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[1988] ZASCA 91
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Kritzinger v Kritzinger (52/87) [1988] ZASCA 91; [1989] 1 All SA 325 (A) (16 September 1988)
CASE NO: 52/87
SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the appeal of:
JUNE MARGARET
KRITZINGER
Appellant
and
KONRAD MARTHINUS
KRITZINGER
Respondent
CORAM
: CORBETT, MILNE JJA et NICHOLAS AJA
DATE OF HEARING
: 15 August 1988
DATE OF JUDGMENT:
16 September
1988
JUDGMENT
MILNE JA/ ..
2
MILNE JA:
In this matter leave to appeal to this Court was granted by the trial
Court.
The appellant and the respondent were married to each other out of
community of property on 22 December 1967. In November 1985 the
appellant sued
the respondent for a divorce, and for a sum of money in terms of
section 7(3)
of
the
Divorce Act, 70 of 1979
as amended (the Act). This sum was alleged to be the
total amount of her contribution towards the acquisition, improvement, and
maintenance
of the common home, and her contribution towards payment of the
mortgage bond instalments on that home. The amount claimed was initially
R149
000 but was increased to R267 488.51. In addition the appellant claimed
interest. In regard to the marriage, the appellant claimed
that it had
irretrievably broken down and alleged that since 1 November 1985 the parties had
ceased to live together as man and wife.
The respondent admitted that the parties had not
lived together since 1 November 1985, and admitted the
irretrievable
breakdown of the marriage, but alleged that
it was caused solely by the
appellant's conduct:
"in particular her adultery with one Patrick Green, and her express
determination to put an end to the marriage to enable her to
continue and
further her relationship with the said
Green."
With regard to the appellant's
money claim, the
respondent admitted that the appellant had made certain
payments in
respect of improvements to the common home and
instalments on mortgage bonds
over the common home. He
alleged, however, that, to the extent that such
payments
consisted of interest on the bonds, they constituted
necessaries
for the joint household within the meaning of
section 23(2)
of the
Matrimonial Property Act 88 of 1984
.
He also alleged that payments on the
bonds after the end of
October 1985 were made by virtue of an agreement
between the
4
parties during November 1985. In addition the respondent
alleged that "during the subsistence of the marriage, he contributed indirectly
to the maintenance and increase of plaintiff's estate by keeping the common home
in or near Cape Town, to the substantial prejudice
of his own career and estate,
so that plaintiff could pursue her own career to her substantial benefit and
that of her estate." He
accordingly denied that it would be equitable or just
for an order to be made in terms of
section 7
of the Act transferring assets of
his to the appellant.
The respondent also counterclaimed for a divorce and,
in turn, made a money claim against the appellant. This was based upon the
allegation
that he had contributed indirectly to the maintenance and increase of
the plaintiff's estate "by keeping the common home of the parties
in or near
Cape Town". He alleged that as a result, the appellant's estate was increased to
the extent of at
5
least R600 000, and that it would be equitable and just that
the appellant be directed to pay to him the sum of R200 000.
In her plea to
the counterclaim the appellant admitted having committed adultery with Green at
a number of the places, and on a number
of the dates alleged by the defendant,
and averred that the marriage had irretrievably broken down (for the reasons
alleged in her
particulars of claim), prior to her committing any act of
adultery.
In response to a request for particulars for
trial,
the respondent set out the basis for his counter-
claim for R200 000 in the
following terms:
"2.1 Plaintiff and Defendant each have, and have at all material times had,
separate business careers, Plaintiff as an employee of
the Clicks Stores group
and Defendant as an employee of the Mobil Oil Group. 2.2 The Mobil Oil Group is
a multi-national organisation,
with operations in most countries in the world.
The headquarters of the group is in New York in the United States of America.
In
6
considering any senior employee for promotion, the group places very great
emphasis on international experience, especially but not
only at its New York
headquarters. Meaningful career progress for any employee within the Mobil Oil
Group beyond a certain level
therefore requires a degree of geographic
flexibility on the part of that employee, as will more fully appear below.
2.3 The main avenues for career advancement within the
Mobil Oil Group as a
whole, for someone at the
level at which Defendant now is and has at
all
material times been, lie in that employee's
relocating to the group
headquarters in New York
on a permanent basis, or in becoming what
is
termed an 'international foreign resident', that
is, an employee who
accepts assignments in foreign
countries as required by the Group from time
to
time.
2.4 For significant career progress within the Mobil
Oil companies in South
Africa, for someone at the
level at which Defendant now is and has at
all
material times been, it is necessary for that
employee to have
undertaken some foreign
assignments, including at least one at the
New
York headquarters of the group. The duration of
such assignments would
depend on circumstances,
but would generally be not less than two
years,
and probably three years.
2.5 Meaningful career progress for Defendant would
therefore have required
the common home to have
been moved from Cape Town and South Africa,
either
permanently or for substantial periods of time,
probably not less
than three years.
7
2.6 Moving the common home f r om Cape Town and South Africa would have been
irreconcilable with Plaintiff's business career. Plaintiff
holds, and has at all
material times held, a very senior position in the Clicks Stores group, and is
currently Managing Director
of that group. For purposes of her business career
it is, and has at all material times been, necessary for Plaintiff to reside in
or near Cape Town, where the head offices of the Clicks Stores group is
situate.
2.7 Defendant has at all material times been regarded by his employers as having
outstanding potential for advancement, save only
for the impediment to his
geographic flexibility arising from the circumstances described in 2.6 above.
But for such impediment,
Defendant would have been offered, and would have
undertaken, appropriate foreign assignments for his career advancement.
2.8 Had Defendant moved the common home away from Cape Town, in order to
undertake such foreign assignments, Defendant would have
made very substantial
career progress. It is impossible for Defendant to state categorically what
specific position he would now
have heïd in the Mobil Oil group, or what
his remuneratipn benefits would have been, but Defendant can and does
state:
2.8.1 that his past earnings and other benefits of employment over the past not
less than eight years would have been very much greater
than they were;
2.8.2 that his current salary rate and other benefits of employment would have
been very much greater than they are;
and
8
2.8.3 that his prospective future earnings and other benefits of employment
would have been very much greater than his present prospects.
2.9 By keeping
the common home in or near Cape Town:
2.9.1
Defendant's career has
been prejudiced by foregoing the career opportunities referred to above;
and
2.9.2
Defendant's estate has been
prejudiced by foregoing the past, present and future benefits referred to in
2.8.1, 2.8.2 and 2.8.3 above.
2.10 Although, since
the irretrievable breakdown of the
marriage, the circumstances described in
2.6 above
are no longer an impediment to Defendant's career
advancement at
his present age from his present
position, the prospects of his now being
placed on
a career path -
2.10.1
which would at any
future time place him in a position comparable with that which he would have
held at that time, had he undertaken
foreign assignments at a considerably
earlier stage of his career, are negligible;
2.10.2
which would be of as advantageous a quality as that of a path on
which he would have been placed at a younger age, are
remote.
Defendant therefore says that the very
substantial prejudice to his career development and future prospects as
described above is
irreparable."
