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[2011] ZAWCHC 28
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L.M v G.J.M (A112/10) [2011] ZAWCHC 28 (25 February 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE NO: A112/10
In the matter between:
L M
…........................................................................................................
Appellant
And
G
J M
…..................................................................................................
Respondent
JUDGMENT: 25 FEBRUARY 2011
E STEYN J
1] This is an appeal regarding a
post-divorce maintenance order.
2] In September 2006 the
plaintiff, appellant in this appeal, instituted an action against the
defendant, the respondent in this
matter, for a decree of divorce,
payment of maintenance for herself, as well as payment of her
reasonable medical expenses and
costs of suit. The respondent claimed
that the appellant's claims, save for a decree of divorce, should be
dismissed with costs.
He later abandoned his claim for costs
3] On 21 July
2009 a decree of divorce was ordered and appellant's claims were
dismissed. The court a
quo
mistakenly
ordered appellant to pay respondent's costs. The appellant's
application for leave to appeal was refused. The Supreme
Court of
Appeal granted appellant leave to appeal to a Full Bench of this
Honourable Court.
LEGAL PRINCIPLES RELATING TO
SPOUSAL MAINTENANCE
4] The
reciprocal duty of support, that arises between spouses, comes to an
end on the termination of the marriage, whether by death
or by
divorce. The Divorce Act, 70 of 1979 ('the Act'), makes provision for
court orders relating to maintenance. S 7 (2) of the
Act provides
that in the absence of an order made in terms of an agreement between
the parties, the court
may
,
having regard to certain specified factors, make an order which
the
court finds lust,
in
respect of the payment of maintenance by the one party to the other,
for any period until the death or remarriage of the party
in whose
favour the order is given. (Own emphasis here, as elsewhere.)
5] There is
no statutory
right
to
maintenance by reason of the marriage and no act proclaims that
maintenance in any amount for any period
wili
be ordered by
reason solely of the marriage and the inability of one party to
maintain the standard of living to which he or she
has become
accustomed.
6] I refer to
Schafer.
Family Law Service
.
First Binder, under
C26.
p
21:
"The language of
s 7(2}
of
the
Divorce Act 70 of 1979
is clearly discretionary and the ex-spouse
seeking an award has no right as such. The discretionary power of the
court to make
an award includes the power to make no award at all."
See also
Botha
v Botha
,
2009 (3) SA 89
, par 29 and 33 on p 95 D-l
7 ]
Schafer.
supra, under
C 27 on p 23 comments as follows regarding the circumstances the
court will consider:
"The
means , earning capacities, financial needs and obligations and age
of the parties, and an order in terms of
Section 7(3)
of the
Divorce
Act for
the transfer of assets from one party to the other, all
relate to the criteria of need for support and ability to pay, while
the
conduct of the parties and any other factor which the court feels
should be taken into account, introduce a moral judgment. That
the
court may consider 'any other factor* which in its opinion should be
taken into account, highlights the fact that although
the court may
have regard to the various factors,
its
discretion is absolute
.
8] The
learned author refers to
Grasso
v Grasso.
1987(1)
SA 48 C, where Berman J said the following at p 52 of his judgment:
"In
setting forth, in
s 7(2)
of the
Divorce Act of 1979
. the various
factors to which the court is to have regard when considering the
payment of maintenance upon divorce, no particular
stress was laid on
any one or more of these factors, and they are not listed in any
particular order of importance or of greater
or lesser relevance. The
proper approach, it seems to me, is to consider each case on its own
merits in the light of the facts
and circumstances peculiar to it and
with regard to those factors set out ir. this particular section of
the
Divorce Act
- which list of factors is clearly not exhaustive of
what the court is to have regard to in deciding what maintenance,
if
any
,
is to be paid upon divorce by one spouse to the other, for the court
is free to have regard to any other factor which, in its
opinion,
ought to be taken into account in coming to a fair and just
decision."
