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[2024] ZALMPPHC 89
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T.P v L.M (HCA30/2023) [2024] ZALMPPHC 89 (12 August 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: HCA30/2023
CASE
NO: LP/MAH/RC192/2021
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
12
August 2024
In
the matter between
:
T[…]
M[…] P[…]
Appellant
And
L[…]
M[…] M[…]
Respondent
JUDGEMENT
GAISA
AJ
INTRODUCTION
[1]
This is an
appeal against the judgment of the Regional Court for the Regional
Division of Limpopo held at Mahwelereng, which granted
a decree of
divorce and ordered an equal division of the joint estate between the
parties. The appellant (defendant in the court
a
quo
)
appeals against the order for equal division, seeking instead an
order for forfeiture of benefits against the respondent (plaintiff
in
the court
a
quo
).
[2]
The parties
were married to each other in community of property on 23 October
2014. Their marriage has irretrievably broken down,
and both parties
seek a decree of divorce. The main issue in dispute is whether the
respondent should forfeit her share of the
joint estate.
BACKGROUND
[3]
The appellant
and respondent were married for approximately 8.5 years at the time
of divorce. The evidence reveals that both parties
entered the
marriage without full disclosure - the appellant concealed his
erectile dysfunction issues, while the respondent did
not disclose
her inability to conceive. These sexual incompatibility and fertility
issues appear to be the main causes of discord
in the marriage.
[4]
The respondent
instituted divorce proceedings, seeking dissolution of the marriage
and equal division of the joint estate. The appellant
counterclaimed
for forfeiture of benefits, arguing that the respondent:
4.1.
Did not
contribute to the acquisition, maintenance and upkeep of joint
assets;
4.2.
Entered the
marriage concealing that she could not conceive;
4.3.
Denied him
conjugal rights and departed from the joint household;
4.4.
Was
responsible for the breakdown of the marriage;
4.5.
Never
contributed financially to the marriage and regarded the appellant as
a financial resource;
4.6.
Left the
common home to pursue illicit affairs.
[5]
The respondent
opposed the forfeiture claim, contending that:
5.7.
She was
supportive of the appellant despite his sexual performance issues;
5.8.
She moved out
to protect her mental health after the appellant locked her out;
5.9.
She did not
deny conjugal rights, but the appellant had erectile dysfunction;
5.10.
She was
unaware she was infertile;
5.11.
She
contributed financially when employed and brought assets into the
marriage;
5.12.
She performed
household duties and supported the appellant's business endeavours.
LEGAL
FRAMEWORK
[6]
Section
9(1) of the Divorce Act
[1]
empowers a court to order forfeiture of benefits when granting a
decree of divorce:
"
When
a decree of divorce is granted on the ground of the irretrievable
breakdown of a marriage the court may make an order that
the
patrimonial benefits of the 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."
[7]
The
seminal case of
Wijker
v Wijker
[2]
elucidated the approach to be adopted by courts when considering
forfeiture claims:
"
It
is obvious from the wording of the section that the first step is to
determine whether or not the party against whom the order
is sought
will in fact be benefited. That will be purely a factual issue. 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 order is not made. Although the 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
."
[8]
The Wijker
judgment
supra
further
clarified that the factors in section 9(1) need not be considered
cumulatively - the presence of anyone may be sufficient
for a
forfeiture order. However, the onus rests on the party seeking
forfeiture to prove the nature and extent of the benefit to
enable
the court to determine whether it would be undue.
[9]
It
is also well-established that a forfeiture order should not be used
simply to achieve a redistribution of assets or to balance
unequal
contributions. In
Bezuidenhout
v Bezuidenhout
[3]
the court held:
"
I
find myself in agreement with the thesis that the traditional role of
housewife, mother and homemaker should not be undervalued
because it
is not measurable in terms of money
."
ANALYSIS
[10]
Applying these
principles to the present case, I make the following findings:
10.1.
Duration of
the marriage
:
10.1.1.
The
parties were married for approximately 8.5 years. This is not an
insignificant period, though also not a particularly long marriage.
In
Klerck
v Klerck
[4]
,
the court noted that the longer the duration of the marriage, the
less likely a forfeiture order would be justified, as both parties
would have contributed to the joint estate over time.
10.1.2.
While 8.5
years is not a short marriage, it is also not of such duration as to
preclude a forfeiture order if other factors warrant
it.
10.2.
Circumstances
of breakdown
:
10.2.1.
Both parties
contributed to the breakdown through dishonesty at the outset of the
marriage - the appellant concealing his erectile
issues and the
respondent concealing her infertility. Their sexual incompatibility
and lack of children appear to be the main causes
of discord.
10.2.2.
Where
both parties have contributed to the breakdown of the marriage, this
will generally militate against a forfeiture order.
[5]
10.2.3.
The mutual
fault, in this case, weighs against granting forfeiture.
10.3.
