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2024
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[2024] ZAFSHC 297
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W.B v P.G.B (3053/2022) [2024] ZAFSHC 297 (12 September 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
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no: 3053/2022
In
the matter between
W[…]
B[…]
PLAINTIFF
(ID
NO: 8[…])
And
P[…]
G[…] B[…]
DEFENDANT
(ID
NO: 7[…])
Neutral
citation: W[…] B[…] v P[…] G[…] B[…]
Coram:
Gusha, AJ
Heard:
13,14 and 16 August 2024
Delivered:
This judgment was handed down and released to
SAFLII. The date for hand-down is deemed to be 12 September 2024.
Summary:
Divorce Act 70 of 1979
– dissolution of a
marriage – entitlement to spousal maintenance post-divorce.
ORDER
1.
The bonds of marriage subsisting between the plaintiff and the
defendant be and are hereby dissolved.
2.
The parental responsibilities and rights in respect of the minor
children from the marriage between the
parties, as contemplated in
section 18(2)
(a)
of the Children’s Act 38 of 2005 be
awarded to both the parties.
3.
That the primary residency of the minor children be awarded to the
plaintiff.
4.
That the specific parental responsibilities and rights in respect of
the contact with the minor children
as contemplated in
Section
18(2)
(b)
of the Children’s Act 38 of 2005 be awarded to
the defendant in the following manner;
4.1.
Contact on alternative weekends from 17h00 Friday to 17h00 Sunday.
4.2.
Public holidays will alternate between the parties.
4.3.
School holidays will alternate between the parties and long school
holidays will be shared equally on the
basis that the minor children
will spend an alternative December holiday for Christmas with an
alternate party.
4.4.
At least three hours of contact is awarded to the defendant on the
birthday of the minor children and that
of the Defendant.
4.5.
Contact on Father’s Day from 09h00 to 17h00 if this day does
not coincide with a normal access weekend.
4.6.
Reasonable telephonic contact.
5.
The parental responsibilities and rights to the guardianship of the
minor children as contemplated in
section 18(2)
(c)
and
18
(3)
of the Children’s Act 38 of 2005 is awarded to the parties
jointly.
6.
The defendant will pay maintenance to the plaintiff in respect of the
minor children in the amount of
R2500 per child per month from the
date of this order and thereafter on or before the 7
th
of
each succeeding month until the children become self-supporting.
Payment shall be made into the plaintiff’s nominated
bank
account.
7.
The defendant is liable for payment of the children’s
reasonable pre-school fees, school fees,
extra mural, cultural and
sporting activities and all reasonable expenses related to
pre-school, school and extra mural activities.
8.
The defendant will retain the minor children as beneficiaries of his
current or similar medical aid scheme
and is liable for payment of
the monthly premiums thereof as well as the reasonable and necessary
costs of all expenses in respect
of medical, dental, ophthalmic,
orthodontist, psychotherapeutic treatment expenses of the minor
children not covered by the medical
aid scheme.
9.
The defendant shall pay maintenance to the plaintiff in respect of
herself in the amount of R10 000 per
month from the date of divorce
for a period of three months whereafter the amount will decrease to
R5 000 per month for a further
three months whereafter the
defendant’s obligation to maintain the plaintiff shall cease
in
toto
. Payment shall be made into the plaintiff’s nominated
bank account.
10.
The defendant will retain the plaintiff as a beneficiary of his
current or similar medical aid scheme for a period
of 3 months from
the date of divorce and is liable for payment of the monthly premiums
thereof as well as the reasonable and necessary
costs of all expenses
in respect of medical, dental, ophthalmic, orthodontist,
psychotherapeutic treatment expenses of the minor
children not
covered by the medical aid scheme
11.
The defendant shall pay to the plaintiff and amount of R50 000 within
30 days from the date of divorce.
12.
The defendant will sign all necessary documentation to transfer and
register the Ford Kouga motor-vehicle into the
name of the plaintiff
when the installments on the outstanding balance in respect of the
financing over the vehicle has been paid
in full.
13.
Each party to pay his or her costs.
JUDGMENT
[1]
These are defended divorce proceedings. The
parties were married to each other on 11 October 2008, out of
community of property
and with the exclusion of the accrual system,
which marriage still subsists. Two minor children were born of their
union, a 13-year-old
girl and a 7-year-old boy. Their union hit
stormy waters, resulting in the plaintiff launching these divorce
proceedings on 1 July
2022, asserting that the marriage relationship
irretrievably broke down and has reached such state of disintegration
that no reasonable
prospects for the restoration of a normal marriage
relationship exists. The plaintiff cited the defendant’s
alleged infidelity,
verbal and or emotional abuse, loss of mutual
love and respect, their different personalities and lack of
communication between
the parties as reasons for the disintegration
of the marital relationship.