8] Section
7(2) of the Act can and should be used by the courts to ensure
fairness between the parties. For example, in
Rousalis
v Rousalis
1980
(3) SA 447
(C) p 450, followed by
Kroon
v Kroon
1986(4)
SA 616 (E) 623. the court stated that a wife of long standing who by
working had helped her husband to build up his separate
estate, would
be entitled to far more maintenance in terms of s 7(2) than one who
had for a few years merely shared his bed and
kept his house.
9] In
Swart
v Swart
1980(4)
SA 364 (O). Flemming J made the observation that as far as marriage
is concerned an overall picture must be formed, the
court must try to
identify that conduct which has really caused the breakdown and
thereafter considerations of justice must prevail
in the
determination of maintenance.
BACKGROUND FACTS
10] In July 1994 the parties
were married to each other, out of community of property, excluding
the accrual system. No children
were born of the marriage. Both
parties have children from previous marriages. Appellant alleged that
their marriage broke down
as a result of the fact that the respondent
verbally and emotionally abused her, criticized her and was
controlling towards her.
From 2002 she was no longer prepared to
consort with respondent as man and wife, and finally left the former
common home in September
2006, despite the pleas of respondent. The
respondent alleged that the appellant married him for his money,
never showed him any
iove and affection and criticized him.
11] At the date of hearing of
the matter the appellant was 63 years old while the respondent was 77
years old
12] Appellant's testimony that
the respondent was very abusive, broke her down emotionally and was
very "racialist", referring
in this regard to his criticism
of her ministry career, was not very persuasive. I am not convinced
that these factors played any
meaningful role in the breakdown of the
marriage. Instances of criticism by the respondent of appellant
included allegations that
he did not allow her to do shopping for the
house; she was never given any funds and had no access to his money,
credit cards or
cheques. She alleged that respondent had promised
that he would help ner in her career in the ministry as a pastor. Her
ability
to continue with her career after the marriage was. according
to her, non-negotiable. It appears from her testimony that the
respondent
in fact assisted her and supported her generously and
extensively in her career.
13] As
regards respondent's allegation that appellant did not show him any
love and affection, appellant's response was unsatisfactory.
Inter
alia
she
claimed that for twelve years she looked after the house and cooked.
Later she claimed that respondent was not satisfied with
the way she
did the washing and ironing and he attended to this chore himself on
his own behalf. She prepared food for herself
only as she did not
like the food he preferred. It became apparent that appellant's role
as a homemaker was limited, especially
when evidence was presented
about her frequent travels, locally and abroad. These travels, as
part of her occupation, sometimes
extended for months on end, when
respondent had to fend for himself, unless he accompanied her.
14] Appellants formal
educational qualifications are limited. She left school when she was
in standard 8, married for the first
time in 1966 and since
approximately 1970, when her first child was born, she has not beer,
in formal employment. However, in due
course appellant zealously
embraced the career of a missionary and pastor. Appellant was
involved in missionary work since after
her divorce from her first
husband, which was in about 1984. In 1988 she briefly remarried
someone with the same career. No evidence
was presented that she
received any post divorce maintenance from either of her first twc
husbands and the impression was created
that she supported herself
and her children after her first and second divorces.
15] After her
first divorce appellant sold the former home and invested her share
of the proceeds of R100 000 in a fixed deposit.
She worked at a
mission station in the lowveld accompanied by her three children and
used some of the funds in this account from
time to time,
but
she atwavs tried to put it back
because
she wanted to leave the children something. This creates the
impression that she must have received income to replace the
funds
withdrawn. The father of the children did not contribute to their
support. According to her, from about 1990. she and the
children
lived in the Cape, where she continued with her mission work. She met
respondent in 1994, while working in Gordons Bay.
16] Shortly
after their marriage appellant and respondent went to London, Europe
and Israel, where she had "ministry engagements
1
'
for three months. Respondent financed the trip, which was regarded as
tneir honeymoon. According to Appellant they had their first
big
argument in London and. since then, she had reservations about the
marriage.
