About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2024
>>
[2024] ZALMPPHC 10
|
|
A.R.S (born K) v M.S.S (2427/2021) [2024] ZALMPPHC 10 (30 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 2427/2021
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED
DAT:
30/01/2024
In
the
matter
between:
A[…]
R[…]
S[…]
(BORN
K[…])
PLAINTIFF
And
M[…]
S[…]
S[…]
DEFENDANT
JUDGMENT
This
judgment
is
delivered
electronically
by
way
of
dispatching
same
to
email
addresses
of
the
parties'
legal
representatives
and
publishing
same
on
SAFLII.
The
date
of
delivery
of
this
judgment
is deemed to be 30 January 2024.
SIKHWARI
AJ
[1]
The plaintiff
in this matter has issued divorce proceedings against the defendant.
The dispute relating to the breakdown of the
marriage is common
cause. There are two disputes for adjudication before this court. The
first one is the maintenance amount of
the parties' minor child, one
T[…] M[…] S[…] who is a boy born on 1[…]
J[…] 2011. The second
dispute is the plaintiff's application
for forfeiture of benefits of a marriage in community of property in
respect of the parties'
immovable property situated at Erf 6[…],
F[…] P[…] in Polokwane in the district of Polokwane and
the plaintiff's
pension interests in the Government Employees Pension
Fund ("GEPF").
[2]
In respect of
the maintenance of the minor child herein, the plaintiff pleaded
maintenance in the amount of R5 000.00 (five thousand
rand) per
month. The defendant in his plea had
simply denied
the said amount without putting a version regarding his views of a
fair and reasonable amount which he can afford
as maintenance of the
minor child, save to admit that primary residence and daily care
should go to the plaintiff. In his counterclaim,
the
defendant
pleaded
nothing
regarding
the
maintenance
of the minor
child. In the circumstances, I regard the amount as undisputed.
[3]
During the
trial, the issue of primary residence and daily care of the minor
child and / or his maintenance was not canvassed. I
assume that it
was so because those issues were not disputed over and above what was
in the pleadings. There is nothing which will
prevent the parties to
take this issue further in the Maintenance Court or Ch
i
ldren's
Court for full adjudication, For now, this court will award an amount
of R5 000.00 as faior and reasonable amount due to
the plaintiff from
the defendant as maintenance of the parties' one minor child. This
amount will be due on or before seventh of
each month starting from 7
February 2024 until the minor child is self-supporting or the order
is varied by a competent court with
jurisdiction over the minor
child.
[4]
On the issue
of forfeiture, it is common cause the parties got married to each
other in community
of property on
11 July 2000. The parties met at the University of the North (now
University of Limpopo) in 1989 when they were classmates
and fellow
students at the said institution studying towards a B.Ed degree.
Their love relationship started then. They both graduated
in 1994.
The defendant struggled to get employment in his line of studies. He
was employed Standard Bank in 1995 as a bank teller
until 1996. In
1996 he was employed at South African
Breweries
("SAB")
until
2004
when
he
resigned
and
started
his own liquor business at Ga Mothapo. He rented premises for running
a Bar Lounge, using the money he got from SAS which
was R98 000.
Plaintiff was not happy with his resignation at the SAS. Within a
year, the Bar Lounge business collapse. In 2006
the defendant joined
Xerox a sales consultant. He is still employed at Xerox.
[5]
On the other
hand, the plaintiff was employed as a teacher at a certain college
for training teachers just after completing the
B.Ed degree in 1994.
She later switched from teaching and joined the government where she
rose to the level of a director in one
of the departments in the
Limpopo Provincial government. She holds several postgraduate
qualifications and a Master's degree whereas
the defendant has not
gone beyond his bachelor's degree in Education.
[6]
The parties
concluded a customary marriage on 26 December 1999 and a civil
marriage on 11 July 2000. After their marriages, the
parties started
by staying at Seshego, and later moved
to
Madiba Park
where they were renting as tenants. In November 2000 they bought
their own immovable property at 5 R246 000. The bond
for the property
was registered on 15 November 2021. This is the property which is the
subject matter of the forfeiture dispute.
The bond money was
deducted from the bank account of the plaintiff, and the defendant
was contributing
a
sum
of
R2000
to
the
plaintiff
for
the
said
bond
money.
The
bond
was
for
a
period
of
20
years.
It
has
since been
paid up.
[7]
The basis for
forfeiture is that the defendant was not making a meaningful
contribution to the joint estate. Alternatively, he did
make some
contribution as and when he likes. The plaintiff stated that she had
to request her brother to do some of the handywork
at their house
whereas the defendant was present.
