THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 382/04
Reportable
In the matter between
CLIVE THOMAS BUTTNER Appellant
and
CHERYL ANN BUTTNER Respondent
Coram: Scott, Lewis, Van Heerden JJ A, Nkabinde et Cachalia
AJA
Heard: 23 August 2005
Delivered: 23 September 2005
Summary: Divorce – redistribution of assets in terms of s 7(3) of
Divorce Act 70 of 1979 – powe rs of court on appeal to
interfere with exercise of discretion by trial court – s 7(2) of
Divorce Act - award of token maintenance made by trial
court in terms thereof – correctness of such order.
JUDGMENT
VAN HEERDEN JA:
2
Introduction
[1] This appeal concerns, in the main , the issue of redistribution of
assets between the parties upon th eir divorce and the correctness or
otherwise of an order for the paymen t of so-called ‘t oken’ maintenance
made by the trial court in favour of the wife.
[2] The parties were married to ea ch other on 2 July 1977. The
proprietary regime of their marri age was governed by an antenuptial
contract in the then standard form, excluding community of property,
community of profit and loss and thus , by implication, accrual sharing in
any form, between them.
[3] In April 2003, the appellant husb and instituted divorce proceedings
against the respondent wife in the Cape High Court. He claimed, inter alia,
a redistribution order in terms of s 7(3) of the Divorce Act 70 of 1979 (‘the
Act’) in respect of the respondent’s member’s interest in a property-owning
close corporation known as Wanderer Ni ght 20 CC. In her counterclaim,
the respondent claimed that she was enti tled to half of the net proceeds of
the sale of the parties’ former matrim onial home in Brisbane (Australia).
She alleged that she and the appellant had been the co-owners in equal
undivided shares of this property which wa s registered in their joint names.
In the alternative, and in the event of the court finding that she was not
3
entitled to such proceeds, the respondent sought a s 7(3) redistribution
order on the basis that the appellant tran sfer to her half of the value of the
assets amassed by him during the exis tence of the marriage. She also
claimed maintenance for herself until he r death or remarriage. In response
to this counterclaim, the appellant am ended his particulars of claim to the
effect that, in the event of the re spondent’s claim for half of the net
proceeds of the Brisbane house succeeding, she should be ordered, in terms
of s 7(3) of the Act, to transfer to hi m one half of the value of the assets in
her estate.
[4] Prior to the commencement of the trial, the parties agreed that
custody of their 18 year old daughter (Kate) should be awarded to the
appellant, with the responde nt having reasonable access to her. At that
time the appellant was financially sup porting both Kate and the parties’ 21
year old daughter (Amy) and no mainte nance order in respect of either
daughter was sought by either party. In granting the divorce order, the
court a quo (Thring J) dismissed the appella nt’s proprietary claims. In
respect of the claim in reconvention, the appellant was ordered to pay to the
respondent the amount of R360 000.00 in respect of her main claim and to
contribute to her maintenance at the token rate of R10. 00 per month until
her death or remarriage. In addition, Thring J ordered the appellant to pay
4
the costs of the action. This appeal - against the proprietary, maintenance
and cost orders made by the court a quo – is with the leave of that court.
The factual background
[5] When the parties were married in 1977, the appellant was employed
by Murray & Stewart in Umtata (Transke i) as a trainee quantity surveyor,
alternately working for six months of the year and then studying for six
months, his study fees being paid by his employer. Th e respondent (who
has no tertiary education qualifications) was working for Barclays Bank in
East London as a teller, but managed to get a transfer to Umtata. In 1978
or 1979, the appellant joined the Durb an City Council, also as a trainee
quantity surveyor, and the parties mo ved to Durban. Once again, the
respondent succeeded in getting a tran sfer to a branch of the bank in
Durban.
[6] After the appellant had qualified as a quantity surveyor, he worked
for a Durban-based company for about four years, but was transferred to
Port Elizabeth. The respondent was again transferred by the bank to Port
Elizabeth and the parties moved there together. During the period 1981 to
1984, the appellant worked for two other building companies in Port
Elizabeth. The parties built a house in Port Elizabeth, financed by means
5
of their joint savings and a mortga ge bond, with the appellant himself
managing and supervising the building work.
[7] Amy was born in 1983 and, by joint decision, the respondent
stopped working in order to care for the child. In about 1984, the appellant
obtained employment with a building concern in Knysna and the family
moved there. In late 1985, together with two partners (Messrs Thompson
and Tanner), the appellant started a new business in Knysna building
timber houses. The parties sold their hous e in Port Elizabeth and a plot in
Knysna (which they had earlier acqui red using joint funds) to generate
finance for the business (Thompson & Buttner Construction CC, trading as
T & B Log Homes) and to suppor t themselves while the business
established itself. From the latter ha lf of the eighties, T & B Log Homes
(‘T & B’) became very successful and grew rapidly, expanding into the
export market.