17] Appellant could not explain
satisfactorily why. after the allegedly unacceptable London argument
and her complaints of the respondent's
subsequent behaviour, she and
the respondent continued living together and went overseas together
on many occasions. Although the
respondent sometimes accompanied her.
he was prepared to allow the appellant to spend long periods overseas
or locally, on her
own, to do her missionary work. Her colleagues
were frequently accommodated in respondent's home without being
obliged to contribute
to household expenses and respondent assisted
appellant in the marketing and/or selling of her books and tapes. He
provided her
with a motor vehicle to assist in her ministry
activities. From the evidence presented it was noted that appellant's
version of
the respondent as an abusive person, who criticized her
career, was either an exaggeration or untrue.
18] Extensive evidence was
presented with regard to overseas trips and tours, undertaken by
appeliam, occasioned by her missionary
work, such as months long
trips to various far flung places including the Ukraine, for three
years running, India, Israel, America.
Canada. South Korea, Europe,
Africa, etc. From her evidence and the list provided by her relating
to overseas trips, it appears
that she undertook more than 20
overseas trips over the period from 1994 to 2006/2007. At times
respondent financed appellant's
trips and on other occasions she was
financed by the host organisation. Although infrequently, respondent
also financed friends
or colleagues of appellant to accompany her.
19] There were discrepancies in
appellant's evidence relating to her trips and the funding thereof
and the contents of a document
listing the trips, which she presented
to court. For example, in respect of her trip to Israel in 2006, she
testified that respondents
son gave her a cheque which she utilised
to buy flight tickets. According to the document relating to her
trips, this trip was
funded by her 'Wordschool' group and it was in
fact respondent who made a gift of R 10 000, 00 to her.
20] When the appellant was asked
to describe the state of her health, she testified about various
ailments, such as swollen fingers
and a painful back. She volunteered
that the intimate side of the relationship with defendant had been
abusive and painful and
led to her having to undergo a hysterectomy
in 1998. However, it appeared from a letter by her gynaecologist that
she had been
anxious to undergo this operation, since she did not
want to experience vaginal bleeding during her overseas trips. She
said she
tried to continue with her marriage until 2002 when she
"couldn't any more", due to pain. This evidence, relating
to
the cause of her gynaecological problems, was shown to be
suspicious and one of several instances where plaintiff was less than
truthful. It was shown that appellant's gynaecological problems were
most probably caused by hormonal dysfunction. The letter of
the
gynaecologist tendered in evidence, is irreconcilable with her
version, placing blame on the respondent for her problems in
this
regard.
21] Appellant's testimony about
injuries sustained by her in a motorcycle accident, was also open to
doubt. She testified that she
had been told by a medical practitioner
that she required an operation as she was haemorrhaging inside and a
bone was cracked.
She accordingly had a hip operation in 2004 and
allegedly she was still in pain in 2009. Once again, when the medical
reports/letters
were examined, her eviaence was clearly exaggerated
and not entirely truthful. No medical expert testified.
22] According
to Appellant she still needs a lot of medical care. This aspect was
not explained in detail or supported by acceptable
expert evidence.
Appellant's appearance in the court a
quo
did
not give the impression to the court that she had any notable
physical problems and her continued active and extensive involvement
in her missionary work and local and overseas travelling is hard to
reconcile with any meaningful physical infirmity.
23] Appellant
ministers the bibie to wordschool people that invite her to different
churches. She testified that she does not receive
any fixed income
from this type of work but she receives donations and her fuel
exDenses are sometimes covered She was vague on
the aspect of the
donations that she received from church related activities per month.
During cross-examination she admitted to
receiving various amounts of
cash for the services she rendered in the ministry. With some of
these funds she said she purchased
certain expensive assets, such as
a laptop and overhead projector, assets not previously divulged.
Considering the rather large
sums of money allegedly received by
visiting missionaries, such as a Brazilian friend, accompanied by
appellant, who received between
R 60,000, and R 100,000, after a
local trip, the question remains why she could not benefit
financially to the same extent.