Also in response to a request for
particulars for trial, the respondent alleged that the sum of R600 000, by which
the appellant's
estate had allegedly been increased, represented the market
value of 40 000 shares in Clicks Stores Ltd and 80 000 shares in Clickden
Ltd
held by the appellant, less an amount owed by the appellant in respect of the
purchase of such shares. The respondent also denied
that "had the common home
been moved from Cape Town, plaintiff's own estate would have increased beyond
its present extent before
taking into account the amount of R600 000 ..."
In response to a request for particulars as to
how
the counterclaim for R200 000 was made up, the
respondent furnished the
following further particulars:
"4.1 Defendant states that the value of the combined net assets of the parties
is approximately Rl 000 000,00, and that, save as
set out in 6.2 below, such
assets have been accumulated out of the earnings and other benefits of
employment of
10
the parties.
4.2 Defendant further states that, by reason of the
circumstances set out in
4.4 below, it would be
equitable and just for this Honourable Court
to
direct a redistribution of assets so as to ensure
that Defendant
obtains one half in value of the
said combined net assets, that is, net
assets to
the value of R500 000,00.
4.3 The difference between the said value of R500 000,00 and the value of
Defendant's net assets is not less than R200 000,00. The
amount referred to in
paragraph 7.3 of Defendant's Counterclaim represents the said
difference.
4.4
The
circumstances referred to in 4.2 above
are:
4.4.1 the fact that, by keeping the common
home in Cape Town, Defendant's
estate
and career and future financial
prospects have been prejudiced
as
hereinbefore set out, and have been
sacrificed for the benefit
of
Plaintiff's estate and career and future
financial prospects, which
have thereby
been very greatly enhanced, and
4.4.2 the fact that the irretrievable
breakdown of the marriage was
caused
solely by Plaintiff's conduct as set out
in paragraphs 4, 5 and 6
of
Defendant's
Counterclaim.
4.5 Alternatively to the foregoing sub-paragraphs of
this paragraph 4,
Defendant states that -
4.5.1 by reason of the circumstances set out in 4.4 above, it would be equitable
and just for this Honourable Court
to
11
direct Plaintiff to pay to Defendant one third of the amount
by which her estate has increased in consequence of the facts set out
in 4.4.1
above;
4.5.2
the amount by which her
estate has increased in consequence of the facts set out in 4.4.1 above is not
less than R600 000,00;
4.5.3
the amount of
R200 000,00 referred to in paragraph 7.3 of Defendant's Counterclaim represents
one third of the said amount of R600
000,00."
Why
the value of the respondent's so-called contribution should be one third (as
opposed to any other fraction) of the amount by which
the appellant's estate was
allegedly increased in the manner claimed, is not stated.
What was referred
to in the pleadings as "the common home", was certain immovable property
consisting of Erf 4775 and Remainder of
Erf 556 Constantia, Cape, together with
the dwelling house and other buildings thereon, which was known as "La Mistral".
I shall
simply refer to it as "the home."
12
At a reconvened
Rule 37
conference held before the
commencement of the trial, the respondent admitted that the
appellant had contributed the following sums for the
following purposes:
"1.1 Improvements to the common home R91 932.22
1.2 Mortgage bond
instalments i.r.o.
the common home 49 950.00
1.3
Rates and water i.r.o. the
common home 9 835.64
1.4
Insurance of the
common home 1 225.72
1.5
Maintenance of the
common home
2 427.61
R155
371.19
"
During the course of the trial, the respondent conceded that the appellant
had contributed R131 903 towards improving the property.
This replaced the
figure of R91 932.22 referred to above. The respondent also conceded during the
trial that the figure of R49 950
referred to above should be increased to R56
711 bringing the total amount contributed by her in rcspect of the home to R201
102.
It was common cause that the respondent's
13
contribution to the acquisition and the improvement of the
home was R25 000, being R20 000 in cash in respect of the purchase price of
the land in 1974 and R5 000 in respect of a swimming pool,
a year or so later.
It was also common cause that respondent had contributed the amount of
approximately R66 240 by way of instalments
on the bonds on the home. It is
appropriate to mention, at this stage, that there is a striking disparity
between the amount of R131
000 which the respondent conceded the appellant had
contributed directly to improvements of the home, and the amount of R25 000
which
it was common cause the respondent had contributed. It seems to have been
common cause in the Court
a quo
that the amounts expended by each of the
parties in respect of instalments on the bond, rates and maintenance should be
excluded
from the amounts that each of them contributed. This was, apparently,
because it was agreed that save in respect of capital repayments
on the
bond,
14
these constituted necessaries in the sense already mentioned,
and the total capital repaid on the bond was relatively small (approximately
R3
000). Counsel adopted a similar approach in argument before us. Assuming that
one is to put aside the amounts expended by each
of the parties on bond
instalments, rates, water, insurance and maintenance, the appellant's
contribution was some five times that
of the respondent. It was sought to
suggest, however, that "in real terms" the contribution of the respondent
amounted to approximately
R150 000. This submission was based, so I understood
it, upon either:
(a) the proposition that the value of money had decreased between 1974 (when the
land for the home was purchased), and the date of
the trial; or
(b) respondent's suggestion that the property was worth R150 000 for the land,
alone, at the time when the appellant commenced making
her
15
contributions.
The first proposition is undoubtedly
correct, but if, in view of the depreciation in the value of money, the R25 000
contributed by
the respondent is to be scaled up, then the appellant's
contribution must be scaled up similarly. This would be difficult to calculate
accurately since it was common cause that the appellant contributed the amounts
totalling R131 900 over the seven years between 1979
and 1986. Although the
learned trial Judge made an allowance for the depreciation in the value of money
with regard to the respondent's
contribution, he made no such allowance in
respect of the appellant.
The second proposition also requires some
examination. The figure of R150 000 is nothing more than the respondent's own
estimate of
the value of the bare land in 1981 on the ground that "at that stage
there were one acre plots in far less favourable positions in
the
16
neighbourhood changing hands at R120 000". There is also some
evidence that this was still the position in 1984. The suggestion is,
therefore,
that in 1984 the unimproved value of the land was R150 000 and that therefore
the appellant's contribution should be taken
at that figure. This, however,
loses sight of two factors. Firstly, the respondent did not pay the full amount
of R36 000 from his
own funds, but only the sum of R20 000, (the balance having
been raised on bond). Secondly, it was common cause that by the time
the trial
commenced in October 1986, the value of the home had decreased from a figure
between R550 000 and R500 000 to R350 000
because of the depressed state of the
property market. If the property had dropped in value by not less than R150 000
at the time
the trial commenced, then it is not unreasonable to diminish the
value of the land itself from R150 000 to R105 000 and, as the respondent
had
contributed only R20 000 of the purchase price, his R20 000
17
would, at the time of the trial, on that basis have been
worth 20/36 of R105 000, namely approximately R58 500. To
this would have to be added the R5 000 for the swimming pool
giving a
total of R63 500. This sum is still less than
half the amount contributed by
the appellant. If one makes
some allowance for scaling up the value of the
appellant's
contributions because of the depreciation in the value
of
money, it becomes apparent that, even looking at the matter
in a manner
reasonably favourable to the respondent, it
is probable that at least two
thirds of the present value of
the home is directly attributable to the appellant's
contributions.