[2]
She accordingly seeks a decree of divorce, the
usual ancillary relief in respect of the custody and primary
residency of the minor
children, maintenance in respect of the minor
children in the amount of R5 000 per month until the children become
self-supporting,
expenses related to school and all extra-mural
activities, as well as retention of the minor children on the
defendant’s
medical aid, at his cost. Further, in respect of
herself, she seeks spousal maintenance in the amount of R10 000 per
month until
her death or remarriage, retention on the defendant’s
medical aid, payment of an amount of R1 000 000 in terms of an
alleged
verbal agreement entered into between the spouses, as well as
transfer and registration of the Ford Kuga motor-vehicle, currently
in her possession, into her name.
[3]
The defendant, in turn, disputes the reasons for
the breakdown and has launched a counterclaim wherein he also seeks
dissolution
of the marriage albeit disputing the reasons for the
breakdown.
He too seeks the usual ancillary
relief in respect of the custody, care and residency of the minor
children. Considering the reasonable
maintenance needs of the minor
children and the obligation resting on both parties in proportion to
contribute towards the minor
children’s maintenance needs, the
defendant seeks an order to pay maintenance in respect of the minor
children in the amount
of R2 500 per month per child until the
children become self-supporting; that he be liable for the payment of
fees relating to
the children’s pre-school, school and
extra-mural activities; to retain the minor children as dependents on
his medical aid
fund and to pay the monthly premiums as well as
payment of all reasonable and necessary expenses in respect of
medical, dental,
hospital, ophthalmic and psychotherapeutic treatment
required by the minor children which is not covered by his medical
aid.
[4]
The defendant also seeks an order that he pay
rehabilitative maintenance to the plaintiff in the amount of R10 000
per month for
a period of 6 months whereafter the amount will
decrease to R5 000 for a period of a further 3 months, whereafter the
maintenance
will cease. Furthermore, that he retains the plaintiff as
a beneficiary of his medical aid fund for a period of 6 months and
the
plaintiff will be responsible for payment of all reasonable and
necessary medical expenses not covered by the medical aid fund,
to
pay to the plaintiff and amount of R50 000 within 30 days from the
date of divorce and lastly to transfer the ownership of the
Ford Kuga
motor-vehicle into the name of the Plaintiff when the installments on
the outstanding balance in respect of the financing
over the vehicle
has been paid in full.
[5]
Subsequent
to launching these proceedings, the plaintiff launched proceedings in
terms of Uniform
Rule 43.
Pending the finalization of the main
action, she was awarded relief in
pendente
lite
with
the monetary part, excluding contribution towards legal costs,
totaling R19 500
[1]
She was
further awarded furniture and household items as listed in Annexure
AO2 of the defendant’s (respondent in the
rule 43
application)
answering affidavit.
[6]
It bears mentioning that as early as 9 September
2022, the defendant, in terms of
rule 34
tendered unsuccessfully to
the Plaintiff with prejudice, a decree of divorce, the usual
ancillary relief pertaining to the rights
and responsibilities of the
parties relating to the custody, care and residency of the minor
children, maintenance in the amount
of R2 500 per month per minor
child, payment of all reasonable school, extra-mural, cultural and
sport activity fees. Retention
of the minor children on his medical
aid and payment of all monthly premiums and all reasonable and
necessary medical costs not
covered by the medical aid. In respect of
the plaintiff he tendered, R10 000 rehabilitative spousal maintenance
for a period of
six months from the date of divorce and thereafter R5
000 per month for a period of three months, retention of the
plaintiff on
his medical aid and payment of all monthly premiums and
all reasonable and necessary medical costs not covered by the medical
aid
for a period of six months from the date of divorce, transfer of
the Ford Kouga into the plaintiff’s’ name and lastly
a
once-off payment of R50 000 within 30 days from the date of divorce.
[7]
I am indebted to both counsel for successfully
narrowing the issues before the commencement of these proceedings.
From the exposition
above, it is patent that that the marriage has
irretrievably broken down and that an order of dissolution of the
marriage should
follow. The parties are
ad
idem
with regards to the ancillary
relief sought in respect of custody, care and primary residency of
the minor children. The parties
are furthermore in agreement that the
Ford Kuga motor-vehicle will be transferred into the name of the
plaintiff when payment of
the outstanding balance owed in respect its
financing has been paid in full.
