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[1993] ZASCA 101
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Wijker v Wijker (325/92) [1993] ZASCA 101; [1993] 4 All SA 857 (AD) (26 August 1993)
CASE NO. 325/92
J VD M
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
JACOB HARMEN
WIJKER
APPELLANT
and
JOSEPHINE E
LIZAB
ETH WIJKER RESPONDENT
CORAM
: JOUBERT, EKSTEEN, JJA et VAN COLLER,
AJA
DATE HEARD
: 19 MAY 1993
DATE DELIVERED
: 26 AUGUST 1993
JUDGMENT
VAN COLLER, AJA:
In an action instituted in the Transvaal
2
Provincial Division the appellant claimed an order of divorce and
division of his and the respondent's joint estate. In her counterclaim
the
respondent, apart from also claiming an order of divorce, claimed a forfeiture
order with regard to certain assets. The parties
were
ad idem
that the
marriage had irretrievably broken down and the main issue at the trial was
whether or not a forfeiture order should be granted
against the appellant. After
a protracted trial, Heyns J, on 5 February 1992, granted an order of divorce and
a forfeiture order.
In terms of this order the shares in a company, Jose Wijker
(Pty) Ltd ("the company"), as well as certain assets purchased by the
respondent
with income derived from the company, were declared forfeited in favour of the
respondent. He ordered that each party
should pay his or her own costs. This
Court granted leave to the appellant to appeal against the forfeiture and the
costs orders.
3
The parties were married in community of property in Holland on 15
September 1956. Three months later they emigrated to South Africa
and settled in
Pretoria. The appellant, who was trained as a mechanical engineer in Holland,
also obtained an advanced diploma in
business administration at the University
of Cape Town in 1968. He was employed in the motor industry practically all his
life. He
worked for various companies at managerial level and he had a good
income. A son was born to the parties in 1958 and two daughters
were born in
1960 and 1965 respectively. In 1968 the parties bought a house in Lynnwood Glen,
Pretoria, which was sold in 1971 and
they then bought a house at 422 Milner
Street where they lived together until October 1991. After their arrival in
South Africa,
the respondent worked for a publishing company and she was also
employed by the French department of the State Information Service.
From 1958 to
1972, a
4
period when the children were still young, the respondent was a
housewife. In 1972 she commenced working as an estate agent. In July
1976 she
launched her own estate agency and for this purpose the company, in which she
and the appellant each held 50 shares, was
incorporated. In the beginning and
while the business was small the appellant acted as its bookkeeper. He also
provided the respondent
with a motor vehicle and assisted her in putting up
signs at properties she had for sale. The appellant also attended the annual
directors' meetings held at the offices of the company's auditors. During 1979
the company appointed a bookkeeper and the appellant
was no longer burdened with
this task. Initially the respondent conducted the business of the company from a
rondavel situated on
the premises of the matrimonial home at 422 Milner Street.
About three years later the company moved to rented premises at a shopping
centre in Waterkloof. In 1982
5
the company purchased a property at 386 Milner Street for R100 000 where
it has since conducted its business. It is clear from the
evidence that the
estate agency became a very successful business. This was due mainly -to the
respondent's business acumen and hard
work. The respondent earned commission and
a director's remuneration. She also made various investments. In 1985 two flats,
Nordey
Heights nos. 901 and 209, were registered in her name. The respondent
valued no. 901 at R50 000 and no. 209 at R65 000. The properties
were subject to
mortgage bonds of R15 000 and R20 000 respectively. The company bought a flat at
Sea Point in Cape Town for R23 000.
It was a sectional title unit and was used
during vacations and for business purposes. During 1980 the respondent bought a
flat in
Pretoria for approximately R28 000 and she sold it in 1990 at a profit
of R40 000. She also made two other investments of approximately
R45 000 each.
The evidence about
6
these investments is rather vague and apart from the fact that the
respondent no longer had these investments at the time of the trial,
it is not
clear what became of them. Under cross-examination the respondent admitted that
she lost R150 000 which she had invested
with a Pretoria businessman. The
respondent also purchased three timeshare units at Plettenberg Bay for R3 500
and she bought two
units in a timeshare block at Umhlanga Rocks. The purchase
price of R1 560 and R2 040 respectively was very reasonable, being the
same
price paid by the seller 10 years previously.