At the
Rule 37
conference referred to, it was
agreed that the then current market value of the home was
R350 000, and
that the balances due under the bonds
registered over the property as at 21 June 1986 totalled
R131 267.13. The nett asset value of the home was,
18
therefore, approximately R218 000 at the commencement of the
trial. Under cross-examination the appellant agreed
that her claim in terms of
section 7
of the Act would, in
the light of the
evidence, be suitably met by directing the
respondent to pay her an amount
equal to one half of the
nett proceeds of the sale of the common home. This,
as
pointed out by the appellant's counsel, would amount to
R109 000; which
is R22 000 less than the amount which, on
respondent's own figures, the
appellant had contributed to
his estate by way of improvements to the
home.
It was common cause throughout the trial that the
appellant had, during the marriage, acquired 40 000 Clicks
shares and 80 000 Clickden shares, and that the value of her
rights in
respect of these shares was R636 000 at the time
of the trial. Clicks was described by the trial Judge as "a
very large and enterprising chain of retail stores". The
appellant joined Clicks as a toiletry buyer about six or
19
seven months after her marriage to the respondent, and, such
was her ability in the business world, that by the time of. the trial
she was
managing director of that company (and had been chosen as Businesswoman of the
Year). When Clicks became a public company
and she was allocated the right to
purchase these shares, this was, in the words of the respondent's counsel in the
Court below,
"... not a gift or inheritance. You got these shares because you
work very hard in that firm and because you did a good job for them
..." It was
also common cause that she exercised her right to purchase these shares, and
acquired them entirely out of her own earnings.
She later purchased a further 30
000 Clicks shares which she paid for out of the proceeds of a restraint of trade
agreement which
she entered into with Clicks. These shares were sold between
April 1980 and June 1982 for a total consideration of R94 000 and this
money is
included in the R131 000 which the respondent admitted was
20
used to improve the common home.
Each of the parties
operated separate banking accounts into which they deposited their respective
earnings. It is clear that the parties'
finances were separately administered
and no control was exercised by one over the other's banking account or
expenditure generally.
The appellant paid for all her jewellery and clothing out
of her own funds, derived from her own earnings: a total of some R88 000
over a
period of nine years was expended by her on these items. Both parties
contributed to living expenses.
At the pre-trial conference the respective
assets of the parties and the value of these assets at the date of the
conference were
agreed upon, and the learned trial Judge found that the
plaintiff's nett assets were worth/ approximately R690 000 (including the
value
of the shares), and the defendant's were worth R275 000 (including the
home).
21
Most of the income of the parties which had not been spent in
living expenses of various kinds, had gone into the home and the shares.
The
appellant contributed not less than double the amount of the respondent's
contribution to the home, and acquired the shares wholly
out of her own
earnings.
The trial Court dismissed the appellant's money claim and granted
judgment in full against the appellant on the respondent's claim
in
reconvention, namely for the sum of R200 000. The decision is reported in
1987(4) SA 85(C). I should add that, in the course of
the trial, a decree of
divorce was granted, and it was declared in the judgment of the trial court
"that the decree of divorce granted
on 19 September 1986 was issued at
defendant's instance".
The trial court seems to have reached this,
prima facie
, rather
remarkable conclusion in the following manner. In the first place it did not
deal separately with the
22
claim and counterclaim, but adopted an overall or globular
approach. It then found that:
(a) it was the appellant's fault that the marriage came to an end;
(b) in subordinating his prospects of advancement with Mobil Oil to the
appellant's prospects of advancement with Clicks, the respondent
made a
contribution as contemplated in subsection 7(4) of the Act, to the increase of
the appellant's estate;
(c) since "no figure can be put on defendant's sacrifice" it was impossible to
say that one spouse had contributed more than the
other;
(d) it was impossible "to put a price on her blameworthiness in bringing the
marriage to an
end";
(e)
having regard to the existing means
and
23
obligations of the parties, the duration of their marriage, their way of life
and the objectives they pursued over the years "it
seems ... that it can fairly
be said that the parties are entitled to share
equally."
This appears to me, with all due respect,
to be an imprecise and faulty method of dealing with the claims (even assuming,
for the
moment, the correctness of the factual findings of the trial Court). The
judgment appears to be based upon a finding that the parties
"effectively pooled
their resources. Although they were married
de jure
out of community of
property by antenuptial contract as between themselves they were
de facto
married in community of property for the house was always 'ours' and not 'his'
and the shares were never regarded as her exclusive
property." The trial Judge
also found "that where spouses intend that all they acquired during their
marriage should be regarded
24
as their common property, a unique form of partnership does
effectively come into existence."
It is, no doubt, correct that during the
marriage each of the parties contributed to their joint living expenses, and
that for this
purpose the appellant paid various sums to the respondent, and
paid sums to the Receiver of Revenue in respect of their joint income
tax and
bills relating to their joint living expenses. It will also be apparent, from
what I have said, that both parties put a substantial
sum of money into the
acquisition, maintenance and improvement of the home. It is true, furthermore,
that every marriage is a partnership
in one sense of the word. The spouses live
together and contribute (one hopes) to each other's physical and mental
well-being. They
may, furthermore, agree that they will pool their resources.
Such an arrangement, unless it has the requisites of a legal partnership
(as was
the case in
Fink v Fink & Another
1945
25
WLD 226), is not irrevocable, and may be resiled from at any
time. Only if the requisites of a partnership are present and it is intended
by
the parties that there will be a universal partnership, could it be said that,
ih a sense, although parties were married
de jure
out of community of
property they were
de facto
married in community - although even in these
circumstances this would be an imprecise description.
It does not follow that
where some of the income (not all) goes into a common home, the parties intend
there to be a partnership in
the legal sense, even in respect of that home;
counsel for the respondent expressly disavowed any suggestion that there was a
partnership
in the legal sense between the parties. There is no question here of
the home being regarded as a joint business run for a profit.
Cf Fink v Fink
& Another
,
supra
. Still less could the appellant's shares be
regarded as jointly held; they were
26
the product solely of her talent and work. There is no
evidential basis for the finding of the trial Judge that "the shares were never
regarded as her exclusive property" -in fact he found that "... the shares were
never intended to be registered in theír names
jointly ..." Even if it
was correct to say that there was a partnership in some vague general sense,
there is no warrant whatsoever
for saying that it is fair or appropriate to
divide the joint nett assets of the parties equally, regardless of their
respective
known and unequal contributions. Even in the case of the dissolution
of a legal partnership, the dissolution takes into account the
respective
contributions of each of the partners, unless it is impossible to say that one
has contributed more than the other. See
Fink v Fink & Another supra
at 241 and
Van Gysen v Van Gvsen
1986(1) SA 56(C) at 61G-H.
