SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy






OFFICE OF THE CHIEF JUSTICE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

AMMENDED JUDGEMENT

Case NO: 10481/2018
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO

In the matter between:

P[...] N[...] PLAINTIFF

and

D[...] N[...] DEFENDANT

Coram: Kholong, AJ
Date of hearing: 14 May 2025
Date of Judgement: 6 August 2025

JUDGEMENT

KHOLONG AJ

Introduction

1. In this action, the plaintiff seeks a decree of divorce and an order dividing the
proceeds of the joint estate equitably on the strength of a marriage entered into by
plaintiff and defendant on 10 January 2003. Plaintiff prays that she is entitled to the
relief she seeks in the particulars of claim on account of irretrievable breakdown of
marriage. Defendant who in his plea does not contest that the marriage has broken
down irretrievably, counterclaimed and sought forfeiture of benefits who lly or in part
against plaintiff in his favor on account of alleged substantial misconduct by Plaintiff
during the marriage.

2. The Plaintiff is Mrs. P[...] N[...] (born R[...]) (herein -after “plaintiff”), an adult
female resident of Cape Town who until institution of these proceedings had been
staying with defendant as his wife, having been married in community of property.

3. The defendant, Dr. D[...] N[...] (herein-after “defendant”) is an adult male
medical practitioner who resides in Cape Town and is a husband of the plaintiff.

Background

4. Plaintiff and defendant were married in community of property on 10 January
2003. The Plaintiff and defendant have one minor son who currently resides with
defendant. Whilst in the pleadings plaintiff sought custody and maintenance in
respect of the minor child who at that point lived with her, given changed living
arrangements, in respect of the minor child who had moved to stay with his father,
this prayer was not pursued by the plaintiff during these procee dings. Plaintiff claims
that the marriage relationship between herself and defendant has irretrievably
broken down. The reason being that the parties frequently quarrel and argue. They
no longer share common interests and are no longer compatible with each other.
Plaintiff claimed that defendant is emotionally abusive and that it is in their interest
that they seek a decree of divorce.

5. Plaintiff pleaded that she no longer wished to remain married to defendant as
she had suffered emotional and psychological turmoil and has no desire for
reconciliation. Defendant both in the pleadings and in evidence accepted that the
marriage has irretrievably broken down.

6. The central issue which remained for this Court to determine therefore is
whether the Plaintiff should forfeit all or part of the patrimonial benefits of the
marriage in terms of Section 9(1) of the Divorce Act1.

The Counter-claim

7. In his counter -claim defendant pleaded that the marriage relationship
irretrievably broke down because of compulsive gambling addiction by plaintiff. That
when plaintiff was provided with support to deal with this gambling addiction amongst
others, she becomes aggressive and verbally abusive. That this gambling addiction
caused severe strain.

8. In respect of arrangements for the child, the defendant sought this Court to
order that both parties shall be the minor ch ild’s co-guardians with both having full
parental rights and responsibilities. That the care and primary residence of the minor
child be awarded to defendant subject to reasonable contact. Defendant tendered to
retain the minor child on his medical aid and sought both parties to be equally liable
and responsible for school fees and related costs.

9. Defendant seeks Plaintiff to forfeit her patrimonial benefits of the marriage in
favor of the defendant either wholly or in part as Plaintiff is said to have a gambling
addiction which has contributed to the irretrievable breakdown of the marriage and
caused losses to the estate. That this addiction systematically, particularly between
2013 and 2018 diminished the joint estate rather than contributed to its grow th.
Defendant pleaded that Plaintiff’s gambling addiction constitutes substantial
misconduct as contemplated in Section 9(1) of the Divorce Act2.


1 Act 70 of 1979.
2 Act 70 of 1979.

10. In her plea to defendant’s claim in reconvention plaintiff denies gambling
addiction an d denies that there is any basis upon which she should forfeit any
patrimonial benefits of the marriage which may be due to her. That there hasn’t been
any misconduct let alone substantial misconduct to justify forfeiture.
.
Plaintiff’s evidence

11. Plaintiff led her evidence of how the parties at various stages of the marriage
conducted their financial affairs and contributed to the marriage. She testified about
how the parties, from the beginning contributed towards the acquisition and
maintenance of the various assets of their joint estate. Although in the particulars of
claim plaintiff pleaded irretrievable breakdown of marriage and sought that the
primary residence of the minor child to be with her and maintenance. This plea in
respect of the minor c hild was not pursued in evidence and plaintiff appeared
resigned during examination in chief and cross examination to the primary residence
of the minor child being with defendant. She also did not pursue life -long
maintenance with respect to herself.

12. Her evidence was that when the parties married they both brought assets into
the marriage. She testified that defendant brought an immovable property known as
SS C[...] T[...] and a Toyota conquest. That she had bought an immovable property
known as SS T[...] G[...] and a BMW vehicle. That her property, which she had
bought, was used as the couples’ marital home at the beginning of the marriage for
approximately three years until it was sold on 18 January 2006. That towards latter
part of the marriage, one of their property investments, C[...] T[...] after much trading
in investment properties was sold eventually in 2024 after delays, according to her,
caused by defendant.