[8] Kate was born in 1987 a nd, shortly after her birth, the respondent
obtained part-time employment at th e Perm Bank, her earnings being
absorbed by the family’s living expe nses. The respondent subsequently
qualified as an estate agent and work ed as such on a part time basis in
Knysna for a few years. The commi ssions which she earned were also
used for the family’s living expenses, as well as an overseas holiday for the
6
parties in 1996. She managed the hous ehold and devoted herself to the
care and upbringing of their daughter s, structuring her working hours
around their needs and activities. The parties owned a house in a ‘good
area’ of Knysna which they sold in 1994, thereafter living in rented
accommodation. The proceeds of th eir house were apparently transferred
to New Zealand in a variety of ways.
[9] The family emigrated to New Zealand in January 1998. In
preparation for this move, the appellant sold his member’s interest in T &
B to one of his ‘partners’ (Mr John Tanner) for a price of R1, 2 million in
December 1997. The price was ‘paid’ to the appellant in various forms,
including the entire member’s intere st in each of two property-owning
close corporations, Wanderer Night Twenty CC and Wanderer Night
Twenty-One CC. The member’s interest in the former (‘WN 20 CC’) was
transferred to the respondent, while th e member’s interest in the latter
(‘WN 21 CC’) was transferred to th e appellant. Th e respondent was
somewhat reluctant to leave Knysna , but she agreed to support the
appellant in his desire to emigrate and the decision to do so was ultimately
a joint one.
[10] Both parties testified that, as a fa mily, they arrived in New Zealand
‘cold’. However, within less than two months, the appellant secured
7
employment in the building industry. The parties purchased a house in
New Zealand from their savings, plus the proceeds of a mortgage bond.
Neither party was sure whether the house was registered in their joint
names, but it is clear that they both re garded it as a joint asset. For the
whole of 1999, the appella nt was employed by a de veloper to oversee the
building of a hotel using a log wall system supplied by T & B and imported
by the developer. As the hotel was be ing built in an area some two hours’
drive from the parties’ home, this jo b entailed extensive travel for the
appellant and he was only able to spend the weeke nds at home with his
family. In the meantime, th e respondent commenced study by
correspondence for an international tr avel agent’s diploma, at the same
time gaining practical experience by work ing part time for a travel agency
in New Zealand. The co mmissions she earned were ‘off-set against’ air
travel undertaken by members of the fa mily. She remained very involved
in the lives of the two girls, seei ng to all their needs and running the
household without any domestic help. Both parties agreed that their time in
New Zealand was stressful, largely due to work pressures on the appellant
and the resulting deterioration in his health, as well as the strain of trying to
settle in a new country.
[11] In January 2000, the family moved to Australia, where the appellant
had secured employment as the general manager of an engineering business
8
in Brisbane. Both girls were enrolle d in private schools. The respondent
completed her travel agent’s diploma a nd, after about a year of trying to
find employment in this field, starte d working on a casual basis for a small
travel agency. Here too, all her earni ngs were used to pay for the family’s
travel expenses (including trips back to South Africa), and she continued to
care for the family and run the household without any assistance.
[12] During the course of 2001, the partie s purchased a plot in Brisbane
and built a house on it. The property wa s registered in their joint names
and the cost of acquiring the land a nd building the house was funded partly
by means of a mortgage bond and partly by the proceeds of the house
which they had sold in New Zealand. In early 2002, the appellant’s
member’s interest in WN 21 CC was sold and the proceeds used to reduce
the bond over the Brisbane property.
[13] Both parties testified that, from the start of their married life, they
‘pooled everything’ and considered their income and assets to be joint. The
respondent was effectively in charge of their bank accounts and she used
the money in these accounts to pay th eir household bills. According to the
appellant, ‘…we viewed all property whether in her name or in my
name…everything was basically a pooled resource, we didn’t see our assets
as being individual despite where [t hey] came from.’ The respondent
9
testified to much the same effect: ‘…we really cons idered our assets to be
joint assets…we did everything pretty much as a partnership and as a
team.’
[14] Beginning in late 2000, Kate e xhibited serious problems. She
started to abuse marijuana and stay ed away from school; her academic
results declined dramatically and she lost interest in all her extra-mural
activities. She dropped out of two different school s and was diagnosed as
suffering from depression. She eventually provoked the respondent to such
an extent that the latter struck her for the first time in her life, whereupon
she left home for a while. These pr oblems obviously placed a considerable
strain on the parties’ relationship and, according to the respondent, made
her realise that their marriage was ‘i n trouble’. In July 2002, whilst on a
five week visit to South Africa – the appellant remaining in Australia with
the girls – the respondent committed a dultery with a Mr Shaw, an old
friend of the parties. After her re turn to Australia, she continued to
communicate by electronic mail (in intim ate terms) with Mr Shaw, even
after the appellant had surprised he r doing so and she had admitted her
adultery. Although the parties attended marriage counselling, both together
and then separately, this did not su cceed in saving their marriage. The
appellant was subsequently retren ched from his position as general
manager.