It was argued by the respondent's counsel that the
27
trial Court's approach was not really based upon the finding
that the parties were "
de facto
married in community of property". It is
possible that the passages from the judgment cited above were intended merely to
support
the proposition that a contribution need not be "... measured in terms
exclusively or even primarily confined to money provided,
or property delivered
or services rendered ..." in order to qualify as a contribution within the
meaning of
section 7(3)
of the Act. I am not confident that this is so, but,
assuming that this submission is correct, I am nevertheless satisfied that the
trial Court misdirected itself in yet another respect, in that it adopted the
globular approach already referred to. There is nothing
in the section which
authorises such an approach.
For the sake of convenience I set out the
relévant subsections, namely 2-6 inclusive:
"(2) In the absence of an order made in terms of sub-
28
section (1) with regard to the payment of maintenance by the one party to the
other, the court may, having regard to the existing
or prospective means of each
of the parties, their respective earning capacities, financial needs and
obligations, the age of each
of the parties, the duration of the marriage, the
standard of living of the parties prior to the divorce, their conduct in so far
as it may be relevant to the break-down of the marriage, an order in terms of
sub-section (3) and any other factor which in the opinion
of the court should be
taken into account, make an order which the court finds just in respect of the
payment of maintenance by the
one party to the other for any period until the
death or remarriage of the party in whose favour the order is given, whichever
event
may first occur.
(3)
A court granting a decree
of divorce in respect of a marriage out of community of property entered into
before the commencement of
the
Matrimonial Property Act, 1984
, in terms of an
antenuptial contract by which community of property, community of profit and
loss and accrual sharing in any form
are excluded, may, subject to the
provisions of sub-sections (4), (5) and (6), on application by one of the
parties to that marriage,
in the absence of any agreement between them regarding
the division of their assets, order that such assets, or such part of the
assets, of the other party as the Court may deem just be transferred to the
first-mentioned party.
(4)
An order under
sub-section (3) shall not be granted unless the court is satisfied that it
is
29
equitable and just by reason of the fact that the party in whose favour the
order is granted, contributed directly or indirectly to
the maintenance or
increase of the estate of the other party during the subsistence of the
marriage, either by the rendering of services,
or the saving of expenses which
would otherwise have been incurred, or in any other manner.
(5) In the determination of the assets or part of the
assets to be
transferred as contemplated in sub-
section (3) the court shall, apart from
any direct
or indirect contribution made by the party
concerned to the
maintenance cr increase of the
estate of the other party as contemplated
in
sub-section (4), also take into account -
(a)
the existing means and
obligations of the parties;
(b)
any donation
made by one party to the other during the subsistence of the marriage, or which
is owing and enforceable in terms of
the antenuptial contract
concerned;
(c)
any order which the court
grants under
section 9
of this Act or under any other law which affects the
patrimonial position of the parties; and
(d)
any other factor which should in the opinion of the court be taken
into account.
(6) A court granting an order under
sub-section (3)
may, on application by the party against whom the
order is
granted, order that satisfaction of the
order be doferred on such conditions,
including
30
conditions relating to the furnishing of security, the payment of interest, the
payment of instalments, and the delivery or transfer
of specified assets, as the
court may deem just."
Subsection (3) requires an
"application" to be made for a
redistribution order. Since only a Court
granting a decree
of divorce is empowered to make such an order,
the
contemplated "application" will, in practice, take the form
of a claim
put forward in the pleadings in the action.
Beaumont v Beaumont
1987(1) SA 967(A) at 988E. It seems
probable that in most cases it will be
the wife who makes
such an "application". Where, as here, a claim
in
convention invoking the provisions of subsection 3 is
answered by a
claim in reconvention also relying on such
provisions the claims are, in law,
separate claims. Claims
in reconvention while almost always adjudicated
upon
together are, in fact, separate actions. Not only is
this
historically so - see, for example, the remarks of CLOETE J
31
in
Brunette & Others v Stanford
(1859) 3 SEARLE 221
at 225 and 226, and LANSDOWN J in
Fielding v Sociedade Industrial de Oleos
Limitada
1935 NPD 540
at 548 - but it is plain from the provisions of Rule
22(4) of the Uniform Rules, that the Court may, in certain circumstances, direct
that the claim in convention be proceeded with before the claim in reconvention.
Even if the actions proceed at the same time, the
fact that one party has
counterclaimed, cannot deprive the other of the right to have his or her claim
separately considered. There
may, possibly, be cases where the facts relevant to
both claims are so inextricably interrelated that a globular approach is the
only possible one, but, save in such circumstances, the claims must, at least
initially, be considered separately. It may well occur
that where, as here,
there are conflicting claims under section 7(3), the Court would consider the
practical effect of giving judgment
on the claim in convention upon the
financial position of
32
the defendant, and the practical effect of giving judgment on
the claim in reconvention upon the financial position of the defendant
in
reconvention, before finally formulating its order or orders. This appears to
have been done in
Van Gysen supra
at p66. It might well occur,
furthermore, that judgment upon the claim in convention would be wholly or
partly extinguished, by way
of set-off, by the judgment on the counterclaim or
vice versa
; but that does not mean that the Court is not obliged to
consider such claims separately on their merits. The trial Court, in fact,
never
applied its mind to the appellant's claim in this manner, and this Court is
accordingly at large to make its own findings on
the merits or demerits of the
parties' respective claims.
I deal, firstly, with the appellant's claim in convention. As I have already
indicated, she eventually limited her claim to half the
nett value of the home.
It is common cause that this is the sum of R109 000. The
33
grounds upon which as I understood it, the respondent's
counsel submitted that the appellant's claim in convention should fail, and
fail
entirely, were the following:
(a) The trial Court was correct in finding that it was the appellant's fault
that the marriage came to an end.
(b) The respondent's contribution to the home was "in real terms" R150 000,
although, in actual fact, the amount he actually contributed
was only R25
000.
(c) The appellant was able to make such a substantial contribution because she
had such a substantial salary and this, in turn, "...she
owed to a large extent
to the respondent's contribution by staying in Cape
Town".
I have already dealt with (b) to some extent.
As mentioned above, I do not think that the value of the
34
respondent's contribution (at best for the respondent),
exceeded R63 500. If the appellant were to be granted judgment in convention
for
the sum of R109 000, the respondent would, in effect, be retaining exactly the
same sum viz R109 000, which substantially exceeds
the scaled-up value of his
contribution, and makes no allowance for scaling-up the appellant's
contribution. There is no substance
in this point.
I deal now with the
question of fault. The learned trial Judge regarded the nature of "this
particular marital relationship" as being
"of prime significance in resolving
the proprietary claims".
In
Beaumont v Beaumont
(
supra
) at 994D
B0THA JA expressed the view that, by virtue of the wide import of the wording of
paragraph (d) of subsection (5) of section
7 of the Act, "...the Court is
entitlêd...to take a party's misconduct into account even when only a
redistribution
35
order is being considered under ss(3), and where
no
maintenance order under ss(2) is made." Although this
opinion was avowedly
obiter
, no attack on it was made in
this Court
and I respectfully agree with it. BOTHA JA,
however, went on to say firstly,
"I am convinced that our
Courts will adopt a conservative approach in
assessing a
party's misconduct as a relevant factor whether under ss(2)
or
ss(3)" and, secondly, that the directive in section
25(1)(g) of the English
Act dealing with this subject, was
in accordance with the pattern of our
legislation. This
direction is to the effect that the Courts are to
consider
"the conduct of each of the parties if that conduct is such
that it would in the opinion of the Court be inequitable to
disregard it".