13. Her evidence is that for the first few years of the marriage, starting with her
employment at the SABC, she used her money to help pay bond instalments; rates

employment at the SABC, she used her money to help pay bond instalments; rates
and taxes for property like T[...] G[...] and for various other household expenses to
the benefit of the joint estate. That when they moved to Cape Town the proceeds of
her prop erty went into paying household expenses for the estate. Her evidence is

that she paid monthly rentals and deposit for their rental accommodation at Century
City until they bought the D[...] road property.

14. Her evidence is further that for a number of years after their marriage she took
over the administration of the immovable properties in the joint estate. That she
would for example receive rental income from SS C[...] T[...] and she would in turn
pay levies and rates thereon. That this approach, whi ch included her paying for
shortfalls in some instances was broadly used until about October 2017. This
evidence is by and large not contradicted by defendant save the complaint that her
gambling addiction especially post 2012 and more so post 2018 contrib uted to the
neglect of this responsibility and spending in furtherance of this gambling addiction to
the detriment of the joint estate.

15. Plaintiff testified that during 2004 they bought a Witkoppen property which
they sold at a profit in 2012. She had signed the debit order for the bond on this
property. That the proceeds of the sale of this property went to the purchase around
2013 of anot her property, Melkbosch Strand, Erf 3 […], which is the property
defendant has been occupying since March 2019, and according to plaintiff’s
Counsel the biggest remaining asset in the estate. Plaintiff’s evidence is that there
were two sectional title prope rties bought and sold during 2004 which defendant
secured the purchase of using blank cheques issued by her. That in 2005 the parties
bought various properties in Johannesburg pointedly Crestview 9, 12 and 16.

16. The evidence is that Crestview 12 was sol d in 2015 at a profit. The plaintiff’s
evidence is that the proceeds went to her and she used that money to pay for C[...]
T[...] and the atlantic beach bond. That crestview 16 was sold in 2016 for about
R750 000 and the proceeds went to defendant. That C restview 9 was sold with
minimal proceeds because of various debts that had accrued on it. She testified that

minimal proceeds because of various debts that had accrued on it. She testified that
they acquired and sold SS Lamone during their marriage with defendant receiving
the proceeds.

17. The evidence is further that in 2007 they bough t Erf 1[...] in Milnerton together
with others. Plaintiff paid the bond and rates and collected rental. The property was
sold in 2020 for R1 140 000. It appears at this point there was conflict between the

parties about how to share the proceeds, a matter apparently resolved by a rule 43
order allowing both parties to share equally.

18. It is Plaintiff’s evidence that when she worked at various institutions, she
contributed meaningfully to the joint estate. She testified that when she worked and
resigned from Faber Coach Works she was granted R1.2 Million of which R250 000
of was paid over to defendant, the balance being used for joint household expenses.
It was her evidence that whilst later employed at Foschini Group around 2008 she
bought a golf vehicle for defendant to use to travel to and from work at his
Vredenburg medical practice. That she paid for the golf until it was replaced by
another vehicle, a Toyota. That this Toyota was paid for by the restaurant she
operated, the I[...] C[...], which at tha t point ran as a successful business until the
business was liquidated and Toyota vehicle consequently repossessed.

19. Plaintiff conceded that she started gambling socially around 2012 when her
son turned 3 and was at school. That at that point she had w on about R4000 from
the R500 her mother had given her. That gambling became an enjoyable habit for
her to have fun. Plaintiff could not give a definitive figure of the amounts gambled
over time in total. She admitted taking money from the business she ran, the I[...]
C[...], to fund her gambling habits. She claimed that from her winnings she would not
deposit it back into the business but took it home and dispensed it towards
household expenses. That she contributed to paying for some parts of the roof at t he
Atlantic Beach house where defendant currently resides.

20. Plaintiff testified that the environment in the marriage was positive as long as
she was bringing in money. The environment changed when her revenue generating
abilities diminished. She states that when money dried out the environment changed
and defendant became abusive. She pointed out that when she was out of a job

and defendant became abusive. She pointed out that when she was out of a job
around 2012 defendant on occasion would suggest that she go to Johannesburg
with the minor child to look for a job. That she, at the beginning, took sole
responsibility for the physical care of the minor child as an infant, something
defendant didn’t have interest in.

21. In cross examination she testified that there are occasions defendant punched
her and periodically emotionall y abused her. She testified those experiences left her
afraid of defendant as husband. That defendant during the marriage has bought
various vehicles some of which she doesn’t know where they may have ended up or
how proceeds thereof may have been used if ever they were sold. She further had
no idea what happened to some assets in the estate including shares they held in
the joint estate.