[8]
Despite the plaintiff contending that there is
still a dispute with regards to the quantum of the maintenance in
respect of the
minor children, in my view there is no dispute with
regards thereto. The plaintiff seeks in her particulars of claim
R5000 per
month, in total, in respect of the minor children, that
amount corresponds to what the Defendant tenders in his counterclaim:
R2500
per child per month. In my view therefore, the only issues
which remain for decision are the plaintiff’s entitlement to
permanent
maintenance, the quantum thereof, retention on the
defendant’s medical aid and lastly her claim for payment of R1
000 000.
[9]
On the reasons which led to the breakdown, the
parties testified at length on the reasons which led thereto, I
however do not deem
it necessary to probe into those reasons. From
the evidence led, it is patent that both parties, one way or the
other, were responsible
for the breakdown of their marital union.
Suffice to say that the plaintiff alleges that the breakdown was
largely due to the defendant’s
alleged extra-marital affairs
and emotional abuse, the defendant on the other hand, alleges that
the reasons for the break down
were largely due to the plaintiff’s
unrealistic financial demands and expectations and their incompatible
personalities.
No one party can be singled out as the single most
contributor. This much is borne by the fact that both parties, when
they testified
regarding the reasons for the breakdown, alluded to
the fact that they, singly, contemplated ending the marriage some
eight years
prior to the institution of these proceedings. Therefore,
whatever may have led to the breakdown in the marital union is for
present
purposes immaterial, what is, is the fact that indubitably,
the marriage relationship has irretrievably disintegrated, the
plaintiff
even vacated the communal home in 2022. I am satisfied that
in the circumstances a divorce decree ought to be granted.
[10]
With
regards to the plaintiff’s claim for spousal maintenance, it is
a general principle of our law that a marriage creates
a reciprocal
duty of support between spouses. Equally, neither spouse has an
automatic right to spousal maintenance after dissolution
of the
marriage.
[2]
Section 7(2) of the
Divorce Act 70 of 1979 (the Act) however provides that a court may,
having regard to the parties existing or
prospective earning
capacities, financial needs and obligations, their standard of living
prior to divorce, their conduct in so
far as may be relevant to the
breakdown of the marriage make an order for spousal maintenance. The
party desirous of spousal maintenance
however will have to provide
evidence as to why he or she requires such maintenance.
[3]
[11]
It is established law that awarding post-divorce
spousal maintenance is clearly discretionary.
In
exercising its wide discretion, a court may or may not make an order
granting maintenance. Where maintenance is granted this
may be for
‘any period’ whether a specified period of time or until
the happening of an event.
The factors that
a court will consider when awarding post-divorce maintenance are not
exhaustive and the court has a very wide discretion
whether or not to
grant a maintenance, the amount payable and the duration of the
maintenance.
[12]
In
order to determine whether a party is entitled to spousal
maintenance,
a
balanced assessment of maintenance needs and ability to pay is
required.
[4]
The duty to
maintain post-divorce arises only when there is a need, not want,
[5]
and the other party has the ability to pay. It is, after all, an
unfortunate and inescapable consequence of the dissolution of
marriage that parties, post-divorce, often have to abate their
pre-divorce standard of living and adjust to their post-divorce
financial reality.
[13]
In
an endeavour to establish a need for spousal maintenance, the
plaintiff testified that she earns an approximate monthly income
of
R15 000 from her business as a beauty therapist which she conducts
from her current home and generates an additional R6077 per
month
from the rental of a house she inherited from her deceased mother.
[6]
She also inherited an assortment of expensive antique furniture from
her deceased mother and grandmother which she used to furnish
her
erstwhile communal home. In 2019 they however lost the communal home
when it was razed to the ground by a fire. As the communal
home and
its contents were insured, she asserts that she and the defendant
reached an oral agreement that he would reimburse her
to the tune of
the R1 000 000 for the razed antique furniture. It is noteworthy that
the plaintiff save to detail the antique furniture
she lost in the
fire, she failed to successfully quantify the loss.
[14]
She and the minor children currently occupy a
townhouse at a monthly rental of R8900. Their daily living monthly
expenses average
R45 000. She testified that she was entitled to
spousal maintenance of R10 000 per month until her remarriage as her
current income
was not enough and she felt entitled thereto due the
‘humiliation and verbal abuse’ she endured from the
defendant
over the years. With regards to medical aid she maintained
that, due to her insufficient income, the defendant should retain her
on his medical aid for a period of one year from the date of divorce
whereafter she will get her own medical aid.