The judgment then goes on at p994(I):
"In many, probably most, cases both parties will be to blame, in the sense of
having contributed to the breakdown of the marriage
(sêe
per
Lord
Denning in
Wachtel
's case
supra
at 835g). In such cases, where
there is no conspicuous disparity between the conduct
36
of the one party and that of the other, our Courts will not indulge in an
exercise to apportion the fault of the parties, and thus
nullify the advantages
of the 'no fault' system of divorce."
The facts in
Beaumont
's case were that misconduct existed
on the part of the
appellant only, and that such misconduct
was "certainly gross and prolonged".
Despite this, the
Court took such misconduct into account only in
allowing
the scales of justice to be tipped in favour of the
respondent where the
facts wcre not altogether clear or
certain, and where the arcas of
uncertainty were not due to
any remissness on the part of the respondent in
placing
available information before the Court.
The learned trial Judge obviously did not have
the
benefit of this Court's judgment in the
Beaumont
case when
he delivered judgment in this case, and, had he
done so, I
doubt whether he would have given the appellant's "fault"
the
weight that he clearly did.
37
In any event the evidence does not justify his finding that,
in effect, the appellant was solely to blame for the marriage coming
to an end.
Even if it is correct that it was her "fault" in the sense that her adultery,
or, more correctly, her intention Lo marry
Mr Green, was the immediate cause of
the marriage coming to an end, it is quite clear, on the facts, that the
respondent was by no
means free from blame, nor could it conceivably be said
that any relevant misconduct on the part of the appellant was either gross
or
prolonged. There is not the slightest suggestion that she was promiscuous or
brazen. She married Green during the course of the
trial immediately after the
divorce order was granted. In actual fact, it can probably more accurately be
said that both the parties
were the victims of prevailing social attitudes. It
is still, today, unusual for the wife to be the major breadwinner. Furthermore,
the appellant succeeded in business to such an
38
extent that it could rightly be called spectacular. She
received considerable publicity and respect for her achievement. In these
circumstances it would be understandable if the respondent felt rather inferior
to the appellant, and possibly his conduct towards
his wife was influenced by
the spectacular difference in their respective achievements, It is possible that
her success in her career
compared with his own felt lack of distinction, played
a part in the unsatisfactory sexual relationship which undoubtedly developed
between the parties. The appellant refers to Green as a man who took notice of
what she said. Her evidence does seem to indicate
that she did not feel valued
as a wife, and the lack of a satisfying sexual relationship no doubt contributed
to this and produced
a state of discontent on her part or, at least, rendered
her vulnerable to the affectionate attentions of another man. In these
circumstances,
I very much doubt whether it would
39
be fair to regard the appellant as being substantially more at
fault than the respondent. There is no question here of the parties
being of
advanced years. At the date of the trial the appellant was only 37 and the
respondent in his early forties. Nor is there
any question of either of them
being in ill-health or suffering from any physical affliction that would affect
their normal sexual
behaviour. Sexual relations are, of course, not everything
in a marriage, but the important role that they play has long been recognised.
See
Brown v Brown
1905 TS 415
at 417 where BRISTOWE J described the
sexual relationship of the parties as "...the one thing which differentiates the
marriage relationship
from every other relationship..." and
Ainsbury v
Ainsbury
1929 AD 109
at 117-118 where STRATFORD JA said "it is true that the
right of sexual approach is one of the most important, if not the cardinal
privilege of marriage ...". The psychological effect upon the respondent of
the
40
appellant's glittering success in business was not really
examined in the Court below, but it may be significant that the sexual
difficulties
in the parties' married life really only began at about the time
when the appellant's meteoric success in business commenced. The
parties'
description of this problem differed. The appellant said that intercourse was
confined to three or four times a year over
the last seven or eight years of
marriage, whereas the respondent said that it was probably of the order of once
a month. Whichever
version one accepts, it is clear that the relative
infrequency of sexual intcrcourse, between the parties was a matter which was
a
source of dissatisfaction to the appellant and that she expressed this
dissatisfaction. The respondent said that she was not the
kind of woman who
initiated sexual intercourse and it seems, therefore, that she was the kind of
woman who likes a man to play the
dominant part and to initiate love-making. It
is quite
41
apparent that, in these circumstances, it would require some
provocation for her to complain of the lack of sexual intercourse; yet
it is
common cause that, on a number of occasions, she did so. The respondent's answer
when asked what his reaction was to her complaints
is, in my view, revealing. He
said that he replied by saying he would "try and satisfy her more frequently".
This indicates a curious
attitude towards sexual intercourse, which is more
normally the natural consequence of love and affection, or at least ordinary
desire
between a married couple. His answer suggests that it was not a form of
activity from which he derived any satisfaction at all; that
it was merely a
question of "satisfying her". It was not the kind of response calculated to
enhance a spouse's self-esteem in this
area. When it was put to him in
cross-examination that he should have appreciated that these complaints about
the lack of sexual
activity between them indicated that
42
something was seriously wrong with the marriage,
his
reaction was, in effect, that she should, as it were, have
put him "
in mora
". The evidence reads as follows:
"But what more must the woman do? She raises it with you she says...? - she says
'look the marriage may be coming close to being
in jeopardy because of this', if
that is how she felt about it I would haye been quite sure that is what she
would have said."
The learned trial Judge deals with
this aspect of the matter
by saying "... the assessment earlier undertaken of the
parties as individuals makes it abundantly clear that
plaintiff with her dominant personality would have had
children if she had
insisted thereon and defendant would not
have denied her her marital privileges had she expressed any
real or urgent desire therefor". With respect, I do not
think this is a realistic attitude. Sexual intercourse is
nothing if it is not shared. For many women it would be an
unsatisfactory sexual relationship if they had always to
43
make the first advances and,
a fortiori
, if the
husband's response was the rather lame attitude that he would not deny her. The
learned trial Judge seems to have attached
undue importance to the fact that the
plaintiff had a forceful personality. In fact, after setting out the respective
contentions
of the parties his first step was to say "something...of the
personalities of the parties..." and he took the view that this was
necessary
"for a proper appreciation of the nature of this particular marital
relationship." Rightly or wrongly, he seems to have
found her a somewhat
uncongenial person, and a very forceful personality. He dismissed the submission
that the defendant's lack of
sexual interest or activity rendered the appellant
susceptible to an extra marital relationship on the grounds that "this...is to
sadly underestimate plaintiff's strength of character, determination and
forcefulness of personality." It is not logical to infer
44
that because the appellant has a strong personality she would
not be susceptible to a really attentive man who actively sought to
make love to
her. This is simply a
non sequitur
. Nor is it safe to assume that because
a woman has a forceful personality she is necessarily content with a less than
ardent sexual
partner. Several times the trial Judge, in speaking of the
respondent's alleged soft-pedalling of his prospects of advancement with
Mobil,
spoke of it as being a sacrifice on the altar of the appellant's career;
borrowing the phrase one may perhaps ask whether
the appellant's sexual and
emotional life was to be sacrificed on the altar of the respondent's inertia. It
seems more than probable
that his lack of ardour contributed directly to her
adultery. Without intending to lay down any rule on the subject (and indeed I
am
plainly not qualified to do so), I respectfully agree with BOTHA JA that human
experience suggests that, generally speaking, where
45
there is a breakdown in a marriage the conduct of both parties
has contributed to ít. It seems probable that it was,
inter alia
,
the recognition of this basic truth that led the legislature to abolish (save to
the extent where it is expressly indicated otherwise),
the notion of "fault" in
divorce.