Defendant’s Evidence

22. The defendant in evidence confirmed the plea and admitted that the marriage
relationship has irretrievably broken down. He confirmed his counterclaim claiming
forfeiture by plaintiff of all or part of the patrimonial benefits of the marriage.

23. The defendant’s evidence is that Plaintiff’s conduct has resulted in significant
financial losses to the joint estate. His testimony is that plaintiff withdrew and
gambled substantial sums from the joint accounts and the business accounts of the
I[...] C[...] without defendant’s knowledge or consent. It was defendant’s testimony
that the gambling losses ran into the millions of rands. His testimony is that when
they first discovered the gambling problem with plaintiff’s brother, plaintiff admitted to
them when questioned. At first stating that she gambled R3000; with further probing
she admitted to gambling R5000. When his brother put a figure of R10 000 to her, it
was defendant’s testimony that she didn’t respond and kept quiet.

24. It was defendant’s evidence that plaintiff failed to apply herself fully given her
experience and qualifications for the be nefit of the joint estate. That whilst she
studied various courses during the marriage, she did not bring these to bear for the
benefit of the family. That she failed to contribute meaningfully to the maintenance of
the joint estate, household expenses and the minor child’s needs since the

the joint estate, household expenses and the minor child’s needs since the
breakdown of the marriage. His testimony is that he has been the primary financial
contributor to the estate throughout and has maintained the properties in addition to
supporting the minor child since institution of divorce proceedings.

25. Defendant testified that plaintiff would be unduly benefited if she were to
receive half of the joint estate given her conduct and limited contribution to its growth.
His submission to this Court was that one cannot claim or get what they do not
deserve or worked for. He states that his medical degree cannot be used unduly as a
retirement package. Defendant’s evidence was that he was the primary breadwinner
throughout the marriage working as a medical practitioner at places like the Me n’s
Clinic International; Transnet and the Vredenburg practice. That this hard work
allowed the family to have a reasonably comfortable life.

26. He testified that he identified various investment opportunities especially as it
relates to various property. That he secured funding for those opportunities and paid
bonds. Defendant conceded that Plaintiff’s role was managing the properties he, as
defendant, would have sourced. That she would collect rent and pay necessary
running costs for those properties. T hat the rest of the money was for Plaintiff to
keep and use as she wished.

27. Defendant’s evidence was that his work at Transnet added additional sources
of revenue for the family that allowed them to have a good life. That he paid for
renovations at the Atlantic Beach property thereby spending something in the region
of R1.8 Million. That since 2018 he maintained the Atlantic Beach property and paid
the bond on the D[...] Road property. That he has been responsible for the
maintenance and education of their son.

28. It is Defendant’s further evidence that he only discovered plaintiff’s gambling
addiction on or around 20 Januar y 2018 when she failed to return home and it was
discovered later that she had been gambling at Grand West Casino. That when
confronted, plaintiff initially minimized her gambling problem, claiming she had spent
small amounts of money. That upon this reali zation he took plaintiff to Grand West
Casino to sign a self-exclusion.

Casino to sign a self-exclusion.

29. It was Defendant’s evidence that the I[...] C[...] Restaurant failed due to
Plaintiff’s mismanagement and squandering of funds with gambling and diversion of
funds with her family connections. That plaintiff had been borrowing money from
other people to cover her expenses to the detriment of the estate. Defendant testified

that the joint estate had debts on bonds in the region of R4.5 Million. In cross
examination defendant put the outstanding bond on the Atlantic beach property at
about R2.7 Million. That the bill to home owner association was about R100 000;
municipal bills estimated at about R450 000.

30. In cross examination defendant conceded that he understood that the
marriage was in community of property and that he opted not to settle an ant -nuptial
contract. The defense led the evidence of Mr. Kamal Naicker and Mrs. Niranj Pather.
These witnesses’ evidence essentially related to debts incurred and donations made
from the j oint estate by the plaintiff and defendant respectively. Save to confirm
debts incurred and donations made, not much could be made of this evidence,
however, in determining the central question of forfeiture.

31. The Defense further led the evidence of the minor son of plaintiff and
defendant. This witness’s evidence was in summary that his relationship with his
mother is strained and was happy staying with his father. That before 2018 he never
heard his parents argue. This evidence confirms in this Cour t’s view arrangements
as to the care and contact of the minor child after divorce as submitted by the parties.

The Law

32. Section 9(1) of the Divorce Act states:

“when a decree of divorce is granted on the ground of the irretrievable break -
down of a marriage the Court may make an order that the patrimonial benefits
of the marriage be forfeited by one party in favor of the other, either wholly or
in part, if the Court, having regard to the duration of the marriage, the
circumstances which gave rise to th e breakdown thereof and any substantial
misconduct on the part of either of the parties, is satisfied that, if the order for
forfeiture is not made, the one party will in relation to the other be unduly
benefited”.

