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[2012] ZAWCHC 51
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Gunter v Executor in the Estate of the Late Chrisitian France Gunter (20342/2008) [2012] ZAWCHC 51; 2013 (4) SA 387 (WCC) (6 June 2012)
[Reportable]
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
CASE NUMBER: 20342/2008
In the matter between:
YVONNE LYNETTE GUNTER
….............................................................................
Plaintiff
and
THE EXECUTOR IN THE ESTATE OF THE
LATE
CHRISTIAN FRANCE GUNTER
…
.....................................................................................
Defendant
JUDGMENT DELIVERED ON 6 JUNE 2012
GANGEN, AJ:
Introduction
[1] This matter is brought before Court as a stated
case. The issue is whether Plaintiff's claim for redistribution in
terms of
Section 7(3) of the Divorce Act 71 of 1979 ("the Act")
was extinguished by the death of her husband ("the deceased")
which took place prior to the final determination of the pending
divorce action and whether Plaintiff has a claim for redistribution
in terms of Section 7(3) against the executor of the estate of the
deceased. Ms de Wet appeared for the Plaintiff and Mr de Villiers
appeared for the Defendant.
The
Facts
[2] For purposes of adjudicating the stated case the
following facts were agreed. On 19 July 1969 in Cape Town, Plaintiff
and the
deceased were married out of community of property (with
community of property and accrual being excluded). In December 2008
Plaintiff
instituted divorce proceedings against the deceased.
Plaintiff claimed, inter alia, a decree of divorce, redistribution in
terms
of Section 7(3) of the Act and personal maintenance in terms of
Section 7(2). Plaintiff's claims were defended by the deceased.
The
deceased instituted a counterclaim for redistribution and for
personal maintenance. The pleadings in the divorce action closed
on
15 June 2009. The deceased died on 1 August 2010.
The law and the issues
[3] Plaintiff by way of a formal amendment to the
pleadings in the divorce action is proceeding with a claim for a
redistribution
order in terms of Section 7(3) of the Act, against the
Executor of the deceased's estate. Plaintiff has however instituted a
separate
claim against the estate in terms of the Maintenance of
Surviving Spouses Act 27 of 1990,
[4] Plaintiff submits that the death
of the deceased took place after
litis
contestatio
was
reached and therefore her claim was not extinguished by the death of
her late husband. Plaintiff's case is that, upon death,
the
deceased's estate vests in the executor of the estate and that Rule
15 of the Uniform Rules of Court provides that no proceedings
shall
terminate solely by reason of the death, marriage or change of status
of any party thereto, unless the cause of such proceedings
is thereby
extinguished.
[5] Plaintiff submits further that as
the marriage was automatically dissolved by the death of the
deceased, the court seized with
the divorce action need not grant a
decree of divorce but still has to determine Plaintiff's claim in
terms of Section 7(3) of
the Act. Plaintiff argues that as the
pleadings have closed,
litis
contestatio
has
been reached. She submits that as the issue is crystallised and
joined, the effect of the provisions of Rule 29 is that at the
close
of pleadings the Plaintiff's rights freeze at that moment Plaintiff
relies on the dictum in
Jankowiak
& Another v Parity Insurance Co Ltd
1963(2)
SA (W) at 288 as support for her contention that as
litis
contestatio
had
been reached during the deceased's lifetime, her claim for a Section
7(3) distribution may be persisted with after the death
of the
deceased.
[6] The executor of the deceased's estate disputes
Plaintiff's right to proceed with her action for redistribution.
Plaintiff relies
on the wording of the Act and the inter-relatedness
of the subsections of Section 7 dealing with relief which is granted
ancillary
to a divorce order. It is submitted by the executor that
the Plaintiff's claim had been extinguished as at date of death of
the
deceased. Alternatively, the Plaintiff's claim for redistribution
had become unenforceable as a result of the death of the deceased.
[7] It is trite that a marriage dissolves on the death
of one of the parties. Therefore, Plaintiffs claim for divorce was
extinguished
by the death of her husband. That being so, the issue is
whether the Plaintiff can proceed with a claim for relief which is
ancillary
to the order of divorce where a claim for divorce is no
longer competent.