[8]
The further
evidence by the defendant is that he was assisting in a number of
handywork and was solely responsible for gardening.
The defendant
testified that during the times he was employed, he did contribute
towards the bond except during the years he was
not working. He was
the one who used to drive their three children to school throughout
their schooling days although one of the
kids testified that it
appeared to her that he was doing it without passion as much of a
routine because they were talking less
during those daily trips. The
defendant stated that his salary has always been far less to that of
the plaintiff and that was the
reason that his proportional
contribution appeared smaller to that of the plaintiff. It is common
cause that the defendant is the
one who is physically taking the
minor child, T[…] M[…] S[…], to school. The
plaintiff stopped taking this
minor child to school after seeing the
defendant with a girlfriend.
[9]
On the pension
forfeiture, the main reason is that the defendant failed to improve
himself academically so that he could attract
better employment
offers. It is not in dispute that the pension payout of R98 000 which
the defendant received from SAB was used
for a Bar Lounge business
which did bring some money to the family. Though the plaintiff was
opposed to resignation at SAB and
was not informed of the Bar Lounge,
in her version, she did later assist in the said business in one way
or another.
[10]
The plaintiff
testified that the defendant had several extra marital affairs
with several women including their former classmate
at the
University. The court has been requested to consider this as a
contributory factor to the breakdown of the marriage. These
allegations of infidelity were denied by the defendant. Other than
the word of the plaintiff and her daughter who testified as
a witness
of the plaintiff, there was nothing material which was advanced in
this regard. They both testified on
the
same event. It
was more of a repetition rather than corroboration.
[11]
In the leading
case on forfeiture in
Mashola
v Mashola (022/2022)
[2023] ZASCA 75
(26 May 2023) at paragraphs
25-31,
Mbatha
JA outlined the legal principles applicable on forfeiture as follows:
"[25]
Section9
(1) of the Divorce Act provides that:
'
When
a decree of divorce is granted on the ground of irretrievable
break-down of
a
marriage
the court may make an order that the patrimonial
benefits
of
a
marriage
be
forfeited
by one
party in favour of the other, either wholly or in part, if the court,
having regard to the duration of the marriage, the
circumstances
which gave rise to the breakdown thereof and any substantial
misconduct
on the part of either of the parties
,
is
satisfied that, if the order for forfeiture is not made, the one
party will in relation to the other be unduly benefited.'
[26]
The
entitlement to
a
half share
in the pension interest of the
spouse
is
governed
by
ss 7
)7) and
7
(8) of the
Divorce Act, which provides
as
follows:
'7(a)
In
the
determination
of the patrimonial benefits to which the parties
to
any
divorce action may be entitled, the pension interest of a party
shall, subject to paragraphs (b) and (c), be deemed to be part
of his
assets.
'
[27]
The
Divorce Act did away with the fault element
as
a
ground
for divorce. However,
a
consideration
of whether
there
was
substantial
misconduct on the part of one of the parties,
is
one of the
factors that may be taken into account. It
is
not
a
stand-alone
factor but
has
to be
considered with the other factors mentioned ins
9 (1).
[28]
There
are several seminal Judgments which have clarified the legal
principles in relation to the application of
s
9 (1). The principles stated by the Appellate Division in
Wijker
v Wijker
1993 (4) SA 720
(A) at 721F
are
as follows:
(a)
The party
seeking an order for forfeiture of benefits does not have to prove
the existence of all three factors in s 9 (1) cumulatively.
The court
needs to ask whether one party will be unduly benefited if an order
of forfeiture was not made
,
and in
order to answer that question
,
regard
should be had to the factors mentioned ins
9 (1).
(b)
Wijker
advocates
that when dealing with s 9 (1) the following approach should be
followed:
'
the
first step is purely
a
factual
one
.
Once
that has been established the trial court must determine
,
having
regard to the factors mentioned in the section
,
whether
or not that party will in relation to the other be unduly benefited
if
a
forfeiture
is not made. Although se second determination is
a
value
judgment
,
it is
made by the trial court after having considered the facts falling
within the compass of the three factors mentioned in the
section
(Page
727D-F).
It
further advocated the approach adopted in an unfair labour practice
dispute
,
where
the
word
discretion
is
used
in
a
wider
sense. A court will not be exercising
a
discretion
in the narrower sense. Therefore there will be no choice between the
permissible alternatives involved.
(c)
The court
emphasised that when making
a
value
judgment, applying the principles of fairness is not justified, as s
9 (1) contains no provision for the application of such
principle.