33. In Wijker3, citing Hahlo in The South African Law of Husband and Wife , 5th
edition at 157, the Court noted that a marriage in community of property was
described in the following terms:

“community of property is a universa l economic partnership of the spouses.
All their assets and liabilities are merged in a joint estate, in which both
spouses, irrespective of the value of their financial contributions, hold equal
shares”.

34. The ratio arising from this judgement in Wijke r is that in deciding whether to
grant a relief of forfeiture, a Court has “to determine whether or not a party against
whom the order is sought will in fact be benefitted” 4. If so whether such benefit was
undue. This inqu iry is purely a factual inquiry. That in undertaking this inquiry, the
Court has to consider a number of factors which factors need not be cumulative to
find application. These are

i) The duration of the marriage;
ii) Circumstances which gave rise to the breakdown of the marriage;
iii) Consider whether there has been substantial misconduct.

35. The Court held that it is only after the Court has concluded that a party would
be unduly benefitted that it is empowered to order a forfeiture of benefits. That in
making this decision it exercises its discretion in a narrower sense. The Court in this
matter also held that in interpreting Section 9(1) it could never have been the
intention of the legislature that the factors mentioned in the section should be
considered cumulatively. The dictum arising from this judgement is that too much
importance should not be attached to misconduct which is not of a serious nature.
The misconduct should be so gross that it would offend the whole notion of justice to
allow the guilty party to get away with the spoils of marriage.


3 Wijker v Wijker 1993 (4) SA 720 (A) at 33
4 Wijker v Wijker, op cit, at 19.

36. In Engelbrecht v Engelbrecht 5 the Court found that it could never have been
the intention of the legislature that a wife who had for 20 years assisted her husband
studiously should because of adultery forfeit the benefits of marriage in community of
property. In Engelbrecht the Court made it plain that joint ownership of another’s
property is a right which each of the spouses acquire on concluding a marriage in
community of property. That unless the parties made precisely equal contribution s
the one that contributed less shall on dissolution of the marriage be benefitted above
the other if forfeiture is not ordered. Further that this is the inevitable consequence
of the parties’ matrimonial property regime. Arising from this judgement it is plain that
the legislature does not give the greater contributor the opportunity to complain
about this. He can only complain about this if the benefit was undue. Unless it is thus
proved what the nature and extent of the benefit was, the Court cannot dec ide if the
benefit was undue or not. Only if the nature and ambit of the benefit is proved is it
necessary to look to the factors which may be brought into consideration in deciding
on the inequity thereof. It is also apparent from this authority that the legislature did
not intend to elevate fault in the granting of the forfeiture order.

37. In argument, Counsel for defendant argued that using conservative estimates,
using Plaintiff’s own testimony, using 3 visits per week at an average of R5000 per
visit for approximately 5 years, this equates to a minimum of R3.9 Million in gambling
expenditure. He argues that this figure equates to substantial portion of the joint
estate that was wasted by gambling. He argues that the Court must disregard the
Plaintiff’s testimony that her gambling habits had the defendant’s tacit approval given
her testimony that ‘when there was money there was no abuse’ by defendant as she

her testimony that ‘when there was money there was no abuse’ by defendant as she
saw it. That this assertion is contradicted by defendant’s action of immediately taking
plaintiff to grand west casino to sign a self -exclusion. That her gambling wasn’t just
recreational but had escalated to a point of causing business failure; accumulation of
debts; and ultimately the breakdown of the marriage. He argues that her conduct as
foreshadowed meets the threshold for “substantial misconduct” as contemplated in
section 9(1) of the Divorce Act.


5 Engelbrecht v Engelbrecht 1989 (1) SA 597 (c)

38. Counsel for defendant further argues that the I[...] C[...] restaurant, which
plaintiff managed, was a significant asset of the joint estate. Tha t its failure therefore
and subsequent liquidation represents a substantial financial loss for the joint estate.
That the evidence establishes a direct link between the plaintiff’s gambling and
business failure. That she admitted to using business funds fo r gambling and failed
to properly manage the finances, resulting in accumulated debts which included an
overdraft of R400 000 at First Rand Bank.

39. Counsel argues that the contrast between the restaurant’s success before the
plaintiff’s gambling escalat ed and after the marriage broke when her brother took
over management strongly suggests that her mismanagement was the primary
cause of its failure. That her attempts during her testimony to minimize her
responsibility for the failure of the business by at tributing that failure to competition
from another restaurant is contradicted by her own admission that she took money
from the business to fund gambling. That her concealment of her financial activities
and lack of accountability constitute a breach of go od faith obligation between
spouses married in community of property further supporting the argument of
substantial misconduct.