In 1979 the appellant
started a business known as Puma Marketing CC in which he and the respondent
each had a 49% interest. He has
always been very interested in motor cars and
the manufacture of sports cars was the main object of this business. The
appellant
considered this as a hobby and he spent time during weekends working
at the factory where 23 cars had
7
been manufactured since 1985. The property on which the factory was
established belongs to another close corporation, namely J H Wijker
Properties
CC. The appellant and the respondent have an equal interest in this corporation
and they are its only members. The purchase
price of R78 680 was financed by
means of a loan of R30 000 from the company and by a bond of R35 000 on the
property at 422 Milner
Street. The appellant paid the balance. The bond was
subsequently increased to R45 000 and the respondent testified that she repaid
this amount out of her own income. In order to establish the factory the
property was encumbered with a bond of R90 000 in favour
of a building society.
The respondent did not participate actively in Puma Marketing CC but according
to her evidence the office
staff of the company rendered certain administrative
services to this firm. Although the evidence on this aspect is not satisfactory
it would appear that the
8
respondent valued the entire members' interest in J H Wijker properties
CC at R323 000 (less the bond of R90 000). The value of the
entire members'
interest in Puma Marketing CC was put at R142 000. The joint estate is also the
owner of a yacht which the respondent
valued at R50 000. The value of the
contents of the matrimonial home at 422 Milner Street was put at R15 670 and the
property itself
at R345 000. With regard to the assets belonging to the company,
the respondent gave the following valuations: 386 Milner Street
R250 000 less
the amount of R60 000 owing on the bond; No. 1 Hyde Park (flat at Sea Point)
R160 000 less the amount of R12 000 owing
on the bond; loose assets R57 790;
time share unit at Plettenberg Bay R4 600. She placed no value on the goodwill
of the company
whereas the appellant valued it at R685 440. It also appears from
the record that the respondent had 5000 Westwits shares and Unit
Trusts in Old
Mutual. There
9
was, however, no evidence with regard to the value of these
assets.
The evidence reveals that prior to 1976 the appellant was
the major, if not only, breadwinner of the family. When their son reached
standard eight he was sent to St Andrews College in Grahamstown and the
appellant also supported him while at university, which he
attended for a period
of two years. The two daughters also went to university and the appellant
assisted them financially in this
and in other respects. Between 1958 and 1972
the family went on holiday regularly and in 1974 the appellant took the whole
family
cm an overseas vacation. At some stage, and it appears to be round about
1980, the respondent started paying all expenses pertaining
to the joint
household except the accounts relating to water, electricity and rates and
taxes, which were paid by the appellant.
The marriage was reasonably happy until the
10
respondent's estate agency started to flourish
from 1980 onwards. Disagreement of a serious nature first erupted in 1983 when
the
respondent was reluctant to bind the company as surety to the Ford Motor
Company on behalf of Puma Marketing CC. According to the
respondent's evidence,
the appellant threatened her with divorce should she not sign the deed of
suretyship, which she eventually
agreed to do under pressure. This was denied
and according to the appellant they decided not to sign the document. On 14
October
1985 the appellant's attorney wrote to the respondent about a divorce.
It was suggested that a meeting be arranged in order to agree
amicably on the
terms of the dissolution of the marriage. The appellant explained that he wanted
a divorce at that time because the
respondent was not prepared to let him take
an equal part in the running of the company. According to the respondent the
differences
were caused by the
11
appellant's insistence on increasing the bond on
the matrimonial home in order to finance the factory, to which she did
eventually
agree. The parties became reconciled when the respondent acceded to
the appellant's request to terminate the services of the auditor
of the
company.
A former employee of the company testified that from 1983
there was a marked deterioration in the erstwhile happy relationship. The
appellant made unflattering remarks about the respondent, referred to her as
"die ou vrou" and tried his best to humiliate her. According
to the evidence of
a mutual friend, who was called as a witness by the respondent, the appellant
had great difficulty in coping with
his wife's success. From about 1988 he
noticed that the appellant's conduct towards the respondent had become
vindictive and ungentlemanly.
