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[2008] ZAFSHC 135
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Hillard v Hillard (1464/2007) [2008] ZAFSHC 135 (4 December 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. :
1464/2007
In
the
matter
between:-
LYDIA
MPHOKO HILLARD
Plaintiff
and
JULIAN
ALEXANDER HILLARD
Defendant
HEARD
ON:
11,
12 NOVEMBER 2008
_____________________________________________________
JUDGMENT
BY:
CILLIé,
J
_____________________________________________________
DELIVERED
ON:
4
DECEMBER 2008
_____________________________________________________
JUDGMENT
[1] On application before
Van der Merwe J separation of issues as envisaged in Rule 33(4) of
the Uniform Rules of Court was ordered
and it was directed:
That the following
issues in the abovementioned action be decided first and separately
from any other issues, namely:
1.1.1 Where was the
respondent/defendant (herein referred to as the “the
respondent”), who is the husband, domiciled
at date of the
marriage of the parties?
1.1.2. Do the
matrimonial property laws of South Africa or those of Lesotho or
those of the United Kingdom govern the patrimonial
consequences of
the marriage of the parties and more particularly upon dissolution of
their marriage by divorce?
This Court was therefore
requested by the parties to adjudicate on these two questions only.
[2]
BACKGROUND:
This is a divorce action
in which the plaintiff instituted action against defendant. She
claims amongst other relief that the accrual
system in terms of
section 2
of the
Matrimonial Property Act No. 88 of 1984
of this
country is applicable to the marriage between the parties as the ante
nuptial contract entered into between the parties
does not exclude
the accrual system.
[3] The parties married
in Lesotho by ante nuptial contract. The plaintiff says that at that
time defendant was domiciled in South
Africa. Defendant pleaded that
at the time of the marriage both parties were domiciled in Maseru,
Lesotho. Therefore so he says
the marriage is out of community of
property and out of community of profit and loss according to the
laws applicable in Lesotho
which laws incidentally do not provide for
an accrual system.
[4]
DISPUTE:
If the defendant’s
domicilium was in fact in South Africa, then the said
Matrimonial
Property Act will
find application. Defendant however avers that his
domicile was in Lesotho. This triggered the dispute set out in
paragraph 1
and referred to this Court for decision.
[5]
LEGAL
POSITION AS TO DOMICILE:
5.1 The proprietary
consequences of a marriage are governed by the
lex
domicilii matrimonii
,
that is the laws of the place where the husband was domiciled when
the marriage was concluded.
1
Due to the fact that the
wife follows the domicile of the husband, it is important to
establish in this case where the defendant
was domiciled at the time
of the marriage.
The law of the husband’s
domicile at the time of the marriage governs the matrimonial property
regime of the spouses even
if the husband subsequently acquires a new
domicile.
5.2
Domicile
of choice:
The acquisition of a
domicile of choice demands the satisfaction of three requirements:
A physical element i.e.
lawful presence
;
A mental element
(
animus manendi
)
Freedom of volition.
The onus is on the
de
cuius
to proof that he had a domicilium of choice and that he was
physically present there as well as that
“
he had… a fixed and
deliberate intention to abandon his previous domicile and to settle
permanently in the country of choice”.
2
In acquiring a domicile
of choice at another place (country) the elements of physical
presence (an objective fact) and intention
to remain there for an
indefinite period (test of subjective nature) must concur in the
propositus
.
As to the element of presence, it must denote presence as an
inhabitant and not presence as a mere visitor or a sojourner.
3
As to the element of the
animus
manendi
,
it indicates the intention of the
propositus
to settle at a place indefinitely, which is taken to mean something
less than “permanently”.
In applying the test of
intention a domicile of choice is acquired if it is affirmatively
shown that the person’s state of
mind is consistent with the
intention to remain indefinitely. However the intention does not
have to be irrevocable.
A determination of the
popositus
to settle indefinitely in another country coupled with actual
physical presence there will result in the acquisition of a new
domicile of choice. In such a case given the principle of unitary
domicile, the acquisition of a new domicile must necessarily
involve
the abandonment of the former.
5.3
Domicile
of origin:
The importance of the
domicile of origin is founded in the fact that a person` s domicile
of origin revives if he has abandoned
his domicile of choice without
acquiring a new domicile.
This doctrine formed part
of the South African law but was abolished with the Domicile Act No.
3 of 1992 which came into operation
only after the parties in this
case got married. The Act is therefore not applicable in this case.
The defendant however
testified that he was domiciled in South Africa earlier but later
changed it to be Lesotho by free choice.
This being so there is no
need to consider the doctrine of domicile of origin (the United
Kingdom), as there is no doubt that
his domicile is either South
African or Lesotho.
[6]
EVIDENCE:
DEFENDANT:
The relevant evidence
laid before the court was as follows:
According to the
defendant he was a young British citizen when in 1976 he immigrated
to South Africa under an immigration scheme
with the benefit of
immediate South African residence. He worked in South Africa and
Iater acquired South African citizenship.
Later her obtained
employment in Maseru, Lesotho but resided with his wife and children
in Ladybrand, South Africa. Later he
bought fixed property in
Ladybrand as well as several other fixed properties elsewhere in
South Africa. He worked across the border
but his home at the time
was at Joubert Street, Ladybrand, South Africa.
In 1983 defendant and his
first wife got divorced. During the period of marital problems he
stayed in Maseru. After the divorce
his wife returned to England.
He shared a house with a friend. Shortly thereafter he met Me
Masunyane and they moved in together.
