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2024
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[2024] ZAMPMBHC 74
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N.L.M v G.C.M (4351/2022) [2024] ZAMPMBHC 74; - (30 September 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
CASE
NO: 4351/2022
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: YES
DATE 30/09/2024
SIGNATURE
In the matter between:
N[...] L[...]
M[...]
PLAINTIFF
and
G[...] C[...]
M[...]
DEFENDANT
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 30 September 2024 at 10:00.
JUDGMENT
Mashile J
Introduction
[1]
This is a divorce action central to which is the issue whether this
Court should make an order
for forfeiture of patrimonial benefits
wholly or in part as contemplated in section 9(1) of the Divorce Act
70 of 1979 (“the
Act”).
Viva voce
evidence and
documentary evidentiary material before this Court suggest that the
issue singled out aforesaid is the only that stands
for decision.
Both parties agree that their marriage relationship has irretrievably
broken-down and that no possible restoration
can be achieved.
Terse Factual Matrix
[2]
The parties concluded a customary marriage on 14 November 2009 at
Kabokweni Mpumalanga Province.
The regime governing a marriage in
community of property and profit and loss is applicable to a
customary marriage. In consequence
of the parties’ marriage
relationship, a minor child, T[...] C[...] M[...], a boy now aged 9,
was born. The Defendant initially
challenged the paternity of the
minor child, but tests conducted in that respect have confirmed that
the Defendant is his father.
[3]
It is common cause that the parties stopped living as husband and
wife since August 2017. Both
have now
lost
love, respect and affection for each other and both find this to be
irreconcilable with a normal marriage relationship. Besides,
the
Defendant has openly advised family delegates from both parties who
were meant to counsel and reconcile them that he did not
want the
Plaintiff anymore.
[4]
The Plaintiff averred that the Defendant was physically abusive
towards her and did so in the
presence of their child. Over and above
the abuse, the parties had for a period exceeding a year while living
together in the matrimonial
home, not afforded each other conjugal
rights. Additionally, alleges the Plaintiff, the Defendant would,
without notifying anyone,
absent himself from the matrimonial home
for days. If present, he would leave and return in the early hours of
the morning. As
a result of all these, the Plaintiff thought it wise
to leave the matrimonial home.
[5]
Besides, the trust that was once present between the parties has with
time evaporated. The loss
of trust, it would appear, surfaced when
the Defendant leant of the HIV positive status of the Plaintiff. He
accused her of cheating
on him and promiscuity generally. He pointed
out that she was not infected by him because he was free of the
virus. According to
the Defendant, the inference that she was
sleeping around remained tbthe only reasonable to draw.
Assertions by the Parties
[6]
The brief factual background above sufficiently covers the parties’
testimony in Court.
As such, I deem it unnecessary to set out what
each of them put forward during the proceedings. It was argued on
behalf of the
Defendant that a case for an order for forfeiture of
patrimonial benefit in terms of section 9(1) of the Act had been
made. In
the alternative, the Defendant, it was asserted, had shown
that the Plaintiff will unduly benefit if an order for partial
forfeiture
as laid out in the counterclaim is not granted.
[7]
On the contrary, it was the Plaintiff’s contention that the
Defendant had failed to give
sufficient reasons for the Court to
grant forfeiture wholly or in part as intended in section 9 of the
Act. The Plaintiff asserted
further that the Defendant had not met
the threshold to allow this Court to grant such order. There are no
grounds for the Court
to make an order that the patrimonial benefits
of the marriage be forfeited either in whole or in part by her, the
Defendant in
his pleadings did not properly plead and will fail to
prove his allegations.
Legal Framework
[8]
The controversy in this matter is governed by section 9(1) of the
Act. Thus, it could be useful
to cite the section in its entirety
below:
“
when
a decree of divorce is granted on the ground of the irretrievable
break-down 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 break-down 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.”
[9]
The section lists three factors that ought to be considered when
determining whether the one party
will unduly benefit if the
forfeiture order is not granted. These are: (i) the duration of the
marriage, (ii) consideration of
the circumstances that gave rise to
the break-down of the marriage, and (iii) any substantial misconduct
on the part of either
party. The approach of Courts that considered
the issue of forfeiture of patrimonial benefits by one estranged
spouse against the
other has been exclusively whether or not the
other party against whom forfeiture is sought would unduly benefit if
the forfeiture
order is not made. That issue should always be
determined with due regard to the three factors that I have listed
above.