This witness said that the appellant made it
patently obvious that any compliment to the
12
respondent and any attempt to discuss her success
in business did not meet with his approval.
It is common cause that
appellant's shareholding in the company was the main bone of contention between
the parties. During October
1988 and at a meeting with their auditor, the
appellant agreed to transfer his shares in the company to the respondent. This
was
done to procure an income tax benefit for the respondent as a married woman.
According to the appellant it was agreed that a written
option would be given to
him to enable him to have the shares back if and when he wanted them. It was put
to the appellant, and this
was also the respondent's evidence, that an option
was in fact given to the appellant at the meeting but that he told her that she
could tear it up, which she did. This was denied by the appellant, whose version
was that the option never materialised, notwithstanding
frequent requests to
the
13
respondent. There was even correspondence between
the parties on this issue and the respondent admitted that the appellant nagged
her about the option. The respondent conceded that it was her refusal to return
the appellant's shares which caused him to institute
the divorce action. She was
not prepared to return the shares because she did not have a high regard for the
appellant's financial
ability and she was afraid that he would use the shares to
further his own interest. In November 1990 she wrote to the appellant
about his
demands and she gave him three weeks to think about it and to make up his mind.
She testified that she saw the letter as
"a last resort for my husband to
realise that he had to make a choice between me and the signing of the shares".
The appellant said
in his evidence that when the respondent finally refused to
let him have the shares back he considered it a breach of trust with
the result
that they could no longer live together. It is
14
common cause that the respondent left the
communal bedroom on 27 January 1991. She alleged that she did so because the
appellant assaulted
her by striking her and by twisting her right arm. In her
evidence she also referred to an incident during 1985 when appellant slapped
her
face, causing a cut in her lip. On another occassion he twisted her arm. The
appellant denied these incidents. It can serve no
purpose to give the
appellant's version of these incidents in more detail, because although the
learned trial judge referred to them,
he made no findings with regard thereto.
The respondent also mentioned a few other incidents of abusive behaviour on the
part of
the appellant. Apart from the fact that the appellant's version differed
from that of the respondent, these incidents are of minor
importance and need
not be dealt with. The respondent left the matrimonial home in October
1991.
The respondent's claim for a forfeiture
15
order was based on the provisions of
section 9(1)
of the
Divorce Act 70 of 1979
("the section") which reads as follows:
"When a decree of divorce is granted on the ground of the irretrievable
break-down of a marriage the court may make an order that
the patrimonial
benefits of the marriage be forfeited by one party in favour of the other,
either wholly or in part, if the court,
having regard to the duration of the
marriage, the circumstances which gave rise to the break-down thereof and any
substantial misconduct
on the part of either of the parties, is satisfied that,
if the order for forfeiture is not made, the one party will in relation
to the
other be unduly benefited."
The learned trial judge referred to the long duration of the marriage. As
regards the circumstances which gave rise to the break-down
of the marriage, he
concluded that the main cause of the break-down of the marriage was the fact
that the appellant could not get
the shares back from the respondent. The
learned trial judge
16
expressed surprise at the appellant's explanation
that he considered the respondent's refusal as a breach of trust. He was not
impressed
by the moral tone adopted by the appellant, which he considered to be
insincere. Other significant findings made by the learned trial
judge with
regard to the appellant's conduct are that nobody forced him to transfer the 50
shares to the respondent; that he did
so from considerations which he did not
explain to the court and that he was bound by his own decision. Heyns J
emphasized the fact
that it was the appellant who initiated the divorce
proceedings after he had already threatened to do so in 1985. He stated in the
judgment that the divorce action was a calculated step by the appellant to
obtain half of the shareholding of the company which the
respondent was not
prepared to give to him. That part of the judgment dealing with the cause of the
break-down of the marriage concludes
as follows:
17
"On what principle of fairness can he be heard to
say that he wants half a share of the shareholding of the company, which would
result
in him being able to have a half share in all the profits that the
company makes? It seems to me that his attitude is that because
I am married to
Mrs Wijker, she must give me a half share in this company, although she is the
person who works hard and conducts
the affairs of the company."