Putting the respondent's case at its highest I do not think that it
can be said that there is a "conspicuous disparity of fault between
the conduct
of the one party and that of the other". In these circumstances I think the
learned trial Judge erred in regarding fault
as a significant factor, and all
the more so in regarding it as being "...of prime significance in resolving the
proprietary claims..."
With regard to contention (c), this argument proceeds on
the basis that the respondent's conduct constituted a "contribution" within
the
meaning of section 7(3). For reasons which are set out later in this judgment I
have come to the conclusion that
46
it did not, and this contention accordingly falls away.
The
way is now clear to consider the appellant's claim upon a proper basis. It was
not disputed that the prerequisites of subsection
3 discussed in
Beaumont
supra
at p987J-988H had been established. Furthermore it is quite clear that
one of the "... jurisdictional pre-conditions to the exercise
of the discretion"
conferred on the Court in subsection (4) had been established; there had been a
contribution by the appellant
to the estate of the respondent of a kind
described in the subsection. The other jurisdictional prerequisite is, of
course, that
the Court must be satisfied that by reason of such a contribution
it would be "equitable and just" to make a redistribution order.
This is in the
words of BOTHA JA a "...wholly unfettered discretionary judgment of the
Court...". Many of the aspects already discussed
in this judgment bear upon this
question, but before dealing with it finally, it is
47
necessary to consider the provisions of subsection (5). This
subsection prescribes the factors which the Court must take into account
in the
determination of the assets, or part of the assets, to be transferred in terms
of a redistribution order. As pointed out in
Beaumont
's case
supra
at p989B, "First and foremost is the contribution by the one spouse to the
estate of the other by which is obviously meant the nature
and extent of the
contribution." I do not think it is necessary to add anything to what I have
already said in this regard. The remaining
relevant factor is the existing means
and obligations of the parties. As appellant's counsel pointed out, the
respondent's nett assets
would still amount to approximately R166 000 if the
appellant were. to be awarded one half of the nett proceeds of the sale of the
home, namely R109 000. The respondent's monthly salary and benefits, at the time
of the trial were approximately R5 000 per month,
and there is nothing to
48
suggest that the respondent will be financially embarrassed if
he is ordered to pay the appellant the sum of R109 000.
As the trial Court
failed to exercise its judicial discretion properly in considering the
appellant's claim, this Court is at large
to exercise its own discretion. No
factors other than those already discussed occur to me as being relevant to the
exercise of such
discretion; certainly none were referred to in argument.
Bearing in mind that the figure of R109 000 ís some R22 000 less
than the
appellant's admitted contribution to the respondent's estate, and the fact that
these figures make no allowance for the
depreciation in the value of money over
the relevant period, I have no doubt that it is just and equitable to grant
judgment for
the appellant on the claim in convention in the amount of R109 000.
I have already indicated that in my view there is "...no conspicuous
disparity
between the conduct of the one party and that of the other...", but even
49
if I had come to the conclusion that there was and that the
appellant was predominantly to blame for the breakdown of the marriage,
I would
have held that to reduce the claim by R22 000 (particularly in the light of the
absence of any allowance for depreciation
in the value of money in respect of
the appellant's contribution), would more than allow for such fault on the
appellant's part.
I deal now with the respondent's claim in reconvention.
Before dealing with the legal question of whether the respondent's conduct
could
constitute a contribution within the meaning of subsection (4) I think it is
necessary to consider precisely what that conduct
was. The trial Judge found
that the respondent "... did indeed sacrifice his future career and prospects
upon the altar of her advancement
with Clicks, and I am satisfied that it was
indeed a sacrifice which defendant made." There are other passages to the same
effect,
for example the following:
50
"Any resentment or frustration he might have felt in a
self-
imposed inability to break out into wider legally orientated
fields
- which the evidence made clear he could certainly
have done - because to do
so would have impeded his wife's
advancement in her field (if not ended it)
was never
discernible in his testimony".
That is not the basis upon which the
respondent
himself put the claim. What the
respondent said was that
the decision "not to go the Mobil Route" was "...a
decision
that was taken after discussion as to what was in our joint
best
interests." The evidence then continues:
"Now I want to investigate that decision a little bit.
What you are saying is that if you had decided to go
the Mobil Route...?
Yes.
That would have been in your joint best interests less
favourable?
That was the view I took and it was a view she shared
with me at the time.
Because you would have earned fess than - along that
route than, had a lower standard of living than you
were able to have with the two of you working in Cape
51
Town? Correct.
That was the motivation as you understood it? Correct. I
would say it was both a question of current standard of living and future
prospects down the road,
ja.
Whose future prospects?
The joint future prospects, taking them in
the one
alternative as against the other alternative.
I do not understand that remark. In her case I can
understand that your complaint at the moment as I
understand it is that your future prospects were made
less rosy by this decision. Why at that stage was it a
wise
decision?
Because her rate of progression from the early mid-
1970's was greater than I thought mine would have been
with
Mobil.
Along the international route?
Along the international route. I
would ...
Now, Mr Kritzinger, if you had gone the Mobil Route,
you very fairly said that your position today could
well have been one
like, or similar to that of your
Australian colleague who heads the European
operation?
Correct.
The legal side. That is in the pecking order of
things
little below where Racine is?
Correct.
As head of Mobil South
Africa?
Correct.
Now, let us examine that scenario. Had you decided on
that route your wife had given up her work in Cape
Town, clearly what you
foresaw was that this source of
income would now come to an end, you would have to live
52
off your income only?
Correct. What we would be looking at would be living off whatever my advanced
status in Mobil would be as against my, shall we say
my reduced status in Mobil
plus her earnings out of Clicks here."
What he is saying is that he decided that it was
in
their
joint financial
interest not to take the overseas
posting. He
must, therefore, have calculated what he
could probably earn overseas, what
she could probably earn
overseas and the increased cost of living overseas,
compared
these figures with what he expected their combined South
African
earnings would be, and come to the conclusion that
it would be financially better to stay. His case is,
therefore, that they
jointly took what they believed to be a
sound business decision, not that he thought he was
sacrificing anything
in the sense of putting his wife's
interests before his own. (In deciding what was just and
equitable a
consideration which the learned Judge
a quo
seems entirely to have ignored is that, as a result of this
53
decision, the respondent enjoyed an extremely high standard of
living during the period 1976-1985, largely as a result of her earnings.
