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[2024] ZAECMHC 39
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V.G v T.M (CA30/2023) [2024] ZAECMHC 39 (30 May 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION – MTHATHA]
Case
No.: CA30/2023
In
the matter between:
V[…]
L[…] G[…]
Appellant
and
T[…]
P[…] M[…]
Respondent
APPEAL
JUDGMENT
HINANA
AJ:
Introduction
[1]
This is an appeal involving parties who were married to each other in
community of
property on 17 January 1991 at Bizana. On 07 January
2022, the appellant served divorce papers on the respondent. The
parties divorced
and the decree of divorce was granted by the
Regional Court Magistrate on 01 February 2023.
[2]
In his order, the Regional Magistrate
held that:
“
[24]
In the result, I make the following order:
1.
The
degree of divorce is granted.
2.
Division
of joint estate.
3.
Each
party to retain insurance policies, investments and debts in his or
her name.
4.
The
common home situated at Mt Zion is awarded to the defendant.
5.
Each
party to retain his / her pension interest.
6.
Each
party to pay his / her own costs
”
.
[3]
The appellant was not satisfied with
the judgment of the Regional Magistrate and as a result,
filed a
notice of appeal. The grounds of appeal are very long and were not
argued before this Court except one ground which dealt
with the
forfeiture of benefits. Consequently, I shall not deal with the
lengthy grounds of appeal except the one argued before
this Court.
Argument
before court
[4]
Only the appellant’s counsel
presented argument in this court. There was no appearance
on behalf
of the respondent. Mr Nonkelela’s submissions only related to
the misdirection of the magistrate in relation to
the forfeiture of
benefits arising out of the marriage. He submitted:
“
(7)
The learned magistrate misdirected himself when granting an order for
forfeiture because the respondent prayed for it on the
bases that she
was aware that during the subsistence of the marriage, they,
appellant and respondent have been enjoying the pensions/provident
funds of the appellant as he would usually lose jobs -now and again.
”
[5]
The evidence placed before the court
a
quo
and the pleadings are very important for the determination of
the issues. In brief, the evidence shows that:
“
5.1
The respondent was not opposed
to the divorce action instituted by the appellant. The respondent
testified that she was opposed to the 50% pension interest. She
further stated that appellant did not participate in the building
of
the joint estate. The parties separated because the appellant married
another woman with the consent of the respondent. According
to the
respondent, the appellant did not contribute anything and also that
the appellant failed to take care of the children.
5.2
The appellant
disputed some of the allegations from the respondent and the
former
testified. The appellant testified that she one hired a TLB to level
the site where they intended to build a house. The
house was built
and they fenced the premises. The children were residing with the
respondent’s mother at Mbaleni. In an effort
to be responsible,
the appellant was employed by a company called Aries This was after
he had been with Tony Trucking. When the
appellant lost his job, he
got some monies to buy the material and he further was driving a
truck owned by his cousin. His cousin
would pay him and this payment
assisted in the building of the house.”
Analysis
[6]
In order for a court to grant an order
for forfeiture of marital benefits, there must be cogent
evidence
placed before court in order for the court to conclude that there was
substantial misconduct.
[7]
In
Engelbrecht
v Engelbrecht
[1]
it was held that:
“
Joint
ownership of another party's property is a right which each of the
spouses acquires on concluding a marriage in community
of property.
Unless the parties (either before or during the marriage) make
precisely equal contributions the one that contributed
less shall on
dissolution of the marriage be benefited above the other if
forfeiture is not ordered. This is the inevitable consequence
of the
parties' matrimonial property regime. The legislature (in
section 9
of the
Divorce Act 70 of 1979
) does not give the greater contributor
the opportunity to complain about this. He can only complain if the
benefit was undue.