The learned trial judge has not made any findings with
regard to the third factor mentioned in the section, namely substantial
misconduct.
He did not refer to any such conduct and he made the following
concluding remarks with regard to the three factors
referred to in the section:
"Bearing these considerations in mind, I find that on a balance of
probabilities, I am satisfied that if an order of forfeiture is
not made as
asked by Mrs Wijker, Mr Wijker will in relation to Mrs Wijker be unduly
benefited. He will share in the
18
company and its assets whilst he made hardly any
contribution towards its management and administration and so did not help it to
earn its profits. As I have already said, he has during the subsistence of the
marriage enjoyed the financial advantages from the
income which Mrs Wijker
earned from the company, but apparently he is not satisfied with that. He wants
to hold half of the shares
of the company in his own name."
Before dealing with the merits of the appeal, it is necessary to consider
the approach that should be adopted on appeal in this matter.
Counsel for the
respondent contended that the decision that the appellant would be unduly
benefited had been reached in the exercise
of a judicial discretion. The power
of this Court to interfere with this decision, according to this argument, is
limited and it
can only do so if the discretion of the court
a quo
is
shown to have been unjudicial in one or more of the respects mentioned
in
19
Ex Parte Neethlinq and Others
1951(4) SA
331 (A) at 335 D-E. I cannot agree with this contention.
It is
obvious from the wording of the section that the first step is to determine
whether or not the party against whom the order
is sought will in fact be
benefited. That will be purely a factual issue. Once that has been established
the trial court must determine,
having regard to the factors mentioned in the
section, whether or not that party will in relation to the other be unduly
benefited
if a forfeiture order is not made. Although the second determination
is a value judgment, it is made by the trial court after having
considered the
facts falling within the compass of the three factors mentioned in the section.
In dealing with the manner in which
an appeal in an unfair labour practice
dispute should be approached, E M Grosskopf JA made the following remarks in
Media Workers Association of South Africa and Others v Press Corporation of
South
20
Africa Ltd ('Perskor')
1992(4) SA 791 (A) at 800
C-G:
"However, as I stated above, the word discretion is used here in a wide
sense. Henning 'Diskresie-uitoefening' in
1968 THRHR 155
at 158 quotes the
following observation concerning discretionary powers:
''(A) truly discretionary power is characterised by the fact that a
number of courses are available to the repository of the power'
(Rubinstein
Jurisdiction and Illegality
(1956) at 16).'
The essence of a discretion in this narrower sense is that, if the
repository of the power follows any one of the available courses,
he would be
acting within his powers, and his exercise of power could not be set aside
merely because a Court would have preferred
him to have followed a different
course among those available to him. I do not think the power to determine that
certain facts constitute
an unfair labour practice is discretionary in that
sense. Such a determination is a judgment made by a Court in the light of all
relevant considerations. It does not involve a choice between
permissible
21
alternatives. In respect of such a judgment a
Court of appeal may, in principle, well come to a different conclusion from that
reached
by the Court
a quo
on the merits of the matter."
These remarks are in my view of equal application in this matter. To
determine whether a party would be unduly benefited a trial court
would
certainly not be exercising a discretion in the narrower sense. Here too no
choice between permissible alternatives are involved.
In considering the appeal
this Court is therefore not limited by the principles set out in Ex
Parte
Neethlinq
(
supra
) and it may differ from the court
a quo
on
the merits. It is only after the court has concluded that a party would be
unduly benefited that it is empowered to order a forfeiture
of benefits, and in
making this decision it exercises a discretion in the narrower sense. It is
difficult to visualize circumstances
where a court would then decide not
to
22
grant a forfeiture order. This discretionary
power may be more apparent than real but it is not an issue in this appeal and
no more
need to be said about it.