40. That the plaintiff would be unduly benefitted if forfeiture is not granted
because defendant had been the primary financial contributor to the joint estate
throughout the marriage, while plaintiff’s gambling actively diminished the estate.
That since 2018 defendant has solely maintained the properties and supported their
son, with minimal contribution from plaintiff. That plai ntiff’s gambling losses have
effectively already given her the benefit of millions of rand from the joint estate,
which would not be accounted for in a simple 50/50 division. That plaintiff has
secured ongoing financial benefit from the business relationsh ips established during

secured ongoing financial benefit from the business relationsh ips established during
the marriage whilst claiming limited financial resources.

41. In conclusion Counsel for defendant argues that given the current estimated
value of the joint estate of approximately R22 Million. A 50/50 division would award
plaintiff approximately R11 Million despite her having already consumed millions
through gambling and having contributed little in recent years.

42. He argues that plaintiff’s testimony regarding the subsequent arrangement
with her brother raises serious questions about whether assets were properly
transferred out of the joint estate, whilst plaintiff claimed to earn only R20 000 per
month as consultant. That she admitted that the business continued essentially
under the same name and the same staff. That she never disclosed a record of her
gambling wins and losses. That her vague testimony regarding the total amount
gambled and her inability to account for winnings indicates a continued lack of
financial transparency.

43. This court is not persuaded with this argument and finds no merit therein. This
Court accepts plaintiff’s evidence that for at least the first 4 years of the marriage she
was a significant contributor to the joint estate. Defendant does not deny having
stayed in a property at the beginning bought by plaintiff which they used as a marital
home. Defendant in his evidence in chief and under cross examination conceded
that he moved in with plaintiff into a property then owned by plaintiff. The further
evidence not contradicted and which this Court acce pts is that when they moved to
Cape Town from Johannesburg plaintiff essentially laid the foundation of the couple’s
settlement in Cape town inter alia paying rental for the property, in century city, they
moved into. This Court also accepts the evidence t hat plaintiff sold her property
investment in Johannesburg and used the proceeds thereof to the benefit of the joint
estate. This point was not meaningfully rebutted by defendant. The acquisition of the
various investments, including property investments s uch as the atlantic beach
property and the couples’ main residence at which plaintiff currently resides cannot
therefore reasonably be excluded from the foundations laid by plaintiff’s contributions
before and during the development of these assets.

44. In any event it falls upon the defendant to prove to this Court the inequitable

44. In any event it falls upon the defendant to prove to this Court the inequitable
contribution to establish benefit. On balance this Court finds that at the beginning of
the marriage defendant has not proved that he brought more assets than plaintiff. On
the contrary they moved into an asset of plaintiff which was more valuable. The
liabilities at the beginning of this marriage have not been established satisfactorily.
This Court can thus only infer that the plaintiff was in a better financial position than
defendant at the beginning.

45. What remains is the contribution during the marriage. Evidently over time
defendant through hard work and identification of investment opportunities
accelerated his contribution to the joint estate to be more, especially when the
plaintiff stopped working and had her business ventures failing. This Court however
has difficulty on the evidence before it finding that to the extend that the plaintiff may
have benefitted from this accelerated contribution of the husband after havi ng a child
and stopping to work to look after the child; look after the maintenance of the
properties the couples invested in from the seed capital she contributed to from the
beginning as well as the contribution to the estate before liquidation of the I[...] C[...]
restaurant, that this benefit is undue. What remains is thus to examine gambling
addiction as submitted by defendant and its impact.

46. The argument by defendant’s Counsel about plaintiff’s lack of transparency
about transfer of assets and he r financial dealings may have some merit to the
extent that it supports plaintiff’s own contention that an independent valuer be
appointed by this Court to examine the assets and liabilities of the estate before
ordering division in the event the parties d o not agree on the question of asset
distribution.

47. Counsel for defendant in argument concedes that defendant has been unable
to properly maintain the D[...] road property, resulting in water supply and
maintenance challenges. The Atlantic Beach property where Defendant resides has
accumulated by defendant’s own version levies debts of approximately R158 000
and municipal debt of approximately R216 000. C[...] T[...] attracted R89 000 of debt
in unpaid levies. Evidently defendant’s own actions or omissions have contributed in
causing the estate loss of some value given that from 2019 the plaintiff had limited
means to contribute thereto. This Court is not satis fied with evidence before it that

means to contribute thereto. This Court is not satis fied with evidence before it that
plaintiff’s failure to contribute to maintenance of the assets in the estate is due to her
lack of trying. The Court accepts her testimony that after the failure of I[...] C[...], she
tried various other ventures including assisting with a similar restaurant and shop
which brought her R20 000 monthly consulting income. There would evidently be no
reason to go around borrowing money to finance her living expenses or apply for a
rule 43, which was granted, if she had means.

48. This Court accepts that the liquidation of the I[...] C[...] and repossession of
the Toyota hilux caused the joint estate a loss. It accepts that these and the
gambling habits of the plaintiff may have strained the relationship of the parties and
contributed to the breakdown of the marriage and some loss to the estate. Fault is
however not a ground upon which a Court may order forfeiture.