10
[15] In late 2002, the parties decided to move back to Knysna, largely
for Kate’s sake so that she could be settled in a familiar environment and
placed in a suitable school. The house in Brisbane was thus sold in
November 2002 for about A$590 000. Apart from redemption of the
mortgage bond, various other amounts we re paid from the proceeds of the
sale: estate agent’s commission; the fa mily’s relocation expenses to South
Africa; and the balance outstandi ng on a Toyota Prado motor vehicle
(some A$39 600) which had been purchased in 2000 through the
appellant’s employer, but registered in his name. The net proceeds of
A$ 225 000 were paid into the partie s’ joint bank account (on which each
of them could operate independently of the other) on 16 January 2003. On
the same day, at the instigation of the respondent, the parties opened a new
joint account (at the same bank) which required the consent of both parties
to any withdrawal, the agreement be ing that the net proceeds of the
Brisbane house would, when cleared, be transferred into that account.
However, five days later, on 21 Ja nuary, the appellant transferred the
amount of A$215 000 from the ‘old’ joint account into an account at
another bank, over which he had sole operating power. He did this
surreptitiously, without the responde nt’s knowledge or consent, leaving
only A$10 000 from the sale of th e house in the joint account, which
amount the respondent then withdrew and appropriated for her own use.
11
[16] Of the A$215 000 which the appe llant transferred to his own
account, he transferred approximately A$32 800 (some R170 000) to South
Africa and spent about A$24 300 on ai r tickets to South Africa, Amy’s
university fees in Australia , and the family’s living expenses prior to their
departure for South Africa. This le ft a balance in hi s Australian bank
account of A$157 900. He and Kate left Australia on 28 January 2003,
while the respondent (who was scheduled to depart a few days later) stayed
on for about two weeks to undergo certain medical tests. During this time,
she brought ex parte proceedings in the Austra lian Family Court for an
order prohibiting the appellant from deal ing further with what remained, in
his account, of the net proceeds of the Brisbane house sale. In about March
2003, some time after her arrival in Knysna, she informed the appellant that
she had ‘taken action in the family c ourt in Australia to freeze all those
funds’. The appellant’s immediate re action to this information was to
transfer the remaining funds (in the amount of A$157 900) to another
Australian account in the name of a bus iness associate, Mr Gareth Tanner,
who holds a member’s interest in T & B. The documentary evidence
placed before the court a quo indicates that he had not at that stage been
given ‘formal’ notice of the Australian court order, although the respondent
had told him that she had taken step s to freeze the funds . The appellant
testified that Mr Tanner was ho lding the funds (equivalent to
12
approximately R720 000) ‘in trust’ fo r him and that, from early 2003, he
had borrowed money from T & B against the security of such funds. At the
time of the trial, his total borrowings from T & B amounted to just over
R425 000. He had used the bulk of the borrowed monies (some R289 000)
on living expenses for himself and Kate and Kate’s school fees, while the
balance had been absorbed by expenses incurred by him in trying to set up
a new business (about R19 000), legal costs (approximately R70 000) and
the purchase of a motor cycle (R47 000).
[17] In April 2003, on the day that th e divorce summons was served on
her, the respondent moved out of th e rented house where she had been
living with the appellant (although not as husband and wife) and Kate.
Thereafter, Kate continued to live w ith the appellant, while the respondent
obtained rented accommodation of her own. In Se ptember 2003, the
respondent sold her member’s inte rest in WN 20 CC, receiving net
proceeds of about R284 000. She sp ent approximately R123 000 of this
money on the purchase of a motor vehi cle and on living expenses, and lent
R25 000 to the appellant to enable him to purchase a motor vehicle for
Amy’s use (while she was studying in Cape Town in 2004). The balance
of R136 000 was invested in the respondent’s name.
13
[18] Although the respondent’s countercl aim was for one-half of the
total net proceeds of the Brisbane house sale, including the sum used to pay
off the balance outstanding on the ap pellant’s Prado moto r vehicle, her
counsel indicated during the course of the trial that she would be content
with one-half of the amount of A$157 900 (some R720 000) remaining in
the Tanner account in Australia (ie R360 000). This was the amount that
Thring J ultimately ordered the appellant to pay to her.
The judgment of the court a quo
[19] The relevant portions of s 7 of the Act read as follows:
‘(3) A court granting a decree of divorce in respect of a ma rriage out of community of
property -
(a) entered into before the commencement of the Matrimonial Property Act, 1984 [on 1
November 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; or
(b) . . .
may, subject to the provisions of subsections (4), (5) and (6), on application by one of
the parties to that marriage, in the absen ce of any agreement between them regarding
the division of their assets, orde r that such assets, or such pa rt of the assets, of the other
party as the court may deem just be transferred to the first-mentioned party.
(4) An order under subsection (3), shall not be granted unless the court is satisfied that it
is equitable and just by reas on 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
14
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 subsection (3) the court sh all, apart from any direct or indirect
contribution made by the party concerned to the maintenance or increase of the estate of
the other party as contemplated in subsection (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.’