Unless
it is proved (and the burden of proof rests on the party who seeks
the forfeiture order) what the nature and extent of the
benefit was,
the Court cannot decide if the benefit was undue or not. Only if the
nature and ambit of the benefit is proved is
it necessary to look to
the factors which may be brought into consideration in deciding on
the inequity thereof. In this connection,
it should be borne in mind
that misconduct and gross unreasonableness do not always go hand in
hand. Although it appears as if
the Legislature wanted to limit the
Court's discretion as to the granting of a forfeiture order, and did
not intend to authorise
the Court to take cognisance of the same
wide-ranging considerations as those which
section 7(3)
;(4);(5) and
(6) (where parties are married out of community of property), with
reference to the transfer of assets from one party
to the other,
permits, the Legislature did not intend to elevate fault, in the
granting of a forfeiture order, so prominently above
other
considerations. It could lead to the advantages of a no-fault divorce
system being eroded by disputes over fault on the division
of the
estate.
”
(My
emphasis.)
[8]
When dealing with proof of substantial
misconduct in
Wijker
v Wijker
[2]
the court held that:
“
To
determine whether a party would be unduly benefited, a trial court
would certainly not be exercising a discretion in the narrower
sense.
Here too no choice between permissible alternatives is involved. In
considering the appeal this Court is therefore not limited
by the
principles set out in Ex parte Neethlinq (supra) 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. It is difficult to
visualize circumstances where a court would then
decide not to
grant a forfeiture
order.”
The
facts in
Wijker
’s case cannot and must not be read in
isolation but must be cumulatively considered.
[9]
When the court is considering whether
any party to a marriage would be unduly benefited, the
factors
enlisted in the
Divorce Act
[3
]
,
should be taken into account. These are:
(a)
The duration of the marriage;
(b)
The circumstances that gave rise to the breakdown of the marriage.
(c)
Any substantial misconduct on the part of either of the parties and
that undue benefit
may accrue to the one party in relation to the
other, if an order of forfeiture is not granted.
[10]
In
Botha
v Botha
,
[4]
the court held that a trial court may not have regard to other
factors other than those listed in the
Divorce Act.
[11]
The
onus
is on the person or party
seeking forfeiture to demonstrate that the other party will unduly
benefit if forfeiture is not ordered.
Evaluation
of Evidence
[12]
It is important to mention that the appellant
contributed to the joint estate and to the welfare of their
children.
This is so even though the respondent disputed that the appellant
contributed. After the respondent had left the marital
home, the
appellant’s family visited the respondent’s family in
order to ask for the reasons why the respondent had
left. That
meeting did not yield any positive results.
[13]
The respondent contended that she could not stay
in a polygamous marriage. According to the respondent,
the appellant
married another wife without the respondent’s permission.
[14]
In
Engelbrecht
case,
[5]
the court further held
that:
“
In
order to succeed a party who seeks a forfeiture order must first
establish what the nature and extent of the benefits were:-
unless
this is done, the court cannot decide if the benefit was undue or
not. Hence, only when the nature and extent of the benefit
have been
proved is it necessary to analyze the three factors which may be
considered in deciding whether it will be equitable
to order a
forfeiture of benefits.”
(Omitted footnotes.)
[15]
I am not satisfied that the appellant committed
substantial misconduct as stated earlier, he materially
contributed
to the education of his children, took steps to save his marriage by
making means to “bring back his wife to
their marital home.”
[16]
The Regional Magistrate found that the respondent had made out a case
for forfeiture of benefits
arising out of marriage. He also found out
that if the plaintiff were to get 50% from the defendant’s
pensions he would be
unduly benefited.
[17]
The Regional Magistrate identified,
inter
alia,
the
fact that the appellant had children out of wedlock and the effect
that his actions had on the respondent’s health, as
factors
that put a strain on the marriage. Those are the factors that led to
the breakdown of the marriage but they do not, according
to evidence,
constitute sufficient basis to warrant forfeiture of benefits flowing
from their marriage regime. It is common cause
between the parties
that when they were planning to build the marital home they
apportioned financial responsibilities in that
the appellant bought
bricks and the respondent bought iron sheets. That is just one of the
contributions that the appellant made
towards the joint estate. The
finding that if the forfeiture was not ordered he would unduly
benefit is not consistent with those
common cause facts. It follows
therefore that in this regard the Regional Magistrate misdirected
himself and this court is,
accordingly, at large to interfere
with the decision of the Regional Magistrate.