I now turn to consider the merits
of the appeal. Mr van der Merwe, who appeared on behalf of the appellant,
advanced three arguments
in support of his contention that the appeal should be
upheld. He firstly submitted that because no finding of substantial misconduct
on the part of the appellant had been made, forfeiture could not have been
decreed. His second contention related to the extracts
from the judgment quoted
above and to the blameworthy conduct of the appellant referred to by the learned
trial judge. Mr van der
Merwe submitted that the court
a quo
misdirected
itself in blaming the appellant for the break-down of the marriage and in taking
into account that it was unfair that
the appellant should share in a company
which the respondent made successful. Mr van der
23
Merwe's third argument was that it was not
possible on the evidence to find that the respondent had in fact contributed
more to the
common estate than the appellant, or, if so, to what extent. The
evidence with regard to the value of the parties' respective contributions
is
certainly not satisfactory and the third argument is not without merit. In view
of the conclusion to which I have come with regard
to the second argument it is
not necessary to deal any further with this contention. It will be assumed in
favour of the respondent
that the respondent had in fact contributed more to the
common estate than the appellant. It is strictly speaking also not necessary
to
deal with the first argument but in view of conflicting decisions on that issue
I propose to do so.
In support of his first argument Mr van der Merwe relied on
Matyila v
Matyila
1987(3) SA 230 (W) where it was held that if a party failed to
prove
24
substantial misconduct, forfeiture could not be
decreed. Van Zyl J, with whom 0'Donovan AJ concurred, held that all three
factors
to which a court must have regard should be alleged and proved and said
the following at 234 G:
"On a proper interpretation of this section, it would appear that all
three factors should in fact be both alleged and proved. There
is no indication
that the court may have reference to only the one or the other. Had the section
read differently insofar as there
was a reference to 'any other factor which may
be relevant' or had the word 'or' or some similar word indicating alternative
possibilities
been used, then Mr Wepener's argument may hold water."
This judgment was apparently not brought to the attention of Kriegler J
when he decided the matter of
Klerck v Klerck
1991(1) SA 265 (W). In that
case counsel on behalf of the plaintiff argued that not only was substantial
misconduct a precondition
to the
25
granting of a forfeiture order, but that all
three factors mentioned in the section were preconditions. In rejecting this
argument,
Kriegler J dealt fully with the wording and context of the section and
said the following at 269 D-G:
"Bowendien, en laastens, meen ek dat die interpretasie waarvoor mnr
Kruger betoog, geweld doen aan die woorde van die subartikel soos
hulle daar
staan. Dit is wel so dat die drietal faktore gekoppel word deur die koppelwoord
'en'. 'n Mens kan jou egter nie blindstaar
op daardie koppelwoord nie. Wat die
Wetgewer duidelik met sy woordkeuse aandui, is dat die Hof die drie genoemde
faktore in ag moet
neem. Ek weet van geen taalkundige manier om drie faktore te
noem wat saam in een verband genoem word, anders as om hulle met ' n
'en' te
koppel nie. Die Wetgewer wou juis nie die koppelwoord 'of gebruik nie omdat hy
aan die Hof die opdrag wou gee om breed en
wyd te kyk na die drie kategoriee
faktore.
Non constat
egter, dat as een van hulle ontbreek, die diskresie
te niet gaan. As dit die bedoeling van die Wetgewer was, dan kon daardie
bedoeling
baie
26
maklik deur ander woordkeuse so uitgespel gewees
het.
Myns insiens is die duidelike betekenis van die woorde wat die Wetgewer
gebruik het dat ek myself moet afvra of daar
in casu
onbehoorlik
bevoordeling van die eiseres sal wees indien daar nie 'n verbeuringsbevel gemaak
word nie. Ten einde daardie vraag te
beantwoord, moet ek kyk na die duur van die
huwelik, die verbrokkelings-omstandighede en, indien teenwoordig, wesenlike
wangedrag
aan die kant van of eiseres, of verweerder, of albei."
I am in full agreement with these passages and in my judgment Leveson J
in
Binda v Binda
1993(2) SA 123 (W) correctly held that the decision in
Matyila v Matyila
(
supra
) was clearly wrong. The context and the
subject matter makes it abundantly clear that the legislature could never have
intended that
the factors mentioned in the section should be considered
cumulatively. As was pointed out by Leveson J in
Binda v Binda
(
supra
) at 126 A-B the following statement by Innes CJ in
Barlin
v
27
Licensing Court for the Cape
1924 AD 472
at 478 is apposite also with regard to the interpretation of the section here in
issue:
"Now the words 'and' and 'or' are sometimes inaccurately used; and there
are many cases in which one of them has been held to be the
equivalent of the
other. Much depends on the context and the subject matter. I cannot think that
in this instance the Legislature
intended to make these provisions
cumulative."