[20] In Beaumont v Beaumont, 1 this court (per Botha JA) held that, as
the grant or refusal of a redistribution order in terms of s 7(3) involves the
exercise of a ‘very wide’ judicial discretion, the room for an appeal court to
interfere is limited. It can, however, do so if th e trial court has failed,
through misdirection in regard to the la w or to a material finding of fact or
otherwise, to exercise its discretion properly.
2 In the recent judgment of
this court in Bezuidenhout v Bezuidenhout ,3 however, reference was made
1 1987 (1) SA 967 (A).
2 Beaumont at 988H-989E and 1002A-E. See further Ex parte Neethling & others 1951 (4) SA 331 (A) at
335E-F.
3 2005 (2) SA 187 (SCA).
15
to the distinction drawn in Knox D’Arcy Ltd & others v Jamieson & others4
and earlier cases between ‘a discretion in the broad sense’, which means no
more than a mandate to have rega rd to a number of disparate and
incommensurable features in arriving at a conclusion, and ‘a discretion in
the narrow sense’, the essence of wh ich involves a choice between two or
more different, but equally permissible, alternatives. 5 I t i s w h e n a c o u r t
exercises a discretion in the narrow sens e that an appeal court’s powers of
interference are said to be limited. When a court exercises a discretion in
the broad sense, an appeal court may substitute its own discretion for that
of the trial court if it differs from such court on the me rits and may make
the order which it deems just. It was argued in Bezuidenhout that the
appropriate categorisation of the disc retion conferred on a trial court by
s 7(3) of the Act was that of a discretion in the broad or wide sense. While
Brand JA found this argument ‘attractive in its logical progression’, he left
the question open and assumed, without deciding, that a misdirection by the
trial court is a prerequisite for the app eal court to interfere with its decision
under s 7(3).6 As I am satisfied that the trial court did misdirect itself in the
4 1996 (4) SA 348 (A) at 361G-I.
5 See also Media Workers Association of South Africa & others v Press Corporation of South Africa Ltd
1992 (4) SA 791 (A) at 796H-I and 800C-G; and cf Wijker v Wijker 1993 (4) SA 720 (A) at 727C-728C.
6 See too in this regard the judgment of Blignault J in Kirkland v Kirkland [2005] 3 All SA 353 (C) paras
46-51.
16
exercise of its discretion, it is also not necessary for me to decide this
question one way or the other.
[21] In considering the appellant’s cl aim for a redistribution order in
respect of the proceeds of the sale of the respondent’s member’s interest in
WN 20 CC, Thring J stated the following:
‘…the question which, in my view, must be aske d is whether, in terms of section 7(3) of
the Act, adequate grounds have been shown to exist to justify the Court in disturbing the
current position and granting an order to th e effect that the proceeds of the Wanderer
Night transaction, or any part thereof, mu st be transferred by the defendant to the
plaintiff.'
He went on to say that –
‘…the only possible grounds for an order su ch as that sought, c ontingently, by the
plaintiff [appellant] are, first, that the defendant [responde nt] did not contribute directly
to the acquisition by her of this asset and, secondly, her adultery with Shaw.’
[22] As was held by Botha JA in the Beaumont case, 7 the first
‘jurisdictional precondition’ to the ex ercise of the court’s discretion in
terms of s 7(3) is a contribution made by the spouse claiming a
redistribution order to the estate of the other spouse of the kind described in
7 1987 (1) SA 967 (A) at 988H-J.
17
s 7(4). By considering th e appellant’s claim from the opposite perspective
(the absence of a direct contribution by the respondent to her acquisition of
the member’s interest in WN 20 CC), Thring J in my view clearly
misdirected himself; indeed, this wa s conceded by counsel for both parties
in argument before this Court.
[23] Thring J committed the same misd irection when considering the
respondent’s claim for half of the net proceeds of the Brisbane house sale:
‘The plaintiff had no right, in my opinion, to act as he did w ith this money: only half of
the net proceeds of the sale belonged to him; the balance was his wife’s…it is only by
means of a redistribution order under section 7(3) of the Act, I think, that he can justify
his retention of the portion of these funds which legally belongs to the defendant.
The potential grounds for such an order are lim ited, in my view, to the same as those
which potentially apply to the Wanderer Ni ght transaction: the smallness of the
defendant’s direct or material contribution, and her adultery.’ (Emphasis added.)
Exercise of discre tion by this court
[24] In view of the material misdirections by the trial court, this court is
at large to substitute its own exercise of the discretion afforded by s 7(3)
for that of the trial court. In this re gard, I am mindful of the fact that, in
18
Kritzinger v Kritzinger, 8 Milne JA (with whom Co rbett JA and Nicholas
AJA concurred) regarded as a misd irection the ‘overall or globular
approach’ adopted by the trial court to the claim and count erclaim in that
case:
‘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.’9
This view seems to me to be rather too inflexible and may have to be
reconsidered in the future in light of (i nter alia) the fact that, as pointed out
by Botha JA in the Beaumont case:10
‘It is certainly a very prominent and important feature of [subsec 7 (4 )] that ultimately,
when once the factual requirements of ss (3) and (4) are satisfied, the determination of
whether or not a redistribution order is to be made at all is entrusted by the Legislature
to the wholly unfettered discretionary judgme nt of the Court as to whether it would be
equitable and just to do so.’11
8 1989 (1) SA 67 (A) at 77I-J.
