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[1986] ZASCA 158
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Beaumont v Beaumont (326/1985) [1986] ZASCA 158; [1987] 2 All SA 1 (A) (15 December 1986)
ROBERT ANDREW BEAUMONT
Appellant
and
VALERIE BEAUMONT
Respondent
LL
Case No 326/1985
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
ROBERT ANDREW BEAUMONT
Appellant
and
VALERIE
BEAUMONT
Respondent
CORAM
: TRENGOVE, VILJOEN, BOTHA, JACOBS JJA
et
BOSHOFF AJA
HEARD
: 6 NOVEMBER 1986
DELIVERED
: 15 DECEMBER 1986
JUDGMENT
/
BOTHA JA
...
2.
BOTHA JA
:-
The parties to this appeal were formerly husband and wife. They were married
on 30 May 1964. The mar= riage was dissolved on 27 May
1985 by a decree of
divorce issued in an action instituted in the Witwatersrand Local Division by
the appellant (the husband), as
plaintiff, against the respondent (the wife), as
defendant. The appellant had sued for divorce and ancillary relief and the
respondent
had counterclaimed for a decree of divorce and ancillary relief. The
action was tried by KRIEGLER J. The decree of divorce granted
by him is not in
issue in this appeal. The issues that do arise for considera-tion and decision
relate to certain aspects of the
orders for ancillary relief which the trial
Judge granted in favour of the respondent against the appellant in respect of
the former's
counterclaim against the latter. In that, regard leave to appeal to
this Court was granted to the appellant by the trial Judge.
/The ...
3.
The judgment of KRIEGLER J has been reported: see
Beaumont
v Beaumont
1985 (4) S A 171
(W). The orders made by the learned Judge are
set forth in the reported judgment at 184 J - 185 D. For ease of reference they
are
reproduced here:
"1. I grant a decree of
divorce.
2. The plaintiff is to pay to the defen= dant the sum of R150 000 on or before 1
December 1985.
3. The obligation in para 2 above is to be secured by a first mortgage bond,
to be registered in defendant's favour, over holding 429, North Riding Agricul=
tural Holdings, by not later than 1 July 1985.
4. Pending payment in terms of para 2 above, the plaintiff shall pay mainte=
nance to the defendant at the rate of Rl 400 per month,
the first payment to be
made not later than 7 June 1985, and the monthly payments thereafter to be made
not later than the seventh
day of each month.
5. Once the payment in terms of para 2 above has been made, the plaintiff shall
pay maintenance for the defendant at the rate of
R700 per month, payments to be
effected on the seventh of each month.
6. Custody of the minor children Michelle, Nicolette and Mark, is awarded to
the
/defendant ...
4
defendant, with reasonable rights of access to the plaintiff.
7. The plaintiff is to maintain Michelle
and is to pay to the defendant
mainte=
nance for Nicolette and Mark, in the sum of R250 per month each, payments to be
made contemporaneously with the payment of maintenance
for the defen= dant.
8. The plaintiff is to pay the costs
of
suit."
As I have indicated, the
order contained in para 1 above
is not in issue. . Nor are the ancillary
orders contained
in paras 6, 7 and 8, which relate to the custody and
main=
tenance of the three younger of the four children born
of the
marriage and the costs of the action. The main
matters in dispute are the
orders contained in paras 2
and 5. The remaining orders, contained in paras 3
and 4,
are relevant only to the extent to which they are related
to those
in paras 2 and 5. The order in para 2, i e for
payment by the appellant to
the respondent of a capital
sum of R150 000, was made pursuant to the
provisions of
subsection (3) of section 7, read with subsections (4),
/(5) ...
5.
(5) and (6), of the
Divorce Act 70 of 1979
, all of which were
introduced into that Act by
section 36
(b) of the
Matrimonial Property Act 88 of
1984
. The order in
para 5, i e for payment by the appellant to the respon=
dent of maintenance for the latter in an amount of R700 per month as from
the
date of the payment of the afore= said capital sum, was based on the provisions
of
section 7
(2) of Act 70 of 1979, as amended by section 36 (a) of Act 88 of
1984. The statutory provisions I have men= tioned will be quoted
later. It will
be convenient first to refer to the facts.
The facts constituting the foundation upon which the two orders in question
(paras 2 and 5 above) were based, have been fully canvassed
and incisively
analysed in the reported judgment of KRIEGLER J. Save in some minor respects,
the learned Judge's findings of fact
have not been attacked in this appeal. .
Consequently there is no need to set out the facts in detail. In
/what ...
6.
what follows it will be assumed that the reader of this
judgment will have read the judgment of the trial Judge. For ease of reference
I
propose merely to tabulate the principal findings of fact which may have a
bearing on the outcome of this appeal. In doing so,
I shall, for the sake of
convenience, refer in the present tense to the position in which the parties
found themselves at the time
when the trial was heard; although the facts must
have changed in the meantime in some respects - e g as to the ages of the
parties
- and may have changed in other respects - e g as to the income of the
parties -it is clear on general principles, in my view, that
the appeal must be
dealt with on the footing of the facts as they existed at the trial. In summary,
then, they were found to be as
follows:
1. The antenuptial contract concluded between the parties at the time of their
marriage in 1964 excluded community of property and
of
profit
/and ...
7. and loss and was inconsistent with any accrual sharing. It provided that
household effects to the value of Rl 000 and wedding
gifts were to go to the
respondent.
2. At the time of their marriage neither of the parties had any assets. They
started married life with nothing.
3. During the subsistence of the marriage the appellant, who is a capable and
extremely hard= working man, built up a flourishing
business of his own and
amassed substantial assets. His business, conducted as an integrated whole,
consists of landscape gardening,
a nursery, and the cultivation of trees. His
assets comprise a 6¼ acre agricultural holding in Randburg, three adjoining
pieces
of farmland near Brits, and a half-share in a cottage at Mossel Bay -all
of which are unencumbered - and movable
/assets
...
8.
assets such as motor cars, lorries, tractors and the like. The Randburg holding
has a house with swimming pool on it (this was the
matrimonial home) and the
nursery business is conducted there. The farm properties near Brits are utilised
for the growing of trees.
4. The gross value of the appellant's assets is R500 000. This figure was agreed
upon between the parties after the conclusion of
the evidence in the case. (The
agreement did not allocate specific values to particular assets and the evidence
is inconclusive in
that regard.) The appellant has contingent liabilities for
income tax amounting to some R40 000 to R50 000. That leaves a net asset
value
of his estate of ap= proximately R450 000.
5. In respect of the income received by the appel= lant out of his business, he
experienced two
/record ...
9.
record years in succession. For the year ended February 1983 he returned a
taxable in= come of R57 000 and a turnover of approximately
R250 000. (These
findings of the trial Judge and the evidence on which they were based re= guire
elucidation; I shall revert to this
aspect of the facts later in this
judgment.)
6. During the earlier period of the marriage the respondent went out to work
from time to time ("between pregnancies"), and her earnings
were absorbed in the
family budget. On one occa= sion R900 of her earnings was used to sink and equip
a borehole on the Randburg
property. Later, as the family grew, the respondent
at= tended, virtually exclusively as far as the appellant was concerned, to the
running of the household and the raising of the children. She did so mostly with
no, and occasionally
/with ...
10.
with very limited, assistance of a domestic servant. The appellant gave her a
weekly allowance for buying household necessaries,
which had reached a peak of
R100 per week at the time of the disintegration of the marriage. Throughout the
appellant "kept her on
a shoe-string".