[15]
Upon being quizzed in cross examination on
increasing her earning potential, the plaintiff conceded that with
proper planning of
her daily responsibilities, she has the potential
to service more clients per day, thus generating more income.
[16]
The
defendant testified that he is a dealer principal at a certain
motor-vehicle dealership earning a gross salary of approximately
R80
000 per month with an annual performance-based bonus paid every
November. He testified that from his gross earning he serviced
his
own living expenses and the maintenance in terms of the rule 43
order. He maintained that he stood by the rule 34 tender he
made and
could not pay any more as he, too, practically lived in debt.
[7]
[17]
With regards to the claim for R1 000 000. he
maintained that there never was such an agreement entered into
between him and the
plaintiff. In fact, he testified that with the
proceeds from the insurance for household contents from their razed
communal home,
he bought furniture for their then new communal home.
As part order issued in terms of rule 43, the plaintiff was awarded
the furniture
as listed in Annexure AO2, she however took much more
than when she vacated the new communal home. Notwithstanding that she
took
more than what was provided for in the rule 43 order, the
defendant however maintains that she can keep all the furniture she
took
when she moved out of the communal home.
[18]
Save to re-iterate the terms of the rule 34 tender
and to take issue with the reasons for the breakdowm of the marriage,
not much
was canvassed to gainsay the evidence of the defendant
regarding his income and expenditure.
[19]
In the present matter the plaintiff is 41-years
old and is self-employed. In addition to the income she generates
from her business
and rental property, she receives an amount of R19
500
pendente lite
from
the Defendant; R12 500 for herself and R7000 in respect of the minor
children. In addition to this, the Defendant pays for
the minor
children’s school fees and related expenses as well as their
medical expenses. Regard being had to her present
expenses
vis
a vis
her income, it is patent that the
relief she was awarded
pendente lite
is what keeps her afloat. She definitely has in my
view discharged the onus that she needs spousal maintenance. I am
however not
persuaded under the circumstances that she has made out a
case for permanent spousal maintenance. She is still relatively
young,
with the necessary adjustments and planning, her business can
grow and generate more income than it is now. She alluded in evidence
that pre-Covid-19, her business flourished and she generated much
more income from it than she currently does. Coupled with this
her
financial position ought to improve further when the sale of her
house is finalized. She will either then have much more disposable
income or have sufficient finances to obtain a dwelling in her own
name, thus relieving her of the rental amount she currently
pays.
That being said, her current ability to earn an income and potential
to augment that income, does not in my view disentitle
her to earn
rehabilitative maintenance presently.
[20]
With regards to her retention on the defendant’s
medical aid she has not made out a case for retention on the
defendant’s
medical aid scheme for one year, in view of the
order I make hereunder, I hold the view that she will have sufficient
resources
to obtain her own medical aid cover in about three months
from the date of this order.
[21]
I am mindful of the defendant’s financial
position. In my view, his financial position cannot be as dire as he
sketched it
out to be during evidence. Notwithstanding spending
approximately 80% of his monthly salary in servicing the rule 43
order, he
has diligently complied with that order and somehow managed
to stay afloat. Furthermore, his financial position notwithstanding,
he repeated in evidence the rule 34 tender he made. In my view
considering his current earning capacity and his declared assets
he
is in a much stronger financial position than the plaintiff and has
sufficient means to pay rehabilitative maintenance, at least
in the
amounts and time frames as per the rule 34 tender.
[22]
With regards to the plaintiff’s claim for
payment of R1 000 000 I am not persuaded that she has made out a case
for this relief.
Her version with regards to the existence of this
agreement was wobbly at best. In any event, whatever claim she may
have had as
against the defendant in respect of the value of her
furniture lost in the fire, it remains the defendant’s
uncontroverted
evidence that the plaintiff, took from the erstwhile
communal home more furniture and household items than she was
entitled to
in terms of the rule 43 order. Neither the rule 43 items
nor the additional items were quantified. In the circumstances I
cannot
find for her in this regard, her claim therefore stands to
fail. I am, however, inclined to award her the R50 000 as tendered by
the defendant and repeated in his claim in reconvention.
[23]
With
regards to costs it was submitted by counsel for the plaintiff that
an appropriate costs order in the present matter would
be one where
each party pays their own costs. This he amplified and submitted that
due to the plaintiff’s financial position
and amounts she
already spent litigating,
[8]
he
opted to act
pro
bono
for
the her and would thus not render any account for his services.
Counsel for the defendant submitted and prayed that the court
exercise its discretion judiciously bearing in mind the period when
the rule 34 tender was made.
