Malope v Malope (1669/07) [2008] ZAFSHC 1 (10 January 2008)

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[2008] ZAFSHC 1
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Malope v Malope (1669/07) [2008] ZAFSHC 1 (10 January 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 1669/07
In
the matter between:-
GALEHETE
MARRIAM MALOPE
Plaintiff
(Born
SERANYANE)
and
MATLHOMOLA STEPHEN
MALOPE
Defendant
_____________________________________________________
HEARD
ON:
3
JANUARY 2008
_____________________________________________________
JUDGMENT
BY:
H.M.
MUSI J
_____________________________________________________
DELIVERED ON:
10
JANUARY 2008
[1] This matter was heard
on 3 January 2008 and on the 4
th
January 2008 I granted an order of divorce and other relief. I
indicated that I would give full reasons for the orders in the form
of a written judgment to be delivered on 10 January 2008. The bulk
of the reasons relate to the prayer for forfeiture of the benefits
of
the marriage and these follow hereunder.
[2] The plaintiff has
instituted an action against the defendant in this court claiming:
(a) A
decree of divorce;
(b) Custody and control
of the minor child born of the marriage between the parties;
(c) Payment
of maintenance at the rate of R500.00 per month for and in respect of
the minor child, once the defendant has obtained
employment;
(d) Forfeiture
of the benefits of the marriage in community of property;
(e) Costs
of suit;
(f) Further
and alternative relief.
[3] The summons was
served on the defendant personally on 25 April 2007. He failed to
file a notice of intention to defend within
the prescribed period or
at all. The matter was, however, only enrolled for trial during
November 2007 and it thus became necessary
to serve the notice of
setdown on the defendant. The notice of setdown was accordingly
served on the defendant personally on 27
November 2007 indicating
that the matter would be heard on 3 January 2008. The defendant
still gave no indication that he wanted
to oppose the grant of
divorce.
[4] When the matter came
before me on 3 January 2008 the defendant appeared in person and
indicated that he wanted a postponement
in order to obtain the
services of a legal representative. The plaintiff opposed the
application. I adjourned the matter for 30
minutes in order to give
the parties the opportunity to attempt a settlement or come to some
agreement on the way forward. No agreement
could be reached and
counsel for the plaintiff indicated that he would lead evidence to
counter the application for a postponement.
Having heard the
plaintiff’s evidence I then heard the defendant’s evidence under
oath on the reasons why he had not done the
necessary in order to
defend the action. I then dismissed the application for a
postponement and proceeded to hear the matter as
an unopposed
divorce. I gave brief reasons for my decision which are on record.
I need not repeat them here.
[5] In essence, the
plaintiff confirmed under oath the grounds of divorce as set out in
her particulars of claim. In a nutshell these
are that the defendant
abuses alcohol, that he has been unemployed since 1999 and does not
show interest in obtaining employment,
that he squandered money given
to him by the plaintiff for the payment of the couple’s liabilities
which include monthly bond repayments
and school fees for their
children, and further that the defendant sold movable assets of the
joint estate without the plaintiff’s
consent. She mentioned, upon
questioning by the court, that they are still living in the same
house but that they sleep in separate
rooms and do not talk to each
other. Nor do they accord each other conjugal rights. This has been
the case for the past two years.
[6] I am satisfied that
the marriage relationship between the parties has irretrievably
broken down and that there are no reasonable
prospects of
reconciliation. I am also satisfied that the plaintiff has made out
a case for custody of the one minor child, namely
G, a girl now aged
seventeen, who is presently in a boarding school in Bloemfontein. I
have no reason to doubt the plaintiff’s
evidence that the child has
expressed the wish that she be placed in the mother’s custody
rather than that of the father. At any
rate there is no claim for
custody by the defendant. Moreover, on the evidence, the plaintiff
is the sole breadwinner and provides
all the needs of the child.
Though the plaintiff is temporarily employed in Saudi Arabia as a
nurse, she has made proper arrangements
for the child to spend time
with relatives when she is not at boarding school.
[7] The plaintiff’s
claim for maintenance in respect of the minor child cannot be
entertained. If and when the defendant finds
employment, an
appropriate claim can be lodged with the Maintenance Court.
[8] I should mention at
this stage that the parties were married to each other in community
of property on 17 April 1985 and have
thus been living together as
man and wife for the past 22 years. The plaintiff testified that
they initially owned a house in Bloemanda
in Bloemfontein which they
had jointly acquired. They had sold it and an amount of R68 000.00
came their way from the sale and they
used this amount to pay a
deposit on the purchase of another house situated at 58 Klaradyn
Street, Pellissier, in Bloemfontein.
A mortgage bond was registered
over this property in order to cover the balance of the purchase
price. This is the house that forms
the common home of the parties.
At the time both parties were employed, she as a nurse and he as a
laboratory technician.
[9] In 1999 they both
resigned their jobs and each received a monetary package from his/her
employers. They had been operating a
joint banking account into
which they deposited the money which each of them had received. They
then withdrew an amount of R150
000.00 and paid it into the bond
account, thereby reducing the bond balance to R50 000.00.
Subsequently she took up employment in
Saudi Arabia while the
defendant remained unemployed. The decision to take up employment in
Saudi Arabia had the defendant’s blessing
and was motivated by the
need for the plaintiff to earn more money since she was now the sole
breadwinner. Plaintiff further testified
that she regularly sent
money to the defendant for payment of the bond instalments, school
fees for the children and for household
necessities, but that the
defendant misused the money. At one stage the mortgagee had
threatened to sell the movable property in
order to recoup arrear
instalments, because the defendant had not been paying these. On two
occasions the defendant had to raise
loans of R42 000.00 and R16
000.00 respectively from relatives in order to pay arrear bond
instalments. The loans were granted on
the understanding that she
would repay them, but she has not done so up to now. The plaintiff
said that as a result of the failure
to pay the bond instalments
punctually, the bond balance has escalated to about R200 000.00 over
the years. The plaintiff also testified
that the defendant sold some
movable assets of the joint estate without her consent. She said
that she has a list of such items,
but has not handed it up.