7. Throughout the years the respondent assisted the appellant "in multifarious
ways" in the conduct of his business. (Details are
given in the reported
judgment at 176 G). I quote from the judgment of KRIEGLER J at 177 C - F and 178
I/J:
"There can be no doubt that the defen= dant, for close on 20 years, made
innumer= able contributions to the growth of the plaintiff's
estate. She gave
him her wages; she rendered services in his busi= ness and in his home; she made
do with far less than she was entitled
to by way of domestic help, creature
comforts, enter= tainment, social intercourse and all
the
/elements ...
11.
elements necessary to live with reasonable human dignity. In his pursuit of
money, he totally ignored her right to pursue happiness.
She contributed
directly, indirectly, continuously and capably, to the maintenance and increase
of his estate. That contribution
was very substantial in= deed. The plaintiff
had a secretary and general assistant in his business, a mistress, a housemaid,
a cook,
a seamstress, a scullery maid, a laundress, a nanny, a governess, a
general domestic manager and a messenger. She worked for well
over ten hours per
day, seven days per week, 52 weeks a year. He paid her nothing. Her emoluments
were clothing, board and lodging.
The extent, duration and nature of the con= tribution were extensive. That
contribu= tion played a significant role in enabling the
plaintiff to advance
over 20 years from penury to substantial
wealth."
8. The appellant often used
foul and abusive lang=
uage towards the respondent. He assaulted her.
He formed an association with another woman. At
the end of 1982 he told the respondent in gross=
ly insulting terms that she had to fend for
herself. Thereafter, for eight months, he
/gave
...
12. gave her no money at all for keeping the house= hold going. His matrimonial
misconduct was "certainly gross and prolonged".
9. The appellant left the matrimonial home in June 1983 and the respondent moved
out of it in December 1983. She went to Oudtshoorn,
where she obtained a flat at
a rental of R290 per month. The two younger children are staying with her and
the other two (who are
in Cape Town) visit regularly over week-ends. She is
unemployed. She tried to obtain morning employment; the youngest child requires
her assistance in the afternoons with reading and writing problems that he has.
I quote again from the judgment of KRIEGLER J, at
178 B/C
-D/E:
"Her attempts at obtaining employment were unsuccessful. It is not surprising.
Although the defendant is an attractive woman with
a relatively forceful
personality
/and ...
13.
and is fairly articulate, she has no qualifications fitting her for ordinary
commercial employment. She matriculated some 25 years
ago and has been a
household drudge for virtually the whole of her adult life.
The plaintiff testified that the defendant had little useful knowledge of the
nursery business and is temperamentally unsuited to
serving customers. Moreover
the defendant has been receiving medication for several years for a stomach
ulcer and for depression.
A woman with her back= ground, of her age, with her
personality and with minor children to care for, is singularly disadvantaged
in
the labour
market."
10. When the respondent left the matrimonial home she took with her the
household furniture and a motor car. These assets are worth
about R10 000. She
owes relatives of her R7 000, which she was obliged to borrow from them be=
cause the amount of Rl 000 per month
which the appellant had been paying her as
maintenance
pendente lite
was insufficient to provide in her needs. So
the net value of her assets is
/no ...
14: no more than R3 000.
11. The reasonable requirements of the respondent by way of maintenance for
herself amount to roughly Rl 400 per month, inclusive
of the rental of the flat.
The details of the cal = culation of this amount are set out in the reported
judgment at 183 B - I.
12. The appellant is 45 years old and the respondent 43.
I revert now to the statutory provisions men=
tioned
earlier. For convenience I quote the whole of
section 7
of the
Divorce Act,
1979
, as amended and added to by
section 36
of the
Matrimonial Property Act,
1984
:
"7. (1) A court granting a decree of divorce may in accordance with a written
agreement between the parties make an order with regard
to the division of the
assets of the parties or the payment of maintenance by the one party to the
other.
(2) In the absence of an order made in terms of subsection (1) with regard to
the
/payment ...
15.
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 mar= riage, the standard of living of the
parties prior to the divorce, their conduct in so far as it may be relevant to
the
break-down of the marriage, an order in terms of subsection (3) and any
other factor 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
remarriage of the party in whose favour the order is given, whichever event may
first occur.
(3)
A court granting a decree
of divorce in respect of a marriage out of community of property entered into
before the commencement of
the
Matrimonial Property Act, 1984
, in terms of an
antenuptial contract by which community of property, community of profit and
loss and accrual sharing in any form
are excluded, may, subject to the
provisions of subsection (4), (5) and (6), on application by one of the par=
ties to that marriage,
in the absence of any agreement between them regarding
the division of their assets, order that such assets, or such part of the
assets, of the other party as the court may deem just be transferred to the
first-mentioned party.
(4)
An order under
subsection (3) shall not be granted unless the court is satisfied that it is
equitable and just by reason of the
/fact ...
16.
fact that the party in whose favour the order is granted, contributed
directly or indirectly to the maintenance or increase of the
estate of the other
party during the subsistence of the marriage, either by the rendering of ser=
vices, or the saving of expenses
which would have otherwise have been incurred,
or in any other manner.
(5) In the determination of the assets
or part of the assets to be
transferred as
contemplated in subsection (3) the court shall,
apart from
any direct or indirect contribution
made by the party concerned to the
maintenance
or increase of the estate of the other party as
contemplated
in subsection (4), also take into
account—
(a) the existing means and obligations of the parties;
(b) any donation made by one party to the other during the subsistence of the
marriage, or which is owing and en= forceable in terms
of the antenuptial
contract concerned;
(c) any order which the court grants under
section 9
of this Act or under any
other law which affects the patrimonial position of the parties; and
(d) any other factor which should in the opinion of the court be taken into
account.
(6) A court granting an order under sub=
section (3) may, on
application by the party against whom the order is granted, order that
satisfaction of the order be deferred on
such
/conditions ...
17.
conditions, including conditions relating to the furnishing of security, the
payment of interest, the payment of instalments, and
the delivery or transfer of
specified assets, as the court may deem
just."
Subsection (1) does not apply in the present
case, since the parties did not enter into any agreement as contemplated
therein. The
absence of an order made in terms of subsection (1) enables
subsection (2) to come into operation, having regard to the opening words
of the
latter, while the absence of any agreement makes it possible to apply subsection
(3), having regard to the words therein,
"in the absence of any agreement
between them regarding the division of their assets", subject, of course, to the
other prerequisites
for its application being satisfied.
Subsection (2) was amended in 1984 by the addition to the matters enumerated
as considerations to which a court must have regard in
applying it, of a further
factor to be taken into account, viz "an order
/in ...
18.
in terms of subsection (3)". The amendment established an interrelationship
between subsections (2) and (3). The nature, extent and
effect of that
interrelationship will be examined later in this judgment. The factors which the
court is required to consider in
terms of subsection (2) are tabulated in the
judgment of KRIEGLER J at 174 D (but there is a typographical error in his
paragraph
(1): the word "needs" should read "means"). These factors will be
referred to again later in this judgment, when I come to deal with
their
application to the facts of this case. At this stage I would merely point to the
very wide discretion which the subsection
confers upon a court in deciding upon
"an order which the court finds just ....", which is underscored by the words
"and any other
factor which in the opinion of the court should be taken into
account". An illustration of what can be taken into consideration under
this
head= ing is afforded by the observation of VAN DEN HEEVER J
/in ...
19.
in
Nilsson v Nilsson
1984 (2) S A 294
(C) at 297 F,
with which I agree:
"One of the factors that must be considered in quantifying a woman's claim to
maintenance is what she herself put into the marriage,
whether in cash or in
kind (tolerance, patience, frugality, etc.
etc)."