These
flowed from the fact that she occupied a very senior and responsible position
and bore, no doubt, the usual stresses a demanding
occupation imposes.)
He
seems further to have overlooked an inherent contradiction in the respondent's
case. The following passage occurs in the judgment
of the trial Court:
"Just as it is beyond dispute that plaintiff's very substantial estate has been
built up over the years because she remained in Cape
Town, it is beyond dispute
that defendant had very real prospects of promotion in the services of Mobil
Oil. The managing director
of Mobil Oil testified to this effect - indeed
defendant was in line for promotion at least 8 years' ago (and he could not be
promoted
in South Africa having attained the highest position in his employer's
legal department in this country). Had he not stood back to
allow his wife to
take advantage of the opportunities open to her, and had he availed himself of
the opportunities open to him on
transfer, he would today have probably been
earning five times his present salary."
54
This conclusion is, in my view, at least open to question. It
is, however, repeated in the respondent's Heads in which it is suggested
that
the respondent would have been head of the Mobil Europe Legal Department in
1986, that he would then have had an income of approximately
$9 000, or about
R25 000, per month, whereas his salary at the time of the trial was R5 000 per
month. The facts, however, demonstrate
that these figures could not have been
the basis upon which the respondent made his calculations. It was accepted that
the appellant's
salary was approximately double that of the respondent's salary
at the time of the trial. Thus her salary was R10 000 per month and
his R5 000
per month making a total of R15 000 per month i.e. some R10 000 per month less
than the R25 000 which, so it is suggested,
he would have been making on his
own. On these figures his decision to remain in this country was patently wrong
from a business
point of view. There is, however,
55
a revealing passage in the respondent's evidence which, in my
view, indicates the true source of the respondent's error of judgment
and it is
one which cannot in any way be laid at the appellant's door. At the time he made
the decision not to take employment overseas,
he very much over-estimated his
prospects of promotion or of obtaining a better salary from his employers in
South Africa. In 1977
he went into marketing and was in marketing for
approximately four years. It is plain that his talents did not lie in that
field.
In 1976, however, he did not realise this, and no doubt in making his
calculations, he calculated what his earnings would be on the
basis that he
would be earning substantially more in the marketing field, or some other field
with a less limited salary prospect
than the legal field. More than a hint of
this glimmers through the following passage in his evidence:
"Now Mr Kritzinger the decision which you took not to
56
take the Mobil Route you have said today that that was
taken on the basis that it would be in your joint best
interests?
Correct.
It was a decision which you took freely, nobody
compelled you to take it?
Correct.
That way you saw the two of you earning more, having a
better life than taking the Mobil Route?
That is so.
But if I may say My Lord, if I had known
then that the Mobil Route was going to end now the
decision may well have been different
."
(My underlining)
(I might say, in parenthesis, that his
description of the
decision-making process is quite inconsistent with
the
notion that the appellant was an overbearing, domineering
woman, and
that he was a shy, retiring mouse, who was
completely overwhelmed by her
wishes and desires when it
came to making any important decision. He proposes that he
was quite
capable of making a contrary decision, bearing in
mind his own best interests.)
The respondent is, so it seems to me, caught on
the horns of a dilemma. If, in fact, his prospects were
57
really as rosy as those painted by him and his counsel, then
he simply made a bad error of judgment in deciding to stay where he was,
and
cannot expect to be compensated for his error by the appellant. If, however, his
prospects were not nearly as rosy as those suggested
on his behalf, then he has
not, in fact, made the sacrifice which it is suggested he made. On the contrary
he has profited from the
decision to remain in South Africa by enjoying the very
high standard of living which his wife's earnings made possible during the
past
eight to nine years. It becomes apparent that what the respondent was really
seeking to do was to claim damages for loss of
his wife's contribution to their
combined earning power, due to the breaking up of their marriage, which he
alleges was her fault.
Thére is, of course, no warrant for such a claim.
No doubt his decision to remain in South Africa might have been different
had he
contemplated that the marriage might come to an end, but, human nature being
58
what it is, such a possibility was always on the cards,
and
there is no basis in law upon which he can be compensated
fqr the fact that his expectations turned out not to be
justified.
On the facts, therefore, I am not satisfied that the respondent "gave up"
anything, still less that he "sacrificed" his career.
In any event, I consider that for the reasons that
follow,
the conduct pleaded by the respondent did not
constitute a contribution within the meaning of subsection
(4).
Counsel for the respondent relied heavily upon the remarks in
Beaumont
's case
supra
at 996H where BOTHA JÁ said with
reference to the provisions of subsection (4) "in these words one searches in
vain for any
suggestion of a qualification of the nature of the contribution
required in the sense contended for by counsel." There, of course,
the Court was
considering the submission of counsel that the legislature could not have
intended a contribution by either spouse
made solely in the discharge" of a
common law duty of support, to qualify as a contribution which entitled the
59
spouse making it to claim "compensation" in the form of a
redistribution order. The Court found there was nothing in the words used
to
indicate that the legislature intended that qualification. That is quite a
different question from the problem that arises in
this case. In fact, in the
passage cited earlier in this judgment, when describing the jurisdictional
preconditions to the exercise
of the discretion, BOTHA JA referred to the
precondition that there "...is a contribution by the one spouse to the estate of
the
other of a kind described in the subsection." In the case before us, so the
appellant's counsel argued, the respondent did nothing
- he could not be said to
have contributed to the maintenance of or an increase in the estate of the other
party "by merely not earning".
In other words, the submission was that all the
respondent did was to fail to prevent the appellant" from increasing her estate.