49. This Court is also not persuaded on the evidence that the failure of the I[...]
C[...] restaurant is attribut able solely due to gambling habits of the plaintiff. Nor that
this gambling was hidden. The record shows that plaintiff used her bank cards at the
casino and the casino cards which would be so loaded for gambling. This can hardly
be said to be hidden activ ity. The only conclusion which this Court can draw
therefore is that this habit as alleged by the plaintiff was not a problem as long as
money kept coming into the estate. It only became a problem when money ran out
as alleged by plaintiff.

50. The expla nation by the plaintiff as to the reason of the failure including
increasing competition in the area the restaurant was located cannot be discounted
without any corroborating evidence. By defendant’s own admission plaintiff ran the
business whilst he focus ed on the medical practice. He rarely went to the business
nor took active interest as he by his own admission was not concerned in how his
wife used her time and residue from rental collections once costs were paid until
2017 and 2018 when the gambling issue of grand west casino arose.

51. This Court finds that failure to maintain properties cannot be attributed solely
to plaintiff. Whilst Counsel for defendant argues that properties under plaintiff’s
management such as crestview; C[...] T[...] and atlantic beach owed R158 000 levy
arrears and municipal arrears; The D[...] road property owing R366 000 as evidence
of this failure. This responsibility if regard is had to the rule 43 order was not the sole

of this failure. This responsibility if regard is had to the rule 43 order was not the sole
responsibility of plaintiff as the Court had recogniz ed that the plaintiff at that point
had limited resources and capacity. The evidence is that the property at which
defendant currently stays is also as aforesaid in debt in respect of rates and levies to
the detriment of the joint estate.

52. This Court i s also mindful, as contended by plaintiff’s Counsel, that there are
various judgements and legal costs incurred by the joint estate but there is no
satisfactory explanation by defendant as to how these were to be handled to the
extent that they impact plai ntiff and were caused by defendant in the event of
forfeiture being granted. It would be a travesty for this Court to burden plaintiff with
the liabilities arising from the marriage and exclude her from the benefits arising from
the residue of marriage.

53. On the question of forfeiture because of gambling addiction as contended by
defendant, this Court accepts that plaintiff by her own admission gambled. Evidently
this gambling was probably more than social as plaintiff would have this Court
believe as she concluded a self -exclusion from grand west casino with the prodding
of her brother and defendant. There is however no record or evidence before this
Court to enable this Court to prefer the evidence of the defendant above that of the
plaintiff given the couple’s social standing and lifestyle to conclude that this gambling
fell within the realm of addiction. There are no gambling records brought into
evidence before this court nor expert report to assist this Court in determining this
question of addiction and its extend and impact on the estate.

54. The plaintiff’s evidence is that she signed the self -exclusion to assure and
appease defendant that she would not go to grand west casino again when she was
engaged by defendant and her brother on this issue. This Court finds no reason to
dismiss this explanation. This gambling on the evidence cannot be said to fall within
the requirements of section 9(1) if this Court has regard to the facts of this case.
Fault, and there is some attributable to plaintiff, is not a basis for a Court to order
forfeiture. The evidence which this Court accepts is that both spouses to a greater
and lesser extent gambled or alternatively tended to go to gambling areas. The

and lesser extent gambled or alternatively tended to go to gambling areas. The
evidence put before this Court, which defendant did not den y, is that from time to
time defendant also went to the tout given the couple’s social standing and lifestyle.
The bank records evinces that defendant himself played the lottery. So if regard is
had to the circumstances of this marriage the gambling habits of the plaintiff are not
found by this Court, on the facts, to constitute substantial misconduct justifying
forfeiture as contemplated in section 9(1) of the Divorce Act.

55. This marriage has in any event subsisted for at least 20 years and the plaintif f
has on the evidence before this Court contributed reasonably to the joint estate. It is
not the requirement of our law that for a spouse to benefit from the residue of a
marriage concluded in community of property there ought to have been equal
contribution to the joint estate. The law is that forfeiture can only be granted if the
benefit is undue. The evidence is that the plaintiff throughout the marriage at least
until institution of these proceedings looked after the couple’s property portfolio and
collected rental. She raised the couple’s young child until he moved with his father.
This Court cannot ignore this contribution. Neither can it rely on moving estimates
submitted by the defense to determine the extent of the benefit. This Court thus finds
the defendant’s counterclaim on forfeiture meritless.

56. This Court further finds that given the testimony of the parties themselves and
the testimony of their minor child, that current obtaining arrangements in respect of
the child staying with the defend ant, subject to reasonable contact by plaintiff, and
with both parties being co-guardians with full parental rights and responsibilities must
be left undisturbed in the child’s best interest.