Although this was said prior to the
introduction of sub= sections (3) to (6) into the Act, the observation retains
its relevance,
I consider, when under the new dispensation it is found that an
order in terms of subsection (2) is called for, and the quantification
of it is
being con= sidered.
Subsection (3) introduced an entirely novel concept into this branch of our
law: the power of a court under certain circumstances
to order the transfer of
assets of the one spouse to the. other. An order in terms of subsection (3) may
conveniently be referred
to as a redistribution order. The creation of a power
enabling a court to make a redistribution order was
/obviously ...
20.
obviously a reforming and remedial measure (
c f
KRIEGLER J at 179 G/H). What the measure was designed to remedy is trenchantly
demonstrated by the facts of the present case: the
inequity which could flow
from the failure of the law to recognise a right of a spouse upon divorce to
claim an adjustment of a disparity
between the respec= tive assets of the
spouses which is incommensurate with their respective contributions during the
subsistence
of the marriage to the maintenance or increase of the estate of the
one or the other.
Subsection (3) contains in itself a number
of
prerequisites that must be satisfied before an
order can be made in terms of it, apart from those which are in= corporated in
it by
reference to subsection (4). The marriage must have been entered into
before the coming into operation of the 1984 Act. That requirement
is satisfied
in the present case. (I need not concern my= self in this judgment with the
debate in academic circles
/as ...
21.
as to the desirability or otherwise of this requirement.) The
marriage must have been entered into in terms of an antenuptial contract
excluding community of property and of profit and loss and any form of accrual
sharing. In the present case the parties' antenuptial
contract was in a standard
form, expressly excluding community of property and of profit and loss. As
mentioned earlier, KRIEGLER
J found that it was inconsistent with any accrual
sharing. It was rightly not contended that this finding was not justified or
that
this requirement of the subsection was not satisfied. As KRIEGLER J pointed
out (at 175 B), the possibility of making a redistribution
order was created
concomitantly with the introduction of a system of accrual sharing in Chapter
lof the 1984 Act. The Legislature
could not have intended an express exclusion
of the type of accrual sharing envisaged in the 1984 Act to be a prerequisite
for the
application of subsection (3), introduced by the same Act. Consequently
the express
/exclusion ...
22.
exclusion of community of property and of profit and loss in
a pre-1984 standard form of antenuptial contract must be taken to embrace
an
implied exclusion of "accrual sharing in any form", sufficient for the purposes
of sub= section (3). Next, the subsection requires
an "appli= cation" to be made
for a redistribution order. Since only a "court granting a decree of divorce" is
empowered to make
such an order, the contemplated "application" will, in
practice, take the form of a claim put forward in the pleadings in the action.
This was done in the present case: the respondent in her counterclaim made the
necessary allegations to show that the prerequisites
for making a redistribution
order were satisfied and claimed an order for the transfer to her of such part
of the appellant's assets
as the court might deem just. (No point was made of
the fact that the exact nature and ex= tent of the order sought were not
particularised.)
The presence in this case of the requirement that there
must
/be ...
23.
be no agreement between the parties as to the division of their assets has
already been noted. On satisfaction of the requirements
laid down in subsection
(3) itself and those incorporated by reference to subsection (4), the court may
order the transfer of such
assets or such part of the assets of the one spouse
to the other "as the court may deem just". In this respect the wording of
subsection
(3) is substantially the same as that of subsection (2). The
Legislature clearly intended to confer a very wide discretion upon a
court
exercising its jurisdiction under subsection (3). This is high= lighted by the
provisions of subsection (5), to which reference
will be made presently.
Subsection (4), in the words of KRIEGLER J (at 175 B/C), "contains two
conjoined jurisdictional precon= ditions to the exercise of
the discretion". The
one is a contribution by the one spouse to the estate of the other, of a kind
described in the subsection; the
wording
/of ...
24.
of the subsection in this regard and its meaning and effect
will be examined later in this judgment. The other is that the court must
be
satisfied that, by reason of such a contribution, it would be "equitable and
just" to make a redistribution order. The first reguirement
involves a purely
factual finding. The second involves the exercise of a purely discretionary
judgment in equity. It is certainly
a very prominent and important feature of
subsection (4) that ultimately, when once the factual re= guirements of
subsections (3)
and (4) are satisfied, the determination of whether or not a
redistribution order is to be made at all is entrusted by the Legislature
to the
wholly unfettered discretionary judgment of the court as to whether it would be
equitable and just to do so.
Subsection (5) prescribes the considerations which the court must take into
account in the determina= tion of the assets or part of
the assets to be
transferred in terms of a redistribution order. First and foremost
/is ...
25.
is the contribution by the one spouse to the estate of the
other, by which is obviously meant the nature and extent of the contribution,
Next to be considered, in terms of para (a), are the existing means and
obligations of the parties. The application of these considerations
to the facts
of the present case will be dealt with later. Para (b) refers to any donation
made by one party to the other during
the subsistence of the marriage or which
is owing and enforceable in terms of their antenuptial con= tract. These facts
are of no
real consequence in the present case. As to the donation in the
antenuptial con= tract, I agree with KRIEGLER J that "It is a trifle
in the
present context" (at 179 A). The same applies to the donations made by the
appellant to the respondent during the subsistence
of the marriage (see KRIEGLER
J's remarks at 177 A/B). Para (c) refers to any forfeiture order made under
section 9 of the Act or
under any other law. This plays no role in the present
case. Lastly,
/para (d) ...
26.
para (d) mentions "any other factor which should in the
opinion of the court be taken into account." It is this feature of subsection
(5), coupled with the paucity of the considerations mentioned in the preceding
paras (a) - (c), to which I referred earlier as highlighting
the very wide
discretion which a court is given in the exercise of its power to make a
redistribution order.
Subsection (6) mentions a number of forms in which a redistribution order can
be cast, on the appli= cation of the party against whom
it is made. The pos=
sibility of "the payment of instalments", in the con= text of the facts of the
present case, will be referred
to later. At this stage it may be noted that
subsec= tions (3) and (6) do not in express terms authorise an order for the
payment
of a lump sum in cash which is not available as an existing "asset" at
the time the order is made, but which the party against whom
the order is made
is required to raise by means of passing
/a ...
27.
a mortgage bond over his property, as in the present case.
'However, in argument no point was made of this, quite rightly in my view.
The
Legislature clearly in= tended the court to have the widest powers in relation
to the form of a redistribution order, and I agree
with the conclusion of
KRIEGLER J (at 175 F) that "there are no express or implied limits to the
mechanics of the redistribution."
Consequently, in my opinion, the order for the
payment of R150 000 in the present case falls within the ambit of the statutory
provisions,
as being a mode of the transfer of part of the assets of the
appellant to the respondent.
In my review of the provisions of section 7 above I have singled out certain
aspects to stand over for separate examination later.
Before I turn to those
matters, it is necessary to say something in general about the nature of the
argument which was addressed
to us on behalf of the appellant. His counsel
presented
/us ...
28.
us with the fruits of a thorough research into the com=
parable legislation in England and Scotland, and we were referred to a large
number of decided cases, re= ports of law commissions, textbooks, and articles
in law journals, relating to recent developments of
the law in those
jurisdictions. I have found a study of all this material extremely helpful as
providing an in= formative general
background against which to consider the
broadly similar new dispensation which the Legisla= ture introduced into our law
by the
1984 Act. (I might add that I have also come across a useful comparative
study covering a wider field, including a survey of the
comparable legislation
in countries such as Australia and New Zealand, in an article by Nicholas D C
Dillon published in XIX
(1986) CILSA 271
under the title: "The financial
consequences of divorce:
s 7
(3) of the
Divorce Act 1979
- a comparative
study".) Having said that, however, I must make it clear that I do not intend
to
/embark ...