9 At 79B-D.
10 1987 (1) SA 967 (A) at 988J-989A
11 Cf the approach adopted by the tr ial court and the appeal court in Kirkland v Kirkland [2005] 3 All SA
353 (C) paras 19 and 87-90.
19
As was pointed out by June D Sinclair, commenting on this aspect of Milne
JA’s judgment in Kritzinger, ‘[t]he danger of this formalist separatist
approach is that the court will lose sight of what it is enjoined to do – to
effect justice as between the parties.’12
For the purposes of this judgment, it is, however, not necessary to take the
point any further as this is, in my view, the kind of case where, for the
reasons which I set out below, the facts relevant to the claim and
counterclaim are indeed so closely inte rrelated that a ‘globular’ approach is
the appropriate one.13
[25] As indicated above, th e evidence of both par ties clearly indicated
that, throughout their marriage lasting some 27 years, the parties always
pooled their income and regarded the assets acquired through their joint
efforts as being joint assets. While th e appellant was the family’s principal
breadwinner and made by far the greater financial contribution to the assets
acquired by the parties, there is not hing to indicate that either party
regarded the contributions made by the respondent, primarily as housewife
and mother, as being any less valuable than those made by the appellant,
nor that the respondent’s contributi ons were any less in strumental than
12 ‘Divorce and the Judicial Discretion – In Search of the Middle Ground’ (1989) 106 SALJ 249 at 256-
257.
13 See further June D Sinclair op cit 257.
20
those of appellant in the acqui sition of assets by the parties. 14 Their
evidence that they consider ed themselves to be ‘partners’ brings this into
sharp focus. It is evident that the division of labour between the parties
was a conscious choice made by both of them. In my view, in these
circumstances, fairness demands that ef fect be given, on divorce, to the
principle of equal sharing which the pa rties consciously applied throughout
their married life.15
[26] When the appellant sold his member’s interest in T & B, part of the
consideration received was the entire me mber’s interest in each of two
property-owning close corporations. In line with the parties’ approach of
equal sharing, the member’s interest of one of these close corporations
(WN 21 CC) was transferred to the appellant, while the member’s interest
in the other close corporation (W N 20 CC) was transferred to the
respondent. The appellant’s member’ interest in WN 21 CC was sold
during the existence of the marriage and the full proceeds used to reduce
the mortgage bond over the parties’ Brisbane house. In all probability, had
the respondent’s member’s interest in WN 20 CC also been disposed of
before the marriage broke down, the proceeds would have been utilised in
14 This obviously distinguishes the facts of this case from those of Bezuidenhout v Bezuidenhout 2005 (2)
SA 187 (SCA), especially at para 30 and paras 33-36.
15 See also Kirkland v Kirkland [2005] 3 All SA 353 (C) para 89.
21
the same way for the benefit of both parties. If this had been done, then the
net proceeds of the Brisbane house sale (after deduction of the amount of
approximately A$57 100 spent by th e appellant on, primarily, living
expenses for the family, travel co sts and school and university fees)
remaining in the Tanner account in Au stralia at the time of the divorce
would have been approximately R1 004 000 (R720 000 plus R284 000). If
this were to have been shared equa lly between the parties -- in accordance
with the modus operandi followed by them throughout their marriage --
each would have received a share of R502 000. Instead of this, the
respondent effectively received a share of R284 000, while the balance of
some R720 000 went to the appellant. To redress this imbalance, the
appellant would have to pay R218 000 (R502 000 minus R284 000) to the
respondent.
[27] The respondent is also the owner of a house in a retirement complex
at St Francis Bay, valued at the time of the trial at R642 000, as well as an
investment of R200 000. Both of these assets are subject to a usufruct for
life in favour of her mother, who was 76 years old at the time of the trial.
Her mother lives in the house and receiv es the interest on the investment.
Both assets were purchased from the pr oceeds of the sale of another house
in Cape St Francis, where the res pondent’s parents lived after their
retirement. The respondent had inher ited this house from her father, who
22
died in May 1997, subject to a life usu fruct in favour of her mother. The
parties had, in about 1979, paid a pproximately R1 500 as half of the
purchase price of the plot on which this house was built, at cost, by T & B
in about 1986 for the respondent’s parent s. According to the appellant, he
had from time to time made (relatively small) contributions in money and
labour to the maintenance and improvement of this house, where the parties
and their children had spent a few holidays.
[28] In both this court and the trial court, counsel for the appellant
submitted that, in the exercise of its di scretion to make or refuse to make a
distribution order in terms of s 7(3), the court should take into account the
assets inherited by the respondent fro m her father (albeit subject to a
usufruct in favour of her mother) as part of ‘the existing means …of the
parties’ under s 7(5) (a). While this is undoubtedly correct, 16 taking such
assets into account in terms of s 7(5) (a) does not alter my view of what
redistribution order would be equitable and just in the present case.