Mr van der Merwe's first argument can therefore not be
upheld.
The second and main argument on behalf of the appellant
relates to the two overriding considerations which persuaded Heyns J that
the
appellant would be unduly benefited should a forfeiture order not be granted.
Although he found that the main cause for the break-down
of the marriage was the
fact that the appellant could not get his shares back, he
28
also found that it was brought about solely by
the appellant and burdened him with all the blame. Secondly, the extracts from
his
judgment referred to above, clearly indicate that the learned trial judge
was strongly influenced by what he found as a fact, namely
that should a
forfeiture order not be made, the appellant would share in the company and its
assets while having made hardly any
contribution towards its management and
administration, which he considered to be unfair. I have little doubt that
notwithstanding
the introduction into our law of the "no fault" principle to
divorce, a party's misconduct may be taken into account in considering
the
circumstances which gave rise to the break-down of the marriage. The words "the
circumstances which gave rise to the break-down"
of the marriage are words of
wide import and as Kriegler J also pointed out in
Klerck v Klerck
(
supra
) this factor has been stated in broad terms. The fact that
substantial
29
misconduct has been included as a third factor
does not in my opinion exclude a consideration of misconduct as a circumstance
which
gave rise to the breakdown of the marriage. Substantial misconduct may
include conduct which has nothing to do with the break-down
of a marriage and
may for that and other reasons have been included as a separate factor. Too much
importance should, however, not
be attached to misconduct which is not of a
serious nature. In regard to a court's assessment of a party's misconduct as a
relevant
factor under subsection 2 and 3 of
section 7
of the
Divorce Act 70 of
1979
, Botha JA made the following remarks in
Beaumont v Beaumont
1987(1)
SA 967 at 994 D-E:
"... in my opinion the Court is entitled, in terms of the wide words of
para (d) of ss (5) that I have quoted, to take a party's misconduct
into account
even when only a redistribution order is being considered under ss (3), and
where no maintenance order under ss (2)
is made. But I
30
should add at once that 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 at 994 I-J and 995 A he said the following:
"In many, probably most, cases, both parties will be to blame, in the
sense of having contributed to the break-down of the marriage
(see per Lord
Denning in
Wachtel's
case
supra
at 835g). In such cases, where
there is no conspicuous disparity between the conduct 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."
These remarks apply with equal validity when a court, in considering the
circumstance which gave rise to the break-down of the marriage,
also assesses a
party's misconduct as a relevant factor.
Heyns J, however, in taking the appellant's conduct into account as one
of the factors which
31
contributed to the break-down of the marriage,
misdirected himself. The finding that the appellant transferred the shares out
of considerations
which he did not explain, is factually incorrect. It is common
cause that the appellant transferred the shares at the auditor's suggestion
to
enable the respondent to obtain certain income tax benefits. The learned trial
judge then went on to say that the appellant had
by his own decision transferred
the shares and was bound thereby. This is not quite correct and does not put the
facts in a true
and correct perspective. It was clearly not the intention that
the respondent should keep the shares on a permanent basis. There
was an
undertaking that the appellant could have an option to buy the shares back. Even
if the respondent was initially prepared
to grant an option, she later refused
to do so. The conclusion that the appellant was insincere in regarding the
respondent's refusal
as a breach of trust was clearly
32
founded on a wrong premise. It seems to me that
in putting all the blame on the appellant, the trial court has also been guilty
of
a one-sided approach. No criticism has been levelled at the respondent who,
in November 1990, wrote to the appellant and gave him
three weeks to think about
his demands and to make a choice between her and the shares. This letter reveals
an uncompromising attitude
and is something like an ultimatum. The respondent
was not really justified in refusing to return the shares and her reasons for
doing so were not convincing. She was not prepared to give the shares back even
if it resulted in a divorce. On the other hand, the
appellant was not prepared
to abandon his claim to the shares and sued for divorce in order to get them.
