Ramailane v Ramailane (818/2004) [2006] ZANCHC 35 (23 June 2006)

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[2006] ZANCHC 35
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Ramailane v Ramailane (818/2004) [2006] ZANCHC 35 (23 June 2006)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
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to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case No: 818/2004
Heard: 01/06/2006
Delivered:
23/06/2006
RAMAILANE
LCS PLAINTIFF
versus
RAMAILANE
MJ DEFENDANT
JUDGMENT
MOKGOHLOA
AJ:
The
parties were married to each other on the 25
th
December 1981 in community of property. Three children were born
out of their marriage, two of whom are still minor namely: (1)
F P R
born on the 1986 and (2) P M R born on the 1992.
The plaintiff
instituted divorce proceedings wherein he claimed a decree of
divorce; custody of F and that custody of P be awarded
to the
defendant, and that the parties to have reciprocal rights of
reasonable access to the children; that plaintiff will pay
maintenance in respect of P in the amount of R1 000.00 per month.
He undertook to be responsible for P’s school fees, school
books,
clothing and reasonable medical expenses; he lastly claimed
forfeiture of the benefits arising from the marriage in community
of
property and costs of suit.
The
Plaintiff enrolled the matter on an unopposed divorce roll and the
matter was heard on the 22
nd
October 2004. However, the then presiding judge
Kgomo
JP
,
was
not satisfied with the forfeiture issue and directed that the Legal
Aid Board assist the defendant to resolve the communal property
issue. The matter was then postponed sine die. The Justice Centre
was then appointed as attorneys of record for the defendant,
but she
was not satisfied with their services, and terminated their mandate
during April 2005. Magabane Inc was appointed as attorneys
of
record, but the defendant ran out of funds, and they also withdrew
during May 2006.
The
plaintiff amended his prayer for forfeiture in his particulars of
claim and substituted it with a prayer for division of the
joint
estate. It was common cause on the pleadings that the marriage
between the parties had broken down irretrievably and that
there
existed no reasonable prospects of the restoration of a normal
marriage relationship between them. The parties have not
been
living together as husband and wife since the 1
st
July 2004.
The
parties held a pre-trial conference on the 19
th
May 2006. The defendant advised the plaintiff’s attorney that she
believed that their marriage relationship had not broken down
irretrievably, and that she is prepared to give the plaintiff a
chance to save the marriage. She further requested that the
plaintiff
pay her maintenance in the amount of R2 500.00 per month
for five years.
The matter
started de novo before me in terms of
section 4(4)
of the
Divorce
Act 70 of 1979
. At the commencement of the trial, I was informed by
the defendant that she understood the proceedings and further that,
although
not legally trained, she will conduct her own defence.
The
plaintiff testified that there were continual fights between them;
the defendant stole the money from the family business and
gave it
to her family members and that he left the common home on the 1
st
July 2004 as he was under tremendous stress caused by the
defendant’s actions. He said that he tried to save the marriage
by
engaging elders in the family and family advocates, all in vain.
He intended filing for a divorce during 1996, but decided against
it, as the younger children were still very small and he did not
want to traumatise them.
The
Defendant testified that the Plaintiff is a good and responsible
person, who is taking care of his children, and is presently
paying
for the bond, the water and electricity of a house where the
defendant and the youngest child reside. She says that if
the
marriage was broken down irretrievably, the plaintiff would not be
doing all these good things. She denied that she stole
money from
the family business. She confirmed that they did attend the Family
Advocate’s offices with the aim of saving the
marriage, but this
did not bring them together. She stated that she asked the
plaintiff to forgive her, but he refused. She further
asked that
the plaintiff pay her maintenance (alimony) in the amount of R1
000.00 per month for a period of one year and that P’s
maintenance
be increased to R1 500.00 per month. The plaintiff at the pre-trial
conference offered to pay alimony to the defendant
for one year.
Although
the defendant had not amended her pleadings wherein she admitted
that their marriage was irretrievably broken down, I nevertheless
allowed her to give evidence which conflicted with this admission,
because she was not legally represented. I further allowed
her to
give evidence as this is a status matter and that the defendant may
show that the marriage is not broken down irretrievably.
In that
event the Court will have a discretion to postpone the matter for 6
months.
It
is clear from the evidence of both parties that attempts to save the
marriage, has proved fruitless. It is also clear that the
parties
have not been staying together as husband and wife for more than 2
years.
Section 4
of the
Divorce Act 70 of 1979
provides as follows:
“(1)
A court may grant a decree of divorce on the ground of the
irretrievable break-down of a marriage if it is 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.
(2) Subject
to the provisions of subsection (1), and without excluding any facts
or circumstances which may be indicative of the
irretrievable
break-down of a marriage, the court may accept evidence-
(a)
that the parties have not lived together as husband and wife for a
continuous period of at least one year immediately prior
to the date
of the institution of the divorce action;
as
proof of the irretrievable break-down of a marriage.
”
I
am therefore satisfied that the marriage relationship between the
parties has broken down irretrievably.
On the question
of costs: The plaintiff was successful and the opposition by the
defendant was unnecessary, because the plaintiff
essentially offered
her every reasonable thing that she asked for. Defendant knew that
the marriage had broken down irretrievable,
and had admitted it in
her pleadings. She must therefore pay half the plaintiff’s costs.
ORDER
The
marriage of the parties is dissolved.
The
plaintiff is ordered to pay maintenance (alimony) to the defendant
in the amount of R1 200.00 per month for a period of two
years from
date of divorce.
Custody
of the minor child F P R is awarded to the plaintiff subject to
defendant’s right of reasonable access.
Custody
of the minor child P M R (born 1992) is awarded to the defendant
subject to plaintiff’s rights of reasonable access at
all
reasonable times, which will include the plaintiff taking the minor
child with him for one weekend a month, and every alternative
long
and short school holidays.
The
Plaintiff is ordered to pay maintenance in respect of P M R in the
amount of R1 500.00 per month for as long as he is legally
liable to
effect such maintenance.
The
Plaintiff is ordered to pay all expenses and disbursements in
respect of P as set out in paragraphs 7.3.1; 7.3.2 and 7.3.4 of
Plaintiffs Particulars of Claim.
Mr
JAN HENDRIK BOOYSEN is appointed as Receiver in order to liquidate
the joint estate of the parties and he will have the following
authority and powers:
To
take all parties possessions into his custody and to administer,
control and maintain same as he sees fit;
To
take out insurance on the assets of the communal estate and to pay
all the outstanding premiums;
To
demand from the plaintiff and the defendant to pay over or to
deliver to him all monies and assets in their possession and
to pay
to him the market price of any assets which may have been sold
improperly;
To
dispose of all assets of the communal estate on such terms and
conditions as he deems appropriate and in the event of either
party
wishing to keep any items, he will sell the said items to them at a
reasonable market value;
To
pay all the debts of the estate including recovering his own fees
and disbursements;
That
the balance of the proceeds realised from the assets is divided
equally between the parties;
The
Receiver is authorised to approach the Honourable Court for
assistance in the event of any problems arising in the execution
of
his authority and powers or if he is not satisfied with any
information as received from the plaintiff or the defendant.
The
defendant is to pay half the plaintiff’s costs of the 1
st
June 2006 only.
___________________
FE
MOKGOHLOA
ACTING
JUDGE
For
the Plaintiff: Mr Pretorius Instructed by: Haarhoffs Attorneys
For
the Defendant: In Person