Substantial
misconduct
:
10.3.1.
While both
parties engaged in some misconduct, neither party's conduct rises to
the level of "
substantial
misconduct
"
as contemplated in the Act.
10.3.2.
The
respondent's departure from the marital home and the appellant's
changing of locks were both inappropriate responses to the
marital
difficulties but do not constitute substantial misconduct.
10.3.3.
The Court's
discretion in terms of s 9(1) should be exercised judicially with due
regard to all the relevant factors mentioned in
the section.
10.3.4.
The conduct of
both parties in this case, while contributing to the breakdown, does
not appear to be of such a nature as to justify
forfeiture on this
ground alone. In my view the magistrate cannot be faulted in this
regard.
10.4.
The benefit
to respondent
:
10.4.1.
The respondent
would benefit from an equal division of the joint estate, as she did
not contribute equally in financial terms. However,
her non-financial
contributions as a homemaker must also be considered.
10.4.2.
The
concept of a contribution must be interpreted to include both
monetary and non-monetary contributions, as envisaged in
Beaumont
v Beaumont
.
[6]
10.4.3.
In
Engelbrecht
v Engelbrecht
[7]
,
the court held:
"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.”
10.4.4.
The court
emphasised that the purpose of a forfeiture order is not to punish
the spouse against whom the order is made. Instead,
it is to ensure
that the division of property is fair and just, particularly in
protecting a vulnerable spouse from being unfairly
disadvantaged
because of the marriage. The court highlighted that the focus should
be on achieving equity rather than on retribution.
10.4.5.
An equal
division would benefit the respondent, but this alone is not
sufficient to justify forfeiture.
10.5.
Whether the
benefit would be undue
:
10.5.1.
Considering
all factors, I am not satisfied that the respondent's benefit from an
equal division would be undue. She made non-financial
contributions
to the marriage, brought some assets into the joint estate,
contributed financially when employed, and supported
the appellant's
business endeavours. The relatively short duration of the marriage
and the mutual fault in its breakdown also weighs
against finding the
benefit undue.
10.5.2.
In
Buttner
v Buttner
[8]
the court emphasised:
[25]
As indicated above, the evidence of both parties clearly indicated
that, throughout their marriage lasting some 27 years, the
parties
always pooled their income and regarded the assets acquired through
their joint efforts as being joint assets. While the
appellant was
the family’s principal breadwinner and made by far the greater
financial contribution to the assets acquired
by the parties, there
is nothing to indicate that either party regarded the contributions
made by the respondent, primarily as
housewife and mother, as being
any less valuable than those made by the appellant, nor that the
respondent’s contributions
were any less instrumental than
those of appellant in the acquisition of assets by the parties. Their
evidence that they considered
themselves to be ‘partners’
brings this into sharp focus. It is evident that the division of
labour between the parties
was a conscious choice made by both of
them. In my view, in these circumstances, fairness demands that
effect be given, on divorce,
to the principle of equal sharing which
the parties consciously applied throughout their married life.”
10.5.3.
From
Buttner
,
the extract above is focused more on fairness and recognising
non-financial contributions in this specific case.
10.5.4.
The appellant
has not discharged the onus of proving that the respondent would be
unduly benefited if forfeiture is not ordered.
While the respondent
may benefit financially from an equal division, this benefit is not
undue in the circumstances of this case.
10.5.5.
The
traditional role of a housewife and homemaker should not be
undervalued simply because it cannot be quantified in monetary terms.
The respondent's contributions in this regard must be given due
weight.
10.5.6.
In
Beaumont
,
the court articulated that discretion should be exercised judiciously
and only in cases where it is necessary to prevent unjust
enrichment
rather than to create an equal distribution of wealth between the
divorcing parties. This principle has been reaffirmed
in subsequent
case law, emphasising a cautious approach.
[9]
10.5.7.
This principle
is particularly relevant here, where the appellant appears to be
seeking forfeiture primarily to achieve a more favourable
division of
assets rather than to prevent unjust enrichment.
10.5.8.
Furthermore,
it is important to consider the broader policy implications of
forfeiture orders in divorce cases. As noted in the
case of
Wijker
,
the Appellate Division (now the Supreme Court of Appeal) clarified
that the consideration of fault or misconduct is not a prerequisite
for a forfeiture order.
[11]
In this case, both parties entered the marriage with some degree of
non-disclosure regarding issues that fundamentally affected
their
relationship. To grant forfeiture against one party in these
circumstances would be to penalise them for a mutual failing
unfairly.
[12]
The appellant's argument that the respondent regarded him as a
"
financial resource
" is not supported by the
evidence. The respondent contributed financially to the household
when employed and brought assets
into the marriage. She also
supported the appellant's business endeavours and performed household
duties. These actions are inconsistent
with someone merely seeking to
exploit their spouse financially.