24] As regards assets, appellant
stated that she had virtually no funds left in her accounts,
including the savings account where
the funds were deposited from the
home that she soid in Sea Point. She allegedly had to withdraw funds
from this account to pay
her legal costs over a period of three
years. She has no liabilities. Details of how the funds in her
accounts became depleted
in large amounts, over a period of some
three months, just prior to the divorce, were scant,
25] With
regard to her expenses, appellant's testimony was not always
consistent, especially when the contents of her Rule 43 affidavit
were analysed. It was noticeable that her estimated fuel expenses
were high, presumably due,
inter
alia,
to
the extensive travelling required in her career. It was shown that
she travelled close to 30 000 to 4C 00C km in a year, after
she left
respondent.
26] The
extent of the appellant's involvement in her missionary work became
more evident as her testimony under cross-examination
proceeded. She
admitted that she had been involved in television programs for a
period of two years. However, she stated, unconvincingly,
that she no
longer wanted to do this work, despite the fact that expensive
equipment had been purchased
to
facilitate
producing shows, tapes and DVD's. The equipment and the value thereof
had not been divulged in her initial testimony.
Appellants
speculation that her work in the ministry and the TV work may be
affected as a result of the divorce, was shown to be
unfounded. Her
commitment to her career continued after she left the respondent. In
2007 she undertook a month long trip to Portugal
with a team.
Extensive local trips were undertaken.
27] During cross-examination it
was established for the first time that appellant was "trained
to be a missionary" and
in fact was a qualified pastor. She
qualified in 1987 at the Rhema Church in Cape Town. ( She
contradicted her earlier evidence
that she only came to the Cape in
1990.) It was not explained why this important information relating
to her qualifications was
not divulged during her evidence in chief
and why it was not relayed to the expert. Mr Swart, who testified on
her behalf.
28] The respondent's financial
situation was referred to by apDeltant in vague terms and unsupported
by her evidence. Respondent
and a company, of which he is the sole
shareholder, is the owner of a shopping centre in the Paarl,
('Laborie') and a house in
Gordon's 3ay, the former common home.
According to respondent Laborie is presently facing a financial
diiemma as only four of eighteen
premises on the property are rented,
with no indication of any imminent improvement, due to the financial
downturn in property
rentals and due to new competing developments in
the area. It is not disputed that Laborie is respondent's only source
of income.
29] The evidence of respondent
that Laborie is running at a financial loss and that it has no
commerciai value, was not controverted
by appellant. It has been on
the market for some time, but no offers have been received to
purchase the property. Appellant admitted
that she had limited
knowledge about respondents business matters. She was aware that in
2006. when all the shops in the shopping
complex were rented out,
respondent had been offered R14 million for Laborie. She believes the
house in Gordons Bay is worth approximately
R7 million, but admitted
that the property market had dropped. No expert evidence relating to
current market values was presented.
30] Appellant
accepted that respondents income at the date of hearing was only from
the rental of the four shops in the shopping
complex She could not
dispute the high operating expenses payable by respondent or that he
was suffenng a financial loss. In fact
she contended that his
business was "going down the drain". She added the advice
that he should "sell it and live
with what he has stil! before
he is going to lose it air and volunteered that his situation would
get worse if he did not sell
as soon as possible. She accepted that
nobody wanted to buy either property and that the bond on the home
was nearly as high as
its current municipal valuation. She suggested
that respondent should give her the house after paying off the bond
and that his
wealthy sons could assist him.
31]
The
appellant was questioned at length about he: relationship with a
certain Mr Victor Bello. ('Bello'), also a missionary. Belle
came to
stay with the parties in
2005
and
stayed
a
lot
longer than respondent anticipated. He joined appellant during her
trip to Israel in 2006. after she contacted him. When she
returned to
South Africa from Israel she instructed the institution of divorce
proceedings and left the home Shortly thereafter
Belle arrived bacK
in South Africa and stayed with appellant at
her
new
home for an extended penod of time According to her there were
several other people staying there as well. When Bello returned
to
Portugal
the next year, she accompanied him to do outreach in Portugal and on
her return
to
South
Africa, Bello accompanied the Appellant again. From the evidence
presented by the parties relating to this relationship, the
perception of impropriety is
irresistible.
