complex and are
frequently made
the more so by the parties’ bloody-mindedness and duplicity.
Throughout the process, moreover, the legal
costs come out of the
common pot and, since they deplete the assets that can be used for
the advancement of members of the family,
must be the subject of
continual concern and anxiety. Divorces proceedings are by their
nature ‘traumatic events’:
see
Clemson
v Clemson
[2001] 1 All Sa 622
(W) at 627
Lawyers
who might be thought to know better can sometimes be heard to
disparage the practice of family law, but in my experience,
which I
readily admit to be limited, they are required to display levels of
skill and judgment that outshine many of their supposedly
more
successful counterparts in the more fashionable fields of law.
Special responsibilities rest on them, as
Blieden
J
fully
appreciated in
Hemson
supra
:
‘
The
Court expects attorneys acting on behalf of such people, as
professional people and officers of the court, to display objectivity

and sound common sense in assisting their clients. Fortunately most
attorneys perform this task admirably. However there is a minority
of
attorneys who approach each divorce as a war between the two
litigants. The rules of court and legal principles are utilised
as
weapons in a fight to destroy the opposition. As happens in most wars
of attrition by the time the war has come to an end both
sides have
lost. There is now permanent hatred between the parties and their
joint assets have been consumed to pay legal fees’.
The
responsibilities are especially difficult to discharge when the
matrimonial bar is small and the practice of family law is
so
inbred. A limited number of practitioners perform the role and,
while some rub along together well enough, others rub each
other up
the wrong way. Acrimony between legal representatives, which can
carry over from one case to the next, easily produces
an
over-identification with the client’s cause and an attitude of
win-at-all-costs. These emotions can act as a complete
barrier to
settlement. I cannot say whether the attorneys in the present case
fell foul of this vice, but the correspondence
suggests that they
might have. Lawyers create the illusion that clients are solely
responsible for the stances that are adopted
in litigation, but of
course their advice is profoundly influential and shapes the demands
being made and strategies used to
achieve them. With this in mind,
the lawyers have much to answer for when a party requires the other
‘to vacate the matrimonial
home forthwith’; when
requests for particulars are deflected on the grounds of petty
mistakes in the formulation of the
questions; when there are
interminable skirmishes over documents that result, eventually, in
the production of bundles totalling
almost 1000 pages, few of which
have any direct bearing on the matter at hand; and when the parties
threaten each other with
criminal proceedings and respond by saying
that the threat is being dismissed ‘with the contempt it
deserves’. In
a very real sense, this was a case in which, if
the parties did not need mediation, the legal representatives
certainly could
have profited by it.
I
am given to understand that in England the all but obligatory
recourse to mediation has profoundly improved the process of dispute

resolution. Parties resolve their problems so much more cheaply as
a result and the burden on the court rolls has been considerably

lightened. Informed estimates put the success rate of mediation at
between eighty and ninety percent. For present purposes it
is
unnecessary, indeed undesirable, for me to say more about the
general imperatives that favour mediation as a means of settling

cases. I do not even feel the need to say much more about the need
for mediation in family disputes. But I can say with confidence
that
the parties would have been well served if they had submitted this
dispute to mediation and then fought out, if fight they
must, the
one or two issues of fundamental concern to them.
A
single instance drawn from the proceedings is enough to make the
point tellingly. In the course of argument, I put the point
to the
parties that I have made above: namely, that by the manner in which
the inheritance is used, S’s natural father
can, as it were,
make a posthumous contribution to his education.
Employing
this principle might, I suggested, justify the conclusion that the
defendant should bear one third of the costs of the
boy’s
schooling and the plaintiff should shoulder the balance out of
income and inherited capital. The suggestion met with
the
defendant’s immediate approval and the plaintiff, albeit
somewhat more grudgingly, acknowledged that it would certainly
be
equitable. No longer, it will be observed, was this an issue of
principle entailing a consideration, through the process of
judging,
of rights and duties; now it was a practical problem with an
eminently practical solution that, emerging out of potential

consensus, placed a premium on the dignity of the parties as
autonomous adults and provided an affirmation, symbolically
important,
of the bond that in happier times developed between the
defendant and his putative son. How much richer would this solution

have been had it emerged out of a consensus-seeking process rather
than in adversarial proceedings in which positions were taken
up
that gave every appearance of callousness and cruelty.
This
is but an instance of what mediation might have achieved. In fact
the benefits go well beyond it. In the process of mediation,
the
parties would have had ample scope for an informed but informal
debate on the levels of their estates, the amount of their
incomes
and the extent of their living costs. Nudged by a facilitative
intermediary, I have little doubt that they would have
been able to
solve most of the monetary disputes that stood between them. The
saving in time and legal costs would have been
significant and, once
a few breakthroughs had been made, I have every reason to believe
that an overall solution would have been
reached. Everyone would, in
the process, have been spared the burden of two wasted days trying
to settle in judge’s chambers
and four further days in which
the
minutiae
of assets and liabilities and income and expenses were interrogated.
In
short, mediation was the better alternative and it should have been
tried. On the facts before me it is impossible to know
whether the
parties knew about the benefits of mediation, but I can see no
reason why they would have turned their backs on the
process,
especially if they had been counselled on the matter by the
attorneys. What is clear, however, is that the attorneys
did not
provide this counsel; in fact, in the course of the pre-trial
conference they positively rejected the use of the process.
For this
they are to blame and they must, I believe, shoulder the
responsibility that comes from failing properly to serve the