Conclusion

57. In the result, this Court finds that plaintiff has made out a case for the relief
that she seeks. It is this Court’s conclusion that the marriage has irretrievably broken
down. This court further concludes that plaintiff has not unduly benefitted from the
joint estate thereby allowing this Court to can order forfeiture of benefits in favor of
defendant. This Court concludes that plaintiff is entitled to an order for division of the
joint estate. The Court also concludes that a case having regard to parties’ own
submission in regard to the movement of as sets has been made for an appointment
of a receiver and liquidator.

Costs

of a receiver and liquidator.

Costs

58. Plaintiff and Defendant addressed this Court on costs. Costs follow the result.

59. This Court considers that in present circumstances, Defendant must pay costs
including costs of the rule 43 order.

Order

60. Accordingly, I make the following order:

IT IS ORDERED THAT:

1. A decree of divorce is granted.

2. An order for an equal division of the parties’ joint estate is made.

3. In the event that the parties fail to agree upon the mode and manner of
the division of their estate within 30 days after the date of the decree of
divorce or any further extended period as may be agreed to bet ween the
parties in writing, an order in the following terms is made:

3.1. Mr. Lambertus von Wielligh Bester of Cape Trustees (Pty) Ltd,
Seaside Village, Otto du Plessis Drive, Big Bay, Cape Town, an
insolvency practitioner and member of SAPIRA is appoint ed as
receiver and liquidator, or alternatively any other professional person
agreed to between the parties in writing within thirty (30) days of this
order, as a receiver and liquidator for the joint estate of the parties.

3.2. Direct that the receiver a nd liquidator shall not be required to
lodge security for his administration of the joint estate.

3.3. Direct the plaintiff and defendant to each furnish the receiver
and liquidator within fourteen (14) days of expiry of the period before
he is appointed, as provided for above, with a complete inventory of all
assets and a detailed list of liabilities of their joint estate as at the date
of granting of the divorce.

3.4. Authorize the receiver and liquidator to take control over and or
possession of all mo vable and immovable assets of the parties’ joint
estate, including any pension interests or pension benefits, shares or
debts due to the joint estate and to divide the assets by mutual
agreement, alternatively, failing such agreement, to realize such asset s
to the best advantage of the joint estate by way of public auction or
private treaty and to divide the net proceeds between the parties in
accordance with the provisions below.

3.5. Authorize the receiver and liquidator to sign all documents to
effect transfer of any immovable property, movable property or shares
on behalf of either of the parties in the event that they fail to sign such
document after three (3) days of being requested by him to do so in
writing.

3.6. Direct that, i n addition to the aforesaid authorizations, the
receiver and liquidator shall have the following powers:

3.6.1. to make all investigations which are necessary and obtain all
necessary information from the parties themselves, bank
managers and other finan cial institutions in relation to money in
the joint estate which may have been invested in accounts under
either of their control.

3.6.2. to obtain information from the auditors of any business of the
parties and personal accounts of both parties and suc h other
persons with the necessary knowledge in relation to their
personal affairs.

3.6.3 to call and obtain balance sheets and other financial information
of all companies and businesses in which the parties held or
hold any interest.

3.6.4. to inspect books of accounts relating to any company or
business in which the parties hold or held any financial interest.

3.6.5. to inspect personal bank statements, paid cheques, deposit
books and personal statements relating to the affairs and
liabilities of the parties complied for tax and other purposes.

3.6.6. to physically inspect the assets of the joint estate and to make
the necessary inventories thereof.

3.6.7. to obtain appraisals or valuations of any assets of the joint
estate in such manner as the receiver and liquidator regards
suitable for the purposes of determining the value of the joint
estate.

3.6.8. to deal with any pension interest accrued or deferred pension
benefits which have accrued or been deferred by any party,
and in particular to a llocate a portion of one party’s pension
interest to the other party as envisaged by Section 7(7) and 7(8)
of the Divorce Act of 1979, as amended, and to cause the
appropriate endorsement to be made to the pension records of
such party’s pension fund.

3.6.9. to sell the assets, both movable and immovable, or any part
thereof by either private agreement and or public auction as
may seem to him the most beneficial to the joint estate, with
leave to both parties in the event of a sale by public auction to
bid for such assets, alternatively, to award any such assets to
the parties by dissolution thereof, subject to such cash
adjustments as the circumstances may deem necessary,
provided that should the receiver and liquidator wish to sell any
asset, he shall fi rst offer for sale such asset in writing, to the
parties for purchase which offer shall be open for five (5) days.
In the event that either of the parties wishes to purchase such

asset, the necessary cash adjustment as the circumstances
may deem necessary must be made. If a cash adjustment
cannot be made in the circumstances where a party elected to
purchase an asset, the purchase price must either be paid in
cash or be secured by a final or unequivocal guarantee from a
registered financial institution with in fourteen (14) days as
contemplated above, provided that the receiver or liquidator
may at his sole discretion, extend the fourteen (14) days for up
to a maximum of thirty (30) days. Should any of the time
periods in this paragraph not be adhered to and or complied
with, the option to purchase any such asset offered for
purchase by the receiver or liquidator shall automatically lapse
and shall not be capable of revival save by mutual written
agreement between the parties.