Not only it is contrary to the basic concept of community of property
but there is no provision in s 9 for the application
of such
a
principle.
It held further that in considering the appeal the court is therefore
not limited by the principle set out in
Ex
Parle Neethling and Others
1951 (4) SA 331
(A)
and
it may differ from the court
a
quo on the
merits. It is only after the court has concluded that
a
party would
be unduly benefited that it is empowered to order
a
forfeiture
of benefits, and in making this
decision
it exercises
a
discretion
in the
narrower
sense.
(d)
Furthermore,
the
Wijker
judgment
states that notwithstanding the introduction of the no fault
principle in divorce,
a
party
'
s
misconduct may be taken into account in considering, in terms of
s
9 (1), the
circumstances which gave rise to the breakdown of the marriage.
Additionally,
'substantial
misconduct
may include conduct which
has
nothing to
do with the breakdown of the marriage and may for that and other
reasons
have been
included
as
a separate
factor. Too much importance should, however, not be attached to
misconduct which
is
not of a
serious nature
(Wijker,
p 721G-H).
It
must be found that it
is
so
obvious
and
gross
that it
would be repugnant to justice to let the
'guilty'
spouse
get
away with the spoils of the
marriage.
(e)
In
Engelbrecht
v
Engelbrecht
1989
(1)
SA 597 (1) (C)
the court held that it could never have been the intention of the
legislature that a wife, who had for 20 years assisted
her husband
faithfully should, because of her adultery, forfeit benefits of the
marriage in community of property. This confirmed
the principle that
the finding of substantial misconduct does not on its own justify a
forfeiture order.
[29]
The
principles in
Wijker
were
endorsed by this Court in
Botha
v
Botha
[2006] ZASCA 6
;
2006
(4) SA
144
(SCA)
where
it
was
confirmed
that only the factors in
s
9 (1)
should be accorded consideration. This Court in
Botha
pointed
out that the so-called phrase, permitting the court, in addition to
the factors listed, to have regard to
'any
other
factor'
was
conspicuously
absent from s 9. It further held that s 9 (1) should be construed
within the context of the evidence tendered by the
parties in court.
[30]
In
Badenhorst
v
Badenhorst
[2005]
ZASCA
116; 2006 (2)
SA 255 (SCA), though dealing with the provisions of s 7 (3) of the
Divorce Act, this Court also endorsed the principle
that the factual
consideration of issues raised ins
7
(3) cannot be
a matter of a discretion. It restated the principle that one party to
the marriage cannot control and abuse the assets
of a joint estate as
if he has marital power in the case where assets were beyond the
reach of the other party. This principle
should equally apply to the
consideration of the forfeiture sought by spouses married in
community of
property and
profit and loss as they hold undivided shares in the joint estate.
The Matrimonial Amendment Act has long abolished
marital power in
South Africa.
[31]
In
BS
v
PS
[2018]
ZASCA
37
;
2018
(4)
SA
400
(SCA) para 10-11 (BS v
PS),
this
Court in considering an appeal from the Eastern Cape Division of the
High Court, Grahamstown, found that the court below should
not have
focused on an isolated incident of adultery by one of the
spouses
instead of
considering the duration of the marriage and circumstances which gave
rise to the
breakdown
of the marriage.
[12]
In applying
the above principles endorsed by the Supreme Court of Appeal, this
court is of the view that there is no evidence that
the defendant did
not contribute to the financial position of the family, taking into
account the acquisition of the immovable
property which is the
subject-matter of the forfeiture herein, maintenance of the family or
taking care of the children. The defendant
did contribute in his own
right in line with his income which is almost 50% lower than that of
the plaintiff. The defendant's failure
to improve his academic
qualification is an irrelevant factor, especially when one taking
into account the fact that he did try
to do an "honours"
degree but did not go far. Not all f us are academics but that does
not make those who have no interests
in academic qualifications to be
mulcted with forfeiture if married to a spouse who is an academic
achiever of some note.
[13]
As stated
above, the plaintiff has failed to discharge her duty to prove
infidelity or adultery on the part of the defendant or
misconduct on
the part of the defendant except to mention it in her papers and in
her evidence except to mention one isolated incident
based on a
missed telephone call. The plaintiff did confront the former
classmate who is alleged to be in a love relationship with
the
defendant and she also denied it and offered a sound explanation. She
was not subpoenaed as a witness in order to test her
denial or
otherwise. The issue of the duration of the parties' marriage dating
back from December 1999 to December 2023 when the
trial started is 24
years, their respective ages are over 55 years of age, and as such
they are very close to their respective
pension ages. These factors,
assessed in line with section 9 (1) of the Divorce Act for the
purposes of determining if one party
in this litigation will be
benefited unduly if forfeiture is not granted, weigh heavily against
forfeiture. This court does not
think that the defendant will benefit
unduly if forfeiture is not granted in this case.