[8] The definition of "divorce action" in the
Act is of relevance. The Act states as follows-
"'divorce action' means an
action by which a decree of divorce or
other
relief in connection therewith
is
applied for,_and includes-
(a) an application pendente lite for an interdict or for
the interim custody of, or access to, a minor child of the marriage
concerned
or for the payment of maintenance; or
(b) an application for a contribution towards the costs
of such action or to institute such action, or make such application,
in
forma pauperis, or for the substituted service of process in, or
the edictal citation of a party to, such action or such application;"
[my emphasis]
[9] This definition makes it clear that the claim for
the decree of divorce is not independent of the ancillary claims for
maintenance,
redistribution or forfeiture but part of the divorce
action. It reinforces the position that would indicate that the
relief in
terms of Section 7 is relief which is ancillary to the
claim for divorce and is not available where an order of divorce is
not
claimed.
[10] This is further borne out by the
wording of the subsections of Section 7 of the Act. Both subsections
7(1) and 7(3) commence
with the words
"A
court granting a decree of divorce
..."
indicating that the relief provided for in Section 7 pertains only to
orders granted in conjunction with a decree of divorce.
[11] This position was confirmed in
the case of
Schutte
vs Schutte
1996(1)
SA 872 and Sempapalele vs
Sempapalele
2001(2) SA 306 (O).
These cases dealt with a Section 7(2) claim for maintenance and a
Section 7(7) claim for a share in the pension
interest respectively.
[12] When the matter was heard,
counsel was given an opportunity to address the Court further in
writing on the impact of the
Schutte
and
Sempapalele
cases on their
submissions. Written submissions from both counsel were received. Ms
de Wet submitted that the decision in the
Schutte
case follows the
common law position with regard to the duty'Of support that lapses on
death and that the same did not apply to
a claim for redistribution
in terms of Section 7(3). She argued further that it did not decide
the situation where litis contestatio
was reached before the death of
the Defendant. It was further submitted that those cases were not
applicable because the divorce
order was already granted when the
Court dealt with those matters. Ms de Wet also submitted that it was
the contribution of the
party to the marriage that entitled that
party to assets of the other and that contribution was not dependant
on whether the Defendant
was alive. Mr de Villiers submitted that the
Schutte
case
confirms the view that the wording of Section 7 must be interpreted
strictly and referred to the dictum of van Heerden A R
at 882 B-D
where he states -
"Vir huidige doeleindes is die belangrike feit
egter dat die bevoegdhede waarvoor Art 7 voorsiening maak, toegese
aan 'n Hof
"wat 'n egskeidingsbevel verleen".
Mr de Villiers submitted further that
the
Sempapalele
decision lends
credence to his argument where Musi J remarked on the various
subsections of Section
7,
[13] It is so that the decision in
Schutte
followed
the common law position regarding maintenance, that the divorce order
was already granted and that it did not deal pertinently
with the
position regarding litis contestatio having been reached before the
Defendant's death. However, the relevance of the decision
lies in the
interpretation of the wording of the relevant sections of the Act. In
the
Schutte
case
(supra) the Court, after considering the interpretation of the words
"a court granting a decree of divorce" held
that a
maintenance order cannot in terms of Section 7 of the Act be granted
after the dissolution of the marriage. Van Heerden
AR said "at
882 that-
"Dit volg dus dat 'n onderhoudsbevel nie ingevolge
art 7 van die 1979 wet na ontbinding van 'n huwelik verleen kan word
nie".
The relevance of the decision thus
lies not only in the interpretation of the wording of the Act but
also to the concluding reference
to the dissolution of the marriage.
Whether the cause of the dissolution of the marriage is death or a
prior divorce order makes
no difference to the outcome, namely that
an order cannot in terms of Section 7 of the Act t>e granted
after
the dissolution of the marriage
.