Appellant's protestations
in
this
regard were unconvincing
32]
Of
significance
is
the
reason why appellant, on
her
version.
finally left respondent. Appellant stated during cross-examination
that she decided to leave respondent while she was doing
missionary
work in Israel in
2006
for
a
period
of
three
months. She testified that she had been trying for twelve years to
Dersuade respondent to include her in his
will
or
in
a
trust,
but he was not prepared to sign the necessary documentation Appellant
testified that she oecided to divorce respondent as
a "drastic
measure", as she put it. "to look after myself for the rest
of my life, because he is not going to include
me.
r
33] Mr Andrew Swart, the
"counselling psychologist" called as expert by appellant to
testify about her employability,
or lack thereof, failed dismally in
his task. His investigation into relevant facts and circumstances was
superficial. He conducted
a once-off 90 minute consultation. No
collateral information was obtained. Some of the facts related by him
are not consistent
with the evidence of appellant, who seems to have
kept him in the dark about aspects that couid reflect negatively on
her case.
For example, he testified that appellant had. for the
previous 13 years, been doing mainly housework and looking after the
house,
being a wife to respondent. This was patently untrue.
34] When asked about the
difference in respondents career and that of Reverend McCauley of
Rhema Church, he mentioned that the Rhema
Church was a wealthy church
and they were making a living out of the church, hence its ministers
were well provided for. However.
Swart was not informed that
appellant had qualified as a pastor at the Rhema cnurch. He admitted
that such information was highly
relevant and that it was a surprise
to him that he was not advised accordingly. He was also ill advised
as to the extent of her
work and was unaware of the television shows
and the production of DVD's and recording equipment.
35] Swart stated that appellant
"maintained her lifestyle by doing mission work" after her
first husband left, when her
oldest child was 8. He did not seem to
consider that appellant had maintained herself and raised her three
children over many years
as a single parent from the funds received
in the course of her work. He had failed to enquire about the extent
of funds received/donated
to or earned by appellant. His conclusion,
that appellant was not suitable for formal employment, in
circumstances wnere he was
apparently unaware that she was
self-employed as a missionary, was irrelevant
ARGUMENT ON BEHALF OF APPELLANT
36] Counsel
for appellant argued that the court a
quo
did
not exercise its discretion judicially, that it did not evaluate the
facts correctly and that it applied the law incorrectly
As regards
the facts, it was the contention of the counsel for the aDpellant
that the court a
quo
had
not given sufficient significance to the lack of means of the
appellant and that her qualifications as a pastor and her work
o
r
career was
no* a money making venture It was argued that her need for
maintenance had been established and thattne respondents ability
tc
maintair appellant had been shown. It was also argued that respondent
was devious in presenting his evidence to court It was
suggested that
it was suspicious that respondent experienced a bleak financial
situation just at the time when the divorce was
heard.
37]
It
is clear that it was in fact the appellant who was not entirely
honest with the court There are numerous aspects where she
exaggerated
or underolayec evidence, depending on the advantage to
her case Appellant has not divested herself of the
onus
of
proving on a balance of probability that she does not have sufficient
means to maintain herself. Neither has she shown, on a
balance of
probability, that respondent is financially able to make the payments
she claims. This court is aware of tne global
economic recession over
the last few years, which has resulted in financial hardship to many
local property owners leading to litigation
including evictions and
sales in execution. Appellant has not shown that respondent's
submissions relating to the financial problems
experienced by him are
untrue or even of a suspicious nature It is alleged by appellant anc
her representatives, that respondent
must turn his assets into cash.
However, it is not apDarent that he wil. oe able to do so in the
foreseeaoie future, or at all
The argument by appellant's counsel
that appellant has not been gainfully employed for the Dast forty
years, was not supported
by
her
evidence.
INTERFERENCE ON APPEAL
38]
It
was argued by counsel for the apDeliant tnat this court can interfere
witn the judicial exercise of tne court
a
quo's
discretion.
However, where a lower court has given a decision on a matter within
its discretion, the court of appeal will only interfere
if it comes
to the conclusion that the court
a
quo
has
not exercised a judicial discretion, or has exercised it improperly,
in the sense that it has exercised its discretion capriciously
or
upon a wrong principle or has been misdirected on the facts or has
not brought its unbiased judgment to bear on the question.