3.6.10. to collect debts due to the estate.

3.6.11. to pay or allocate the liabilities of the joint estate, which shall
include the parties’ taxed or agreed legal costs, subject to any
cost order which a court may have made against any party,
such balance to be p aid directly to the attorney of record of
such party.

3.6.12. during the course of releasing the joint estate, to deal with the
assets in his sole discretion, including the freezing of bank
accounts wherever reasonably necessary.

3.6.13. to institute leg al proceedings out of any court with the
necessary jurisdiction against any person for the delivery to him
of such documents as he deems necessary for the purpose of
enabling him to discharge his duties.

3.6.14 to apply to court on due notice to both par ties for any further
directions as he shall or may consider necessary.

3.6.15 to deduct his professional fees from the amount available for
distribution to the parties after the collection of all assets and
the discharge or allocation of all liabilities of the joint estate.

3.6.16. to bring into calculation and or reckoning in his distribution the
reasonable market value of any asset or the actual monetary
value of money belonging to the joint estate, as at the date of
divorce, that either party may have disposed of, determining
whether such party received value or full value thereof.

3.6.17. should the receiver and liquidator not receive objections within
seven (7) days period as provided for above, his account shall
be deemed to have been confirmed by the parties and the
receiver and liquidator shall be able to proceed to make a
determination in accordance with the tenor thereof.

3.6.18. direct that, in the event that the receiver and liquidator receive
written objections from either or both parties, a fter providing
them with a reasonable opportunity of submitting
representations to him, he shall determine the objections and
amend his account in accordance with such determination/s to
the parties marked as ‘final amended account’.

3.6.19. direct that t he receiver and liquidator shall within a reasonable
period of time after having exercised his powers and authority
as provided for in this order, furnish the parties with a
provisional liquidation and distribution account, to which the
parties will be ent itled to raise objections within seven (7) days
from date of receipt thereof.

3.6.20. direct that, in order to place him in a position to make such
determination/s, the receiver and liquidator shall be entitled to

apply to court, on notice to parties, for such directions as he
considers necessary.

3.6.21. direct that, in the event of either of the parties not being
satisfied with such ‘final amended account’ of the receiver or
liquidator, the party not so satisfied shall, within seven (7) days
of the fina l amended account being provided to the parties,
approach the high court with jurisdiction with such legal
proceedings as he may deem fit, failing which the account shall
become final and binding on the parties.

3.6.22. direct that after the account has b ecome final and binding upon
the parties as provided above, the receiver and liquidator shall
make a distribution in accordance with the relevant account,
whereafter he shall be released of his duties as receiver and
liquidator. In the event of legal proce edings being instituted in
terms of paragraphs 3.6.20 or 3.6.21 above, no distribution
shall be made to any of the parties until such time as such legal
proceedings are concluded.

3.6.23. direct that the receiver and liquidator shall be entitled to
payment of his reasonable professional fees, which fees shall
be apportioned equally between the parties and said fees shall
be reflected in his account.

4. Both parties shall remain co -guardians of the minor child as provided
for in Section 18(2)(c ); 18 (4) and 18 (5) of the Children’s Act 38 of 2005.

5. Both parties shall retain their full parental rights and responsibilities in
terms of Section 18, 19 and 20 of the Children’s Act 38 of 2005 in respect of
the minor child.

6. The child’s primary residence and care is awarded to defendant,
subject to plaintiff’s rights of reasonable contact, provided that her contact

with the child shall be exercised in acco rdance with the minor child’s wishes
and with due regard to his scholastic, social and extra-mural activities.

7. Defendant shall retain the minor child on his fully comprehensive
medical aid scheme and shall be responsible for all medical premiums in
respect thereof, provided that any reasonable medical expenses not covered
by the medical aid fund shall be shared between the parties in equal shares.

8. The parties shall be equally liable and responsible for the following
reasonable costs of the minor child:
8.1 School fees;
8.2 extra lessons;
8.3 school books, stationary and uniforms;
8.4 school tours within the Republic of South Africa;
8.5 school transport costs;
8.6 Extra-mural activities inclusive of outfitting and equipment,

Provided that plaintiff’ s half share of the aforementioned costs will only
become due and payable on date of the final distribution of the parties’ joint
estate by the receiver and liquidator as provided for in paragraph 3 above.

9. Defendant is directed to pay the costs of the rule 43 application under
case number 4584/22.

10. Defendant is directed to pay the costs of the divorce action.


____________________
S S T KHOLONG
ACTING JUDGE: WESTERN CAPE DIVISION


Appearances:

For the Plaintiff: Adv. Thelma-Anne Pratt
Instructed by Truter and Associates

For the Defendant: Mr. T. Dunn
Instructed by TJC Dunn Attorneys