29.
embark upon a general discussion of the similarities and
dissimilarities emerging from a comparison between our legislation and that
of
other countries. I am con= cerned in this judgment with the resolution of
specific issues between the parties to this litigation,
arising out of the
particular facts of this case. Accordingly I shall limit my references to the
overseas legislation and literature
to which we have been referred to in=
stances in which I consider such to be directly pertinent to the particular
questions that
fall to be answered in this case.
Allied to the remarks I have just made, is my response to the invitation
extended to us by counsel for the appellant to lay down "guidelines"
as to how
subsec= tion (3) should be applied in practice. To the extent that the
invitation would have us consider hypothetical situations
not arising for
decision on the facts of this case, it is politely but firmly declined. I have
taken
/note ...
30.
note of the pleas by some overseas authors for the courts to
formulate guidelines concerning the making of redistri= bution orders,
so that
practitioners may be the better enabled to advise their clients what to expect
and to facilitate settlements without having
recourse to pro= tracted and
expensive litigation (see e g Ruth Deech, "Financial Relief: the retreat from
precedent and prin= ciple",
in
98 (1982) L Q R 621
; J Gareth Miller, "The reform
of the law relating to financial provision and matrimonial property", in
15
(1984) Cambrian L R 73
; J M Thomson, "Financial Provision on Divorce: In quest
of some principles", in 1985 Scots L T 29; and
c f
generally, Cretney,
Principles of Family Law
, 4th ed, at 849 - 851). I am not impressed by
these pleas, nor by the criticism of the courts for failing to heed them. I do
not
believe that any attempt to formulate guide= lines outside the wide criteria
mentioned by the Legisla= ture itself would be a useful,
or even a feasible,
/exercise ...
31.
exercise. The truth of the matter is that there is
such an
infinite variety of circumstances under which
subsection (3) falls to be
applied that any attempt to
lay down guidelines as to the manner in which the
court's
discretion is to be exercised is likely to increase un=
certainty
rather than to reduce it. On the other hand,
guidelines laid down by the
courts may result in a
rigidity of approach displacing the flexibility
envisaged
by the Legislature itself. The English courts have,
for the most part, declined to lay down guidelines. For
instance, ORMROD L J said, in one particular context:
".... it is unwise to make statements of general application in these cases. The
danger of creating rigid rules of practice is too
great."
(
O'D v O'D
(1976) Fam 83
(C A) at 92
A/B; and, in another:
"It is inevitable that there will be a high degree of uncertainty. We have said
before that, however much that is to be regretted,
there is no way of avoiding
it of which I
/am ...
32.
am aware, and I have never heard anyone sug= gest a way in which this
uncertainty can be reduced."
(
Potter v Potter
(1982) 1 W L R 1255
(C A) at 1260 E.) A notable exception is the judgment of
LORD DENNING M R in
Wachtel v Wachtel
(1973) 1 All E R 829
(C A). KRIEG=
LER J in his judgment (at 180 D - 181 F) quoted that part of LORD DENNING's
judgment in which he advocated the al=
location of one-third of the family
assets to the wife as a guideline in the form of no more than "a starting
point". I shall deal
later with the merits of this approach. For present
purposes I refer to LORD DENNING's approach in order to show what its fate was
in the sub= sequent development of the law. Although LORD DEN= NING's one-third
starting point was applied in many cases, there were
also a number of cases in
which the English courts, for a variety of reasons, refused to make use of such
a starting point: see e
g
Potter v Potter supra per
DUNN L J at 1257 F
and
per
ORMROD L J at 1260 E;
/
S v S
...
33.
S v S
(1980) 10 Fam Law 240
(C A);
Page v Page
(1981) 11 FamLaw 149
(C A); and the quotations from other cases (not available
to me) cited in
Dillon
's article in XIX (1986) CILSA at 284 note 71.
Cretney
op
cit
, in the course of a survey of the application of
the one-third principle in the English courts, says the follow= ing (at
830):
"It would thus seem to be premature to say that the one-third principle is dead
although its applicability (as we shall see, already
restricted to a
comparatively narrow range of cases) will be even further eroded in
scope."
It seems to me fair to say that LORD
DENNING's attempt to establish a guideline in the form of a one-third starting
point has created
more problems than it resolved, and although an obituary may
be inappropriate as yet, it is likely that this guideline will eventually
come
to nought. In our legislation the feature of overriding importance in the
exercise of the court's discretion as to what proportion
of assets is to be
transferred in
/terms ...
34.
terms of subsection (3) is the court's assessment of what
would be "just", having regard to the factors mentioned specifically and
to "any
other factor which should in the opinion of the court be taken into account."
This power has to be exercised in widely divergent
circumstan= ces, as is
illustrated by comparing the facts of the present case with those in the other
cases decided under the new
legislation and reported up to date - see
Van
Gysen v Van Gysen
1986 (1) S A 56
(C),
MacGregor v Mac= Gregor
1986 (3) S A 644
(C), and
Kroon v Kroon
1986 S A 616
(C). The Legislature
has seen fit to confer a wide discretion upon the courts, and the flexibility in
the application of subsection
(3) thus created ought not, in my judgment, to be
curtailed by placing judicial glos= ses on the subsection in the form of
guidelines
as to the determination of what would be a just redistribution
order.
In the present case, however, the arguments ad= dressed to us have raised a
number of questions of principle
/relating ...
35.
relating to the interpretation ahd manner of application of
subsections (2), (3) and (4), which require to be answered. They relate
to those
aspects of the provi= sions which I indicated earlier would stand over for
examination. It is to these that I now turn.
The first matter I propose to discuss is the interrelationship between
subsections (2) and (3). I said earlier that such an interrelationship
was
established by the introduction into subsection (2), in 1984, of a reference to
an order under subsection (3), as one of the
matters to which regard must be had
in deciding upon an order in terms of subsection (2). I agree in this respect
with what was said
by KRIEGLER J at 180 B of his judgment. Counsel for the
appellant, however, sought to place a restricted, one-sided operation on
the
interrelationship between the two subsections, which was based on the ab= sence
in subsections (3) and (5) of any corresponding
reference to an order made under
subsection (2) as being
/relevant ...
36.
relevant to an order in terms of subsection (3). From this it
followed, so it was argued, that the court was required first to consider
an
appropriate order in terms of subsection (3), on its own, and only thereafter to
ap= ply its mind to the possibility of making
a further order in terms of
subsection (2). From the judgment of KRIEGLER J it is clear that when he decided
upon the sum of R150
000 to be paid in terms of subsection (3) he had already
made up his mind that he would also make an order in terms of subsection
(2);
otherwise he might well have awarded a higher sum under subsection (3) (see at
181 G and 184 D - E). This, counsel argued, was
putting the cart before the
horse. Hence it was contended that the trial Judge had misdirected himself. I am
unable to agree with
this argument. In my opinion it ascribes to the absence of
a reference in subsections (3) and (5) to subsection (2) a significance
which is
unwarranted. I cannot imagine that the Legislature could have intended,
/in ...
37.
in such oblique a manner, to require the court to shut its
eyes to the possibility of making an order in terms of subsection (2) when
considering what order to make in terms of subsection (3). If the court should
find, for whatever reason (and that there may be many
valid ones cannot be
doubted), that an order in terms of sub= section (2) is necessary in order to do
justice between the parties,
it is clear, in my view, that such an order would
qualify to be taken into account under the wide terms of para (d) of subsection
(5) in determining the nature or extent of a redistribution order which is to be
made in terms of subsection (3). Counsel's argument
would prevent the court from
taking an overall view, from the outset, of how justice could best be achieved
between the parties in
the light of possible orders under either subsection (2)
or subsection (3) or both subsections, in relation to the means and obligations,
and the needs of the parties, and all the other relevant factors. In my
/opinion ...