[29] Counsel for the appellant also contended that the trial court erred by
not paying due regard to what he de scribed as ‘the gross and prolonged
16 See, in this regard, Van Zummeren v Van Zummeren & another [1997] 1 All SA 91 (E) at 96e-98f (and,
on appeal to the Full Court, Van Zummeren v Van Zummeren ( Eastern Cape High Court Case No 307,
unreported judgment dated 25 November 1997); Jordaan v Jordaan 2001 (3) SA 288 (C) paras 20-23; but
cf Beira v Beira 1990 (3) SA 802 (W), especially at 805H-808E.
23
misconduct of the respondent ’ (her adultery with Mr Shaw in July 2002
and her continued, clandestine a nd deceitful communication with him
thereafter) which, he argued, led to the breakdown of the marriage.
[30] It is well established that, in the exercise of its discretion in terms of
s 7(3) of the Act, a court is entitle d to take a party’s misconduct into
account when considering a redistribution order. 17 However, in the words
of Botha JA in the Beaumont case,18 the court should adopt ‘a conservative
approach in assessing a party’s misconduct as a relevant factor’.
In our legislation, as I have pointed out, the feature of ove rriding importance is that the
Court will grant such order, in respect of both ss (2) and (3 ) [of s 7 of the Act], as it
considers to be just. In many, probably mo st, cases, both parties will be to blame, in
the sense of having contributed to the br eak-down of the marriage…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 i ndulge in an exercise to appor tion the fault of the parties,
and thus nullify the advantages of the “no-fault” system of divorce.’19
In the same case, Botha JA also held that the directive in s 25(2) (g) of the
English statute dealing with this subject,20 to the effect that the courts are to
17 See eg Beaumont v Beaumont 1987 (1) SA 967 (A) at 994B-E; Kritzinger v Kritzinger 1989 (1) SA 67
(A) at 80B-H.
18 At 994E.
19 At 994H-995A; and see also Kritzinger v Kritzinger 1989 (1) SA 67 (A) at 82I-J, where Milne JA
agreed with this approach.
20 Section 25(2) (g) of the Matrimonial Causes Act 1973, as substituted by s 3 of the Matrimonial and
Family Proceedings Act 1984.
24
consider ‘the conduct of each of the part ies, if that conduct is such that it
would in the opinion of the Court be inequitable to disregard it’, was in
accordance with the pattern of our legislation.21
[31] In the English Court of Appeal case of Kyte v Kyte ,22 Purchas LJ
stated the following in relation to s 25(2)(g) of the English statute:
‘The court is entitled, in my judgment, to look at the whole of the picture, including the
conduct [of the parties]…which may or may not have contributed to the breakdown of
the marriage or which in some other way ma kes it inequitable to ignore the conduct of
each of the parties. A clear example of su ch a case is where the parties may each not
have been blameless (almost inevitably in a normal marriage) but where the imbalance
of conduct one way or the other would make it inequitable to ignore the comparative
conduct of the parties.’
I agree with this approach. In a case such as the present, I do not think that
it is appropriate for the court to atte mpt to perform some kind of detailed
comparative analysis of the parties’ conduct in order to determine their
respective degrees of blam eworthiness. In essenc e, the misconduct of one
or both of the parties must only be a llowed to influence the outcome of the
case where to disregard it would be unjust.
21 Beaumont v Beaumont 1987 (1) SA 967 (A) at 994E-I.
22 [1987] 3 All ER 1041 (CA) at 1048h-j.
25
[32] The respondent testified that, by the time she committed adultery,
the parties’ marriage had already been in trouble for some time. On several
occasions between March and May 2002, she had told the appellant that
she did not love him any more, that he was no longer in love with her, and
that she no longer felt committed to their marriage. According to the
appellant, he could not remember th ese communications, but he could not
deny that they were made. On the ev idence as a whole, I agree with the
conclusion of the trial judge that, wh ile the respondent’s adultery might
have been ‘the straw which broke the proverbial camel’s back’, the
breakdown of the marriage was not cause d solely, or even predominantly,
by ‘any matrimonial misconduct which weighs more h eavily against either
the one or the other of the parties’. In my view, the failure of the parties’
marriage must be seen in the context of a couple struggling to cope with the
strains placed on them and their children by emigration, first to New
Zealand and then to Australia; work stresses experienced by the appellant
in these new countries and the effect of these stresses on the family; and the
parties’ reaction to the behavioural problems exhibited by Kate and their
concern about her health a nd well-being. I thus do not agree with counsel
for the appellant that the conduct of the respondent was of such a nature
that it would be inequitable to disregard it in the consideration of a possible
redistribution order or orders in terms of s 7(3).