The conduct of the appellant
and that of the respondent with regard to the
shares issue was equally unrelenting, and in considering the circumstances which
led
to the break-down of the
33
marriage it was wrong to put all the blame on the
appellant.
The only remaining factor which persuaded the court
a
quo
to grant the forfeiture order is that it was considered unfair that the
appellant should share in the company and its assets while
he had made hardly
any contribution towards its management, administration and profit-making. The
finding that the appellant would
be unduly benefited if a forfeiture order was
not made, was therefore based on a principle of fairness. It seems to me that
the learned
trial judge, in adopting this approach, lost sight of what a
marriage in community of property really entails. H R Hahlo in
The South
African Law of Husband and Wife
, 5th edition, at pages 157 and 158 describes
community of property as follows:
"Community of property is a universal economic
34
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."
The fact that the appellant is entitled to share in the successful
business established by the respondent is a consequence of their
marriage in
community of property. In making a value judgment this equitable principle
applied by the court
a quo
is not justified. Not only is it contrary to
the basic concept of community of property, but there is no provision in the
section
for the application of such a principle. Even if it is assumed that the
appellant made no contribution to the success of the business
and that the
benefit which he will receive will be a substantial one, it does not necessarily
follow that he will be unduly benefited.
Cf
Enqelbrecht v Enqelbrecht
1989(1) SA 597 (C) at 601 F-G. The benefit that will be received cannot be
viewed in
35
isolation but in order to determine whether a
party will be unduly benefited, the court must have regard to the factors
mentioned
in the section. In my judgment the approach adopted by the court
a
quo
in concluding that the appellant would be unduly benefited should a
forfeiture order not be granted was clearly wrong.
It is plain on
the evidence that a forfeiture order should not have been granted. The marriage
lasted for a very long time, approximately
35 years. The appellant was the only
breadwinner of the family over a period of almost 20 years and he rendered more
than adequate
support to the children and to the respondent. It was only after
the respondent's business was successfully established that she
also started to
contribute to the expenses of the joint household. Initially the appellant
assisted the respondent in the estate
agency business. When it became successful
he did not rest on his laurels but
36
continued with his own employment and he also
started a business. If this business was not a very successful one it does not
appear
to have been due to a lack of interest or application on the part of the
appellant and it is in any event not really relevant. The
marriage was
reasonably happy until 1983 and it can be accepted that the parties became
estranged mainly as a result of the fact
that the respondent became successful
in business. It seems that the appellant found it difficult to cope with this
situation and
this was probably one of the circumstances which gave rise to the
break-down of the marriage. The appellant's conduct can certainly
not be ignored
but it must be assessed with all the other circumstances. One must also bear in
mind that the final break-down came
as a result of the shares issue and on this
issue the respondent's conduct was certainly not beyond reproach. Having regard
to all
the circumstances and to the fact that no
37
substantial misconduct has been proved against
the appellant it can not, in my judgment, be concluded that the appellant will
be unduly
benefited should an order of forfeiture, as claimed by the respondent,
not be made. The appeal must therefore succeed.
The petition to the
Chief Justice for leave to appeal has been included in the record on appeal. The
record was unnecessarily burdened
with 53 pages from page 991 to 1044 and the
costs with regard to these pages should be paid by the appellant's attorneys,
Shapiro
and Partners Incorporated,
de bonis propriis
. We were informed by
Mr van der Merwe that there was no objection to such an order being
made.
The appeal is allowed with costs, such costs to include the
costs consequent on the employment of two counsel. The order of the court
a
quo
, save for the order of divorce, is set aside and the following order is
substituted therefor: The main claim is granted
38
with costs and the counterclaim is dismissed with
costs. The appellant's attorneys, Shapiro and Partners Incorporated, are ordered
to pay the costs incurred in respect of pages 991 to 1044 of the record
de
bonis propriis
.
A P VAN COLLER
ACTING JUDGE OF APPEAL
JOUBERT, JA )
) CONCUR EKSTEEN, JA )