39] I quote from Herbstein and
van Winsen, The Civil Practice of the High Courts of South Africa.
Fifth edition p 1245:
"However,
more recently the courts have distinguished between discretion in a
strict sense and discretion in a wider sense.
In
Media
Workers Association of South Africa v Press Corporation of South
Africa Ltd (Perskor*),
EM
Grosskopf JA stated that the former is characterised by the fact that
a number of courses are available to the repository of
the power and
that the essence of a discretion in this narrower sense is that if
the repository of the power follows any of the
available courses, he
would be acting within his powers and his exercise of power could not
be set aside merely because another
court would have preferred him to
have followed a different course amongst those available to him.*
40] In
Western
Cape Housino Development Board v Parker
.
2005 (1) SA 462
(C) Fourie J commented, while referring,
inter
alia,
to
the
Media
Workers
judgment
and to
Ex
Parte Neetlino and Others
.
1951 (4) SA 331
(A) at 335 E, that it is a well settled principle
that the power to interfere on appeai in matters of discretion is
strictly circumscribed.
41] In
Beaumont
v Beaumont
1987
(1) 967 at p 1002 B-E, Botha JA commented as follows in a matter
where a divorce order regarding maintenance was taken on appeal:
"The
discretion to be exercised was vested in the trial Judge. When once
it is found, as I have done, that he had not misdirected
himself, and
that he had not exercised his discretion improperly, the room for
this Court to interfere with the result arrived
at by him, is very
limited indeed. That is always the case when the exercise of
discretion is involved
l!
The learned
Judge quoted from a juogmem by Ormrod LJ in
Prestor
v Preston
1982
Fam 17
(CA) at 29:
"We are here concerned with
a judicial discretion, and it is of the essence that on the same
evidence two different minds might
reach widely different decisions
without either being appealable. It is only where the decision
exceeds the generous ambit within
which reasonable disagreement is
possible, and is. in fact, plainly wrong, that an appellate body is
entitled to interfere.'
THE JUDGMENT
OF THE COURT
A
QUO
42] In a well
formulated judgment Yekiso J conducted an exhaustive analysis of the
appropriate factual issues in this matter, as
prescribed
by the
provisions of s 7(2) of the Act. Relevant recognised legal principles
relating to the award of maintenance to a spouse on
dissolution of
mamage were considered and authonties were referred to. It was
correctly pointed out that maintenance orders post-divorce
are
matters in the discretion of the court. Contrary to the argument of
plaintiff's counsel, no significant aspect relevant to
a finding in
this matter was not considered by the court a
quo
and
in my opinion no factual errors or misdirections were made, save that
the court
a
quo
maae
a costs order against plaintiff in error.
43]
The
court a
quo
found
that, after balancing all the relevant factors, it was just ano fair
to the parties, in the judicial exercise of the courts
discretion,
that the court make no maintenance award I am not persuaded that
this court can interfere with the judicial exercise
of the court a
gi/o's discretion in view of the legal principles and factual
findings that I have set out above in this regard.
FINDING
44]
The
appellant has not discharged the
onus
of
persuading this court that the trial court erred and that but for
its mistake, it would have come tc a different conclusion.
After
consideration of ali the facts on record, I am unpersuaded that this
court is entitled to interfere with the order of the
court
a
quo,
either
on a factual or a legal basis, save for the order relating to the
costs incurred in the divorce action .
45]
Accordingly, I would refuse the appeal. Respondent has waived a
costs order in the appeal as a gesture of goodwill and I would
make
no order as to costs of the appea;. I would accordingly confirm the
order of the court a
quo
in
the divorce matter, save that the order of the court
a
quo,
that
appellant be held liable for the costs of respondent in the divorce
action, is set aside.
E
STEYN, J
Judge
of the High Court
I
agree
and it is so ordered.
DESAI,
J
Judge
of the High Court
I
agree
P
GOLIATH, J
Judge
of the High Court