38.
opinion such a limitation on the court's exercise of its
discretion in terms of the section as a whole was not intended by the
Legislature
and must be rejected.
Arising from and related to the interrelation= ship between subsections (2)
and (3) there are two further matters which were raised
in argument before us
and which may conveniently be discussed at this stage. The first is the
so-called "clean break" principle and
the second the role of the "misconduct" of
either of the parties. I shall deal with each of these matters in turn.
With regard to the "clean break" principle, a 'brief reference to the
pqsition in the English law might be a useful introduction to
the discussion.
Under the English legislation the courts were at first enjoined, broadly
speaking, to exercise their powers in such
a way as to place the parties as far
as possible in the finan= cial position in which they would have been if the
marriage had not
broken down (see
Cretney op cit
at 760). This
/so-called ...
39.
so-called "statutory objective" is a concept wholly foreign to our
legislation and we must ignore it. It was abolished in England
by the amending
legislation of 1984, which at the same time introduced a new section (25 A) into
the English Act. In terms of section
25 A it is now the duty of the English
courts to consider whether it would be appropriate so to exercise their powers
that the financial
obligations of each party to the other will be terminated as
soon after the grant of the decree of divorce as the court considers
just and
reasonable (see
Cretney op cit
at 820-1). In other words, the English
legislation now seeks to foster the imposition of a "clean break" in appropriate
cases (
Cretney op cit
at 835). Our legislation contains no corresponding
provision, but in this instance I do not consider the concept underlying it to
be foreign to our law. On the contrary, there is no doubt in my mind that our
courts will always bear in mind the possibility
/of ...
40.
of using their powers under the new dispensation in such a
way as to achieve a complete termination of the finan= cial dependence
of the
one party on the other, if the circumstances permit. The last-mentioned
qualification is, of course, very important; I shall
return to it in a moment.
The advantages of achieving a "clean break" between the parties are obvious; I
do not think they need be
elaborated upon. The manner of achieving such a result
is, of course, by making only a redistribution order in terms of subsection
(3)
and no maintenance order in terms of subsection (2). What I have said earlier
with regard to the court taking an overall view,
from the outset, of the
possibility of making an order or orders under either subsection (2) or
subsection (3) or both, does not
mean that the court will not consider specifi=
cally the desirability in any case of making only a re= distribution order and
awarding
no maintenance, having regard particularly to the feasibility of
following such
/a ...
41.
a course. With regard to the latter and to the quali=
fication'I stressed a moment ago ("if the circumstances permit"), there will
no
doubt be many cases in which the constraints imposed by the facts (the financial
position of the parties, their respective means,
obligations and needs, and
other relevant factors) will not allow justice to be done between the parties by
effecting a final ter=
mination of the financial dependence of the one on the
other. In the end everything will depend on the facts and the court's assessment
of what would be just. I do not propose to take the matter further than that. In
the present case, KRIEGLER J was undoubtedly alive
to the possibility of making
only a redistribution order: he expressly acknowledged (at 175 E) "an intention
on the part of the Legislature
to permit a 'settling of accounts' upon divorce -
and a final one." From his judgment as a whole it is apparent, in my view, that
he considered the possibility and decided against it because
/justice ...
42.
justice could not be achieved by following that course: if
the appellant were ordered only to pay a capital sum to the respondent
and no
maintenance were to be awarded to the latter, undue hardship would have been
caused, either to the appellant (because the
amount of the capital to be paid
would have required too onerous an encumbrance to be placed on the appellant's
income-producing
assets) or to the respondent (because the amount of the capital
to be paid would have been too small to provide in her needs in respect
of a
home for herself and the children and a reasonable income for herself). In my
judgment, the approach adopted by the learned
trial Judge with re= gard to this
aspect of the case cannot be faulted.
With regard to the role of the "misconduct" of the parties, counsel for the
appellant pointed to the fact that the parties' "conduct
in so far as it may be
relevant to the break-down of the marriage" was mentioned in subsection (2) as
one of the factors to be taken
into
/account ...
43.
account in deciding upon a maintenance order, but that there
was no corresponding provision in subsections (3) and (5) in relation
to a
redistribution order. Counsel argued that after the introduction into our law of
the "no fault" principle in regard to divorce,
by the
Divorce Act of 1979
, the
Legislature must have intended that "fault" or "misconduct" should play no role
at all in connection with the making of redistribution
orders in terms of
subsection (3). KRIEGLER J, however, so the argument continued, in effect gave
simultaneous consider= ation to
both an order under subsection (2) and an order
under subsection (3), and since he took the appellant's misconduct in relation
to
the break-down of the marriage into account in connection with subsection (2)
(see at 184 F), he must perforce have done so too,
albeit in= directly, in
connection with subsection (3). This was not permitted by the Legislature, so it
was contended, and therefore
the trial Judge had misdirected himself.
/I ...
44.
I do not agree with this argument. To the extent that
KRIEGLER J may, as counsel suggested, in effect and in= directly have taken
the
appellant's misconduct into account in deciding upon a redistribution order, I
have no doubt that he was entitled to do so by
virtue of the wide import of the
wording of para (d) of subsection (5), by which he was empowered to have regard
to "any other factor
which should in the opinion of the court be taken into
account." In any event, I would go even further, and this I must say, although
it is not necessary for the purposes of this case to do so, lest there be any
misunderstanding about my viewpoint: in my opinion
the court is entitled, in
terms of the wide words of para (d) of subsection (5) that I have quoted, to
take a party's misconduct
into account even when only a redistribution order is
being considered under subsection (3), and where no maintenance order under
subsection (2) is made. But I should add at once that I am convinced that our
courts
/will ...
45.
will adopt a conservative approach in assessing a party's
misconduct as a relevant factor, whether under subsection (2) or subsection
(3).
In this regard a brief reference to the position in the English law will be
useful. At first the English legislation contained
a general refer= ence to the
parties' conduct as a relevant factor in the context of the "statutory
objective" which I mentioned
earlier (see
Cretney op cit
at 760). Under
that dispen= sation LORD DENNING in
Wachtel
's case
supra
(at 835
j) held, to put it briefly, that only conduct which could be described as "both
obvious and gross" would be taken into account.
In other cases other epithets
were used to describe the degree of seriousness of the misconduct which was
required before it would
be taken into account (see
Cretney op cit
at
797-8 and 802). When the "statutory objective" was abolished in 1984, the
English Legislature added a further factor to the list
which the courts were
directed to consider in exercising their
/powers ...
46. powers (para (g) of section 25 (1) of the English Act),
reading as follows:
"the conduct of each of the parties, if that conduct is such that it would in
the opinion of the court be inequitable to disregard
it."
In my view the sense of this provision reflects
the man= ner in which our courts are likely to deal with the mis= conduct of the
parties
in assessing its relevance as a factor to be taken into consideration.
In our legis= lation, as I have pointed out, the feature of
overriding
importance is that the court will grant such order, in respect of both
subsection (2) and subsection (3), as it considers
to be just. The directive of
the English legislation that I have quoted is thus in accordance with the
pattern of our legislation.
In many, probably most, cases, both parties will be
to blame, in the sense of having contributed to the break-down of the marriage
(see
per
LORD DENNING in
Wachtel
's case
supra
at 835 g). In
such cases, where there is no conspicuous disparity
/between ...