[14] This position is supported by
the decision in the
Sempapalele
case dealing with a
pension interest. The pension interest was not regarded as an asset
of the spouse who was a member of the pension
fund until the
introduction of Section 7. Section 7 thus provided a mechanism for
parties engaged in divorce proceedings to have
access to the pension
interest of either of them for the purpose of achieving an equitable
distribution of their assets. In the
Sempapalele
case (supra), Musi
J referring to the
Schutte
case (supra) stated
-
"Similarly, a spouse seeking a
share in the pension interest of the other spouse must apply for and
obtain an appropriate Court
order during the divorce proceeding. This
much is clear from the provisions of ss(7)(a) which states: 7n
determination of the
patrimonial benefits to which the parties to any divorce action may
be entitled..,'
The
phrase 'any divorce action' must mean any pending divorce action.
This conclusion is supported by the other provisions of the
section
in terms of which the various orders provided for must be applied for
and granted by the court hearing the divorce case
(Compare ss (2),
(3), (4), (5), (6), (8) (a) and (9)-)"
[15] It is also dear from a reading of the subsections
of Section 7 that they are inter-related and cannot be treated in
isolation
of one another. Section 7(2) states that-
"... 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 the parties, the duration of the marriage,
the standard of living of the parties
prior to the divorce, their
conduct as far as it may be
relevant
to
the breakdown
of the marriage,
an
order in terms of section (3)
and
any other factor which in the opinion of the Court should be taken
into account, make an order which the Court finds just
in respect of
the payment of maintenance by one party to the other ..." (my
emphasis)
Section 7(3) provides that-
"
A
court granting a decree of divorce
in
respect of a marriage out of community of property—
(g)entered into before the
commencement of the
Matrimonial Property Act, 1984
, in terms of an
antenuptial contract by which community of property, community of
profit and loss and accrual sharing in any
form are excluded; may,
subject to the provisions of
subsections
(4). (5) and (6)
.
on application by one of the parties to that marriage, in the
absence of any agreement between them regarding the division of
their assets, order that such assets, or such part of the assets, Of
the other party as the court may deem just be transferred
to the
first-mentioned party." (my emphasis).
Section 7(5)
reads:
"(5) In the determination of
the assets or part of the assets to be transferred
as
contemplated in subsection (3)
.
the court shall, 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
(A)
,
also take into
account -
(a) the existing means and obligations of the parties,
including any obligation that a husband to a marriage as
contemplated in
subsection (3)(b) of this section may have in terms
of section 22(7) of the Black Administration Act, 1927 (Act No. 38
of 1927);
(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) an
y
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," (my emphasis)
[16] In Ex Parte
Meyer
N 0: In RE Meyer v Meyer
1962(2)SA
668 the executor of the deceased Plaintiff in a divorce action
applied to have himself substituted as the Plaintiff
to obtain an
order of forfeiture of the benefits of the marriage on behalf of the
estate. Henochsberg J stated at p689 that-
"It is quite clear from the summons and
declaration that the main relief sought was a decree of divorce and
that all other
relief sought was ancillary to a decree of divorce."
And further at page 691
"If the main claim were to fail - and in the
pending action it must, because of the death of the plaintiff - then
the ancillary
relief must also fail."
[17] It is accordingly evident that only a Court
granting a divorce order may grant the ancillary relief.
[18] That being so, the question that arises is whether
it is possible for a party to proceed with a claim in terms of
Section
7(3) for redistribution in divorce proceedings where the
marriage is dissolved by the death of one party after litis
contestatio
has been reached.
[19] Rule 15(1) states that-
"no proceedings shall terminate
solely by reason of the death, marriage or other change of status of
any party
unless
the cause of
s
uch
proceedings is thereby extinguished
"(mv
emphasis). The issue raised is whether the cause of the proceedings
is extinguished in the present case. In order for
parties to apply
for a divorce and ancillary relief in terms of the
Divorce Act,
there
must be a
marriage.
In this case, the marriage was dissolved by reason of the
death of the defendant and therefore
the cause of the proceedings is
extinguished.
[20]
Section 7(3)
does not have its
origin in the common law. The redistribution order was designed to
remedy
"the
inequity which could flow from the failure of the law to recognise a
right of a spouse upon divorce to claim an adjustment
of a disparity
between the respective assets of the spouses which is incommensurate
with their respective contributions during
the subsistence of the
marriage to the maintenance or increase in the estate of the one or
the other "(Shafer
on
Family Law at p20).
[21] The point of departure is the
nature of the right that is being enforced. A divorce is a personal
action and comes automatically
to an end if one of the spouses dies
before a divorce order is granted.