[14]
The plaintiff
has emphasized allegations of adultery and lack of financial support
by the defendant as reasons for the breakdown,
amongst others. The
defendant has stated that the plaintiff disrespected him and never
treated him like her
spouse; and
that such disrespect even happened in front of their children. He
testified that she took major decisions without involving
him.
The
fact
which
the
parties
are
missing,
in
my view,
is
that
their
respective
funds
or
money
belongs
to
one undivided
joint estate.
[15]
In the
circumstances, the plaintiff's claim on forfeiture stands to fail. I
will not award costs in this matter. In the exercise
of my
discretion. Costs will follow success. The plaintiff will have to
bear the costs on this action on party and party scale.
[16]
In the
premises, I make the following order:
1.
That the
divorce decree is granted for the dissolution of a marriage between
A[…] R[…] S[…], born K[…],
of identity
number 69[…] and M[…] S[…] S[…] of
identity number 67[…].
2.
That the
plaintiff's prayer for forfeiture of benefits arising from the
marriage in community of property in respect of the plaintiff's
pension benefits from the Government Employees Pension Fund ("GEPF")
and in
respect
of the
parties' immovable properties is hereby dismissed.
3.
The plaintiff
and the defendant shall retain full parental responsibilities and
rights over the minor child, T[…] M[…]
S[…], a
boy born on […] J[…] 2011, inclusive of acting as
guardian, to care for and to maintain
contact with and
contribute to the maintenance of the minor child.
4.
The plaintiff
shall have the following specific parental responsibilities and
rights in respect of the said minor child, to wit
guardianship, and
daily care and residence of the minor child.
5.
The defendant
shall have specific parental responsibilities and rights of the minor
child; such contact rights shall include having
the minor child with
him during alternative weekends and / or every alternative short and
long holiday.
6.
The defendant
is ordered to pay to the plaintiff a sum of R5 000.00 (five thousand
five hundred rand) per month as maintenance for
the parties'
aforesaid minor child, T[…] M[…] S[…], with the
first payment due on or before the seventh day
of February 2024, and
thereafter on or before the seventh day of each succeeding month
until the minor child is self supporting
or this maintenance
order is duly varied or set aside by the competent maintenance court
with jurisdiction over the aforesaid minor
child.
7.
That it is
ordered that the defendant is entitled to fifty percent (50%) of the
plaintiff's pension interests and / or
benefits
held
at
the
Government
Employees'
Pension Fund
("GEPF"), the pension holder or administrator on behalf of
the plaintiff's employer, which pension benefits
must be calculated
as at the date of the divorce decree herein, being 30 January 2024.
8.
An order
directing the manager or administrator
of the said
pension scheme/ fund, the GEPF, that:
7.1.
He / she must
endorse the records of the aforesaid Pension Fund to reflect the
defendant's aforesaid entitlement to the pension
benefits of the
plaintiff,
7.2.
He/
she must pay
to the defendant, alternatively, to a preservation fund nominated by
the defendant an amount equal to fifty percent
(50%) of the
defendant's pension interests in the said pension fund, calculated as
at the date of the divorce hereof, such payment
to be made within
sixty (60) days of
the
defendant
notifying them in writing, which of the two options she elects.
7.3.
He / she must
furnish written proof of the endorsement referred to in (h)(1) and
(h)(2) above to the assistant registrar of this
Honourable Court
within one month of receipt of the notification
hereof.
8.
That
the
remainder
of
the
parties'
joint
estate,
including
their
immovable property, be divided equally between the parties.
9.
That the
plaintiff is ordered to pay the costs of this action on party and
party scale.
MS
SIKHWARI
ACTING
JUDGE OF THE HIGH
COURT
OF SOUTH AFRICA,
LIMPOPO
DVISION, POLOKWANE
APPEARANCES:
For
Plaintiff
Ms
MC De Klerk
Instructed
by
DDKK
Attorneys Inc
For
Defendant
Adv
TD Sibiya
Instructed
by
Makgoba
Kgomo
Makgaleng
Inc
Date
of
Hearing
2,
3
&
6
October 2023
Date
of
Judgment
30
January 2024