interests of their clients.
In
the course of the hearing, I asked counsel whether I had the power
to cap the fees that the lawyers might derive from the case,
and it
was agreed that this is indeed my right. I can find nothing in the
conduct of counsel to warrant such a move – they
take their
instructions from the attorney - but I am persuaded that the failure
of the attorneys to send this matter to mediation
at an early stage
should be visited by the court’s displeasure. On this basis, I
propose to limit the fees they can recover
from their clients to the
costs they can tax on a party and party scale. The client retains
the right to pay more, but the attorney
should not ask for this
unless the client has obtained the advice of an independent
practitioner.
In
the matter of costs as between the parties, I have an overriding
discretion. From what I have said, it will be clear that I

disapprove of the way the dispute has been ventilates, and I cannot
believe that the parties are blameless on this score. The
plaintiff,
who made a very impressive witness, made unreasonable claims in the
litigation (forfeiture of benefits being among
them) and the
defendant was anything but candid about his earnings. It is true
that the defendant made an open tender which
the plaintiff has
beaten, but not by much. I can see no reason why either should bear
the costs of the other, and this is the
order I propose to make.
Order
I
make the following order, much of which is by consent.
The
marriage between the parties is dissolved by this decree of divorce.
The
parties shall each have parental rights and responsibilities in
respect of the minor child, J
,
but subject to the following conditions:
She
shall continue to reside with the plaintiff;
Subject
always to her reasonable religious, academic, sporting and social
requirements, the defendant will be entitled to contact
with J as
follows:
in
the course of transporting her to school every Tuesday and
Thursday morning;
on
weekends from Friday afternoon at 14H00 until Sunday afternoon at
16H00 –
alternately
with the plaintiff unless Mother’s day falls on the weekend
in question;
and
on the weekend in which Father’s day falls;
from
14H00 until 18H00 on the Thursday of the week in which he has no
weekend contact with her;
on
alternate public holidays, provided that reasonable measures shall
be taken to coordinate this access with weekend and
holiday
entitlements;
during
alternate short and long school holidays, provided that –
the
December / January holiday will be shared equally
she
will spend each alternate Christmas and Easter with the
defendant;
on
his and J’s birthday for half her after-school waking hours;
by
means of reasonable telephonic and e-mail communication;
Each
party
shall consider the views and wishes expressed by the other before
taking a decision that might significantly affect J’s

wellbeing, including decisions on her education and training, her
religious and cultural beliefs, and her sporting, cultural
and
extra mural activities.
The
Defendant shall pay to the Plaintiff by way of maintenance for J:
An
amount of R4000,00 per month before the first day of the month
which shall be adjusted each September by reference to the
change
in the Consumer Price Index;
All
reasonable medical, dental, orthodontic, ophthalmic, hospital,
therapeutic and related expenses secured, in part at least,
by
maintaining her at his expense as a beneficiary of the current
Liberty medical scheme or one of a similar nature for medical
aid
scheme.
All
reasonable expenses arising out of –
her
primary and secondary school education, including school fees,
school levies, aftercare (including the costs of the aftercare

provided by the Plaintiff’s mother but limited to the actual
costs so incurred), school uniforms, books and stationery,
extra
lessons and any remedial therapy;
her
tertiary education if she is eligible and shows an aptitude for
it.
The
reasonable cost of extramural activities and attendant clothing and
equipment.
The
plaintiff shall open bank account
–
dedicated
to defraying the costs of S’s schooling at a private school
into
which –
the
plaintiff shall immediately contribute R120 000
and
the defendant shall immediately contribute R100 000
and
which will be administered by the plaintiff in consultation with
the defendant.
The
defendant shall pay to the plaintiff –
by
30 September 2009,
the
sums of –
R771
482 and
R191
000 plus
mora
interest from 1 September2008;
maintenance
at the rate of R5 000 per month
as
from 1 September 2009
to
endure until 31 August 2012.
Each
party shall bear his or her own costs
–
which
may encompass disbursements (including counsel’s fees),
but,
as to the fees claimable by the attorney, shall not exceed the
costs recoverable on a party and party basis –
as
taxed
o
r,
following advice received from an independent legal practitioner,
as agreed.
Brassey
A J
25
August, 2009
COUNSEL FOR THE PLAINTIFF: Adv.
Ossin
INSTRUCTED BY: Petra Visser
Attorneys
COUNSEL FOR THE DEFENDANT: Adv.
Crutchfield
INSTRUCTED BY: Yammin Hammond &
Partners Attorneys