47.
between the conduct of the one party and that of the
other,our courts will not indulge in an exercise to apportion the fault of the
parties, and thus nullify the advantages of the "no fault" system of divorce.
But in the present case the misconduct was found to
have existed on the part of
the appellant only, and it was found to have been "certainly gross and
prolonged". Upon that footing
KRIEGLER J was fully justified in taking it into
account as a relevant factor, as he did. Counsel for the appellant submitted
that
the orders granted were "punitive". However, KRIEGLER J expressly disavowed
any intention on his part to "impose a purely penal sanction
for the plaintiff's
misconduct under the guise of maintenance" (at 184 E/F). It is true that the
learned Judge did not indicate in
precisely what manner he was giving effect to
the appellant's misconduct as a relevant factor in deciding upon a figure in
respect
of maintenance, but in my view.he was not required to do so
/and ...
48.
and he cannot be faulted for not having done so. I cannot imagine that a
court must go through a process of first fixing a particular
amount that might
have been appropriate in the absence of any misconduct and there= after read
justing it by means of a percentage
or a spe= cific proportion because of the
misconduct. There is no need to quantify, in whatever way, the weight to be
accorded to
each relevant factor; a mathematical approach would be out of place.
In consonance with my aversion to guidelines I shall not enter
into a discussion
generally as to how a court could or should give effect to a finding of relevant
misconduct. As it happens, however,
the facts of the present case afford an
excellent example of one way in which it can be done, and which, I consider, was
in all probability
present to the mind of the learned trial Judge. In some areas
the available facts in this case do not allow of a precise assessment
of the
financial position in which the parties are likely to find themselves in the
/immediate ...
49. immediate or the more distant future, either because of
the paucity of the information which was placed before the Court
a quo
,
or simply because of the uncertainty as to what the future holds. Examples are:
the respondent's prospects of finding employment
for herself; what it would cost
the respondent to acquire a reasonably comfor= table home for herself and the
children (those who
are staying with her and those who will come to visit); and
the appellant's net available income. (These matters will be referred
to again
later). Both parties will inevitably suffer hardship because of the parting of
their ways. In relátion to the areas
of uncertainty it is impossible to
assess accurately the relative degrees of hardship which each of the parties
will suffer, depending
upon what assumptions are to be made. Where choices are
to be made and decisions to be taken in the dark, as it were, and where the
areas of uncertainty are not due to any remissness on the part of the respondent
to place available information before the court,
it would be fair, because of
the appellant's misconduct, to allow the scales of justice to be tipped
/in ...
50.
in favour of the respondent and against the appellant, rather
than the reverse. So, for instance, with regard to the respondent's
prospects of
finding employment, one should find some balance in favour of the assumption
that she will not obtain work (although
not necessarily giving full effect to
such assumption), for justice requires that it should be the appellant who must
suffer the
hard= ship of paying an ádditional amount of maintenance,
beyond what may turn out to be strictly necessary, rather than to
allow the
respondent to suffer the hardship of an in= adequate income if in fact she does
not find employment. I think this is probably
the way in which the trial Judge
approached the matter. In any event, this will be my approach when I come to
look at the facts more
closely later on.
I turn now to the next aspect of the legisla= tive provisions that requires
examination. It is the manner in which the Legislature,
in subsection (4),
has
/circumscribed ...
51.
circumscribed the nature of the contribution which the one
party is required to have made to the estate of the other, as a prerequisite
for
the issuing of a redistri= bution order. In the argument of counsel for the
appel= lant this aspect of the legislation assumed
great importance. In spite of
that, in the view I take of the matter, the argument on this point can be
disposed of easily. It rested
on the premise that under our common law the
spouses owe a reciprocal duty of support to each other. Typically, it was said,
it is
the husband who, out of his income, provides his wife and family with sup=
port, and in return, the wife's primary duty is to per=
form her traditional
role as wife and mother by managing the household and looking after the children
of the mar= riage. So far so
good. The crux of the argument then was that the
Legislature could not have intended a con= tribution by either spouse, made
purely
in the discharge of the common law duty of support as described above,
to
/qualify ...
52.
qualify as a contribution which entitled the spouse making it
to claim "compensation" for it in the form of a re= distribution order.
Something more was required: a contribution which exceeded the bounds of the
duty of support which existed
ex lege
, which went beyond the call of
duty, as it were. Counsel conceded, on the facts of the present case, that the
respondent had contributed
more than had been required of her by law, but argued
that the court was obliged, in considering a redistribu= tion order, to
differentiate
between what was legally due and what went beyond that. Putting it
graphically, counsel said that the respondent was entitled to
a claim in respect
of the services she had rendered as a secre= tary in the appellant's business,
but not in respect of the services
she had rendered as a nanny looking after the
children. In my opinion this argument is quite un= tenable. The simple, and also
the
complete, answer to it is to be found in the language of the
Legislature.
/In ...
53.
In terms of subsection (4), what is required is that the
claimant for a redistribution order must have
"contributed directly or indirectly to the maintenance or increase of the estate
of the other party during the subsistence of the
marriage, either by the
rendering of services, or the saving of expenses which would otherwise have been
incurred, or in any other
manner."
In these words
one searches in vain for any suggestion of a qualification of the nature of the
contribution re= quired, in the sense
contended for by counsel. To read the
words used by the Legislature subject to the restric= tion contended for, would
compel one
to import into the subsection a notion which is simply not to be
found there, and for the implication of which I can find no warrant
whatever.
Counsel relied strongly on an article by Prof J C Sonnekus, "Egskeiding en
Kwantifi= sering van die Bydrae tot die Ander
Gade se Boedel -Artikel 7 (3) -
(5) van die Wet op Egskeidings 70 van 1979", in 103 (1986) S A L J 367. In that
article Prof
/Sonnekus ...
54.
Sonnekus propounds the theory that only a contribution which exceeds that
which a spouse is required to make by virtue of the common
law duty of support
(i e what is referred to as a "meer-bydrae") is relevant for the pur= poses of
subsection (4) - see especially
at 373 para 10 and 378 para 15. With respect to
the learned author, I have carefully studied the arguments advanced by him in
support
of his theory, and having done so, I have no hesitation in firmly
rejecting it. Upon analysis, the theory rests mainly on a comparison
of the
wording of our legislation with that of the corresponding provision in the
English legislation (see the concluding portion
of para 1 at the top of 368) and
on some aspects of the history of our legislation (see para 12 (a) at 375-6 and
paras 13 and 14
at 377-8). With regard to the English legislation, the courts
are reguired (para (f) of sec= tion 25 (1) of the English Act) to take
into
account
"the contributions which each of the parties
/has ...
55.
has made or is likely in the foreseeable
future to make to the welfare of the family, including any contribution by
looking after the home or caring for the
family."
Prof Sonnekus sees an important point of
distinction in the fact that the English legislation refers specifically to
contributions
"to the welfare of the family, including any contribution by
looking after the home or caring for the family" (in other jurisdictions,
such
as Australia and New Zealand, there are apparently also provisions referring
specifically to homecare services as something
to be looked at by the courts -
see the article by
Dillon
. in XIX (1986) CILSA at 281-2), whereas our
legislature refers specifically to a contribution "to the maintenance or
increase of
the estate of the other party". In my opinion, however, there is no
significance in the dif= ferences in wording, at all events in
relation to the
issue now under discussion, viz whether a contribution in the form of a
discharge of the common law duty of
/support ...