26
The award of ‘token’ maintenance in favour of the respondent
[33] In terms of s 7(2) of the Act –
‘(2) In the absence of an order made in te rms of subsection (1) with regard to the
payment of maintenance by one party to the other [ie an order made in accordance with
a written agreement between the divorcing part ies], 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 breakdown of th e marriage, an order in terms of subsection
(3) and any other factor which in the opinion of the court shou ld 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 unt il the death or remarriage of the party in
whose favour the order is given, whichever event may first occur.’
[34] At the time of the trial, the re spondent was 48 years old and in full-
time employment as a personal assi stant at a property development
company in Knysna, earning a net monthly salary of R3 400. Although she
is qualified as an estate agent and as a travel agen t, the trial judge found,
correctly in my view, that her age, c oupled with the fact that she had not
worked regularly and in a full-time capacity for over 20 years, made it
improbable that she would be able to further her career and improve her
employment prospects to any great exte nt. It was common cause that such
income as she was earning was inadequa te to meet her living expenses.
27
The evidence established that this situation was unlikely to change,
although of course, when her mother dies, she will then have additional
assets which can be used to generate income for her support. The order
which I propose in respect of her claim in reconvention, while it will
provide her with an add itional capital sum, will ce rtainly not improve her
financial situation to the point where she will not reasonably require
maintenance. Her relatively modest earning capacity is largely the result of
the fact that, for some 27 years, she de voted her life to running the parties’
home and raising their children, with the full agreement of the appellant.
As regards her alleged ‘gross and prolonged misc onduct’ with Mr Shaw,
exactly the same principles as those set out in paragraphs [30] to [32] above
apply.23 I agree with Thring J’s conclusion that such misconduct, seen in
the context of all the other eviden ce relating to the reasons for the
breakdown of the parties’ marriage, is not ‘such as to merit depriving her of
the right to a contribution to her maintenance’ from the appellant.
[35] On the other hand, it was clear from the evidence that, at the time of
the divorce, the appellant’s financia l position was such that he was not
immediately able to contribute to th e maintenance of the respondent. He
was unemployed and appeared to be living off his capital. I do not,
23 See eg Beaumont v Beaumont 1987 (1) SA 967 (A) at 993I-995B.
28
however, agree with the contention made by the appellant’s counsel that his
unemployment was ‘notwithstanding his best endeavours’ to find work or
that his prospects with regard to obtaining suitable employment in the
future were ‘severely compromised’. According to the appellant’s own
evidence, T & B had, during the course of 2003, approached him to oversee
a building project of considerable magn itude (the reconstruction of a hotel
in Port Elizabeth that had been burnt down). Although the appellant
initially testified that he had been una ble to accept this offer of work
because of the travelling involved, wh ich would have in terfered with his
responsibilities in respect of his 18 year old daughter (Kate), it
subsequently became clear that the main reason for his unwillingness to
undertake this project was that, because of the stress of the break up of his
marriage and the ongoing divorce proceedings, his ‘mind wasn’t just
focused as it needed to be to do this job successfully’. He also conceded
that the reason why he had not been able to make any significant progress
with a new business venture which he had planned to start in Knysna on his
return from Australia, was not only th e fact that his capital funds were
‘frozen’, but also partly because the divorce proceedings were distracting
him and he had lost his energy and dr ive as a result of the emotional and
other strains upon him at that time. He confirmed that his attempts to find
a suitable position had been confined to Knysna, although he fully realised
29
that, ‘at my age, I’m probably not the best employment prospect for a small
company in Knysna…I am a fairly expensive overhead for a small
company, there aren’t many big comp anies in Knysna’. Although this
geographical choice had definitely limited his employment options, his first
priority was to Kate who did not want to live with her mother. He admitted
that, had he not been confined to K nysna, he ‘could very easily have left
and found employment somewhere’. In this regard, it should be noted that
Kate was in her Matric year in Knysna at the time of the trial, she had
largely overcome her dependency problem and she was becoming
increasingly independent. In light of the above, the submission made by
counsel for the appellant to the effect that ‘there was no evidence of any
substance that the [employment] circum stances of the appellant were likely
to change in the near future’ is, in my view, not justified.
[36] It is true that ‘one of the fundamental principles for an award of
maintenance is an ability to pay on the part of the spouse from whom
maintenance is claimed’.
24 Section 7(2) of the Act did not alter this
principle in any way. Couns el for the appellant relied on Qoza v Qoza25 in
support of his contention that ‘a spouse is not entitled to an award of token
maintenance on the basis that such s pouse will as it were be entitled to a
24 See for example, Reynecke v Reynecke 1990 (3) SA 927 (E) at 932J-933F.
25 1989 (4) SA 838 (Ck).
30
free policy against the normal risks of life with the [other spouse] as the
insurer’. In that case, however, th e spouse claiming an order of token
maintenance was self-sufficient a nd there was no evidence of any
likelihood that she might find herself unemployed in the future. Inasmuch
as the approach of the courts in previous cases 26 may have been to make an
order of token mainte nance unless circumstan ces were proved which
showed that it would probably not be needed or which rendered it unjust,
such approach is in conflict with that envisaged by s 7(2) of the Act: this
section requires the court to consider the factors listed in s 7(2) in order to
decide, first, whether a need for main tenance exists and, if so, by whom
and to whom maintenance is to be paid; secondly, the amount to be paid,
and thirdly, the period for which it is to be paid.