[13]
Regarding the allegation that the respondent left the common home to
pursue illicit affairs, there is insufficient evidence
to support
this claim. The respondent's testimony that she left to protect her
mental health after being locked out by the appellant
is credible and
consistent with the overall picture of a deteriorating marriage
marked by sexual incompatibility and communication
breakdowns.
[14]
It is also noteworthy that the appellant did not institute divorce
proceedings himself when he felt the respondent was making
him a
"
financial resource
." Instead, he waited until the
respondent filed for divorce. This suggests that he was content to
continue the marriage despite
the alleged financial imbalance, which
undermines his argument for forfeiture on these grounds.
[15]
The court
a
quo
correctly considered the totality of the evidence in reaching its
decision. Where
there
are two irreconcilable versions, the technique generally employed by
courts in resolving factual disputes of this nature was
conveniently
summarised by the SCA as follows
in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
:
[10]
"
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities
."
[16]
Applying this approach, the evidence of the respondent appears more
credible and reliable overall. Her account of the marriage's
breakdown due to sexual incompatibility and communication issues is
consistent with the known facts and more probable than the
appellant's allegations of financial exploitation and infidelity.
[17]
It is also important to consider the potential impact of a forfeiture
order on the respondent. As noted in
Moodley
v Moodley
:
[11]
"
[10]
The concept of “benefits” is properly explained by
Schreiner J (as he then was) in the decision of
Smith
v Smith
by stating:
“
What
the defendant forfeits is not his share of the common property, but
only the pecuniary benefit that he would otherwise have
derived from
the marriage ... It is really an order for division plus an order
that the defendant is not to share in any excess
that the plaintiff
may have contributed over the contributions of the defendant.”
[18]
In this case, a forfeiture order would deprive the respondent of her
share in assets accumulated over 8.5 years of marriage,
during which
she made both financial and non-financial contributions. Given the
circumstances of the marriage's breakdown, this
would be an unduly
harsh outcome.
CONCLUSION
[19]
Considering the above analysis, I find that the appellant has not
made a case for the forfeiture of benefits against the respondent.
The evidence does not support a finding that the respondent would be
unduly benefited by an equal division of the joint estate,
considering the duration of the marriage, the circumstances of its
breakdown, and the contributions of both parties.
[20]
The principle that non-financial contributions to a marriage,
including homemaking and emotional support, have intrinsic value
that
should not be discounted merely because they cannot be easily
quantified in monetary terms. Forfeiture orders should not be
used as
a punitive measure or to rectify perceived imbalances in financial
contributions but rather to prevent unjust enrichment
in appropriate
cases.
[21]
Furthermore, this case highlights the importance of honesty and full
disclosure between spouses, particularly regarding issues
that may
fundamentally affect the marriage, such as sexual dysfunction or
infertility. While such non-disclosure may contribute
to the
breakdown of a marriage, it does not necessarily justify a forfeiture
order in the absence of other compelling factors.
[22]
The court's role in divorce proceedings is not to apportion blame or
punish perceived wrongdoing but to ensure a just and equitable
distribution of the marital estate. In this case, an equal division
of the joint estate best achieves this goal, recognising the
contributions of both parties to the marriage, both financial and
non-financial.
ORDER
[23]
Considering the above:
1.
The appeal is
dismissed.
2.
The order of
the Regional Court granting a divorce decree and ordering an equal
division of the joint estate is confirmed.
3.
Each party is
to pay their own costs of the appeal.
GAISA
AJ
ACTING
JUDGE: HIGH COURT
POLOKWANE:
LIMPOPO DIVISION
I
concur
NAUDE-ODENDAAL
J
JUDGE
OF THE HIGH COURT
POLOKWANE:
LIMPOPO DIVISION
APPEARANCES
FOR
THE APPELLANT:
MR
MV MANGWALE
INSTRUCTED
BY:
MONAGENG
MANGWALE ATTORNEYS
FOR
THE RESPONDENT:
MS
SIKHANYISO MOYO
INSTRUCTED
BY:
MASHABELA
ATTORNEYS INC.
DATE
OF HEARING:
10
MAY 2024
DATE
OF JUDGEMENT:
12
AUGUST 2024
[1]
70
of 1979
[2]
1993
(4) SA 720
(A) at para 19
[3]
2005
(2) SA 187 (SCA),
[4]
1991
(1) SA 265
(W) at 265J and 269G-H
[5]
Wijker
supra
read together with Beaumont v Beaumont
1987
(1) SA 967
(A) paras 10 - 13
[6]
1987
(1) SA 967
(A) paras 10 - 13
[7]
1989
(1) SA 597
(C) at 601F-G
[8]
2006
(3) SA 23
(SCA) at para 21
[9]
Beaumont
supra
at 997H-998A.
[10]
2003
(1) SA 11
(SCA) at para [5]
[11]
(7241/2002)
[2008] ZAKZHC 48 (14 July 2008). See also Smith v Smith 1937 WLD
126
at
127-8