The validity of this point depends upon what the
60
legislature meant in subsection (4) when it used the words
"...contributed directly or indirectly to the maintenance or increase of
the
estate of the other party during the subsistence of the marriage, either by the
rendering of services or the saving of expenses
which would otherwise have been
incurred or in any other manner". The words used are certainly of wide meaning
but that does not
make them of unlimited meaning. One must look at the ordinary
grammatical meaning of the words used, and what is more, the particular
context
within which they are used. The first (non-obsolete) definition of the word
"contribute" in the 0XF0RD ENGLISH DICTIONARY
is "to give or pay jointly with
others; to furnish to a common fund" (VOLUME II p924 of the 1961 ed). The
dictionary includes, as
a figurative meaning, "to give or furnish along with
others towards bringing about a result; to lend (effective agency or assistance)
to a common result or purpose." (I stress the
61
word
effective
in that definition). BLACK's LAW
DICTIONARY defines "contribute" as follows: "to lend assistance or aid or give
something to a common
purpose; to have a share in any act or effect; to
discharge a joint obligation". It goes on to say that when applied to negligence
it "signifies causal connection between injury and negligence which transcends
and is distinguished from negligent acts or omissions
which play so minor a part
in producing injury that LAW does not rccognise them as legal causes". P297(5th
ed). The Afrikaans version
of the Act, (which is the signed version, both in the
case of the original Act, and in the case of the amending Act which introduced
the relevant subsections,) uses the following words: "Direk of indirek bygedra
het tot die instandhouding of groei in die boedel
van die ander party", and
respondent's counsel relied upon the second meaning given by HAT p124/5 namely:
"saamhelp, help", (the
first meaning
62
is: "iets skenk"), and the second meaning given in DIE
AFRIKAANSE WOORDEBOEK p564 namely: "Iets wat meehelp tot bevordering van 'n
bepaalde of gemeenskaplike saak" (the first meaning is: "Wat as skenking gegee
word, dikw. i/d vorm van geld"). There does not appear
to be any significant
difference between the English and the Afrikaans versions. This legislation is
dealing with the financial position
of the parties and,
prima facie
,
therefore, with contributions of a financial nature. In
Beaumont
's case
supra
at p987 BOTHA JA having said that the creation of a power enabling
a Court to make a redistribution order was a reforming and remedial
measure,
went on to say, "What the measure was designed to remedy is trenchantly
demonstrated by the facts of the present case: the
inequity which could flow
from the failure of the law to recognise a right of a spouse upon divorce to
claim an adjustment of a disparity
between the respective assets
63
of the spouses which is incommensurate with their respective
contributions during the subsistence of the marriage to the maintenance
or
increase of the estate of the one or the other." I am inclined to agree with the
opening submissions of counsel for the respondent
in the
Beaumont
case
(as reported at 978E-G) as to the reasons for the introduction of this power,
but, clearly, if a husband's claim falls within
the provisions of the Act, he is
just as much entitled to an order as the wife. But as the legislation is dealing
with the financial
position of the parties, what was clearly envisaged was some
positive act by means of which one spouse puts something into the maintenance
or
increase of the estate of the other spouse - whether by way of money or
property, labour or skill. It does not envisage a mere
refraining from a
particular activity or course of conduct. It was submitted that the inclusion of
"the saving of expenses which
would
64
have otherwise been incurred" indicated that a positive act
was not necessary. This is not necessarily so. For example, if a spouse
was to
spend money or time or labour in cultivating vegetables for the family that
would constitute a positive action which would
have the effect of saving
expenses. It is conceivable, however, that a spouse may refrain from expenditure
which in the circumstances
of the parties is reasonable (for example, the
employment of a domestic servant), and that this could constitute a saving of
expenses
amounting to a contribution within the meaning of the section. On the
other hand to refrain from employing a domestic servant would
entail many
positive acts. Such a situation could be put positively or negatively. Thus one
may say "Refrain from employing a domestic
servant" or "do domestic work";
"refrain from buying clothes" or "make clothes oneself to effect a saving". The
negative generally
entails a positive.
65
Refraining from extravagance, for example, would not fall
within the meaning of the sub-section, being purely negative. The words
"expenses which would otherwise have been incurred" implies necessary or at
least reasonable expenditure in the particular circumstances.
It seems to me
that it is a prerequisite to a successful claim under this subsection, that the
claimant must show, on a balance of
probabilities, that the conduct relied upon
as a contribution, in fact
caused
the alleged maintenance or increase of
the other spouse's estate. To borrow from the language of causation used in
negligence cases,
the conduct must be the
causa causans
, and not merely
the
cause sine qua non
of the alleged maintenance or increase. If the
appellant had not been married, or had married some other man, there is no
reason
to suppose that she would not have accumulated exactly the same estate.
The respondent contributed nothing in the form of money,
property, work,
66
time or skill - or, indeed, any form of activity, whatsoever,
to the increase of the appellant's estate.
I must say, furthermore, that I am
inclined to think that it was never contemplated by the legislature that the
sacrifice by one of
the spouses of a more lucrative career which was
not
accompanied by the rendering of services or the saving of expenses which would
otherwise have been incurred, or some other factor
for which a value in money
can reasonably be ascertained, would be capable of constituting such a
contribution. Divorce is a distressingly
common feature of contemporary life in
South Africa and, if a claim could be made for giving up a career to the
parties' common benefit,
there would be few marriages between parties of any
real economic substance, where such a claim would not be made. I find it
difficult
to consider upon what conceptual basis such a claim would be
formulated in terms of money unless the conduct under
67
consideration was capable of being so evaluated. For example,
in
Beaumont
's case the wife contributed her services in various ways
which are apparent from the judgment of the trial court, and a value could
be
put upon those services. Suppose, however, that a young woman who is half way
through her medical degree, marries a politician,
and decides not to pursue that
degree in order to assist her husband socially in his public life, is she to be
compensated if the
marriage comes adrift for giving up her degree and her
medical career? If so, upon what monetary basis? Or let us suppose that both
parties have qualified as medical practitioners, and the wife is uffcrcd an
ovcrscns course lasting six monlhs to a year the result
of which, it is shown on
a balance of probabilities, would have been to place her on the specialist
register in a particularly lucrative
field, and she declines to take up the
scholarship because they make a joint decision that
68
she will remain with her husband in South Africa where his
career is; if the marriage breaks down and a divorce ensues, is she to
be
compensated for the career she would have had , had she taken up the
scholarship? The kind of difficulty which would be involved
in acceding to
claims of this nature is well illustrated by the fact that the respondent's
counsel found it quite impossible to indicate
any basis at all upon which it
would be proper to evaluate the respondent's claim. The trial court found that
"... no figure can
be put on defendant's sacrifice ..." and this must generally
be the case where, during the course of the marriage one of the spouses
has
given up a more lucrative career, or given up a career.
The respondent
accordingly failed to establish that he contributed to the maintenance or
increase of the appellant's estate. This
renders it unnecessary to consider
whether, in calculating whether it would be just
69
or equitable to make a redistribution order in favour of the
respondent, it would be necessary to take into account that the appellant,
in
order to provide funds to improve the home, sold shares at a much lower price
than she would have received had she sold them at
the date of the trial. The
appeal is accordingly upheld with costs, including the costs consequent upon the
employment of two counsel,
and the judgment of the court below is altered to the
following:
(a) On the claim in convention there will be judgment for the plaintiff in the
sum of R109 000 together with interest thereon at
the rate of 15% p.a. from 1
April 1987 to date of payment with costs, such costs to include the costs
consequent upon the employment
of two counsel;
(b) Upon the claim in reconvention, the claim in reconvention is dismissed with
costs, such costs
70
to include the costs consequent upon the
employment of two counsel.
The orders for costs in
favour of the plaintiff are not to include the wasted costs incurred on 5
September 1986, which are to be
paid by the plaintiff, including the costs
consequent upon the employment of two counsel.
I have fixed the date from
which interest is to run as 1 April 1987 for the same reasons,
mutatis
mutandis
, as those which induced the trial court to fix on it as the date
upon which interest was to run on the respondent's claim.
No application for
deferment in terms of subsection (6) (in the event of the appeal resulting in an
order for payment being made against
the respondent), was made in this Court. It
seems reasonable, however, that some deferment should be granted, ánd
prima facie
I would be inclined to think that a period of six months may
be
appropriate. If the parties are unable to agree upon a deferment, the
respondent is given leave to apply to the Court
a quo
for an order in
terms of section 7(6).
A J MILNE
Judge of Appeal
CORBETT JA )
CONCUR
NICHOLAS AJA)