[10]
In
Wijker
v Wijker
,
[1]
it
was held that the context and the subject-matter of section 9(1)
of the Act makes
it
abundantly clear that the Legislature never intended the three
factors mentioned in the section to apply conjunctively. The Court
in
the
Wijker
gave
guidance to a Court of appeal hearing an appeal that concerns a
forfeiture order. The Court held that:
“
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.”
[2]
[11]
Nowhere in the papers of the Defendant nor in the evidence that he
levied in Court could I find any intimation
that the Plaintiff will
be unduly benefitted were the Court to refuse to grant the forfeiture
order. Put differently, there is
no evidence that if the order is not
granted, the Defendant will be worse-off. To consider this in the
context of the three factors,
as this Court is required to do. The
parties have to date been married for almost 15 years.
[12]
Both parties have been working as police officers and have been
contributing towards their joint estate.
There having been no
allegations that the Plaintiff did not pull her weight behind the
joint estate, this Court regards the period
of 15 years as fairly
substantial to disregard the contribution that the Plaintiff made
towards the estate. Accordingly, on the
duration of the marriage, I
find that an order that she forfeits the patrimonial benefits of the
marriage, either wholly or in
part, will unduly disadvantage her. In
any event, the Plaintiff has not made a case that she will
undeservedly be benefitted if
the order is not made.
[13]
Turning to the circumstances that led to the break-down of the
marriage. The argument of the Defendant is
that the Plaintiff must
have been cheating on him because she is HIV positive while he is
not. The assumption is that she acquired
the HIV from men with whom
she ought to have been in sexual relationships. The assumption is
made in circumstances where there
is dearth of evidence before Court
that the HIV was acquired from the Plaintiff engaging in sexual
relationships with other people.
Given that transmission of HIV is
varied, this Court cannot justly surmise that it emanated from any
repugnant relationship.
[14]
Clearly, when the minor child was born in 2015, it implied that his
parents had been sexually active and
that both had been HIV negative.
If this were not the case, it would be difficult to explain why the
child was born free of the
virus. I should perhaps also point out
that even if the Plaintiff had acquired the HIV as a result of
engaging in sexual relationships
with other people, if there is no
proof that her act brought about a diminution in the joint estate,
there would be no justification
in ordering forfeiture against her.
This is aside from the fact that such an act is possibly morally
reprehensible.
[15] It
was the evidence of the Plaintiff that the issue regarding her HIV
status had nothing to do with the break-down
in her marriage. Insofar
as she is concerned, the marriage broke-down because of the Defendant
physically abusing her, disappearing
without any notification and
when around, leaving and coming back in the early hours of the
morning. In substantiation, she pointed
out that following the birth
of the minor child in 2015, the parties continued living together
until her departure in 2017 mindful
of her HIV status. Accordingly,
she concluded, the break-down was about the abuse and that the
Defendant had declared to their
family delegates that he no longer
loved her.
[16] In
conclusion, it is the finding of this Court that the duration of the
marriage, the circumstances that
led to the break-down of the
marriage and conduct of the parties will not unduly benefit the
Plaintiff.
[17]
The above considered, I make the following order:
1.
A decree of divorce is granted;
2.
The joint
estate shall be divided equally between the parties;
3.
The counterclaim is dismissed with
costs;
4.
Both parties
shall retain full parental responsibilities and rights with regard to
the guardianship
of the minor child;
5.
The Plaintiff
shall retain full parental responsibilities and rights with regard to
the care of the child;
6.
The primary
residence of the child shall be with the Plaintiff;
7.
Specific
parental responsibilities and rights with regard to contact with the
minor child is awarded to the Defendant.
8.
The
GOVERNMENT
EMPLOYEES PENSION FUND (GEPF) is directed
to
pay
50%
of the pension interest, under pension 9[...] of the Defendant to the
Plaintiff and the Defendant
50%
in the said pension fund calculated as at the date of divorce as
provided for in terms of
section 7(7)
and
7
(8) of the
Divorce Act, 70
of 1979
;
9.
The registrar of the Court shall notify the
GOVERNMENT EMPLOYEES
PENSION FUND
that
50%
of the pension fund interest is
payable to the Plaintiff and the administrator of the fund to furnish
proof of such endorsement
to the registrar, in writing, within 30
days of receipt of such notification;
10.
The Defendant shall be liable for the costs hereof
B A MASHILE
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES
Counsel
for the Plaintiff:
Adv
LD Tjale
Instructed
by:
TP
Radebe Attorneys
Counsel
for the Defendant:
Mr
Meintjies
Instructed
by:
Meintjies
and Khoza Attorneys
Date
of Judgment:
30
September 2024
[1]
1993
(4) SA 720 (A).
[2]
Ibid
at 727D-F.