56.
support qualifies as a contribution for the purposes of
subsection (4). (What effect the differences in wording may have in other
directions is not a matter arising for consideration in this case - e g where
despite the wife's homecare services the husband has
not built up any estate and
an inheritance comes his way shortly before the divorce.) Our legislation does
refer specifically to
contributions made "directly
or indirectly
.... by
the
rendering of services
, or the
saving of expenses
.... or
in
any other manner
". In my view there can be no doubt that the plain meaning
of these words is so wide that they embrace the performance by the wife
of her
ordinary duties of "looking after the home" and "caring for the family"; by
doing that, she is assuredly rendering ser= vices
and saving expenses which must
necessarily contri= bute indirectly to the maintenance or increase of the
husband's estate. With regard
to the history of our legislation, as referred to
by Prof Sonnekus, I do not
/find ...
57.
find it necessary to deal with that. It is not permis= sible
to use the reports of select committees and kindred matters to manufacture
a
doubt as to the Legis= lature's intention where none arises from the language
ultimately used by it.
Having at last completed my survey of the pro= visions of section 7, I can
now turn my attention to the gravamen of counsel for the
appellant's attack on
the judgment of KRIEGLER J. It was that the learned Judge had not exercised his
discretion properly, having
regard particularly to the cumulative effect of the
redistri= bution order and the maintenance order that he made. On that basis
it
was argued that this Court was at large to consider the matter afresh, and in
doing so we were urged to find that an order in
terms of the tender made on
behalf of the appellant at the trial would meet the demands of justice (i e for
the payment of R125 000,
with interest, in instalments - sëe the judgment
of KRIEGLER J at
/173...
58.
173 E). In arguing that the trial Judge had not exer= cised
his discretion properly, counsel relied mainly on certain aspects of the
evidence pertaining to the respon= dent's needs in respect of maintenance, and
also on the evidence relating to the appellant's net
income. I shall deal with
these matters presently. It will be convenient first to say something about the
award of R150 000 made
by the trial Judge by way of a redistribu= tion
order.
Counsel for the appellant, wisely in my view, did not contend that the order
for the payment of R150 000, standing by itself, was
assailable. KRIEGLER J
found that the respondent's contribution to the maintenance and increase of the
appellant's estate had been
substantial, and (at 178 I) that:
"Justice and equity clearly dictate that such contribution should be
acknowledged in a
substantial redistribution order."
/These ...
59.
These findings cannot be faulted. Nor was it suggested that
the amount awarded did not properly take into account "the existing means
and
obligations of the parties", in terms of para (a) of subsection (5), or that any
other relevant factor had been overlooked. Although
the use by the trial Judge
of LORD DENNING's one-third "starting point" was criticised, counsel did not
argue that its use had, on
the facts of the present case, by itself led to an
unacceptable result. . In this respect, too, I consider that counsel's attitude
was correct. I referred earlier to the fate of the one-third approach in the
English law. At this stage I would say a brief word
about the merits of that
approach, which commended it= self to KRIEGLER J,
inter alia
by virtue of
the "logic" and the "sound common sense" displayed by LORD DENNING in his
exposition of it in the passage from
Wachtel
's case quoted at 180 E - 181
F. With respect, I do not share KRIEGLER J's enthusiasm for the one-third
starting
/point ...
60.
point. LORD DENNING thought that the courts could not
"operate in a void", and that "a start has to be made somewhere". I do not see
any real difficulty in starting with a clean slate, then filling in the void by
looking at all the relevant facts and working through
all the relevant
considerations, and finally exercising a discretion as to what would be just,
completely unfet= tered by any starting
point. In any event it is an illusion to
think that a one-third starting point will make the task of the courts easier,
as the experience
of the English courts has shown. In my opinion our courts can
do without any starting points.
With regard to the order for maintenance made by the trial Judge (R700 per
month), counsel for the appellant argued that the respondent's
reasonable needs
had been over-estimated. In this connection various points were raised, bearing
on some of the considerations mentioned
in subsection (2) as relevant factors to
be
/taken ...
61.
taken into account. First, it was submitted that the trial
Judge had not afforded sufficient (if any) weight td the respondent's earning
capacity. Counsel pointed to a passage in the cross-examination of the
respondent, in which she agreed with the proposition put to
her, that she should
be able, "sometime in the future", to "get a job even in Oudtshoorn", at a
salary of about R350 per month. With
this answer must be contrasted, how= ever,
the evidence she had given in chief concerning her unsuccessful attempts to find
employment.
She said that she had tried at at least seven places to find work,
but that she had found that there was no work available. On the
whole of her
evidence it seems to me to be quite un= certain whether or not she will be able
to find employ= ment. On the basis explained
earlier, I would to some extent
allow the benefit of the doubt to operate in her favour, rather than the
appellant's. Accordingly,
I am not prepared to differ from the trial Judge's
finding
/(at ...
62.
(at 184 F) that the respondent's "earning capacity, if
anything, is humble". Then it was submitted that the trial Judge had lost sight
of the fact that if the respon= dent acquired a home, the rental of the flat
(R290 per month) had to be deducted from the figure
of Rl 400 per month,
accepted as representing her reasonable needs. I do not think that the learned
Judge overlooked that. In any
event, the respondent would require the
meáns to pay the rates and taxes for the house and to provide for its
upkeep. Then
it was said that if the respondent used a reasonable portion of the
sum of R150 000 that she is to receive, for the purpose of acquiring
a house, a
substantial part of the money would be left over for investment, which would
provide the respondent with.a fair income.
The difficulty I have with this
argument is that it is quite impossible, on the basis of the evi= dence led at
the trial, to assess
what it would cost the respondent to acquire a reasonably
comfortable home in
/Oudtshoorn ...
63
Oudtshoorn for herself and the children, with the result that it is
also impossible to assess what return she could expect to receive
from an
investment of the balance of the money. Accordingly I am not prepared to differ
from the conclusion of the trial Judge (at
184 H) that the respondent will be
"hard-pressed" to maintain the home "on the income she can earn by working, even
if some return
is added on the basis that she invests some of the capital." It
was argued further that the trial judge had erred in not giving effect
to the
fact that the standard of living of the parties was "not particu= larly high",
because "that was due to the parsimonious regime
imposed" by the appellant (at
184 F/G). I do not agree that the learned Judge erred in this regard. The
appellant had reaped the
benefits of the frugal stan= dard of living to which
the respondent was subjected while the marriage lasted; now that he has caused
it to break down, he cannot claim to continue reaping the
/benefits ...
64.
benefits by expecting the respondent to adhere to "the
parsimonious regime" that he had imposed.
The main argument on behalf of the
appellant on this aspect of the case was that the trial Judge had failed to take
into account properly
the appellant's means and his financial obligations, and
in the result, by combining the redistribution order with the maintenance
order,
had placed an intolerably heavy burden on the ap= pellant. His counsel
calculated that the appellant's liability for interest
on a mortgage bond in
respect of the sum of R150 000, at the rate prevailing at the time of the trial,
would be some R2 678 per month.
He has to pay maintenance for the two younger
children in a total sum of R500 per month. In addition he must main= tain the
elder
daughter, Michelle; counsel estimated his liability in that regard to be
R400 per month. His total commitments in respect of interest
and maintenance for
the children thus approach about R3 600 per month.
/As ...
65.
As against that, counsel argued, the trial Judge accepted
that the appellant's taxable annual income was R57 000, or R36 000 after
tax,
giving him a net income of R3 000 per month. Hence it was submitted that the
appellant would be unable to comply with the orders
made by the trial Judge. At
first sight there appears to be force in this argument, but upon analysis I do
not consider that it can
be sustained. The major flaw in it is the assumption
that the appellant's net available income is R3 000 per month. Although the
trial Judge referred without comment to the fact that the appellant had re=
turned a taxable income of R57 000 for the year ended
February 1983 (at 178 F/G)
and said that his after-tax income would be "not less" than about R36 000 per
year or R3 000 per month
(at 184 I), I am not at all sure that the learned Judge
really accepted these figures to be correct. He certainly made no positive
finding in that regard. The record shows that there was no evidence
/to .....