[10] I am satisfied that,
on the uncontested evidence of the plaintiff, she has established
substantial misconduct on the part of
the defendant, which
contributed towards the breakdown in the marriage relationship
between the parties. It is also clear from the
evidence that since
1999 the defendant has not contributed financially towards the upkeep
of the common household as well as maintenance
for their children,
including the payment of their school fees. (I use the word
“financially” advisedly in order not to rule
out the possibility
that the defendant may have contributed in other ways, like managing
the household and caring for the children.)
It is also clear from
the evidence that the defendant has caused the joint estate financial
loss in the sense that the bond balance
has escalated when it should
probably have been liquidated. However, all these considerations are
not in themselves sufficient to
warrant the grant of a forfeiture
order.
[11] It has been laid
down that the correct approach to the question of whether to grant an
order of forfeiture of the benefits of
the marriage in community of
property in terms of section 9(1) of the Divorce Act, 70 of 1977, is
first to determine the benefit
in relation to which the one party
would be unduly benefitted in relation to the other if the order of
forfeiture is not granted.
Once this has been determined the court
must then deal with the question of whether the party against whom
the order is sought,
would be unduly benefitted if forfeiture is not
granted. See
ENGELBRECHT
v ENGELBRECHT
1989 (1) SA 597
(NPD) at 601H;
WIJKER
v WIJKER
1993 (4) SA 720
(AD) at 727E. This requires that the nature and
extent of the benefit be established and the onus of doing this, as
well as showing
that the other party would be unduly benefitted,
rests on the party claiming forfeiture. In this regard, the
following was stated
in
KOZA
v KOZA
1982 (3) SA 462
(TPD) at 465H:
“
In
my view it is therefore necessary that there be placed before the
court evidence in respect of the factors mentioned in s 9 (1)
and
also, in order to establish properly whether there is undue benefit
warranting the making of an order, evidence of the nature
and value
of the benefits in respect whereof a forfeiture is sought. It follows
that a party making a claim of this nature should
plead the necessary
facts to support that claim and formulate a proper prayer in the
pleadings to define the nature of the relief
sought.”
See also
ENGELBRECHT
v ENGELBRECHT
,
supra
at 602E.
[12] Besides, a reading
of the authorities reveals that a party to a marriage in community of
property cannot forfeit something that
he/she has brought into the
marriage or something in respect of whose acquisition she or he has
contributed. What is to be forfeited
is a benefit brought into the
joint estate by the one party or acquired through the sole efforts of
the one party and in which the
other party would ordinarily share but
for the forfeiture order. Compare
SINGH
v SINGH
1983 (1) SA 781
(C) at 790C – D.
[13] Applying these
principles to the facts of the instant case, it becomes immediately
clear that the plaintiff’s case falls short
of the requirements for
the grant of a forfeiture order. Firstly, her particulars of claim
do not aver the necessary facts to support
the claim. In particular,
they do not identify the benefit in respect of which the defendant
would be unduly benefitted. Instead,
the plaintiff merely seeks a
blanket order of forfeiture. Even in her evidence, the plaintiff was
not able to pinpoint the asset
or assets of the joint estate in
respect of which the defendant would be unduly benefitted if
forfeiture is not ordered. Secondly,
on the plaintiff’s own
evidence, all the assets of the joint estate were jointly acquired.
The main asset, the immovable property,
was jointly acquired and both
parties contributed funds towards the reduction of the bond balance
in relation to it. Regarding the
movable assets, no details have
been provided as to the nature and extent thereof. Some sketchy
information was given during the
evidence but there is no information
as to their value.
[14] What
is plain is that the defendant has not been contributing towards the
payment of the bond instalments for some considerable
period. On the
contrary, by squandering the money entrusted to him to pay the
instalments, he has impoverished the joint estate.
It is in this
respect that one could say that he would be unduly benefitted in the
sense that, if forfeiture is not ordered, he
would share equally with
the plaintiff in the joint estate. But then again it is not known by
how much precisely has the joint estate
been set back, because the
plaintiff has not said how much was squandered. The problem with the
plaintiff’s case is that no documentation
whatsoever was furnished.
As a result, she could not even say how much is presently owing on
the bond. Even if it was known precisely
how much had been
squandered by the defendant, it would be anomalous to say that he
should forfeit funds that have been lost.
[15] I conclude that the
plaintiff has not made out a proper case for the grant of a
forfeiture order. Nor would it be appropriate
for this court to
exercise its discretion in favour of such order.
[16] The proper order to
grant in these circumstances is division of the joint estate.
However, in doing so I cannot loose sight
of the fact that the
defendant has squandered money that would probably have liquidated
the bond liability or at least substantially
reduced it. In these
circumstances it would be inappropriate and unjust that he be allowed
to share equally in the distribution
of the joint estate. I consider
that he would be entitled to no more than 40% of the joint estate. I
accordingly ordered that the
joint estate should be divided on the
basis of 60% for the plaintiff and 40% for the defendant. Since the
matter was unopposed,
I considered it inappropriate to make any costs
order.
___________
H.M. MUSI, J
On behalf of the
plaintiff: Adv. H. Cilliers
Instructed by:
McIntyre
& Van der Post
BLOEMFONTEIN
On
behalf of the defendant: No appearance
/sp