[18]
In
Z
v Z
[6]
,
Legodi J dealt with the phrase “undue benefit” in terms
of
section 9
(1) of the
Divorce Act and
said:
“
Cumulative
consideration of all relevant factors seem to be at play in terms of
subsection (1), and the court will make an order
only when is
satisfied that, if an order for forfeiture is not made, the one party
('guilty party') will unduly be benefited in
relation to the other
party ('the innocent party'). It is an exercise of a discretion
guided by consideration of the duration of
marriage, the
circumstances which gave rise to the breakdown and any substantial
misconduct on the part of either of the parties.
It
is clear from the wording of the subsection that to qualify for
forfeiture, based on misconduct, such misconduct must be
"substantial".
I understand this to mean that, it must not
only be a misconduct which does not accord with the marriage
relationship, but also
that the misconduct must be serious. Undue
benefit in my view, is also a relative term. Benefiting from one
spouse's sweat, in
my view, would not necessarily amount to undue
benefit. To come to the conclusion of undue benefit, one would be
guided by a number
of factors for example, refusal to work when it is
possible to do so, squandering of money and other assets of one's
estate and
other factors on the handling of the estate which is
prejudicial to the other spouse. It is not in my view, any
circumstance which
can give rise to the breakdown which will result
in a substantial misconduct to justify forfeiture. A particular
circumstance may
be enough for irretrievable breakdown of marriage
relationship, but not necessarily sufficient to be categorized as a
substantial
misconduct to justify a forfeiture.”
[19]
In
Tsebe
v Tsebe
[7]
,
the court found that Mr Tsebe had committed substantial misconduct in
that he used the pension payment solely for himself only
to the
exclusion of the joint estate and his wife. This seems not to be the
case in
casu
.
Conclusion
[20]
In my view, the circumstances of this case do not
justify forfeiture by the appellant and therefore, the
appeal must
succeed.
[21]
In the result, the following order is made:
1.
The appeal is upheld.
2.
The decision of the
Regional Court Magistrate ordering forfeiture of benefits by the
appellant is set aside and substituted with the following:
There
shall be a division of the joint estate.
3.
Each party shall pay its
own costs.
______________________________________
M.N
HINANA
ACTING
JUDGE OF THE HIGH COURT
I
agree.
_______________________________
T.V
NORMAN
JUDGE
OF THE HIGH COURT
APPEARANCES
Counsel
for the APPELLANT
:
MR
NONKELELA
Instructed
by
:
MLUNGISI MVELASE ATTORNEYS
No.17 bam centre
WINNIE MADIKIZELA
MANDELA STREET
BIZANA
TEL:
073 179/4524/ 072 421 2101
EMAIL:
mvelaseattorneys07@gmail.com
c/o KANISE JAKO
ATTORNEYS
Suit 319 Third floor
ECDC Building
MTHATHA
NO
APPEARANCE FOR THE RESPONDENT
Date
heard
17 May 2024
Date
delivered
30 May 2024
[1]
1989 (1) SA
597
(C) at pp 598-9: The judgment is in Afrikaans and I could not access
an English translation and therefore reliance is placed
on the
headnote.
[2]
1993
(4) SA 720
(A)at pp 727-8.
[3]
70 of 1979
section 9(1).
[4]
[2006] ZASCA 6
;
2006 (4) SA 144
(SCA);
[2006] 2 All SA 221
(SCA).
[5]
Engelbrecht
(note
4 above).
[6]
(43745/13) [2015] ZAGPPHC 940 (18 September
2015)
at paras 6-7.
[7]
(39138/2014) [2016] ZAGPPHC 575 (24 June 2016).