66.
to substantiate the correctness of these figures. It appears
that the figure of R57 000 as the appellant's taxable income for the
year ended
February 1983 emanated from the documents discovered by the appellant, and that
it was used by the respondent's counsel
in cross-examining the appellant. The
relevant passage in the cross-exami= nation reads as follows:
"In fact in 1983, if I am correct, your
taxable income was R57 000, R57 924.
83.
For the tax year ended 1983, yes.
What is the figure you have got here. There is some dispute about that, we have
not
actually finalised our (Mr Lapidos intervenes).
R57
924. We have actually not fina=
lised that. I want to still go and check it all
out.
Can you tell us what the correct figure
is then? I do not know, I have not had
the opportunity to do it. To study the whole
thing.
You must have an idea of what you earned.
No, it is very difficult. I work and that
is it, I
do not worry about how much I earn.
You have no idea how much you earn.
No, it is not of consequence.
So when you were
giving her R100 a week,
/it ...
67.
it might have been 1% of your income or
it
might have been 80% of your
income.
Precisely.
You have no idea.
No."
It is evident that the appellant was most evasive about his income, and in
fact declined to confirm the correct= ness of the figure
of R57 000. A further
passage in his cross-examination reads as follows:
"Now, according to your 1983 return.
COURT
: February 1983?
MR LAPIDOS
: February 1983, M'Lord.
Yes.
Your total sales were R251 970.
That is correct. I have been very fortunate, we had a fantastic year.
COURT
: The figure is?
MR LAPIDOS
: R251 970 M'Lord. That was a
record of year? That is the best, yes,
the best we have had. Everything seemed to go right.
For February 1982 your sales were R167 439.
1981 R37 798. Something like
that, yes.
So there has been, you would agree, a
marked improvement in your business
since
1981. Very much so, yes.
Now we do not
have your 1984 balance
sheet because that has not been prepared I understand. How would you estimate
1984
/compared ...
68.
compared with the year ending. Very simi=
lar to
last year I should think as an average.
Another record year. Yes, we had
a
very good year."
With such a huge turnover as
admitted by the appellant, the
taxable income figure of R57 000 cannot be accepted as a
true reflection
of his real income, in the absence of evi=
dence on the point. Moreover, not
a word was said by the
appellant about his net income for the years ended
Feb=
ruary 1984 and February 1985. The probabilities are over=
whelming
that his net available income at the time of the
trial was very substantially
in excess of the figure of
R3 000 per month. It is obvious from the
appellant's evi=
dence on the record that his
modus operandi
was to
plough
back every available cent into his business, expanding it
whenever
possible by acguiring additional motor vehicles
and tractors, fixed
properties, planting more trees, and so
forth. Not long before the trial he had purchased an
additional property at Brits for R80 000, which he paid
/in ...
69.
in cash. It is fair to assume that the appellant derived very
substantial tax benefits from the way in which he ploughed back his
income into
his business. Furthermore, the appellant had tendered to pay to the respondent
the sum of R125 000 in three annual instalments,
with interest at 18% per annum.
Counsel for the respondent pointed out (and this was not challenged) that the
appellant's offer involved
a total outlay by him, in the first year, of R64 000,
which is more than R5 000 per month. There is no reason to think that the
appellant
was daunted by this prospect. On all the evidence, I do not believe
that the appellant's net available income is only R3 000 per
month. I am
satisfied, on the probabilities, that it is very much in excess of that
sum.
It is not possible to say with any accuracy what the appellant's net
available income is, but the uncertainty in that regard is entirely
due to the
ap= pellant's own fault. He was not open with the Court
/a ...
70.
a quo
. After he had first given evidence, his counsel
at the trial (who was not the counsel representing him in this appeal) closed
his
case, subject to the reserva= tion of his right to lead evidence in rebuttal
in respect of the respondent's counterclaim, after the
respondent had closed her
case. When the respondent had given her evidence and closed her case, the
appellant's counsel informed
the trial Judge that he was not going to lead any
evidence in rebuttal. But at that stage it was perfectly clear to the appellant
what the respondent was claiming. She had testified about her requirements by
way of maintenance from the appellant, and she had
made it clear that she
claimed a sum of R175 000 by way of a redistribution order. She had placed
before the Court
a quo
such information as she was able to, with regard
to the appellant's financial position. Yet he preferred not to go into the
witness
stand to answer the respondent's case. There was no evidence from
him
/that ...
71.
that he would not be able to comply with the respondent's
demands, nor even any suggestion that he would find it difficult to meet
them.
The suggestion that that might be the case was no more than a submission,
unsupported by any evidence, made by his counsel
in this appeal. For the reasons
given, the submission is rejected. I should add that if the appellant should
have problems in com=
plying with the orders of the Court
a quo
by using
only his available income, there is no reason why he should not dispose of some
of his assets in order to meet his obligations,
for he can do so without harming
his income-producing business. It appears from the evidence that the appellant
is not using all
of the land he has at Brits for the purposes of his business;
he can sell off whatever he does not need. He can also realise his
share in the
property at Mossel Bay. This will not result in undue hardship to him. It must
be borne in mind that the orders of the
Court
a quo
allow the appellant
to retain
/the ......
72.
the erstwhile matrimonial home, with the valuable business on
the property, from which the appellant will continue to derive an excellent
income. The respondent, on the other hand, can reasonably claim to be put in a
position enabling her to acquire a home for herself
and the children, and to
have an income from which to support herself.
In the result, it has not been shown that the trial Judge had misdirected
himself in any way, or that he has failed to exercise his
discretion properly,
in the manner contended for on behalf of the appellant, or in any other
manner.
Counsel for the appellant went to much trouble to put before us alternative
orders that could be made, which, it was contended, would
not be as hard on the
appellant as the present orders, while still being fair to the respondent. I do
not find it necessary to deal
with counsel's proposals, which involved,
inter
alia
, the payment of a capital sum in instalments, instead of in
/a ...
73.
a lump sum. The discretion to be exercised was vested in the trial Judge.
When once it is found, as I have done, that he had not misdirected
himself, and
that he had not exercised his discretion improperly, the room for this Court to
interfere with the result arrived at
by him, is very limited indeed. That is
always the case when the exercise of a discretion is involved. In the particular
context
with which we are concerned here, I would quote the following passage
from the judgment of ORMROD L J in
Preston v Preston
1982 Fam 17
(C A) at
29, where he approved of what had been said in an earlier case:
"We are here concerned with a judicial discretion, and it is of the essence of
such a discretion that on the same evidence two different
minds might reach
widely different decisions without either being appealable. It is only where the
decision exceeds the generous
ambit within which reasonable dis= agreement is
possible, and is, in fact, plainly wrong, that an appellate body is entitled to
interfere."
/In ...
74.
In my judgment, there are no grounds in the present case upon which this
Court could interfere with the orders made by the Court
a quo
.
Due to temporary indisposition, my colleague JACOBS is unable to participate
in the delivery of this judgment. The views he expressed
during our delibera=
tions after the hearing of the appeal accorded with the result arrived at in
this judgment, and also with its
general tenor. In terms of section 12 (3) of
the Supreme Court Act, 1959, this judgment is the judgment of the Court. The
appeal
is dismissed, with costs.
A.S. BOTHA JA
TRENGOVE JA
VILJOEN JA
CONCUR
BOSHOFF AJA