They stayed in a flat from
early 1984 until 1987 in Maseru. On weekends, however, he returned
to his Ladybrand house which he
retained. When the relationship with
me Masunyane came to an end he shared rented accommodation with the
plaintiff. Later he
moved to her house in Ha Tsosane, Lesotho but
returned to Ladybrand over weekends. This was the position until he
was attacked
in Lesotho by unknown people on the 8
th
of November 1991. He returned to his house in Joubert Street,
Ladybrand South Africa, pending the outcome of the investigation
of
the attack on him in Lesotho. Before the marriage defendant bought a
farm in South Africa with the intention to relocate there
with
plaintiff after the wedding.
The defendant’s
evidence discloses that if he was not attacked the evening of the 8
th
of November 1991, he would have preferred to stay in Ha Tsosane,
Lesotho until the farmhouse in South Africa was restored to a
habitable condition.
He never had the
intention to relocate his business to South Africa. The marriage was
concluded in Maseru on the 29
th
of November 1991. The celebrations took place during lunch hour in
Maseru with a few friends, but a big party was held at the
farm in
South Africa the next day. At that time defendant had a residence
permit for Lesotho. The parties moved to the farm early
in 1992 when
renovations were completed and moved all the furniture from the
Joubert Street house where it was kept all the years
to the farm in
South Africa.
[7]
EVIDENCE
- PLAINTIFF:
The plaintiff
testified
that defendant moved in with her after they started a relationship in
1987. He always returned to his house in Joubert
Street in Ladybrand
over weekends. It was convenient for defendant to do it like this.
Defendant does not own
any property in Lesotho. He only kept the necessary clothing at her
place in Lesotho whenever he stayed
there. They used her house and
furniture.
They got married in
Maseru because it was closer to their offices. The celebrations was
at the farm in South Africa the next day.
She insisted that
defendant’s status at the time of the marriage was that of a
South African citizen and that he was also
domiciled in South Africa.
[8]
DISCUSSION:
The important issue in
this matter is to decide where the defendant was domiciled at the
time of the conclusion of the marriage.
The question is whether the
defendant ever formed such firm intention to remain in Lesotho that
would convert that residence into
domicile.
Domicile, however, is a
legal concept that implies more permanence than mere residence in a
dwelling place.
4
[9] In
Eilon
v Eilon
,
supra
,
on 705 B-C Rumff JA said in his minority judgment:
“
I’m also influenced by
another consideration in this case. When a man has been living in the
jurisdiction of a Court for a
number of years in such a manner that
it might reasonably be inferred that he has an intention to stay
there indefinitely and an
action is brought against him which, on the
face of it, he resents, then that Court in order to decide what
intention he has will
rely more on his past conduct and way of life
than on his verbal protestation.”
In the majority judgment,
Potgieter AJA held that a person to discharge the onus of proving
domicile has to prove
“…
the two requirements
namely resident ... and an intention of settling there permanently”
(
Page
720 A)
He continued thus on page
721 A:
“
A contemplation of any certain
or foreseeable future event on the occurrence of which residence in
that country would cease, exclude
such an intention. If he
entertains any doubt as to whether he will remain or not, intention
to settle permanently is likewise
excluded. That appears to be in
accordance with our common law.”
When the above is applied
to this particular case it is clear that the defendant’s
intention and his way of living was such
that one cannot come to the
conclusion that he intended to abandon his house and his farm in
South Africa.
An important factor which
weighs heavily against respondent is the fact that he invested fairly
large sums of money in property
in South Africa, whereas no fixed
property was acquired in Lesotho. Nor did he make any long term
investments in Lesotho. He
invested his surplus capital in South
Africa. Even his bank accounts (private and business) were in South
Africa. It was also
only after the marriage, for the first time
since 1979, that defendant moved his furniture from Joubert Street
Ladybrand and then
he moved it to the farmhouse near the border post
on the South African side. That was also the first time that he
rented out the
property in Joubert Street. The only obvious reason
why he did not rent it out before was that he retained it as his
residence.
The conclusion is
inevitable that the defendant never abandoned his residence in
Joubert Street, Ladybrand for a new residence in
Lesotho. That
abandonment is a prerequisite for a new domicilium of choice.
The defendant’s
stay in Maseru was limited to the periods when he had relations with
me Masenyane and later with plaintiff.
That makes it improbable that
he ever had the intention to abandon his residence in Ladybrand.
Taking in consideration that all
his furniture and even employees
were still at the premises in Joubert Street, and the fact that he
returned there regularly on
weekends speaks against any intention to
abandon his Ladybrand domicile. The defendant also testified that
when he came to South
Africa in 1976 his intention was to settle in
South Africa permanently.
[10]
CONCLUSION:
For these reasons I have
come to the conclusion that the plaintiff established that at the
time of the marriage the defendant was
domiciled in South Africa.
1. It is therefore found
that
1.1 the
domicilium
of the
defendant at the time of the marriage concluded between the parties
was Ladybrand, South Africa;
1.2 the Matrimonial
Property Laws of South Africa is applicable in the divorce action
between the parties.
The costs in this matter
is costs in the divorce action.
____________
C.B. CILLIé, J
On
behalf of plaintiff: Adv.
Haskins
Instructed by:
Lovius Block
BLOEMFONTEIN
On
behalf of defendant: Adv. Grobler
Instructed by:
Kramer, Weihmann &
Joubert
BLOEMFONTEIN
/sp
1
Frankel’s Estate v The Master 1950(1) SA 220 (A) on 244:
Sperling v Sperling
1975 (3) SA 707
(A) on 716F
2
Eilon v Eilon 1965(1)SA 703(A)
3
Compare Ex Parte Minister of Native Affairs
1941 AD 53
on 59
4
LAWSA Vol 2 par 297 p314