[24]
In my view, in the circumstances of this case,
considering the parties’ respective financial positions and
that each were
partially successful in their respective quests, I
hold the view that an appropriate costs order is to order that each
party pays
its own costs.
Order
[25]
In the result, the following order is made:
1.
The bonds of marriage subsisting between the plaintiff and the
defendant be and are hereby dissolved.
2.
The parental responsibilities and rights in respect of the minor
children from the marriage between the
parties, as contemplated in
section 18(2)
(a)
of the Children’s Act 38 of 2005 be
awarded to both the parties.
3.
That the primary residency of the minor children be awarded to the
plaintiff.
4.
That the specific parental responsibilities and rights in respect of
the contact with the minor children
as contemplated in Section
18(2)
(b)
of the Children’s Act 38 of 2005 be awarded to
the defendant in the following manner;
4.1.
Contact on alternative weekends from 17h00 Friday to 17h00 Sunday.
4.2.
Public holidays will alternate between the parties.
4.3.
School holidays will alternate between the parties and long school
holidays will be shared equally on the
basis that the minor children
will spend an alternative December holiday for Christmas with an
alternate party.
4.4. At
least three hours of contact is awarded to the defendant on the
birthday of the minor children and that
of the Defendant.
4.5.
Contact on Father’s Day from 09h00 to 17h00 if this day does
not coincide with a normal access weekend.
4.6.
Reasonable telephonic contact.
5.
The parental responsibilities and rights to the guardianship of the
minor children as contemplated in
section 18(2)
(c)
and 18(3)
of the Children’s Act 38 of 2005 is awarded to the parties
jointly.
6.
The defendant will pay maintenance to the plaintiff in respect of the
minor children in the amount of
R2500 per child per month from the
date of this order and thereafter on or before the 7
th
of
each succeeding month until the children become self-supporting.
Payment shall be made into the plaintiff’s nominated
bank
account.
7.
The defendant is liable for payment of the children’s
reasonable pre-school fees, school fees,
extra mural, cultural and
sporting activities and all reasonable expenses related to
pre-school, school and extra mural activities.
8.
The defendant will retain the minor children as beneficiaries of his
current or similar medical aid scheme
and is liable for payment of
the monthly premiums thereof as well as the reasonable and necessary
costs of all expenses in respect
of medical, dental, ophthalmic,
orthodontist, psychotherapeutic treatment expenses of the minor
children not covered by the medical
aid scheme.
9.
The defendant shall pay maintenance to the plaintiff in respect of
herself in the amount of R10 000 per
month from the date of divorce
for a period of three months whereafter the amount will decrease to
R5 000 per month for a further
three months whereafter the
defendant’s obligation to maintain the plaintiff shall cease
in
toto
. Payment shall be made into the plaintiff’s nominated
bank account.
10. The
defendant will retain the plaintiff as a beneficiary of his current
or similar medical aid scheme for a period
of 3 months from the date
of divorce and is liable for payment of the monthly premiums thereof
as well as the reasonable and necessary
costs of all expenses in
respect of medical, dental, ophthalmic, orthodontist,
psychotherapeutic treatment expenses of the minor
children not
covered by the medical aid scheme.
11. The
defendant shall pay to the plaintiff and amount of R50 000 within 30
days from the date of divorce.
12 The
defendant will sign all necessary documentation to transfer and
register the Ford Kouga motor-vehicle into
the name of the plaintiff
when the installments on the outstanding balance in respect of the
financing over the vehicle has been
paid in full.
13. Each
party to pay his or her costs.
NG
GUSHA, AJ
Appearances
For
Plaintiff:
Mr
GJ Bredenkamp
Instructed
by:
Bredenkamp
Attorneys
For
the Defendant:
Adv
R Van der Merwe
Instructed
by:
Neumann
van Rooyen Attorneys
C/O
Phatsoane Henney Attorneys
[1]
Rule
43 order: Mpama AJ dated 20 October 2022.
[2]
Strauss
v Strauss
1974(3)
SA 79(A).
[3]
Section
7(2) of the Act,
EH
v SH
2012
(4) SA 164
SCA.
[4]
Van
Wyk v Van Wyk
[2005]
JOL 17228 (SE).
[5]
Kroon
v Kroon
1986
(4) SA 616.
[6]
She
has put the house on the market for R750 000.00.
[7]
The
defendant has various credit card and personal loan debt that he is
servicing.
[8]
The
Plaintiff has had no less than 6 legal representatives in this
matter, costs for which she still remains liable for.