27 This does not, however,
mean that, in the exercise of its discretion in terms of s 7(2), a court is not
competent to make an award of token maintenance, provided of course that
the circumstances of the case render it ju st in the light of the factors set out
in s 7(2). In my view, this case falls into that category.
[37] For these reasons, I agree with Th ring J that an order for the
payment of token maintena nce to the respondent wa s appropriate in this
26 See, for example, Ford v Ford & another 1965 (1) SA 264 (D); Portinho v Porthino 1989 (4) SA 595
(D); Brink v Brink 1983 (3) SA 217 (D).
27 See Qoza v Qoza 1989 (4) SA 838 (Ck) at 840C-843F, especially at 842A-E (per Liebenberg AJ). See
too Lincesso v Lincesso 1966 (1) SA 747 (W).
31
case; the order can be rescinded, suspe nded or varied at some time in the
future by a competent court, on the app lication of either party, should this
be justified by a change in the circumstances of one or both of them.
The respondent’s applicatio n for security for costs
[38] The appeal was set down for hearing on 23 August 2005. On 4
August 2005, the respondent, purporting to act in terms of SCA Rule
11(1)(b), filed an application with the Reg istrar of this court seeking an
order, on various grounds, that the appellant furnish security for the
respondent’s costs in the appeal in the amount of R50 000 or an amount to
be determined by the court. She stated that an application (in terms of
Uniform Rule 49) in the Cape High Cour t requiring the appellant to furnish
security for her costs of appeal had been served on the appellant’s attorneys
on 4 July 2005. She was, however, subse quently advised that, in terms of
s 20(5)(b) of the Supreme Court Act 59 of 1959, the Cape High Court did
not have jurisdiction to make such an order and that she had to approach
the President of this Court for a dire ction in terms of SCA Rule 11 in
respect of the furnishing of security. In the light of this advice, the
application before the Cape High Cour t was ‘withdrawn’, with a tender of
costs to the appellant, and an appli cation was brought on an urgent basis
before this court. (It appears from the appellant’s opposing affidavit that
the Cape High Court application was no t in fact withdrawn, but simply
32
removed from the court roll for the day on which it had been set down for
hearing.)
[39] The respondent’s application was opposed by the appellant. Apart
from disputing the grounds for the a pplication relied on by the respondent,
he correctly pointed out that, at th e time the application was launched in
this court, the vast majority of the costs in the appeal had already been
incurred.
[40] Counsel for the respondent relied on the unreported judgment of
Louw J (dated 5 August 2005) in the Cape High Court in The MV
‘Navigator’ & the Owner of the MV ‘Navigator’ v Wellness International
Network Ltd (Case No 383/2004) for her conten tion that, in a case such as
the present – where the court of first instance has granted leave to appeal
against its judgment and where the appeal is pending before this court – the
court of first instance does not have ju risdiction to order the appellant to
furnish security for the costs of the a ppeal. In my view, it is not necessary
for present purposes to consider the r easoning of Louw J or the correctness
of his conclusions in the Navigator. Suffice it to say that the application
for security for costs, at this very late stage of the proceedings when the
bulk of the costs of appeal have al ready been incurred, was misconceived
and futile. The application should accordingly be dismissed with costs.
33
Costs
[41] Section 10 of the Act provides as follows:
‘In a divorce action the court shall not be bound to make an order for costs in favour of
the successful party, but the court may, having regard to the means of the parties and
their conduct in so far as it may be relevant , make such order as it considers just, and
the court may order that the costs of the proceedings be apportioned between the
parties.’
[42] In view of the order that I propose to substitute for the disputed
parts of the order made by the trial cour t, the nature of the issues raised,
and the relevant circumstances of the parties, I am of the opinion that this is
an appropriate case in which to make no order as to costs in respect of the
appeal. As regards the costs of the pr oceedings in the trial court, however,
I see no reason to interfere with the order made by Thring J. Even though
the amount awarded to the respondent on her claim in reconvention is to be
reduced, she will still have been subs tantially successful in the trial
proceedings and is entitled to the costs of such proceedings.
Order
[43] For these reasons, I make the following order:
34
(a) The respondent’s applicati on for security for costs is
dismissed with costs.
(b) The appeal is upheld and the following order is substituted
for paragraph 2 of the order of the court a quo:
‘2. On the defendant’s claim in reconvention
(1) The plaintiff is ordered to pay to the defendant the
amount of R218 000.00, with interest thereon at the
rate of 15.5 per cent per annum from the date of this
order to the date of payment.
(2) The plaintiff is ordered to contribute to the
maintenance of the defendant at the rate of R10.00
per month until her death or remarriage, whichever
event may first occur.’
B J VAN HEERDEN
JUDGE OF APPEAL
Concur: Scott JA, Lewis JA, Nkabinde AJA, Cachalia AJA