(Shafer
on Family Law at p 65
).
Similarly, the claim for redistribution is a personal right between
the parties which only a Court granting an order of divorce
has a
discretion to entertain having regard to other ancillary relief to
be granted in terms of the subsections of
section 7
of the
Divorce
Act.
[22
] In a decision of the High Court
of Zimbabwe in
Malyam
Matsinde v Patricia Nyamukapa case no 4352/05,
the
Court referred to
Ex
parte Masimirembwa NO
1995
(1)ZLR 144 H at 148 where it was stated-
"It would appear that the transmissibility of
rights or actions depends on whether they are rights or actions in
rem or in
personam. Real rights are transmissible, even where the
holder dies before litis contestatio, whereas personal rights die
with
the holder. The situation appears different where the holder of
personal rights dies after litis contestio"
[23]
Makarau J in the
Malyam
Matsinde case
(supra)
went on to state -
"...the distribution of the joint estate of
spouses is a personal claim that is peculiar to husband and wife or
former husband
and wife. It is not a cause of action founded on a
principle of common law. It is an action created by Parliament to
achieve
justice as between husband and wife in an area where the
strict application of the principles of property law may work an
injustice
on those spouses who contribute towards the acquisition of
assets registered in the other spouse's name. It is not a right that
can be enforced against a creditor for instance or shield the
property from attachment in execution. It is not a preferent claim
at liquidation. It remains a personal right that one spouse can
enforce against the other."
Makarau J went on further to state that -
"While actions for general damages for personal
injury may survive the plaintiff if the plaintiff dies after litis
contestatio,
it is my understanding of the law that not all personal
claims can survive the plaintiff even after litis contestation had
been
reached. Claims mainly in the realm of family law appear to me
to die with the plaintiff."
[24] In the
Malyam
Matsinde case
(supra),
the Court then proceeded to deal with claims for redistribution. In
doing so, the Court again referred to the
Masimirembwa
case
(supra) at
149 where Chatikobo J stated-
"a spouse who claims for an order of
redistribution is not claiming what belongs to her, but in essence,
is asking the Court
to make a property adjustment order to strike a
balance between her assets and those of the other spouse."
[25] The claim sought to be pursued
by the Plaintiff is a personal claim which arises not from delict or
injury, but from the
provisions of the
Divorce Act of 1979
. The
authorities cited by Plaintiff relate to the death of a plaintiff
and not a defendant and the nature of the claims which
are
transmissible in the cases referred to by Plaintiff are under the
actio injuriarum.
They relate to
claims for damages for personal injury. Those authorities are thus
not relevant to the issue at hand. The provisions
of
Section 7
of
the
Divorce Act provide
for ancillary relief, inter alia, in the
form of orders for the division of assets and maintenance. Divorce
proceedings are personal
to the parties and it must be that relief
which is ancillary to those proceedings are also of such personal
nature.
[26] It is according my judgment that it is not
competent for a party to a divorce action to pursue a claim for
ancillary relief
where the marriage is already dissolved. This is so
irrespective of whether litis contestatio has taken place.
[27] It is accordingly ordered that-
(a) Plaintiff's claim for redistribution in terms of
Section 7(3)
of the
Divorce Act 71 of 1979
was extinguished by the
death of her husband ("the deceased") which took place
prior to the final determination of
the pending divorce action and
(b) Plaintiff does not have a claim for redistribution
in terms of
Section 7(3)
of the
Divorce Act 71 of 1979
against the
executor of the estate of the deceased
(c) Plaintiff pays the costs of this application.
GANGEN, AJ
For
the Plaintiff(s)
:
Adv. A de WET
Instructed
by
:
Messrs
Kantor-Fialkov
(Ref: JH/sp/G535)
J
HOLZBERG
Tel.
021 674 3080
For
the Defendant(s) :
Adv. A S de VILLIERS
Instructed
by
:
Messrs Van der
Spuy
(Ref: M
Posthumus-Meyjes/cc/LUT10872)
Tel. 021 419 3622
Date(s)
of hearing
: Wednesday,
14
MARCH 2012.
Judgment
delivered :
Wednesday, 6 JUNE
2012.